STATE’S RESPONSIBILITY FOR INTERNATIONAlL DELINQUENCIES

Submitted by Supervised by

Prachi Tatiwal Dr. Monika Negi

52 LLB15

National Law University

Delhi
2018
 CHAPTER-1

INTRODUCTION

One of the prominent results of modernization of the civilization has been the increase in duties
and rights of members of the family of nations. In the past, sovereignty was considered absolute
and each state was its own Judge and no one could consider its actions or conduct. The brisk
upward movement of the population curve and the enormous expansion of business have
penetrated and cross-penetrated the confines of the nations of the world. With increasing
transactions amongst member nations, it became imperative to have laws governing the conduct
of the nations involved in such transactions in order to regulate their intercourse, to confer upon
them certain rights and to impose upon them certain duties for their mutual convenience and
benefits.

In a legal system, there must be liability for failure to observe such obligations imposed by the
laws of the land. In International law, such liability is known as ‘responsibility’. There are two
types of rules of state responsibility-primary and secondary rules. In case of primary rules, state
responsibility arises when there is breach of obligation that states owe under International laws.
The secondary rules deal with general conditions to be considered responsible for wrongful
actions or omissions, and the legal actions which flow therefrom.1

As per Article I of the Draft Articles on the Responsibility of States for Internationally Wrongful
Acts, 2001, “Every International wrongful act of the state entails the international responsibility
of the State.”1 It is the responsibility of every State to take care of the legal rights of the aliens
and compensate them, if any damage is caused to them. State responsibility may arise directly or
indirectly. This research paper makes an attempt to scrutinize in brief the responsibility of States
for International Wrongs in the light of Draft Articles of International Law Commission, 2001.2

1
Clyde Eagleton, The Responsibility of States in International Law, 1970, p. 5.
2
Aaditya Tantia, RESPONSIBILITY OF THE STATE “UNIVERSAL PERSPECTIVE”, International Journal of
Law and Legal Jurisprudence Studies, Volume 2, Issue 4.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

1
1.1 Direct and Indirect Responsibility

Oppenheim draws a distinction between direct and indirect responsibility. According to him,
Direct or Original responsibility is one which arises in the consequence of the wrongful act
committed or authorized by the government of the State, whereas Indirect or Vicarious
responsibility arises in consequence of the unauthorized acts committed by the agents of the
State, or it Nationals, and of the aliens living within the territory of that State. According to
Brownie, this distinction between the two categories of State responsibilities, may lead
different legal consequences, but basic concept remains the same. He feels the use of the
term “vicarious responsibility”, in respect of State Responsibility is erroneous.3

As per General Assembly Resolution in 2001, “When conduct consisting of an act or

omission of a State is attributable to the State under International Law, and constitutes a
breach of International Obligation, it becomes an internationally wrongful act of the
State.”4The rudiments of internationally wrongful act or omission are governed by
International Law and not by Municipal Law. An act or omission portrayed to be wrongful
by International Law is not affected by the portrayal of the same act as lawful by
international law and policies of that State.5

1.2 Exceptions to State Responsibility

Exceptions to State Responsibility are construed in Article 22 to Article 27 of the Draft

Articles under the heading, “Circumstances Precluding Wrongfulness”, which enumerates all
those acts, which can be exempted from liability, if are done with the consent of members of
International Community, to the extent of that consent, done for the purpose of self-defense
in conformity with UN Charter or done due to force majeure or in distress or necessity are
also exempted with certain restrictions. The privilege will not be available unless that act is
the only possible means to protect the interest against a grave or eminent peril and does not
seriously impairs the essential interest of the State or State towards which the obligation
exists, or of the international community as a whole. There is no exemption where a state has

3
Ian Brownie, Principles of Public International Law (2003), Ed.6, 422.
4
Draft Articles on the Responsibility of the States for Internationally Wrongful Acts, 2001, Art. 2.
5
Ibid, Art. 3

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

2
 not followed jus cogens of general international law.6 Article 22 exempts from international
responsibility covered by vengeance. Such avenging measures designated as
countermeasures are also exposed to certain limitations listed from Article 49 to Article 54 of
the Draft Articles. Article 50 list situations where countermeasures shall not affect
obligations, which includes the obligation to refrain from the threat, or use of force as
provided in the UN charter, obligations for protection of human rights, obligations of
humanitarian character prohibiting reprisal, and other obligations under absolute norms of
general international law shall not be affected by countermeasures, and such countermeasures
are scaled on doctrine of proportionality. Subjected to certain limitation, even a third state
may take the countermeasures for enforcement of an International Obligation.7

