STATE REPONSBILITY

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 Topics that will be covered:
 Nature of the State Responsibility
 Attributability
 Breach of International Obligations
 Circumstances Precluding Wrongfulness (Defences)
 Legal Consequences of an Internationally Wrongful Act
 Forms of Reparation
 Admissibility of Claims

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 NATURE OF STATE RESPONSIBILITY
Definition:
 The legal consequences of the internationally wrongful act of
state, the obligation of the wrong-doing state and the rights and
powers of any state affected by the wrong.

 Responsibility arises from the breach by a state of an

international obligation either customary international law or a
treaty obligation.

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 Examples of breach of international obligations

1. If violates the territorial sovereignty of another state

2. If it injures the diplomatic representative of another state

3. If it mistreats the nationals of another state

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  The law of responsibility establish:-

 the conditions for an act to qualify as internationally

wrongful;
 the circumstances under which actions of officials,
private individuals and other entities may be attributed
to the state;
 general defences to liability and
 the consequences of liability.
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 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 (Draft Articles) by
the ILC in August 2001.

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  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.

 According to the Draft Articles, an internationally wrongful act

must:

1. Be attributable to the state under international law; and

2. Constitute a breach of an international obligation of the state.

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  "Breach of an international obligation" is defined as "an act ... not
in conformity with what is required ... by that obligation."

 Furthermore, the state cannot avoid responsibility by declaring

something legal under its own domestic law.

 Some older cases and commentaries discuss whether state

responsibility is based on notions of fault or strict liability.

 It may be said that states are more "strictly liable" for the actions
of their officials than for the actions of private individuals.

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 Cont…
 In the latter case, it may be necessary to prove some "failure
to control" the private individuals (i.e. "fault") before the
state itself is held responsible.

 The articles leave it to the primary rules of obligation to

determine whether the wrongfulness of an act depends on
fault, intention, lack of diligence, or the like.

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 ATTRIBUTABILITY
 Legal person with full authority to act under international law,
but since the state is an abstract entity, it cannot act of itself.

 An “act of the State” must involve some action or omission by a

human being or group. States can act only by and through their
agents and representatives.

 In short, a state is only responsible for actions which are

imputable or attributable to it.

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 Cont…
 Usual interpretation of this: A state is responsible for acts
done by officials within their express and apparent authority.

a) This includes:
1] Acts within the scope of an official's authority.

2] Acts outside their scope of authority if the state provided

the means or facilities to accomplish the act.

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 Youmans v. United Mexican States
 A mob gathered around a house in Mexico within which were 3
US nationals.

 The local mayor ordered a lieutenant to proceed with troops to

quell the riot and put an end to the attack upon the Americans.

 The troops, on arriving at the scene of riot, instead of dispersing

the mob, opened fire on the house which resulted in the death of
the Americans.

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 The Commission stated that the participation of the soldiers in the
murder could not be regarded as acts of soldiers committed in their
private capacity.

When it was clear that at the time of the commission of these acts
the men were on duty under the immediate supervision and in the
presence of a commanding officer.

Accordingly, Mexico was held to be responsible.

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 Conduct of State Organ
 In respect of the responsibility of a State for the conduct of
its organ, Article 4 of the UN Charter provides:
“ The conduct of a State organ shall be considered as an act of that
state under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds
in the organization of State, and whatever its character as an organ
of the central government or of a territorial unit of the State.

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  The State is responsible for the conduct of its own organs or
officials, acting in that capacity, has been recognized in
international decisions since many years ago.

 Executive Organ (Government officials, police and armed forces

etc):

 In Massey Claim (US v Mexico), the US recovered damages by

reason of the failure of the Mexican authorities to take adequate
measures to punish the killer of Massey, a US citizen working in
Mexico.

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  Unreasonable acts of violence by police officers and a failure
to take appropriate steps to punish the culprit will also give
rise to responsibility.
 A state is responsible for the acts of its security services.
 The RainbowWarrior Incident .

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 Rainbow Warrior Incident
 Rainbow Warrior is the name of a series of ships operated by
Greenpeace.

 The first ship was sunk by the French foreign intelligence agency
(DGSE) in Auckland harbour, New Zealand, on 10 July 1985.

 So when the vessel was leaving to protest against French nuclear
tests in the Pacific, it was blown up in Auckland Harbour by
French secret service agents.

