All you need to know about State responsibility in

International law
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Introduction
State responsibility is incurred when one State commits an internationally wrongful act
against another. For instance, Article 2(4) of the UN Charter prohibits dictatorial non-
intervention by stating that every State is under a legal obligation not to use or threaten to
use force against others. However, non-intervention is not merely limited to the prohibition
of the usage of force. Any form of coercive interference in the internal affairs of a State
would invite State responsibility. As Oppenheim’s international law puts it, “the
interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the
State intervened against of control over the matter in question. Interference pure and
simple is not intervention”.

Nicaragua v. United States

A landmark case in this regard is Nicaragua v. United States; the case concerning military
and paramilitary activities in and around Nicaragua. It involved the United States
supporting rebellion groups against the Nicaraguan government. The Court found in its
verdict that the United States was “in breach of its obligations under customary
international law not to use force against another State” and “not to intervene in its
affairs”.

United Kingdom v. Albania (The Corfu Channel Case)

On October 22, 1946, a few British warships, while passing through the North Corfu strait
within the territorial waters of Albania, were severely damaged due to mine explosions.
Most of the crew members were either killed or gravely injured. The Albanian waters had
previously been swept clean of mines. The United Kingdom, through an application filed
on 22 May 1947 accused Albania of having laid or allowed a third State to lay the mines
after mine-clearing operations had been carried out by the Allied naval authorities.

The Court found that Albania was responsible under international law for the explosions
that had taken place in Albanian waters and for the damage and loss of life which had
ensued. Although it did not accept the view that Albania had itself laid the mines or
granted permission to another entity, it held that the mines could not have been laid
without the knowledge of the Albanian Government. Therefore, it was concluded that the
Albanian government had authorized the laying of mines, and therefore was ordered to
make reparation to the United Kingdom.

Basis and nature of State responsibility

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There are three factors employed to determine the liability of a State. Firstly, the State
must be under a legal duty not to commit the act. Secondly, the State must commit the
act. And finally, the act must cause injury (loss or damage) to another entity. If these
factors are satisfied, the State is bound to make reparation to the injured parties.

However, a State is considered responsible only for the wrongful acts which constitute
international delicts. State responsibility for international crimes is not clear. In its 1996
draft on State responsibility, the International Law Commission (ILC) distinguished
between international delicts and international crimes. The question of State responsibility
in cases of international crimes has been highly controversial. While some state that
criminal liability of States holds no legal value, others are of the view that there has been
a whirlwind change in the attitude of States against international crimes since 1945, and
that States could be held responsible for such acts. Examples of international crimes
include apartheid, genocide, slavery, colonial domination, aggression, and massive
pollution of the atmosphere.

Imputability

Direct responsibility
The government, which includes the executive, the legislature, judiciary, and the central
authorities and local authorities, is what represents the State. Therefore, in the event of
any of these organs committing a breach of international law, the State shall be held
directly liable. For instance, by the representative theory, diplomatic ambassadors are
considered to be representatives of the head of the sending State. Therefore if they
commit a wrongful act in the capacity of their diplomatic status, the sending State shall be
held liable. Similarly, a State is held liable for the wrongful acts of its armed forces, if it
had authorised the armed forces to carry out those acts.

Indirect responsibility
A State could also be held responsible for the acts committed by other parties if those
acts were authorized by it. This rule depends on the link that exists between the State
and the person or persons committing the wrongful act or omission. Indirect responsibility/
vicarious responsibility is a condition when an entity is made liable to make reparation, for
the acts of another entity. This occurs when the latter has been authorized by the former
to commit the act. Therefore, in such cases, the authorizing State is held indirectly liable
for the acts of the authorised State. Even if the authorized entities exceed or disobey their
instructions, the State shall be held liable, if they are acting under ‘apparent authority’.

United States v. Iran (1980)

On November 4, 1979, a group of Iranian rebels invaded the US embassy in Tehran.
They damaged the embassy and destroyed embassy documents. The invasion lasted for
hours, but despite repeated requests, Iranian military forces did not arrive until later. More

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than sixty American diplomats and citizens were held hostage until January 20, 1981.
Some of the hostages were released earlier, but 52 hostages were held hostage until the
end. Once on scene, the Iranian military did not attempt to free the hostages. On
November 29, 1979, the U.S. filed a claim against Iran in the International Court of
Justice (ICJ). The ICJ found the rebels to be ‘agents’ of the Iranian Government, because
the latter had approved and perpetuated their actions, translating occupation of the
embassy and detention of the hostages into official acts of the State, of which the
perpetrators, while initially acting in private capacities, were rendered agents of the
Iranian State.

The question of ‘Fault’

There are two theories attributed to State responsibility. The ‘risk’ theory says that a State
is strictly liable if a State official or organ commits a wrongful act. Whereas the ‘fault’
theory takes the element of ‘intention’ into account and says that a State shall be
responsible only if the act is committed intentionally or negligently.

