Public International Law

Chapter Six
State Responsibility under International Law
Meaning of State Responsibility
 In international law, state responsibility refers to the
liability of one state to another for the non-observance
of the obligations imposed by the international legal
systems.
 It is based on the doctrine of equality of states and
state sovereignty.
 If one state commits an internationally wrongful or
unlawful act against the other state then international
responsibility is established between the two.
Continued
 The Draft Articles on the Responsibility of States for
Internationally Wrongful Acts were adopted by the
international law commission in 2001.
 A state is held responsible for an act if it fails to honor
its obligations under a treat if it violates the territorial
sovereignty of another state, if it injures the diplomatic
representatives of another state, or if it mistreats the
nationals of another state.
The Nature of State Responsibility
 A sovereign state owes a responsibility towards its
own citizens and those of the aliens who are on its soil.
 On the breach of this responsibility, the issue can be
taken to the international forums on behalf of the
aggrieved party.
 If a state by its acts commits a breach of an
international obligation, it incurs international
responsibility.
 ICJ in the Corfu Channel Case (1949) held Albania
liable for the absence of a warning of the danger of
mines laid in her territorial waters.
Continued
 The ICJ stated “these grave omissions involve the
international responsibility of Albania to pay
compensation to UK for the damage and loss of
human life which resulted from them”.
 Rules of State Responsibility
 Primary rules (substantive rules of international law)
stem from treaty agreements.
 Secondary rules (the law of state responsibility)
specify the consequences of a breach in the primary
rules.
Continued
 Where primary rules are voluminous, reflecting the
multitude of bilateral and multilateral treaties between
states, secondary rules are parsimonious.
 With respect to the secondary rules, they are
succinctly encoded within the 59 articles of
Responsibility of State for Internationally Wrongful
Acts.
 The laws of state responsibility are the principles
governing when and how a state is held responsible for
a breach of an international obligation.
•
Continued
 The rules of state responsibility determine, in general, when
an obligation has been breached and the legal consequences
of that violation.
 In this way they are “secondary” rules that address basic
issues of responsibility and remedies available for breach of
“primary” or substantive rules of international law, such as
with respect to the use of armed force.
 The rules can be studied independently of the primary rules
of obligation.
 They establish:
1. The conditions of actions to qualify as internationally
wrongful,
Continued
2. The circumstances under which actions
of officials, private individuals and other entities may
be attributed to the state,
3. General defenses to liability, and
4. The consequences of liability.
 Until recently, the theory of the law of state
responsibility was not well developed.
 The position has now changed, with the adoption of
the Draft Articles on the Responsibility of States for
Internationally Wrongful Acts by the International
Law Commission in August 2001.
Continued
 The Draft Articles are a combination of codification
and progressive development.
 They have already been cited by the International
Court of Justice and have generally been well received.
 Although the Articles are general in coverage, they do
not necessarily apply in all cases.
 Particular treaty regimes, such as the General
Agreement on Tariffs and Trade and the European
Convention on Human Rights, have established their
own special rules of responsibility.
Elements of State Responsibility
1. There has to be an act or omission violating a rule of
international law – unlawful act or we can call it
internationally wrongful act in which a responsibility
can be attributed to its consequences.
2. This act must cause damage or loss.
3. This act must be attributable or imputable to a person
of international law. (ultra virus act)
4. There should not be terminating responsibility or
circumstances precluding responsibility.
Continued
1. An unlawful act or omission (internationally
wrongful act)
 There are opposing approaches to the nature of this act
or omission:
 The Principle of Objective Responsibility (the Risk
Theory): maintains that once an unlawful act has taken
place and has cause damage that state will be
responsible irrespective of good or bad faith.
 This approach does not ask culpability or fault.
Continued
 Substantive Responsibility (the Fault Theory): there
must be element of intention (intentional or negligent
conduct).
 It is necessary for international responsibility.
2. The issue of Injury or Damage:
 In fact, there is debate in international law about the
role of harm or damage in the law of state
responsibility.
 Some claimed that the state must have suffered some
form of actual harm or damage before responsibility
can be attributed.
Continued
 But in the draft there is no general requirement of harm
or damage.
 In some circumstances, mere breach of an obligation
will be sufficient to give rise to responsibility like
minor infringement of the inviolability of an embassy
or consular building.
 In such cases of breach, with no damage, the aim of
asserting responsibility may be to avoid repetition of
the problem rather than compensation.
Continued
 There are some basic principles regarding damage.
1. The harm must occur against a „protected right‟
instead of a „benefit‟. E.g., termination of a
foreigner‟s tax privileged tax status in another
country would not create international responsibility.
2. There must a distinction between „direct damage‟
and indirect damage‟.
