STATE RESPONSIBILITY
Chapter X
HISTORY
Implies that if a State commits an internationally
wrongful (unlawful) act against another State, it will
be internationally responsible for reparation.
This has been the most difficult question of the
codification work of the International Law
Commission (ILC).
The ILC initiated its work on the draft articles
concerning State responsibility in 1975. The Articles
on the State Responsibility were finally adopted by
the ILC on August 9, 2001.
Assembly adopted the resolution 83/56 of December
12, 2001, taking note of “the International Law
Commission’s Articles on the State Responsibility”
and recommending it to the member States of the
United Nations.
UNFOLDING THE IDEA OF STATE
RESPONSIBILITY
State responsibility is founded on three basic
elements:
the existence of an international legal obligation in
force between the concerned States.
the occurrence of a wrongful act or the omission of an
act in violation of such an obligation, which is
imputable to the State.
that loss or damage has resulted from such wrongful
act or omission
The articles of ILC provide that every internationally
wrongful act (a delict) of a State entails responsibility.
A breach of an international obligation is defined as an act
which is not in conformity with what is required of the
State by that obligation, regardless of its origin or
character.
Responsibility is the necessary corollary of a right. All
rights of an international character involve international
responsibility.
International Law does not distinguish between
contractual (conventional) and tortious responsibility.
ILC ON ISSUE OF INTL CRIMES
Importantly, a State is responsible for wrongful acts which
constitute international delicts, not international crimes.
Owing to the controversy concerning State responsibility
for international crimes, the ILC Articles does not mention
international crimes.
NOTE>>>
Any international wrongful act resulting from the breach of
an international obligation which was essential for the
protection of fundamental interests of the international
community and which was recognized as a crime by that
community constituted an international crime; examples of
such international crimes were aggression, colonial
domination, slavery, genocide, apartheid and massive
pollution of the atmosphere.
All other international wrongful acts constituted
international delicts.
HOW INTL LAW HAS ADJUSTED STATE
RESPONSIBILITY TO IDENTIFY INTL CRIME
The question of State criminal responsibility has been
highly controversial. However, three specific changes
have occurred since 1945 to justify States
responsibility for international crimes:
Jus Cogens i.e. Peremptory Norms
Establishment of individual criminal responsibility under
International Law
UN Charter’s provisions on enforcement action which may
be taken against a State in case of committing a threat to
or breaches of the peace or act of aggression.
IMPUTABILITY
Imputability means to ascribe or attribute
This rule depends on the link that exists between
the State and the person or persons committing
the wrongful act or omission.
Imputability is a legal notion which assimilates
the acts or omissions of the State officials to the
State itself and which renders the State liable for
damages to persons or properties resulting from
such acts
…CONT
A State is responsible (liable) only for its own acts or
omissions.
A State is identified with its “government” which
includes
the executive,
the legislature and
the judiciary,
and includes
central authorities as well as
local authorities
PROVISIONS OF ILC ON STATE
RESPONSIBILITY
Conduct of any State organ (including any person or
entity) having that status under the internal law of
that State, whether that organ belongs to the:
constituent,
legislative,
executive,
judicial or
other authority,
whether its functions are of :
an international or an
internal character,
and whether it holds a
superior or a
subordinate position in the organization of the State,
shall be considered as an act of the State concerned under
International Law.
..CONT
The conduct of an organ of a territorial governmental
entity within a State shall also be considered as an
act of that State under International law.
The conduct of an organ of an entity which is not part
of the formal structure of the State or the territorial
governmental entity, but which is empowered by the
internal law of that state to exercise elements of
governmental authorities, shall also be considered as
an act of the State under International Law.
QUESTIONS
Act of private persons?
Act of rebels or demonstrators?
Officials not following orders or disgressing from
their authority?
THE QUESTION OF FAULT
There are two theories used as foundations for State
responsibility:
Risk Theory
Fault Theory
Risk Theory is:
based upon the principle of objective responsibility
maintains that the liability of the State is strict.
once a wrongful act causing damage has been committed
by a State official or organ, that State will be responsible
under International Law to the injured State irrespective
of its intention.
…CONT
Fault theory is:
based upon the principle of subjective responsibility
which requires the establishment of an element of:
intention,
fault or
negligence
on the part of the State official or organ before
rendering the State liable for any damage.
There is no agreement in the International Law on
the question of the basis of State responsibility.
The relevant cases and the opinions of legal scholars
are divided on this question.
However, the majority of cases and opinions tend
towards the “risk” theory of responsibility
LEGAL CONSEQUENCES OF STATE
RESPONSIBILITY
CESSATION OF
REPARATION
WRONGFUL ACT
wrongdoing State is wrongdoing state is
obliged to cease the under a duty to
wrongful act, if it is remedy its acts.
continuing, injured State is
entitled for full
and reparation in form of
to offer appropriate restitution in kind,
assurances and compensation and
guarantees on non- satisfaction, either
repetition. singly or in
combination.