There have been a number of debates regarding the applicability of each theory in
international law. Most jurists have inclined themselves towards the ‘risk theory’ of State
responsibility.

Legal consequences of State responsibility

Where there is a right, there is a remedy. When a State commits a breach of international
law, it becomes liable to make good the losses faced by the injured parties. The first
consequence is the cessation of the wrongful act, and the second is reparation.

Cessation of the wrongful act

International law requires the accused State to cease committing the wrongful act and to
offer appropriate assurances and guarantees on non- repetition.

Reparation
The accused party shall be responsible to make reparation to the injured parties for its
wrongful acts. The accused party is liable to make restitution, i.e., materially revert the
original party back to the same status before the wrongful act. If restitution is not possible,
the accused party shall be liable to make compensation. Compensation involves the
making of monetary reparation, with an aim of reverting the injured party to its State prior
to the occurring of the act.

Another form of reparation is satisfaction. Satisfaction is considered a more appropriate

remedy than compensation, in cases of moral damage. It may include any reasonable act
demanded by the injured State, such as the acknowledgement of the wrongful character
of the act, the punishment of guilty officials, nominal damage, an official apology, etc.

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Diplomatic protection and nationality of claims
Although International Law is now tending to grant certain rights to individuals, the basic
rule remains that in a State-oriented world, it is only through the State the individual could
seek a remedy. If a national of State A has been injured by an agent of State B, the
injured national cannot by himself sue State B under international law. In order to do so,
State A would have to adopt the claim of its injured national, and thereby treat it as its
own.

While a State is under a duty to protect its nationals, it is not under a duty to provide them
with diplomatic protection However, if a State provides diplomatic immunity to its
nationals, a wrongful act against them would directly mean a wrongful act against the
State. By virtue of the representative theory, a diplomatic agent is considered to be the
representative of the head of the sending State. Therefore, an act of aggression against
them would be an act of aggression against the sending State. Diplomatic protection is
the result of the historical reluctance to permit individuals the right in International Law to
bring claims against foreign States.

The exhaustion of local remedies

International law requires that before State responsibility could be invoked, all local
remedies in the defendant State must be exhausted. For instance, if a national working
under State A commits a wrongful act against State B, the remedies in the national courts
of State A must first be exhausted. This rule is reaffirmed in the ILC Articles which
provides that before holding a State responsible, all of the effective remedies in the
defendant State must be exhausted. However, in certain circumstances, State
responsibility could directly be invoked. For instance, when there is a direct breach of
international law by one State that causes injury to another, or when the defendant State
does not possess effective remedies.

Unreasonable delay and improper activities of the injured national

There are certain circumstances when State liability is impermissible. If there is an
unreasonable delay in filing a suit for State responsibility, the accused State shall not be
held responsible. Similarly, if a State has incurred injuries as a result of its own improper
acts, State responsibility shall be excused. However, in the latter case, the proportionality
of the injury with the improper act shall be assessed.

Countermeasures
International law does not hold the usage of force unlawful at all times. Since there is no
concept of a ‘higher sovereign body’ in international law, States may sometimes not abide
by their legal obligations. For instance, if a State, in spite of being ordered to cease the
wrongful act, continues it, the injured State may lawfully use force against it. Such acts

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have been termed as ‘reprisals’. Reprisals refer to acts that are illegal if taken alone but
become legal when adopted by one State in retaliation for the commission of an earlier
illegal act by another State. They are a type of ‘self-help’ employed by the injured State to
induce the wrongdoing State to discontinue the wrongful acts, or make reparation.

However, countermeasures are subject to legal restrictions. Article 2(4) of the UN Charter
prohibits the use of force. The countermeasures must strictly be proportionate to the
wrongful act.

The Corfu Channel case

A few weeks before the explosions on October 22, 1946, the north Corfu strait had been
swept clear of mines. Shortly after the explosions, the United Kingdom government sent a
note to the Albanian government declaring its intention to organize a sweeping operation
of the mines. The Albanian government sent its reply to the United Kingdom government
stating that unless the operation in question took place outside Albanian territorial waters,
it would not consent to this operation. However, the United Kingdom government went
forward with the operation, and a sweep of the mines was made on November 13.

While the Albanian government accused the United Kingdom government of violating its
sovereignty, the United Kingdom government justified the operation as a means of self-
protection or self-help. The Court was of the view that the operation was a manifestation
of a policy of force that cannot find a place in international law. It declared that “respect
for territorial sovereignty is an essential foundation of international relations”, and thereby
held the United Kingdom government liable to make reparation.

Conclusion
If a State breaches a treaty, and the breach causes injury to the other parties, it shall be
bound to make good the losses. Reparation is the indispensable complement of a failure
of a State to apply any of its obligations. If restitutio ad integrum is not possible, the
accused party shall be liable to make compensation.

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