 Direct damage means the an avoidable consequences
of an internationally wrongful act.
 But indirect one is the damage that occurs as a result of
a direct damage.
Continued
 E.g., 19th century UK‟s selling of the armed ship
“Alabama” to the South America (confederate north
union).
 The attribution took into consideration the causality
created by this ship but not the “rise of ship insurance
prices” and “rise in the prices of ship transportation”.
3. Material damage: since 1920‟s not only the material
one but also the “mental sufferings of relatives of the
person killed are taken into consideration”.
Continued
4. Internationally wrongful act may damage the
“international legal person” directly or through its
citizens, like inhuman treatment to the diplomatic agent
may be deemed as damage to state.
 The institution or the concept of “diplomatic protection”
developed as a result of this connection.
3. The Question of Imputability (attribution)
 Another important point is even if any organ or official of a
state acts “ultra vires” (acts beyond their legal capacity,
excess of authority, contravening instructions), acts or
omissions of that organ may be attributable to the state.
Continued
 In 1920‟s a French national was shot and killed by the
members of the Mexican Army without any official
instruction to them to do so.
 But the tribunal held Mexico responsible for these ultra
vires acts and attributable to the state of Mexico.
 Organs, officials or agents of states when they act in their
official capacity as organs of the state, their acts and
omissions shall be regarded as those of the state even when
they contravene the internal law or directives.
 Therefore one must pay attention to the employment of
agents carefully.
Continued
 Normally, a state is not responsible for the acts of mass
or of private individuals.
 Their conduct will only attributable to the state:
1. If they were acting under the authority or control of
the state.
 E.g., during the case of Nicaragua, the ICJ searched
“effective control” of the USA over the conducts of the
contra rebels in order to attribute the responsibility to
the USA.
 Please also remember the Case of Loizidou.
Continued
 Under draft articles on state responsibility, special
concepts were used – if the persons is in fact acting on
the instructions of or under the direction of or under
the control of that state in carrying out of that conduct
the state is attributable.
2. Or if the state adopts their acts as its own.
 E.g., in the Tehran Hostages Case, the ICJ hold that
“although initially the students who took the control of
the US embassy in Tehran were not acting as agents of
Iran.
Continued
 But a subsequent decree of Ayatollah Khomeini endorsing
this occupation “translated these acts into acts of Iran”.
3. Or if they “empowered to exercise elements of
governmental authority”.
 E.g., acts of “private security firms authorized to act as
prison guards or when privatized or state-owned airlines
exercise certain immigration controls.
4. Or if the state failed to prevent the conduct.
 E.g., special duty to protect embassy or consulate buildings
– in the Tehran Case the ICJ held Iran responsible for not to
protect the Embassy of the USA.
Continued
 Another point is related with the “time factor”.
 Basic principle: a state can only be responsible for
breach of an obligation if the obligation is in force for
that state at the time of the alleged breach + violation.
 This principle is also reflected in the draft article – an
act of a state does not constitute a breach of an
international obligation unless the state is bound by the
obligation in question at the time of the violation.
 Certain wrongful acts may be “instantaneous” while
some of them can continue over a period of time.
Continued
 E.g., convention entered into force for that state is an
important point – in the Loizidou Case, the ECHR said
continuing exclusion of Mrs. Loizidou from access to her
property in TRNC continued after the 1974 military
operation of Turkey.
4. Circumstances Precluding Responsibility –
Wrongfulness
 These are excuses which transform a wrongful act that
would otherwise constitute an unlawful act.
 N.B. none of these circumstances can operate to excuse a
conduct which violates a peremptory norm of international
law under the draft articles.
Continued
 Defenses/Exceptions to State Responsibility
1. Consent (Article 20)
2. Self defense (Article 21): it should be in conformity
with the UN Charter (Article 51) (armed conflict).
3. Countermeasures (Article 22): self help in times of
need
4. Force majeure (Article 23):
5. Distress (Article 24): in cases where human life is at
stake.
6. Necessity (Article 25): to safeguard an essential
interest against a grave and imminent peril.
Legal Consequences of State Responsibility
 When any state has done international wrongful act then it
involves legal consequences.
 These involves two stages.
 Step 1: it aims to cease the wrongful act or conduct.
 Step 2: it makes full reparation for the injury caused.
 The draft articles codify obligations of a responsible state.
A. Cessation and Non-Repetition:
 Article 30 provides that the state responsible for the
internationally wrongful act is under an obligation to cease
the activity and to offer an appropriate guarantee for its
non-repetition.
Continued
B. Reparation for Injury:
 Article 31 provides that the responsible state is under
an obligation to make full reparation for the injury
caused by the internationally wrongful act.