In Chorzow Factory (Germany V Poland) 8, the Permanent Court of International Justice defined
it not only as a principle of international law but also as a ‘greater conception of law’ involving
an obligation to make reparation for any breach of an engagement. 9 According to the Court,
‘reparation is therefore the indispensable complement of a failure to apply a convention and there
is no necessity for this to be stated in the convention itself’. The principle of state responsibility
emanates from the nature of the international legal system, which relies on states as a means of
formulating and implementing its rules, and arises out of the twin doctrines of state sovereignty
and equality of states.10

CHAPTER-2
6
Ibid, Art. 26.
7
Ibid, Art. 54 read with Art. 48.
8
G.I. Tunkin, “International Law”, 1986, p.230.
9
PCIJ, (Ser A) No.13, (1928), p. 29
10
Malcolm Shaw, International Law, (5th Ed, 2003), p.541.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

3
 INTERNATIONAL DELINQUENCIES FROM THE POINT OF VIEW OF ORIGIN OF
OFFENCE

The state as a subject of international law is responsible only for its own acts. However, a state
can act through agents and hence, acts of agents that have been authorized by the state are to be
treated as acts by the states per se.

The state is internationally responsible for acts of the Legislature, such as, passage of legislation
that violates customary and conventional International law, violating treaty obligations with
respect to immigrants etc.

When Executive officials violate International laws it constitutes international delinquencies

involving state responsibility. The state becomes responsible for the harmful acts committed by
Diplomatic envoys at the authorization of the Government towards the state or the people of the
state where the envoy resides. Injurious acts that have been committed by Armed Forces at the
command of the state can be regarded as an act of the state. If the soldiers show any
unauthorized reckless conduct, the state will still be held responsible for their culpable actions.11

The Judiciary is another organ of the state for whose actions the state can be held liable. Despite
there being a fundamental principle in Municipal laws that guarantees independence of Judiciary,
it still comes under the purview of International laws. If any judgment that is contrary to
international obligation of a state has been passed by a court, the state’s responsibility is invoked.
The denial of justice by this branch of the Government has been one of the main grounds for
diplomatic claims.12 The decisions of courts that are open to appeal in higher tribunals do not
invoke state authority. In cases where a Judge might have exceeded his territorial jurisdiction, a
fugitive has been dealt with in a way contrary to extradition laws of a treaty, error has been
committed in interpretation and application of treaties etc, will all be considered acts of the state
and its responsibility will be invoked.

11
R.Wolfrum, State Responsibility for Private Actors; An Old Problem of Renewed Relevance, M Ragazzi (Ed),
International Responsibility Today, lei den, Brill 2005, p. 424
12
Ibid.

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4
It is an obligation of a State to prevent its own subjects as well as aliens from committing such
acts which may cause injury to other states. A state is responsible not only for its own acts, but
also for the acts of the individuals in its territory. This is called ‘Indirect responsibility’. In case
of private individuals, the state cannot be held responsible at all unless it is proven that the act
has occurred due to negligence on the part of the state’s agent. The citizens as well as aliens
living in a State are bound to obey the laws of that State. Starke is of the opinion that where
illegal acts are committed by privative citizens and not by an organ of the state, the ground for
not imputing liability to the State are much stranger, but in such case liability can be imputed on
states, as held in US Embassy case in Tehran.13

A state is responsible for damage caused by a group of individuals or by a mob. Responsibility of

a state for the mob violence may arise in two ways. Firstly, a state shall be responsible if foreign
public or private property is damaged by the mob violence due to significant neglect to take
preventative measures or has not exercised due attentiveness to prevent the mob-violence. The
principle implies that it is the duty of the state to have foreseen the danger of violence and it
should have made special efforts to prevent it. In case a state shows that proper steps were taken
to prevent the happening and yet it happened, the state is not held responsible. Secondly, state is
also responsible where mob violence takes place due to unconcerned outlook of its organs or has
been done with the connivance of its organs.14

Acts of Multinational Corporations– Article 2 of the Economic Charter confers right on each
State, inter alia, to regulate and supervise the activities of the Multinational or Transnational
Corporations within its national jurisdiction and to take measures to ensure that such activities
confirm with its laws economic and social policies. The greatest example in this scenario is the
‘Bhopal Gas leak case’, where in a US based corporation was directed to pay compensation of
$470 Million (Around 3000 corers) in full settlement of all claims and abating all criminal
proceedings. The Supreme Court of India in Charanlal Sahu v. Union of India15 has made certain
recommendations for the legislature and executive in this aspect

13
Nicaragua v. United States of America, 1986 ICJ Rep 14.
14
Ian Brown lie, System of the Law of Nations: State Responsibility: Part 1 ,(1983) p. 500.
15
Charanlal Sahu v. Union of India (1990) 1 SCC 61

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

5
Wrongs which are not arising out of contractual obligations. International delinquencies means a
breach of a duty that rest on a member of International Community and is not a breach of
completely contractual obligation. In Youman case16 the Mexican Government was held
responsible for the act of the soldiers, even though they had acted beyond their authority.