…CONT (FOR REPARATION)
The wrongdoing State cannot employ its
internal law to avoid providing full reparation.
Reparation accepted, is of three different kinds or
forms:
Restitution
Compensation
Satisfaction
RESTITUTION
Restitution in kind means
the wrongdoing State has to re-establish the situation that
existed before the committing of the wrongful act.
It can be provided if it is:
not materially impossible,
not involving breach of an obligation arising from a peremptory
norm of general International Law,
not involving a burden out of all proportion to the benefit which
the injured State would gain from obtaining restitution in kind
instead of compensation, or
not seriously jeopardize the political independence or economic
stability of the wrongdoing state.
COMPENSATION
If restitution in kind is not available, compensation
for the damage caused must be paid.
Monetary compensation covers any financially
assessable damage suffered by the injured state, and
may include:
interest, and
in certain circumstances, loss of profits
It may be paid for both material and non-material
(moral) damage.
SATISFACTION
Satisfaction is the third form of reparation.
It is a remedy which is appropriate in cases of
moral damage and non-monetary compensation.
It may take the forms of:
an official apology,
a nominal damage,
the punishment of the guilty officials or
the acknowledgement of the wrongful character of an
act
IMPLEMENTATION OF STATE
RESPONSIBILITY
A State is entitled to invoke the responsibility of
another State if the obligation breached is:
owed to it individually or
to a group of States, including it, or
to the international community as a whole.
Where several States are injured by the same
wrongful act, each State may separately invoke
responsibility.
Where several states are responsible, the
responsibility of each may be invoked
PROCEDURE TO INVOKING STATE RESP.
A State may present an international claim
against the wrongdoing State before an
international tribunal.
However, a State has to establish its
qualifications for bringing the claim and the
validity of the claim itself before the merits of the
claim can be addressed.
Where a claim is brought before an international
tribunal, objections may be raised against its
admissibility.
The first is an objection to the jurisdiction of the
tribunal; if successful, it will stop all proceedings
in the case.
DIPLOMATIC PROTECTION & NATIONALITY
OF CLAIMS
State is under a duty to protect its nationals, it is
not under a duty to provide them with diplomatic
protection.
Diplomatic protection consists of resorting to
diplomatic action or other means of peaceful
settlement by a State adopting in its own rights
the cause of its nationals in respect of an injury
to any of its national arising from an
internationally wrongful act of another
State. Such diplomatic protection is not a right
of the national concerned, but a right of the State
which may or may not choose to exercise.
Nationality must exist at the date of the injury,
and should continue until at least the date of the
formal presentation of the claim.
Where an individual possesses dual or multiple
nationalities, any State of which he is a national
may adopt his claim against a third State.
Where a case involves more than one State of
nationality, the State with which he has the more
effective connection may adopt his claim against
the other State. As far as a moral legal person
(such as a corporation) is concerned, there must
be some tangible link between it and the State
adopting its claim.
EXHAUSTION OF LOCAL REMEDIES
It is established in the customary International Law
that before international proceedings are instituted or
claims or representations made, the remedies
provided by the local State should have been
exhausted.
This rule does not apply where one State has been
guilty of a direct breach of International Law causing
direct injury to another State.
It applies to cases of diplomatic protection where a
State claims injury to its nationals, and when
effective remedies are available in the wrongdoing
State. A claim will not be admissible in the
International Law unless the natural or legal foreign
person concerned has exhausted the legal effective
remedies available to him locally in the defendant
State.
UNREASONABLE DELAY
A claim by a State against another State will not
be admissible if it is presented after an
unreasonable delay by the claimant State.
It may be inadmissible if the injured national has
suffered injury as a result of his improper
activities.
However, in such a case, the injury suffered by
the national must be roughly proportional to his
improper activities.
COUNTERMEASURES
Countermeasures are acts of retaliation which
are traditionally known as “reprisal”.
They may be in a form non-compliance of the
injured State with its legal obligations towards
the wrongdoing State, or unilateral coercive
actions taken by the injured State against the
wrongdoing State.
Such measures are a type of self help utilized in
order to induce the wrongdoing State to
discontinue its wrongful act and to provide
reparation. (Strange na?
Today, there are certain legal limits to
countermeasures.
The most important limit is the prohibition of the
armed retaliations because of the general prohibition
of the use of force provided in Article 2(4) of the
Charter of the United Nations.
Countermeasures have to be proportional to the
wrongful act. They must not violate basic human
rights or the peremptory norms of International Law
