State Responsibility

1. Introduction

All states have certain obligations under international law. The law relating to state
responsibility deals with concerns pertaining to the breach of any obligation by a particular
state in international law. Obligation is the consequence of responsibility. Each breach by
any of the subjects of international law attracts an international responsibility by that
particular subject. The Law of State Responsibility deals with the scenarios in which the
obligation/ duty may be said to have been breached by the subject, it primary deals with
what might account for a breach of an obligation/ duty, the result of the same, and it also
lays down how other subjects/ States may react to the breach of obligation.

2. Basics of state responsibility

There are basically three factors that determine state responsibility

i. All states are under a legal duty, that no wrongful act has been committed by them
ii. The act must commit injury to other entities either loss or damage
iii. It is a must that an act shall be committed by the state
iv. If all the factors are satisfied to state is responsible for that act.

3. Elements of State Responsibility

There are two elements of State Responsibility. They are:
1. Act or omission must constitute a breach of an international obligation.
2. Act or omission must be “attributable” to the State.
In principle, generally, the State is not responsible for the acts or omissions of the
individuals. Though the State is abstract, and cannot do anything on its own, but can only
have the functions performed by its organs and/ or its agencies, which are run by individuals,
then in such cases, the State is not responsible for the acts of the individuals that are
committed by the individuals in their personal capacity. It is important to note, that State
Responsibility is under a duty to make reparation for the injury sustained, a duty incumbent
upon the state which violated or did not comply with an international obligation.
4. Explanation
This is one of the most complex concepts of international law, it is complex because, in
state responsibility, it is difficult to define elements of the state and how the state must be
held responsible, for the actions of so many people or organs or so many actions which is
attributed to the state. So, in Resolution 174(II) (1947), the UN General Assembly
established the International Law Commission (ILC) with the aim of undertaking studies
‘to encourage the progressive development of international law and its codification’.
• The ILC has been responsible for developing draft Conventions in many areas of
international law.
 • In 2001, the ILC finalized and adopted its draft Articles on Responsibility of
States for Internationally Wrongful Acts. They were submitted to the UN General
Assembly in the same year. Although the ILC did not produce a draft Convention
on State Responsibility for Internationally Wrongful Acts, the draft Articles are
widely viewed as representative of customary international law in this area of
international law.
• Key Instrument International Law Commission’s Articles on State
Responsibility (ASR) (2001)
Article 1: ‘Every internationally wrongful act of a State entails the international
responsibility of that State. The above principle establishes the notion of State
liability for an internationally wrongful act

5. Kinds of State Responsibility

There are two kinds of State Responsibility-
• Direct State Responsibility
• Indirect State Responsibility.

6. Direct State Responsibility

It is the state’s responsibility for its own actions. It is also known as original
responsibility. A state is a legal person and it ensures that its functions are performed
through different organs and Agencies, and if any wrong act is done, the state becomes
responsible directly on its behalf. The government, which includes the executive, the
legislature, the 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 authorized the armed forces to carry out those
acts.
7. Indirect State 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. In this case, the State has
vicarious responsibility for the acts. It is also an obligation that the state has to prevent its
own subjects and also foreign subjects living in its territory from committing an act that
may cause injury to the other states. If a subject as an individual or as a group causes an
injury, then the state as a whole has to take responsibility for the same. In fact, the State
becomes vicariously liable. The responsibility of the State arises only when one of the
 organs of the State fails to or does not comply or carry out its functions carefully and, in
the manner, it is supposed to.
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 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.

8. Theories as to basis of State Responsibility

The two basic theories at the heart of State Responsibility and associated laws are the
Risk Theory and the Fault Theory.

9. Fault Theory
It is also known as the Subjective Theory of State Responsibility. It was propounded by
Hugo Grotius. He stated that, “if anyone be bound to make reparation for what his
minister or servant does without fault, it is not according to the Law of Nation but
according to Civil Law, and even that rule of Civil Law is not general.” He also tried to
explain the same through the responsibility of private individuals for their own acts in
their own community, and how the State is not bound by the Acts of an individual. This
theory lost its relevance because of the difficulty that was faced in proving the fault on
the part of the States.

10. Risk Theory

This theory is also known as the Objective Theory of State Responsibility. It was
propounded by Dionisio Anzilotti as a rejection of fault theory. According to this theory,
the State is responsible for the harm caused not because of the direct or indirect damage
and also not because of the malicious intent of the individual, but because of the
unfulfilled obligation imposed on the State by international law. Therefore, it is the fact
that is contrary to international law that makes the State liable and not the fault according
to this theory. Therefore, the theory only demands a wrongful act, which is a violation of
international law only to hold the State responsible, irrespective of the presence of a
‘fault’. Therefore, a mere breach of an obligation attracts responsibility of the State.
 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.

11. Defenses taken by Responsible states

i. Consent
If a State has consented to and act then it is not a wrongful act.
Example: A State consenting to station troops inside its borders, transit through airspace,
internal
waterways.
ii. Counter-measure
Under limited circumstances States may take unilateral action to secure their rights. The
principal form of such self-help is taking countermeasures, in invoking counter measure
it must be directed against the responsible State only and the main aim is to end the
breach.
Example: The suspension of an international obligation by an injured State in order to
induce a wrong doing State to resume compliance with their legal obligation.
iii. Force majeure
The state can defend itself by stating that there was an irresistible force for an unforeseen
event which led to the breaching of an obligation. Secondly actions beyond the control of
the State can be
excused.
Example: stress of weather which may divert State aircraft into the territory of another
State. Thirdly certain events make performance of the obligation materially impossible.
iv. Distress
The defense of distress can be invoked where a person whose acts are attributable to the
State has no other reasonable way of saving his/her life or lives of other persons entrusted
to his/her care.
Example: It mostly involves cases of aircraft/ ships entering another State's territory
under stress of weather or mechanical failure.
v. Necessity
Necessity may not be invoked unless the act peril;
a) is the only way for the State to safeguard an essential interest against a grave and
imminent
b) does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.

Example: In the Fisheries Jurisdiction case, Canada took regulatory measures to conserve
straddling stocks. They seized a Spanish ship on the high seas. Canada justified its action
by saying that measures need to be taken to stop overfishing in that area. So, the defence
of necessity was invoked here.
 12. 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.

i. 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.

ii. 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 the aim of reverting the injured party to its State
prior to the occurrence of the act.
iii. Satisfaction
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 acknowledgment of the wrongful character of
the act, the punishment of guilty officials, nominal damage, an official apology, etc.

13. Conclusion
In international law, it is the State’s responsibility which commits a wrongful act against
another state to ensure reparation of the damage done, either by restitution or
compensation, or both. Any wrongful act committed by an organ or an agency of the
State leads to breach of an obligation which leads to the State’s responsibility regarding
the same. The scope of the same has broadened, as the International Court of Justice
gives priority to the interest of the community at large now more than ever.