INTERNATIONAL DELIQUENCY FROM THE POINT OF VIEW OF THE INJURED

The extent of caution that a state should exercise so as to prevent the execution of injurious and
unlawful acts within the ambit of its jurisdiction appear to vary with the affected party. An
offense of international nature can be directed against the government across international
borders, their territory or may be even their population. Upon occurrence of any event, the host
state is responsible only if there has been some negligence on its part, but in the cases where
there is an effect on foreign governments and territory the presumption of negligence is stronger
as compared to the cases where only alien individuals are affected. The responsibility of state is
not determined according to who has been the victim of the act. But a state is bound to take
special care for the protection of its neighbors. Any injury inflicted to them in their territory or in
person of their officials is likely to invoke international responsibility.17

Who is the suffering party is not only useful to determine the responsibility of state but also to
fix the reparation. Whenever an alien has been the victim, his state is not seriously hurt and he
may be content with the redressal operated by the locales. But if a public minister is attacked,
owing to the public character as its representative, his state is hurt. So if a person insults a public
minister he offends his state as well. So in the stream of reparation it can be agreed that the
international delinquencies affecting only alien individuals can be tackled without a protest while
delinquencies which affect a state’s territory or public officials may offend the whole world and
thus can result in the alteration of the history of nations.18

Even if in reality there are no degrees of responsibility to determine whether a state is liable or
not but there are degrees for the consequences of such injurious acts. If an alien is not protected
16
Annual Digest of International Law case, 1925-1926, 223; Starke, International Law (11thEdn.) 275-277.
17
James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, text and
Commentary ,(2002), p.105.
18
Oppenheim’s, International Law, (9th Ed. 1992), p. 502.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

6
it is only him that suffers; but if an ambassador is not treated properly the country he/she is
representing will suffer. The negligent state is responsible for the same in both the cases but the
damage caused is different in magnitude and also in kind, furthermore the measures of reparation
will differ accordingly.

There are three important constituents of a state: the Government, the Territory, the People. All
acts offending the national flag, the chiefs of states and the other officials are offenses directed
against the government of that state itself. All persons and the constituents of government are
entitled to protection of special nature by the hand of foreign states. International law in this
scenario requires a higher degree of diligence from the local state for their protection; and their
responsibility can be easily involved if injury is afflicted to them. Due diligence in the case of
alien individuals will be insufficient in the case of foreign officials. Furthermore due diligence in
one scenario can be called as negligence in another, thus invoking the responsibility of
international character of the state. So as to good this wrong against foreign governments, formal
amends should satisfy the honor of the aggrieved state, all damages must be repaired and the
offenders must be punished severely.

Whenever there is extension of jurisdiction over the territory of one state by the other or in a
situation of armed conflict, both these situations amount to violation of the territory. These types
of cases are rare. Mere extension of jurisdiction such as arrest of a person across international
borders is not a grave offense, and would not normally result in diplomatic crisis.

But in the other case an armed group attacks a neighboring state then those acts can have
international consequences, because these acts cannot be momentary outbreaks but are the
consequences of long envisioned plan which is the duty of the local authorities, and as the arms
are being passed in open and the authorities must take cognizance of the same and must put into
effect more diligence for the prevention of such acts. A state which fails to do it will be held
liable.19

In the case of armed invasion ordered by the government, it is a punitive expedition, a measure
of self defense, or an act of war. If the invasion is in the course of self-protection, acts like

19
Ian Brown lie, System of the Law of Nations: State Responsibility: Part 1 ,(1983) p. 9.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

7
landing of marines for safeguarding citizens or their property abroad, other state ordinarily is not
in a position to demand reparation, and usually its conduct will suffice to justify the acts of its
neighbors. The condition can be more serious in cases of punitive expeditions, such as, the Allied
expedition, during the Boxer rebellion, to North China in 1900, or the perishing expedition
following the Villa raids, into Mexico, on America-Mexican border. .This includes the cases of
occupation by the United States of America of Vera Cruz, bombing of Corfu by Italy etc. In
these cases, the parties were not of equal strength. Even if the punitive measures taken might be
more severe than the offense, yet the question of reparation and responsibility is still raised,
because the victim state is not at par with the other state and their relationship is analogous to
that of the vanquished and the conqueror. Invasion can also be due to the measure of war.
Theoretically state is not responsible if it acts in accordance with the laws of war; but in reality
the vanquished party is the one bearing the damages and losses which are the results of the war,
irrespective of the legality of the acts, not by international law, but by the treaty of peace obliged
upon by the conquering state.