 The French government admitted its responsibility for the

destruction of the vessel.
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 Cont…
 The UN Secretary General involved in the mediation and
suggested for the payment of US$ 7million as compensation
for the breach of New Zealand’s territorial sovereignty.

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 The French Agent Who Bombed the Greenpeace
Ship Rainbow Warrior Apologises After 30 Years
(Sept. 6, 2015)

Jean-Luc Kister
 A state is responsible under IL if it fails to punish responsible
individuals or to provide the injured foreign national with the
opportunity of obtaining compensation from the wrongdoers in
the local courts.

 Janes Claim Case (US v Mexico): Janes, US citizen was

murdered at a mine in Mexico. The person who killed Janes was
well known in the community of the place the murder
happened.

 There is evidence that a Mexican magistrate was informed of

the shooting within 5 minutes after it took place.

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  However, even after 8 years had gone, the murderer had not
been apprehended and punished by the Mexican authorities.

 The Commission found that Mexico was responsible for the

denial of justice and awarded damages accordingly.

 In the respect of the application of treaties, if the courts decline

to give effect to the treaty or are unable to do so because the
necessary change in the national law has not been made, their
judgments involve the state in a breach of treaty.
.

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 Cont…
 In an official capacity:The state will be responsible for the conduct
of a person or entity which has the status of a state organ, if that
person or entity acts in an apparent official capacity.

 If that person acts in a private capacity i.e. the act has no

connection with the official function and is in fact merely the act
of private individual, the state will not be responsible.
(Mallen Case US v Mexico)

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 A Mexican consul had been violently attacked and beaten twice by an
American police officer.

 1st attack: the evidence indicated a wanton (reckless) act of a

private individual who happened to be an official.

 2nd attack: the American police officer showing his badge to

assert his “official capacity”, struck Mallen with his revolver, and
then took him at gun point to the county jail.
It was held that the US was responsible for this 2nd assault.

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 STANDARD OF CARE
 Two Criteria for Determining How a State is Supposed
to Act have been established by case law:
a. The "national standard.“

b. The "international standard" (or sometimes the "international

minimum standard").

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 The National Standard
a. Standard favored by Third World countries (especially the
Latin-American countries before World War II and the Afro-
Asian countries since).
b. Defined: A state should treat an alien exactly as it treats its
own nationals -- no more, no less.
c. Criticisms:
1) There would be no protection for aliens if nationals are
ill-treated.

2) If the rule is carried to its extreme, it would mean that

aliens should be given the same privileges (voting, health
care, etc.) as nationals.
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 The International Standard
 Note: Standard of care favored by majorWestern countries.
 Defined: While states have no obligation to admit aliens to their territory,
once they do so, they must treat them in a civilized manner.

1) Failure to do so can be classified as either a crime or a tort. Examples of

crimes: Serious breaches of international peace that:
a. deny peoples the right of self-determination,

b. fail to safeguard human life and dignity, o

r
c. injure the environment.

 Examples of torts:
a. Expropriation (or nationalization) of the property of aliens and foreign businesses, and
b. Denial of justice.

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 Responsibility for omission or inaction
on the part of the State
 A state is not responsible for the acts of private individuals. But
the act of private individuals may also be accompanied by some
omission on the part of the State, for which the State is
responsible.

 However it is to be noted that in the case of violence and other

unlawful acts against the foreigners and foreign property, the
State is not responsible for the acts of the individuals as such
(i.e. the conduct of the individual cannot be normally be
attributable to the State)

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 It is only responsible if its own “conduct by omission” may be proved,
that is, there is failure to act in conformity with international legal
standards.

 The State is responsible for the conduct (omission, inaction, failure)

of its own organs (police, security, forces, courts, etc.).

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  The following are the two forms of omission on the part of
the State for which the State is responsible:-
 Failure to exercise “due diligence” – a State is
responsible under IL if it fails to exercise “due diligence” to
prevent the private persons from attacking the foreign
nationals or destroying foreign property.
 A State should be consistent in exercising “due diligence” to
protect foreign nationals and property

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 Asian Agricultural Products Ltd v Sri Lanka (1990)
 A British company brought an international action against Sri
Lanka and claimed compensation for the destruction of its Sri
Lankan farm.

 The Tribunal found that the farm was in an area that was largely
under the control of Tamil Tigers rebels and that farm management
had offered to dismiss farm staff thought by the Government to be
in league with them.

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  Neglecting this offer, the Sri Lankan Government forces launched
a vast Counterinsurgency operation in that area which resulted in
deaths of company workers and destruction of company property.