 Injury includes any damage caused by the
internationally wrongful act of a state.
 Forms/kinds of Reparation: Article 34-39 of the Draft
Articles codify provisions regarding reparation for
injury.
Continued
1. Restitution: it is given to re-establish the situation
which would have existed if the wrongful act had not
taken place (Article 35).
 It may take the form of material restoration or return of
the territory, person or property.
2. Indemnity (Monetary Compensation): restitution is
not possible in most of the scenarios.
 So indemnity is the most usual form of reparation.
 It takes place only when restitution is available.
Continued
3. Satisfaction: in the case of non-material damages,
satisfaction is the normal mode of restoration.
 Article 37 (1) says that the responsible state is under an
obligation to give satisfaction to other state for the
injury caused by its wrongful acts in cases where
restitution and compensation aren‟t possible.
 Satisfaction may consist an acknowledgement of the
breach, regret or formal apology.
Serious Breaches of Peremptory Norms
 Erga omnes
 International crime and responsiblity
 A different regime of responsibility than that of other
international wrongful acts.
 Diplomatic Protection and Nationality Claims
 Diplomatic protection is the procedure employed by the
state of the nationality of the injured person to secure
protection of that person and to obtain reparation for the
internationally wrongful act inflicted (reparations).
 Such protection extends to both natural and legal persons.
Continued
 It is not an obligation.
 Rather it is discretionary power of the state.
 It may be obligatory or discretionary (right to claim)
under its national laws.
 All local remedies have been exhausted to claim this.
 A state can only extend diplomatic protection to its
own nationals.
 There must be no doubt as to the nationality of the
injured party.
 Nationality must be continuous.
Continued
 The person concerned must be a national at the time of
the injury and at the time the complaint is lodged.
 Multiple nationality can be an obstacle to diplomatic
protection.
 In principle, diplomatic protection may not be
exercised against another state of which the injured
party is also a national, as the person concerned is
regarded by that state as its own national.
 The International Court of Justice pronounced on the
establishment of predominant nationality in the
Nottebohm Case.
Continued
 It is the requirement of an effective bond between an
individual and a state consisting of certain mutual
rights and duties for a nationality to have effect on the
international plane.
 Indeed, it was decided in the Nottebohm that an
effective link had to exist with the country of
nationality for that country to be able to grant
diplomatic protection to its citizen.
 Rule of exhaustion of local remedies.
Individual Responsibility
 The general rule is that a State is not responsible for the
acts of private individuals.
 The state is of course an abstract entity, unable to
accomplish any physical act itself.
 Just as in domestic law corporations act through their
officers and agents, so in international law the state
normally acts through its organs and officials.
 The first, and clearest, case of attribution is that the
organs of the state (e.g. police officers and the army)
whose acts are attributable to the state even in instances
where they contravene their instructions, or exceed their
authority as a matter of national law.
Continued
 No distinction is made based on the level of the
particular organ in the organizational hierarchy of
the state; state responsibility can arise from the actions
of the highest officials, for instance a head of state or a
foreign minister.
 Nor is any distinction made upon the basis of the
separation of powers; state responsibility may arise
from acts or omissions of the legislature and the
judiciary, although by the nature of things it is more
common that an internationally wrongful act is the
consequence of an act or acts of the executive.
Continued
 Second, the rules of attribution cover situations in
which individuals, not otherwise state organs, are
exercising “elements of governmental authority” at the
time they act.
 Third, acts of private individuals are attributable to the
state if those individuals are acting on instructions of
the state, or under its effective direction or control.
 Fourth, in exceptional circumstances in which there is
an absence or default of governmental authority, the
acts of private individuals may be attributable to the
state if those individuals, in effect, step into the breach
and perform necessary governmental functions.
Continued
 With regard to certain obligations, a state may incur
responsibility even though actions have been carried
out by private individuals, because the essence of the
obligations was to ensure that a given result
occurred.
 For instance, if a foreign embassy is overrun by a mob,
or harm is done to diplomatic staff by private
individuals, as occurred with the US embassy in
Tehran during Iranian revolution of 1979 to1980, a
state may incur responsibility, even if those individuals
act on their own initiative,
Continued
 Equally, under Article V of the 1948 Convention on
Prevention of the Crime of Genocide, the obligation
of a state to punish those responsible for genocide
earlier on related to genocide may be breached in
instances in which a state fails to punish any person
responsible for the genocide, “whether they are
constitutionally responsible rulers, public officials or
private individuals”.
 There is probably a similar rule in general
international law in relation to crimes against
humanity.
