UNIT 5

Q.Discuss the concept of ‘State Responsibility’ under International Law. Out of ‘effective control
test’ and ‘overall control test’, which one according to you is better in determining responsibility
of State. Support your answer with case laws.

State responsibility is a fundamental concept in international law that holds states accountable for their
actions or omissions that violate international law. It refers to the obligation of a state to make
reparations or provide compensation to other states or individuals for damages caused by its wrongful
acts or omissions.

Under international law, states are responsible for their conduct and the conduct of their agents,
including government officials, military personnel, and other public authorities. This responsibility
extends to acts or omissions committed within their territory or abroad.

The rules of state responsibility are established by customary international law and codified in the
International Law Commission's Articles on State Responsibility for Internationally Wrongful Acts.
According to these articles, a state is responsible for an internationally wrongful act when it breaches
an international obligation owed to another state or to the international community as a whole.

The articles set out the conditions for state responsibility, which include:

• The existence of an international obligation: The state must have a legal obligation under
international law that it has breached.
• Breach of the obligation: The state must have committed an act or omission that breaches the
international obligation.
• Attributability: The act or omission must be attributable to the state under international law.
• Causation: The breach of the international obligation must have caused damage or injury to
another state or individual.
• Reparation: The responsible state must provide full reparation for the damage or injury caused.

The concept of state responsibility has important implications for international relations and the
maintenance of international order. It helps to ensure that states abide by their international obligations
and are held accountable for their actions, which can promote respect for international law and
contribute to the peaceful resolution of disputes.
Both the effective control test and the overall control test are used to determine the responsibility of a
state for the actions of non-state actors in a given situation. Each test has its strengths and weaknesses,
and the choice of which test to apply depends on the specific circumstances of the case.

The effective control test focuses on the degree of control that a state exercises over the non-state actor
in question. Under this test, a state may be responsible for the actions of a non-state actor if it exercises
effective control over that actor's actions. This test is particularly relevant in situations where a state
supports or directs the actions of a non-state actor, such as in the case of a state-sponsored terrorist
group.

One example of the effective control test in action is the case of Nicaragua v. United States (1986)
before the International Court of Justice (ICJ). In this case, Nicaragua claimed that the United States
had violated international law by supporting and directing Contra rebels who were conducting military
operations within Nicaraguan territory. The ICJ found that the United States had exercised effective
control over the Contras and was therefore responsible for their actions.

On the other hand, the overall control test takes a broader view of state responsibility and looks at
whether a state has overall control over a situation or territory. Under this test, a state may be responsible
for the actions of non-state actors if it has overall control over the territory in which those actions occur,
even if it does not exercise direct control over the non-state actors themselves.

An example of the overall control test is the case of Prosecutor v. Tadić (1995) before the International
Criminal Tribunal for the former Yugoslavia (ICTY). In this case, the accused was a member of a
paramilitary group operating in Bosnia and Herzegovina during the conflict in the early 1990s. The
ICTY held that the overall control test applied in this case, and found that the state of Serbia was
responsible for the actions of the paramilitary group due to its overall control over the situation in Bosnia
and Herzegovina.

In my opinion, neither test is inherently better than the other, as each test can be useful in different
situations. The choice of which test to apply depends on the specific facts of the case and the nature of
the relationship between the state and the non-state actor in question.

Q.Distinguish diplomatic protection from diplomatic immunity. Discuss the appropriate standard of
conduct in dealing with foreign nationals by a State and the nationality requirement for the admissibility
of invoking State responsibility for the treatment of foreign nationals by a State.

Diplomatic protection and diplomatic immunity are two separate concepts in international law.

Diplomatic protection is the right of a state to take diplomatic or legal action on behalf of its nationals
who have suffered harm or injury in another state. This right arises from the obligation of a state to
protect the rights and interests of its nationals under international law. When a state exercises diplomatic
protection, it seeks to hold the responsible state accountable for the harm suffered by its national and
obtain redress on their behalf.

Diplomatic immunity, on the other hand, is a concept that provides protection to diplomats and other
representatives of a state from the jurisdiction of the host state while they are performing their official
duties. Diplomatic immunity is intended to ensure that diplomats can carry out their duties without fear
of harassment or interference by the host state. This immunity applies to both the person and their
property, and includes immunity from criminal prosecution, civil suits, and taxation.

In summary, diplomatic protection is the right of a state to take action on behalf of its nationals who
have suffered harm or injury in another state, while diplomatic immunity is the protection granted to
diplomats and other representatives of a state from the jurisdiction of the host state while they are
performing their official duties.

Under international law, states are expected to adhere to certain standards of conduct when dealing with
foreign nationals within their territories. These standards include respecting the human rights and
fundamental freedoms of foreign nationals, providing them with equal protection under the law, and
treating them in a fair and non-discriminatory manner. The appropriate standard of conduct in dealing
with foreign nationals is therefore one of respect for their human dignity and recognition of their
inherent worth as individuals, regardless of their nationality.

States have a duty to ensure that the treatment of foreign nationals within their territories is consistent
with their obligations under international law. This includes protecting foreign nationals from arbitrary
detention, torture, or other forms of mistreatment. States must also ensure that foreign nationals have
access to legal remedies to address any violations of their rights.

However, the nationality of the individual concerned must be established in order for the state of which
they are a national to invoke diplomatic protection on their behalf. This is known as the nationality
requirement for the admissibility of invoking state responsibility. The individual must be able to
establish a genuine and effective link with the state in question in order for that state to be able to bring
a claim on their behalf.