Injuries to the foreign individuals form a major chunk of all the international delinquencies. The
state which asks for the protection of its individuals across international borders has the
corresponding duty to take care of the aliens in his state.

In Texaco Overseas Petroleum Company v. Libyan Arabian Republic,20 it was held that:

“The right of a State to nationalize is unquestionable today. It results from international

customary law, established as a result of general practices considered by the international
community as being the law. The exercise of national sovereignty to nationalize is regarded as an
expression of the State’s territorial sovereignty.

CHAPTER -3

INTERNATIONAL RESPONSIBILITY RESULTING FROM STATE - FAULT

20
Texaco Overseas Petroleum Company v. The Government of the Libyan Arab Republic, YCA 1979, p. 177.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

8
We have seen that responsibility of international character only results when there is fault on the
part of the state. So if the act of state is an offence then the liability of state is unquestioned; but
in the other scenario if the act was done by some private individual the state cannot be held liable
unless there has been some independent act of its own. The Doctrine of State Fault has been a
major principle to determine the responsibility of state in international law. When Grotius first
encountered the Science of International Law, he formulated the rule that a community cannot be
bound by the act of its member without some omission on his part. According to him no innocent
should be punished for the wrong committed by the others. In order to make state responsible the
claimant must show that the state was at fault.

Art 5 of the Draft Articles stipulates that the conduct of a person or entity- which is not an organ
of the state ‘empowered by the law of that state to exercise elements of the governmental
authority’ can give rise to state responsibility provided that the person was acting in that capacity
in the particular instance in issue. It has submitted that this rule encompasses a wide range of
bodies, which are not state organs, but are empowered by state law to exercise elements of
governmental authority, such as public corporations, quasi-public entities, and private
companies.21 Thus, for example, acts or omissions of private security companies contracted to
provide security service to prisons, or private airlines exercising delegated powers relating to
immigration control or quarantine, may be attributed to the state.22

However, where it is argued that conduct is carried out under the direction or control of a state,
the scope for founding state responsibility for acts or omissions of private actors is narrower than
under Art 5 of the Draft Articles. In this case, conduct is attributable to the state if it directed or
controlled the specific operation and the conduct complained of was an integral part of that
operation.23 If conduct is merely incidental to the operation, or was carried out in a manner that
exceeded the state’s direction or control, the state will not be responsible.

21
James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, text and
Commentary ,(2002), p.100.
22
Id p.102, In Hyatt International Corporation V Government of the Islamic Republic of Iran (1985) of Iran USCTR,
94-5.
23
Oppenheim’s, International Law, (9th Ed. 1992), p.115.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

9
In Military and Paramilitary Activities in and against Nicaragua (Nicaragua V United States of
America)24, the government of Nicaragua alleged before the ICJ that the US was responsible for
violations of international law committed by the contras, a revolutionary rebel force, against the
Nicaraguan Government. The latter alleged, among other things, that the US founded the contras
and directed their strategies and tactics. The ICJ did find as a fact that the US Planned, directed
and supported the activities of the contras.25 However, it refused to hold that all activities of the
contras were carried out under the control of the US. According to the Court, there was ‘no clear
evidence of the US having actually exercised such a degree of control in all fields as to justify
treating the contras as acting on its behalf. The Court took the view that for conduct to give rise
to state responsibility; it must be proved that the US “had effective control of the military or
paramilitary operations in the course of which the alleged violations were committed”. Such a
high threshold for the test of control means that it is practically difficult to find a state
responsible for acts or omissions of private actors under Art 8 of the Draft Articles.

In the recent case of Prosecutor V Tadic (Appeals Chamber Judgment)26, the International
Criminal Tribunal for the Former Yugoslavia indicated that a lesser standard of control could be
applied depending on the facts of each case.27 It stated that, for the purposes of imputing criminal
responsibility on state authorities for acts of armed forces allegedly acting under their control the
required level of control would be ‘overall control going beyond the mere financing and
equipping of such forces and involving also participation in the planning and supervision of
military operations’.28

Although this case sought to reduce the threshold of control, it can be argued that many wrongful
acts of private actors might still not be attributed to the state under the proposed lesser standard
of state control.