Continued
 In both cases, the basis of responsibility here is not the
attribution to the state of the acts of the individuals; it is the
failure by the state as an entity to comply with the
obligations of prevention and prosecution incumbent on it.
 A somewhat anomalous instance of attribution is that
covered by Article 10 of the draft article on state
responsibility.
 As was noted above, in the normal course of events, a state
is not responsible for the acts of private individuals; a
fortiori, it is not responsible for the acts of insurrectional
movements, because by definition, an insurrectional group
acts in opposition to the established state structures and its
organization is distinct from the government of the state to
which it is opposed.
Continued
 However, Article 10 (1) of the draft, provides that “the
conduct of an insurrectional movement which becomes
the new government of a state shall be considered an
act of that state under international law”.
 Article 10 (2) provides for a similar rule with respect
to an insurrectional movement that succeeds in
establishing a new state within the territory of a pre-
existing state.
 The effect of the rule is to attribute retrospectively the
conduct of the movement in question to the state.
Continued
 In case of a successful insurrectional movement, the
acts of the movement are attributed to the state as if the
movement had been the government at the time of its
acts, even though, if the insurrection had failed, no
attribution would be possible.
 In case of the establishment of a new state, the effect is
even more drastic because acts are attributed to the
state retrospectively to a time when it did not yet
definitively exist.
Continued
 Except in this case, there is no established machinery
for attributing collective responsibility (e.g., for war
crimes, genocide or crimes against humanity) to an
armed opposition group.
 Individual responsibility is the only possibility at the
international level of ensuring a degree of
responsibility for criminal acts.
 Besides state responsibility for violations of
international law, individuals may be held liable for
international wrongful acts (e.g., war crimes, crimes
against humanity and genocide).
Continued
 The recognition of individual criminal responsibility
under international law is relatively recent.
 The commission of mass atrocities during the 20th
century prompted the international community to
recognize that individuals can be criminally
responsible directly under international law and to
work for the establishment of an international criminal
court having jurisdiction on international crimes
committed by individuals.
Continued
 Thus, after World War II, the principle was
established that individuals-and not only states-can
be addressee of obligations, commit crimes, and
therefore bear criminal responsibility directly under
international law.
 As affirmed by judges in Nuremburg: “crimes against
international law are committed by men, not by
abstract entities, and only by punishing individuals
who commit such crimes can the provisions of
international law be enforced.”
Continued
 Thus, it is now undisputed that individuals shall be
punished for the commission of crimes under
international law (or international crimes) that
seriously damage the international community as a
whole, so that the goals of prevention and deterrence
can be achieved.
 This principle is now well expressed in the preamble
of the Rome Statute of 1998.
 The attribution of criminal responsibility to individuals
does not exclude that state responsibility for the
violation of international law that also potentially
amount to international crimes.
Continued
 However, individual criminal responsibility under
international law possesses the same legal nature as the
criminal responsibility under domestic law, whereas
responsibility of states is of an international/civil nature.
 With respect to individual criminal liability, it is beyond
question that today serious breaches of certain obligations
owed to the international community as a whole entail
individual criminal liability.
 In other words, customary international law provides for a
regime of criminal responsibility with respect to individuals
who commit certain international offences considered by
the international community to be serious violations of its
most important rules.
Continued
 Accordingly, individuals are brought to trial before national
and international criminal courts and, if their responsibility
is proved, they will face criminal punishment.
 Thus, international individual responsibility is a traditional
regime of criminal liability providing for the punishment of
individuals who have perpetrated international crimes.
 As for the offences entailing individual criminal liability,
there is a general agreement over the recognition of the
existence of at least three categories of customary
international crimes, namely, the so-called Nuremberg
crimes: crimes of aggression, war crimes and crimes
against humanity.
Continued
 It is possible to ask whether two additional categories
international crimes, genocide and torture, can now be
listed among those offences entailing individual
criminal liability under customary international law.
 Given the macro-criminal dimension of the crimes at
stake, which normally involve the state apparatus and
are committed by an organized group or in a
systematic manner, the process of “individualization”
of the responsibility encounters more than one
challenge.
Continued
 First, the issue of immunities for heads of states and
other subjects under international law; second, the
regulation of the modes of liability, which need to take
into account the collective dimension of commission
of international crimes.
 To overcome some of the difficulties, the rules of
attribution of criminal liability to had been
reinterpreted and new modes of liability developed.
 Moreover, the principle of personal culpability
excludes collective and strict liability.
Continued
 As a consequence, several grounds to exclude criminal
responsibility are recognized.
 Finally, the enforcement of individual criminal
responsibility for international crimes is the real
challenge in a context of collective commission and
macro-dimension of the crimes, where, moreover, the
mechanisms of enforcement are not homogeneous.