Responsibility of states for Internationally Wrongful Act

In the current world all states are equal in status and thus they share equal rights as well as
corresponding duties with respect to each other. Thus, there exists an obligation placed on
each state whose breach can cause injury to another. Thus, under international law if a state
causes injury to another it must be held accountable and make reparations to the injured
party.

The U.N. General Assembly decided in 1953 that "it is desirable for the maintenance and
development of peaceful relations between States that the principles of international law
governing State responsibility be codified1. The United Nations General Assembly departed
the duty to codify the principles related to state responsibility to the International Law
Commission in 1975. In August 2001 the international law commission finally adopted the
Articles on Responsibility of States for Internationally Wrongful acts (hereafter ARSIWA). 

The basic principle of “State Responsibility” in international law provides that any state that
violates its international obligations must be held accountable for its acts. It acts as a
compulsion on the states to respect and maintain their international duties, prevents illegal
actions, and in case of breaches provides reparations to the injured. In the Phosphates in
Morocco case2, PCIJ affirmed that when a State commits an internationally wrongful act
against another State international responsibility is established “immediately as between the
two States. This is a fundamental principle, which forms part of international customary law,
and is binding upon all states.
The rules on “state responsibility” do not specify the content of a state’s obligations under
international law, for example torture is forbidden, or that a state must provide medical
services to the civilian population. These obligations are specified in numerous international
law treaties and in international customary law. State responsibility governs when and how a
state is held responsible for a breach of an international obligation.
After the ARSIWA articles community interest has come in light i.e. breach of international
obligation does not just influence the state directly deprived but the complete international
1
Sompong Sucharitkul, State Responsibility And International Liability Under International Law(1996)
2
Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J. (ser. A/B) No. 74 (June 14)

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community as a whole. This was expressed in the judgment of the International Court of
Justice in the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) by
“essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the former is the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection.3”

Elements of Responsibility of a State -

Every internationally wrongful act of a State entails the international responsibility of that
State4. For a state liability to arise out of state responsibility there are certain prerequisites
that are required. First, the existence of an international legal obligation in force as between
two particular states; secondly, that there has occurred an act or omission which violates that
obligation and which is imputable to the state responsible, and finally, that loss or damage
has resulted from the unlawful act or omission5.

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 6.
This implies that the obligation that is breached by the state must be binding upon that state
and if that state is in any way exempt or excused the responsibility of the state cannot arise.

The State is represented by the organs of the State whose acts are attributable to the State
even in instances where they contravene their instructions, or exceed their authority as a
matter of national law as under article 7 of AIRSIWA. No distinction is made based on the
level of the particular organ in the organizational hierarchy of the State; State responsibility
can arise from the actions of a local policeman, just as it can from the actions of the highest
officials, for instance a head of state or a foreign minister 7. In the La Grand (Germany v.
United States of America) case “ The ICJ held that the Vienna Convention on Consular
3
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962)
4
Article 1, Articles on Responsibility of States for Internationally Wrongful acts
5
Malcolm N. Shaw, International Law Pg. 781 (Cambridge University Press, 6th Ed. 2008)
6
Article 12, Articles on Responsibility of States for Internationally Wrongful acts
7
https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/responsibility-state
visited on : 04/04/2020

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Relations of April 24, 1963, granted rights to individuals on the basis of its plain meaning,
and that domestic laws could not limit the rights of the accused under the convention, but
only specify the means by which those rights were to be exercised.8”

The general rule is that a State is not responsible for the acts of private individuals. The
exception to this is that ‘The conduct of a person or entity which is not an organ of the State
under article 4 but which is empowered by the law of that State to exercise elements of the
governmental authority shall be considered an act of the State under international law,
provided the person or entity is acting in that capacity in the particular instance 9’. Under a
joint declaration by Judge Petrén and Judge Onyeama “the absence of a genuine connecting
link between a State and a natural person who has acquired its nationality may be set up
against the exercise by that State of diplomatic protection of the person concerned.10”
Under Article 8 of ARSIWA if private individuals act on the instruction, direction or control
of the State then also State is held responsible. With regard to certain obligations, a State may
incur responsibility even though actions have been carried out by private individuals, because
the essence of the obligation was to ensure that a given result occurred11.