 The Tribunal then considered the responsibility of a State in the

context of rebel or terrorist activity and decided that Sri Lanka
violated its due diligence obligation

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  Denial of Justice – a State is responsible under IL if it fails to
punish responsible individuals or to provide the injured foreign
national with the opportunity of obtaining compensation from
the wrongdoers in the local courts.
 This is an example of “denial of justice”.

 Refer to case of Janes Claim at Slide 17 & 18 where, Mexico was

held as responsible for the denial of justice and awarded damages
accordingly.
 (Analyse the case of Zaki-ur Rehman Lakhvi )

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 Responsibility for Ultra Vires Acts
 The responsibility of a State for the conduct of the State organs is
so wide that it even extends to the ultra vires acts.

 It is in fact based on the fundamental principle that “all

Governments should always be held responsible for all acts
committed by their agents by virtue of their official capacity.

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  Article 7 of the Article on State Responsibility provides:

“ The conduct of an organ of a State or of a person or

entity empowered to exercise elements of the
governmental authority shall be considered as an act
of the State under the International Law, if the
organ, person or entity acts in that capacity, even if it
exceeds it’s authority or contravenes instructions”

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 Breach of an International Obligation
 This is the 2nd element of wrongful act. Article 12 provides
that there is a breach of an international obligation by a state
when an act of that state is not in conformity with what is
required of it by that obligation, regardless of its origin or
character (refers to all possible sources of international
obligations).
 In Rainbow Warrior Arbitration (1990) (New Zealand v
France), it was held that “any violation of international
obligations by any state will make the state responsible and gives
the duty of reparation to that state

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  Article 13 provides that ‘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 the act
occurs. This article provides a guarantee against the
retrospective application of international law in matters of
state responsibility.

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 Circumstances Precluding Wrongfulness (Defences)
According to the International Law Commission, there are six
defences against an otherwise well-founded claim for the
breach of an international obligation:

 Consent – Article 20 states that “valid consent” by a State to

the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the
extent that the act remains within the limits of that consent.

 Therefore, consent to carry out activities that would otherwise

be prohibited by international law renders those activities
lawful.
 E.g. consent to allow foreign troops on national territory, to
allow aircraft to cross the airspace or to arrest persons on
foreign territory.
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  Self Defence – The act should be in conformity with the
Charter of the UN. Article 51 of UN Charter preserves a
state’s inherent right of self defence in the face of armed
attack.

 So, a state exercising its inherent right of self defence as

referred to in Article 51 of the Charter is not in breach of
Article 2(4) which prohibits the threat or use of force.

 Countermeasures – is a system (usually for a military

application) designed to prevent weapons from acquiring
and/or destroying a target.

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  It may function by concealing the sensory signature of the target,
or deceiving or disrupting the target detection systems of the
attacker. (Refer to Article 22 of the Draft Articles on Responsibility of
States,2001)

 Force Majeure - (French for "greater force") is a common

clause in contracts which essentially frees one or both parties from
liability or obligation when an extraordinary event beyond the
control of the parties, such as war, strike, riot, crime, act of God
(e.g., flood, earthquake, volcano), prevents one or both parties
from fulfilling their obligations under the contract.

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  Time-critical contracts may be drafted to limit the shield of
this clause where a party does not take reasonable steps (or
specific precautions) to prevent or limit the effects of the
outside interference, either when they become likely or
when they actually occur.

 Note also that a force majeure may work to excuse all or part
of the obligations of one or both parties.

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  For example, a strike might prevent timely delivery of goods, but
not timely payment for the portion delivered.

 Under international law it refers to an irresistible force or

unforeseen event beyond the control of a State making it
materially impossible to fulfill an international obligation.

 Force majeure precludes an international act from being wrongful

where it otherwise would have been.

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 Distress – Defined under Article 24(1) as a situation where
the author of the (otherwise wrongful) act has no other
reasonable ways, in a situation of distress, of saving the
author’s life or the lives of other persons entrusted to the
author’s care”.

 E.g. Unauthorized entry of an aircraft into foreign territory

to save the lives of passengers, or the entry of a military ship
into a foreign port without authorization due to a storm.

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  Necessity – Defined under Article 25(1) as the condition
where an otherwise unlawful act is performed and such act:-

 (a) is the only means for the state to safeguard an essential

interest a grave and imminent peril; and

 (b) does not seriously impair an essential interest of the state

or states towards which the obligations exists, or of the
international community as a whole.