For example, in the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo) (2010), the International Court of Justice held that Guinea could bring a claim on behalf of a
national who had been killed by the security forces of the Democratic Republic of Congo, as the
individual had a genuine and effective link with Guinea. The Court also held that the treatment of the
individual by the Democratic Republic of Congo constituted a violation of its obligations under
international law.

In summary, the appropriate standard of conduct in dealing with foreign nationals is one of respect for
their human dignity and recognition of their inherent worth as individuals, regardless of their
nationality. States must ensure that the treatment of foreign nationals within their territories is consistent
with their obligations under international law. The nationality requirement for the admissibility of
invoking state responsibility means that the individual concerned must have a genuine and effective
link with the state in question in order for that state to be able to bring a claim on their behalf.

Q.CRITICALLY DISCUSS THE CORFU CHANNEL CASE

The United Kingdom alleged that the mines had been laid by Albanian naval vessels without any
warning, in violation of Albania's obligations under international law. The UK also claimed that Albania
had failed to provide any assistance to the damaged British vessels after the incident, which resulted in
the loss of several lives.

The UK brought a claim against Albania before the International Court of Justice (ICJ), alleging that
Albania had violated its obligations under international law. The UK argued that Albania had breached
the principle of innocent passage, the law of the sea, and the principle of state responsibility.

Albania denied responsibility for the incident, and argued that the British vessels had violated its
territorial waters and had engaged in provocations that justified Albania's actions.

The ICJ ultimately held that Albania had violated its obligations under international law by failing to
warn shipping of the presence of mines in the area, and by failing to provide assistance to the British
vessels after they had struck the mines. The Court also recognized the principle of innocent passage
through territorial waters, and held that Albania was responsible for the damage caused to the British
vessels, and ordered Albania to pay compensation to the UK.

The Corfu Channel case remains an important precedent in the development of international law,
particularly in the areas of the law of the sea, state responsibility, and the prohibition on the use of force
in international relations.

The case raised a number of important issues in international law, including the law of the sea, state
responsibility, and the use of force. The ICJ held that Albania had violated its obligations under
international law by failing to take appropriate measures to warn shipping of the presence of mines in
the area, and by failing to provide assistance to the British vessels after they had struck the mines.
One of the most significant aspects of the Corfu Channel case was the Court's recognition of the
principle of "innocent passage" through territorial waters. The Court held that the British vessels had a
right to pass through the Corfu Channel without interference, as long as they did so in a manner
consistent with the principles of international law. This ruling established the principle that ships of all
nations have a right of innocent passage through territorial waters, subject to certain conditions.

Another important aspect of the case was the Court's recognition of the principle of state responsibility.
The Court held that Albania was responsible for the damage caused to the British vessels, and ordered
Albania to pay compensation to the United Kingdom. This ruling established the principle that states
are responsible for any harm caused to foreign nationals or their property within their territory, and can
be held accountable for such harm under international law.

The Corfu Channel case also had significant implications for the use of force in international relations.
The Court held that the use of force by Albania against the British vessels was unjustified, and that
Albania had violated its obligation to respect the sovereignty of the United Kingdom. This ruling
established the principle that states are prohibited from using force against other states, except in self-
defense or with the authorization of the United Nations Security Council.

In conclusion, the Corfu Channel case was a landmark decision that established important principles of
international law, including the principle of innocent passage through territorial waters, the principle of
state responsibility, and the prohibition on the use of force in international relations. The case remains
an important precedent in the development of international law, and continues to be cited in legal cases
and academic scholarship to this day.

Q. Explain the rules of attribution with reference to judicial and tribunal decisions.

The rules of attribution are a set of legal principles that determine when a state can be held responsible
for the actions of its officials, agents, or other individuals acting on its behalf. These rules are critical
to the concept of state responsibility under international law, as they establish the circumstances in
which a state can be held accountable for the actions of its representatives.

The general principle of attribution is that a state is responsible for the actions of individuals who act
on its behalf, in accordance with the instructions and policies of the state. However, the specific rules
of attribution can vary depending on the context and the type of conduct in question.

The rules of attribution have been developed through judicial and tribunal decisions, as well as through
international conventions and customary international law. Some of the key decisions and principles
that have shaped the rules of attribution include:

• The Nicaragua case: In this case, the International Court of Justice (ICJ) held that a state can
be held responsible for the actions of individuals or groups that are acting under the "effective
control" of the state, and whose actions are attributable to the state in accordance with principles
of agency. This principle has been applied in subsequent cases to determine state responsibility
for the actions of armed groups or other non-state actors.
• The Barcelona Traction case: In this case, the ICJ held that a state can be held responsible for
the actions of a foreign company that is incorporated under its laws, if the company is under
the "complete control" of the state and is acting as an instrument of the state. This principle has
been applied in cases involving state-owned enterprises or other entities that are closely linked
to the state.
• The ILC Articles on State Responsibility: The International Law Commission (ILC) has
developed a set of draft articles that codify the rules of state responsibility under international
 law. These articles provide guidance on the attribution of conduct to a state, including the
principles of agency, control, and direct participation.

Overall, the rules of attribution are an essential component of the concept of state responsibility, as they
provide a framework for determining when a state can be held accountable for the actions of its
representatives. These rules have evolved over time through judicial and tribunal decisions, and will
continue to develop as new cases arise and new legal principles are established.