The case of Yeager V Islamic Republic of Iran29, Illustrates the application of the principle under
Art 9. In this case, certain individuals performed immigration, custom and similar function at

24
Nicaragua v. United States of America, 1986 ICJ Rep 14.
25
Id pp, 58-62
26
Prosecutor V Tadic, IT -94-1-A, 1999.
27
Id p.117.
28
Id p.145.
29
Yeager V Islamic Republic of Iran (1987) 17 Iran –USCTR, p. 92.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

10
Tehran airport immediately after a revolution. The Iran United States Claims Tribunal held that
the conduct of these individuals, though not explicitly authorized by the government, was
attributable to the Islamic Republic of Iran.30 Article 10(1) of the Draft Articles also 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’

After having a brief discussion on the theory of state responsibility in international law, we now
move to the discussion on distinct ways in which states are responsible and delinquent.

[A]. INTERNATIONAL RESPONSIBILITY RESULTING FROM INJURIOUS ACTS BY THE STATE

We have already seen that any act by the state-agent which is injurious to foreign states will give
rise to international responsibility. The problem arises when it is to be determined as to whether
the agent acted within his authority or not. The cases where wrong is committed directly by the
individual and the state is faulty just due to mere negligence or complicity.31

[B]. INTERNATIONAL RESPONSIBILITY RESULTING FROM LACK OF DUE DILIGENCE

As regards popularity, it may be said that the failure of a concerned state in exercising due
diligence within its jurisdiction for the safeguard of the rights of aliens and foreign states, tops
the charts as a common ground of international delinquency. Every state in the family of nations
enjoys a right of protection against injury from foreign jurisdiction. It is at the same time bound
to do the same for others. "If a government neglected to do everything necessary to protect the
property and goods of foreigners and if it did not endeavor to repress the violence and offenses
of its citizens, it should be bound to answer for the consequence of its culpable negligence."32

The terms “Due Diligence" and the term "Reasonable Care" are often used interchangeably.
Both are incapable of concise definition. The words "Due", "Reasonable", or "Proper" all

30
Id p. 103-5.
31
A states’ complicity may be involved in acts of private individuals if it knows that certain acts injurious to
foreigners and foreign states are about to happen, and yet purposely neglects Lo prevent them. Governmental
complicity may also be involved if it actually directs the crime behind the stage, refuses to punish the offender, or
fails to carry out the execution after the sentence given. In short, acts involving governmental complicity are
considered like any other act of the state involving its international responsibility.
32
Flore, Droit International Public, Ant&Inas Trans. Vol. I. sec. 675, cited in Ta.
Responsibility of states for injuries to foreigners. (Thesis)

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involve a sense of discretion varying from person to person and from case to case. What is due
diligence in one instance may not be "so in other instances. What seems to be proper to one
party may not seem so to another. If we could draw a clear demarcation line between due
diligence and lack of due diligence, we should be offering a great contribution to the science of
international Jaw, by solving one of its most controversial questions. Our inability to define due
diligence satisfactorily is due to nature of things. The conditions of international delinquency are
so varied and numerous that it is impossible to lay down hard and fast rules. 33

Though "due diligence" is incapable of satisfactory definition it may be

analyzed from several different angles. "Due diligence" depends upon the emergency of the
occasion, in other words, contingencies and circumstances at the time of commission of the
offense. In case of sudden violence which the best organized government could not foresee, the
general rule is that the government is not liable for acts of individuals which it could not
prevent.34 The reason for non-liability of states is that the acts that cause the damage are
impossible of prevention. They are due to "Force Majeure"` and therefore no liability can take
place under the circumstances. 35

"Due diligence required of a local state varies with the kind of offense
that it has to prevent. Injury against the person of the alien is more serious
than damages to his property, therefore, the duty to exercise a greater degree of diligence for the
protection of their lives is incumbent upon the local state. The use of insulting language against
an ambassador by a private individual has very little chance of becoming an international
delinquency for the local state has no control over such expressions made at heights of emotion.
But if the individual should kill the ambassador, the state will probably be held liable for not
giving him sufficient protection. The degree of due diligence that a state has to exercise varies
with the gravity of the offense. The greater is the offense, the higher is the degree of diligence

33
Furthermore, governments are run by human beings. Such a task necessarily involves discretion everywhere.
34
Borchard: Diplomatic Protection of Citizen Abroad P. 223
35
American Journal of International Law, VII, 740. '.It i8 notorious throughout the world that outrages of this kind
on the western frontier of the United States are more of less frequent and that the whole military force of that
country out of garrison has not been sufficient to prevent the occasional robbery or murder of innocent persons,
whether aliens or citizens Unless a government can be held to be an insurer of the lives and property of persons
domiciled within its jurisdiction there is no principle of sound law which can fasten upon it the responsibility for
indemnity in cases of sudden and unexpected deeds of violence which reasonable foresight and the use of ordinary
caution cannot prevent. "The Wipperman Case, Moore. Arbitration, p. 3