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  In the incident of Torrey Canyon (1967): Torrey Canyon,
the Liberian oil tanker, had run aground on the high seas off
the British coast in 1967.

 Salvage operations were unsuccessful due to rough seas.

 To prevent further damage to the British and French coasts

and the pollution of the marine environment, the British
bombed the vessel so that the oil therein was burnt.

 The British Government invoked necessity and no other

states protested.

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 Legal Consequences of an Internationally Wrongful Act

If a state commits an internationally wrongful act, international

law attributes to the responsible state new obligations and in
particular the obligation to make compensation.

There is a close link between the breach of an international

obligation and its immediate legal consequence in the obligation of
reparation.

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 Although new obligations will emerge from the breach by a
state of an international obligation, the responsible state is
not released from its continued duty to perform the
obligation breached.

Besides, the state responsible for the internationally

wrongful act is under an obligation to stop that act, if it is
continuing; and to offer appropriate assurances and
guarantees of non-repetition. if circumstances so require.

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  Assurances and guarantees of non-repetition:

 In La Grand Case (1982), which concerned an admitted

failure, on the part of the US authorities, of consular
notification, contrary to Article 36 of the Vienna Convention
on Consular Relations 1963.

 Germany sought assurances and guarantees in respect of the

means of future compliance with the Convention.

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  The US argued that formal assurances and guarantees were
unprecedented and should not be required and that Germany’s
entitlement to remedy did not extend beyond apology, which the
US had given.

 The court also found that the United States violated the Vienna
Convention through its application of procedural default

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 FORMS OF REPARATION
 An important legal consequence of an internationally
wrongful act is that the injured state is entitled to obtain
reparation from the wrongdoing state.

 Article 34 provides that “Full reparation for the injury caused

by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction…”

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 Restitution
 Article 35 ICJ statute provides a state responsible for an
internationally wrongful act is under an obligation to make
restitution: re-establish the which existed before the wrongful
was committed, provided and to the extent that restitution;

 Is not materially impossible

 Does not involve a burden out of all proportion to the benefit

deriving from restitution instead of compensation.

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  Material restitution:
 Temple of Preah Vihear Case

 The ICJ ordered Thailand to return to Cambodia religious

objects it had taken illegally from a temple in Cambodia.
 The law of restitution is the law of gains-based recovery.
 It is to be contrasted with the law of compensation, which is
the law of loss-based recovery.
 Obligations to make restitution and obligations to pay
compensation are types of legal response to events in the real
world.

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  Whether or not a claimant can seek restitution for a wrong
depends to a large extent on the particular wrong in
question.

 For example, in English law, restitution for breach of

fiduciary duty is widely available but restitution for breach
of contract is fairly exceptional.

 The wrong could be of any one of the following types:

 A statutory tort
 A common law tort
 An equitable wrong
 A breach of contract

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 Compensation
 Article 36 (1) ICJ statute. Article 36(1) – The state responsible for
an internationally wrongful act is under an obligation to compensate
for the damage caused thereby, insofar as such damage is not made
good by restitution. Most common solution in international practice.

 I’m Alone Case (Canada v US) – the Commissioners

recommended the payment by the US of $25, 000 as a material amend
in respect of the wrong committed by the US in sinking the I’m Alone.

 The compensation was on account of the indignity suffered by Canada

by the unlawful sinking of a ship registered in Montreal. It was not
related to the value of the ship or its cargo.

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 Satisfaction: Article 37of ICJ Statute.
 Satisfaction is a further remedy, which is particularly
appropriate in cases where there is “moral” or non-material
damage.
 The appropriate form of satisfaction will depends on the
circumstances.
 Apology is a common form of satisfaction. Expression of
regret or apologies were required in I’m Alone case, Rainbow
Warrior Arbitration, and were offered by the responsible state in
theVienna Convention on Consular Relations case and La Grand Case.

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 WALTER LaGRAND’S FINAL STATEMENT

 ”I just want to say sorry to the Hartsock family. First time I

really got to see that picture (possibly referring to a photo of
Kenneth Hartsock being held by his daughter). I am truly
sorry. I hope you find peace. I want to thank Helen
(Hartsock’s sister) for forgiving us. I want to say to her kids
and to Lopez, Dawn Lopez, I hope you find peace. To all my
loved ones, I hope they find peace. To all of you out here
today, I forgive you. I hope I can be forgiven in my next life.
That’s all I have to say

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