Circumstances also matter in these cases and there are certain conditions which might serve
as an excuse regarding the state’s responsibility. For instance if the consent of the state whose
obligation is breached is taken prior to such breach will prevent the breach from being
wrongful. Also a State’s breach of obligation in response to a prior wrongful act of the other
State, in order to force the other State to comply with its obligations is also not considered to
be wrong and acts as an excuse. Certain other parameters such as force majeure, distress, and
necessity can also serve as excuses to branch of obligation under certain circumstances. There
are certain obligations that are considered to be absolute and under no circumstances is the
breach of these excusable including and not limited to obligation of not using threat or force,
protection of fundamental human rights etc.

8
https://en.wikipedia.org/wiki/LaGrand_case visited on: 04/04/2020
9
Article 5, Articles on Responsibility of States for Internationally Wrongful acts
10
Barcelona Traction, Light and Power co. (Belg. V. Spain) New Application, 1970 ICJ REP.4, 32
11
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/4-state-responsibility visited on:
04/04/2020

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Consequences in case of breach of responsibility –

The breach of an obligation or responsibility can lead to several consequences. If a state is

When a state commits a wrongful act, certain new legal obligations come into effect i.e. that
state comes under an obligation to make reparation for the injury caused due to the act.
Reparation can be classified into three types i.e. restitution, compensation, and satisfaction.
Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with
the provisions of this chapter 12. Restitution is a method to “wipe out all the consequences of
the illegal act and re-establish the situation which would, in all probability, have existed if
that act had not been committed.13” Restitution is always given priority over compensation
and satisfaction as can be seen in the Chorzow Factory14 case where it was expressed that it is
a general principle of international law that reparation is to be made for violations of
international law and is the first to be opted for resolution. In the Bosnian Genocide case 15 the
court held that Serbia had committed a breach of the Genocide Convention by failing to
prevent the genocide from occurring and directed to provide assurances and guarantees of
non-repetition.

Compensation is the payment of damages to one whose rights have been violated by the
breach of the responsibility of the state international law. compensation or satisfaction.
Satisfaction includes an acknowledgement of the breach, an expression of regret, a formal
apology or another appropriate modality but it cannot be humiliating to the responsible state
as according to article 37 of the ARSIWA.

Article 31 of the Articles on State Responsibility provides that the responsible state is under
an obligation to make full reparation for the injury caused by the internationally wrongful act

12
Article 34, Articles on Responsibility of States for Internationally Wrongful acts
13
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1094 visited on:
04/04/2020
14
Chorzow Factory (Ger V. Pol), 1928 PCIJ (Ser.A.) No.17 (Sept.13)
15
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43

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and that injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a state 16. Chapter III of Part II of ARSIWA is dedicated to the serious
breaches of obligations under peremptory norms of general international law. Chapter II of
Part III of ARSIWA gives the affected state the right to take certain countermeasures in such
a way as to permit the resumption of performance of the obligations in question.
Countermeasures may be a form non-compliance by the injured State with its legal
obligations towards the prior State which through neglected its obligations, or unilateral
coercive actions taken by the injured State against the other state.   These measures are
utilized in order to induce the wrongdoing State to discontinue its wrongful act and to provide
reparation for its actions. This type of countermeasures do not fall under breach of a state’s
duty towards another.

Conclusion –

In international law, it becomes the responsibility of each state to carry out its obligation
towards other states and if it does not do so it leads to an international wrongful act which in
turn gives rise to the duty to give reparation. For an act to be attributable to a State must be
committed by its agencies or officials or in the exercise of its authority in any manner.
In current context the world has moved from the bilateral concept of state responsibility to it
becoming a community thing as can be seen through Article 42 of ARSIWA which not only
the right to injured party but also any subsequent party to whom such a breach could cause a
serious effect or even change the nature of international obligation in a manner which harms
its interest.
A state’s liability arises out of an act or omission of an act which violates a pre-existing
obligation, imputable to the state responsible, causes loss or damage to another. This breach
leads to creation of new legal obligation to account for such a breach. Such breach can be
accounted by first cessation of such act if it is in motion along with proper assurances and
also provide for reparations in form of restitution, compensation and satisfaction, either
singly or in combination. Thus can be said that states are held accountable to a certain
standard of obligation and responsibility if a state ever commits an act which is considered to
be wrong at an international level and can be attributed to it.

16
Malcolm N. Shaw, International Law Pg. 802 (Cambridge University Press, 6th Ed. 2008)

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Bibliography –

1. Malcolm N. Shaw, International Law (Cambridge University Press, 6th Ed. 2008)
2. Articles on Responsibility Of States For Internationally Wrongful Acts
3. lawteacher.net
4. ckadvocates.co.ke
5. encyclopedia.com
6. casebook.icrc.org
7. icj-cij.org
8. wikipedia.org
9. opil.ouplaw.com