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

12
required. This is even more so in prosecution of crime, when the offense is known and the state
should measure its diligence accordingly.36 "Due diligence" varies with the parties injured,
because of the difference in the degree of protection which each of these parties is entitled to. An
alien is usually not entitled to more protection than nationals, provided the laws, the courts, and
the administration of justice conform to the international standard. Foreign governments and
agents, however, may demand more in the way of protection.37
Consequently the degree of due diligence that the local state has to exercise for their protection
is also greater. Therefore, what is considered as diligence in the case of ordinary aliens may be
insufficient in case of foreign officials and thus considered as a negligence invoking the
international responsibility of the state. This is shown in the case of mob violence at New
Orleans, 1851, against the Spaniards, in which the United States denied the responsibility for
injuries sustained by Spanish subjects, but admitted its liability for attacks on the Spanish
consulate .which owing to its public character is entitled to a special protection. 38 "Due diligence
should be commensurate with the damages which result. The greater is the damage, the higher is
the degree of diligence required of the local state. In the Alabama arbitration case, the arbitrators
declared that "due diligence' should be in exact proportion to the risks to which either of the
belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part." 39
This decision has been criticized by many writers. Hall says, "the true nature of an emergency is
often only discovered when it has passed, and no one can say what results may not follow from
the most trivial acts of negligence. To fail in preventing the escape of an interned subaltern
might involve the loss of an empire. To make responsibility at a given moment depend upon an
intermediate something in the future is simply preposterous. The only measure of responsibility,
arising out of a particular occurrence, which can be obtained from the occurrence itself, is

36
In determining the liability of the state, the nature of the case is important. Thus if the moving cause of the injury
is notorious, e. g., bandits in a certain locality, a greater degree of protection is incumbent upon the government `A
government is liable internationally for damages done to alien residents by a mob which by due diligence it could
have repressed and which it fails to punish~ Statement by Sec. Evarts. See Hershey: Essentials of Public
international Law 164n Also Moore, VI, 7I; Foreign Relations, 3686, 2J 2. .The government of a foreign state is
liable not only for any injury done by it, or with its permission. to citizens of the U. S. or their property but for any
such injury which by reasonable care it could have averted."
37
League of Nations: Official Journal. Nov. 1923, p. 303.
38
Moore: Digest of International Law, VI, 821.
39
Moore: Digest of International Law, VII, sec. 1330.

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

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supplied by its apparent nature and importance at the moment. If a government honestly gives so
much care as seem to an average intelligence to be proportioned to the state of things existing at
the time, it does all it can be asked to do, and it cannot be saddled with responsibility for
consequences of unexpected gravity." 40
There is some justice in this statement. However, distinction should be made between direct
damages and indirect damages. A slight negligence on the part of one state may result in the loss
of an empire to another. That can only be remote consequence for which the state is not
responsible under international law. The delinquent state is liable only for damages proximately
caused by the incident and capable of prediction at the time of the commission of the offense.
Furthermore, diligence is not only required in the prevention of' the offense, but also in its
prosecution. There is no principle sounder than this which requires the local state to measure up
its diligence in prosecution with damages done and known. To say that damage is the only
measure of diligence may be going too far, but to deny this consideration altogether is
undoubtedly indefensible. Finally, "due diligence" depends upon the means at the disposal of the
41
government for the prevention and prosecution of the crime. If an alien is attacked in the open
street while policemen and soldiers look on, the state will undoubtedly be responsible. This
principle is recognized in cases of injury done to foreigners in wild and uninhabited region
where the government cannot be expected to have the same means to assure protection.42
In cases of international delinquency, states have often put up constitutional obstacles or
administrative defects as defense against its responsibility, to show that the state itself has done
all that it can do under the circumstances. But “Whatever political institution or political system
a nation may possess for the government of its domestic affairs, such institution or system must
not interfere with its international duties.”43 “Insufficiency in municipal law is no excuse for
failure of fulfilment of international obligations of the state.” 44 “The state must provide for itself
with the means of fulfilling its international obligations is undisputable. If its laws are such that
it is incapable of preventing armed bodies of men from collecting within it, and issuing from it,

40
Hall: International Law. 217
41
Grotius: IT. 843. 'There is required to produce this liability not only knowledge but
the power of prevention.
42
See the Wipperman case in Moore, Arbitrations, p. 302.
43
Proc. Am. Soc. II, 19 8. 60.
44
Borchard, Diplom tic Protection .of Citizens Abroad

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to invade a neighbouring state, it must alter them. If its judiciary is so corrupt or prejudiced that
serious and patent injustice done frequently to foreigners, it ought to reform the courts, and in
isolated cases it is responsible for the injustice done and must compensate the sufferers.” 45 “A
community has a right to choose between all forms of polity through which the ends of state
existence can be attained, but it cannot avoid its international responsibility on the plea of
deliberate preference for anarchy.”46
Another argument is often advanced for the defense of the delinquent state, that is, the same
amount of protection has been given to aliens and nationals alike. Normally this would be
sufficient to satisfy the requirements of international law. But in countries where protection
granted to nationals is below that of the civilized standard, then the aliens may demand more in
the way of protection than the nationals enjoy. That is, no matter how a state may treat its own
nationals, it must treat the aliens in accordance with the minimum standard required by
international law.

The term "international standard", like the term "due diligence" is incapable of a clear and
concise definition. It is termed as "civilized standard; that is the standard used by civilized
countries for their own administration of justice. But countries like China are civilized and yet
the presence of extra-territoriality indicates that western countries consider their administration
of law and protection of life and property below standard. Again, this term in order to avoid the
above objection is defined as the "European standard' for international law, after all, was a
creation of the European nations and therefore it follows that whatever standard they use is the
"international standard. But this definiton fails to recognize the fact that not all the European
countries are using the same standard. This term, "international standard', has been one of the
sore spots in the relations between stronger and weaker states. Some think that this rule is a
protection to the weaker states for they may not be compelled to do more than what this
standard requires.47 But the vagueness of the term has led to many abuses in its actual
application. Very often, the question whether a states standard is above or below the
international one is not determined according to the merit of the case but according to the

45
Hall: International Law 218.
46
Ibid.
47
See an article by Clyde Eagleton in the American Journal of International Law. Vol.

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15
relative military strength that the nations possess.

In spite of all these defects, "international standard" has its own justification. The alternative to
an international standard would be to allow each state to treat the aliens and nationals on strictly
equal basis. But there are many countries in which the nationals themselves are not properly
treated. There is no reason why aliens should suffer simply because the nationals have shared
the same fate. The neglect of the state to perform one duty toward its nationals is no excuse for
the non-performance of another duty toward the aliens. As in the case of individual conduct in
private law, the test of due diligence by the degree of care one exercises in the management of
his own affairs cannot be accepted when rights of others are involved, for a man may be
negligent in his own business and there is no reason why others should also suffer with him.
However, the trouble with this international standard is not in its justification but its
application.48

[C]. INTERNATIONAL RESPONSIBILITY RESULTING FROM DENIAL OF JUST

Another great source of international responsibility is the "Denial of Justice". This includes not
only cases in which the alien is denied the right of access to court to redress injury done to his
person or property, but also cases in which the alien, himself, as a defendent, is not properly
treated according to local law.

When justice is denied to an alien, it means that his rights in court according to the standard of
the international law are denied to him. Municipal law may be below the international standard,
but the alien is entitled to the latter.

Another important consideration is that the alien must be in the court before there can be any
denial of justice. In other words, he must be a party to a case before he can have any rights in
courts, which if denied, will be the basis for international delinquency. When a criminal
prosecution is started by the state against offenders who have injured the alien, the alien himself
is not a party to the case before the court. This would be merely a case of state against the
offenders. The alien has no right in it, nor are his interests directly involved. If the state fails to
punish the offender according to law, it may indicate governmental complicity or lack of due

48
B.Cheng, General Principles of Law Applied by International Courts and Tribunals, (1953), p. 250

STATE’S RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

16
diligence which will make the state internationally liable on the other ground but not denial of
justice.

But if alien is in the court or according to the international standard is entitled to be in court, his
rights both procedural and substantive, either as plaintiff or defendant, must be strictly protected.
Failing to do this, the state is responsible.

Ordinary miscarriage of justice does not entail state responsibility. But gross and flagrant
injustice especially in decisions involving fraud will constitute an international delinquency. The
term ‘denial of justice’ is defined and used in many different ways. One of them is based upon
the primitive conception of justice laid down in the rule: “Eye for eye, tooth for tooth”. Thus if a
national should murder an alien, and the state fails to give him a life sentence or death penalty, it
is considered as denial of justice because justice requires that the murderer should be so
punished. Or if such a penalty is made impossible by the system of government, or after such a
penalty is imposed by the court and the executive officer fail to carry out the sentence, it is also
considered as a denial of justice.49 This term has been used by writers as well as statesmen in this
sense. But according to its strict legal interpretation. In international law, there is no denial of
justice; and the "state, if responsible at all, is responsible for something else.

49
Borchard, Diplomatic Protection of Citizens Abroad. p. 396

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17
 CONCLUSION

In conclusion it may be said, that international responsibility always involves an injurious act,
commission or omission, contrary to international law, committed by the state, which gives the
injured state a right to resort to diplomatic interposition, and imposes on the delinquent state a
duty to make reparation. International responsibility may either be the result of malice or
negligence, no matter whether it is lack of due diligence, or denial of justice, or governmental
complicity or non-performance of specific obligations.50

After the brief analysis of the concept of State Responsibility under International Law in this
article, it can be concluded that this international responsibility of States is same as that of the
responsibility of the States under municipal laws, which guarantee certain rights to its citizen and
on failure of protecting such rights, the liability of the state arises, which can be enforced
through domestic laws of that state. But as Austin rightly said the International Law losses its
credibility to lack of sanction, different members of International Community, especially the
secured once, interpret these Articles of State Responsibility according to their, whims and
wishes. To avoid such circumstances, there must be a convention on the ‘Enforceability of
International Rights through Common Domestic Laws’, so that a uniform legal procedure can be
developed for enforcement of internationally recognized rights against State, or if said in another
way, it must be ensured by every member of the International Community, that the Draft Articles
on the Responsibility of the States for Internationally Wrongful Acts, 2001 and adopted as a part
and parcel of their domestic legal system.51
The law of international responsibility of states for injury to aliens has developed tremendously
over time. It kept changing with the changing times and as the world expanded into larger and
larger smaller territories, this law became more and more conspicuous in the practice of states in
their interactions with other states and nationals of other states i.e. aliens. 

As different countries have emerged, they have different economic and social norms in the world
society and their international practice is mainly governed by their own socioeconomic
50
B.Cheng, General Principles of Law Applied by International Courts and Tribunals, (1953), p. 233
51
Mann, The Consequences of an International Wrong in International and National Law, (1977), p.2

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18
background. This gives rise to the problem of two conflicting standards of justice: the national
standard of treatment and the international minimum standard. Both these standards have their
own features and both are recognized by several countries as a part of their practice in treatment
of aliens. This leads to an inconsistency and if and when a law on State responsibility for Injury
to Aliens is codified and put on the table for ratification, this ambiguity and dichotomy of
standpoints will have to be addressed. This seems a practical impossibility since the national
treatment principle is predominantly practiced by developing nations, especially in Latin
America and the international minimum standard principle is practiced by many Western
developed countries who are economically better-off than their counterparts.

The dichotomy of standards of justice finds its way even into the practice of expropriation of
property of foreign nationals. Even here, there are two standards of granting compensation for
expropriated property and for parameters of granting compensation clash. However, the right of
compensation has been recognized as a principle of international customary law. Many tribunals
and judicial bodies have developed methods and principles of granting compensation for
expropriated property. Also there are certain cases where expropriation can be justified without
any compensation.52

As means of redress in the international sphere, the alien who has been injured by any act of a
foreign State has to first seek redress from the local judicial authorities. This means that before
any claim can be raised internationally, the Alien has to exhaust all local remedial channels for
want of justice. This rule of exhaustion of local remedies is also a customary practice which is
widely accepted. Also, the standard of the judicial remedies and other nuances of the local
remedial process do not fetter the chances of the alien under international law. Also, it is not
possible for an Alien to enter an agreement (see Calvo clause) to waive off his right to an
international claim.

52
Vikram Singh 'Responsibility for injury to aliens?' (Lawteacher.net, May 2018) <https://www.lawteacher.net/free-
law-essays/international-law/codification-international-law-state-responsibility-injury-aliens-international-law-
essay.php?vref=1>

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BIBLIOGRAPHY

 Moore: Digest of International Law, VI

 Flore, Droit International Public, Ant&Inas Trans. Vol. I.
 Ian Brownlie, Principles of Public International Law, 6thEdn. 2003.
 Dr.H.O.Agarwal, International Law and Human Rights , 12th Ed 2005.
 Malcolm Shaw, International Law, (5th Ed, 2005)
 Mann, The Consequences of an International Wrong in International and National Law,
1977.
 Draft Articles on the Responsibility of the States for Internationally Wrongful Acts, 2001.
 Vikram Singh 'Responsibility for injury to aliens?' https://www.lawteacher.net/free-law-
essays/international-law/codification-international-law-state-responsibility-injury-aliens-
international-law-essay.php?vref=1

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