State Responsibility

Sherricca Brandford (Lecturer SOBA)

 State Responsibility Context
• The law on state responsibilities asks a number of questions and those questions
relate to what happens if a State violates its obligations under international :
✓ When are States legally responsible for violations of international law? – e.g. attribution
✓ Who can invoke State responsibility (locus standi) ? – e.g. injured States, other actors? Who can accuse a State of
violating international law?
✓ Who exactly acts on behalf of the state? So who is capable of engaging the responsibility of the State?
✓ What are the consequences of State responsibility? – e.g. reparation . Once a State has breached international law,
and the State has no circumstances precluding wrongfulness, what are the consequences of then saying that a State is
responsible for violating international law? Examples of reparation include monetary compensation
✓ Are there any defenses? – circumstances precluding wrongfulness - In the same way as we would ask in domestic
criminal law that the defendant could raise?
 State Responsibility context contd.,
• The ILC (International Law Commission) is tasked with the codification and progressive
development of international law.
• Rules on State responsibility largely codified in 2001 ILC Articles on State Responsibility, annexed to
UNGA Res 56/83 (2001).
• There is no treaty governing state responsibility; so there is no equivalent in the law on state
responsibility for example to the Vienna Convention on the Law of Treaties, which regulates the law
of treaties. However 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.
 When will a State be held responsible for an
act?
• What will classify as an international wrongful act?
• Art 2 ILC Arts: ‘There is an internationally wrongful act of a State when conduct consisting of an action or omission:
a) is attributable to the State under international law;
b) constitutes a breach of an international obligation of the State
• Breach is determined by the rule which is alleged to be violated. Attribution is effectively the particular act or omission that is
inconsistent with international law attributable to the State
What constitutes a State for the purpose of establishing international responsibility?
• State cannot act but relies on actions of individuals therefore the ‘conduct of any State organ shall be considered an act of that
State’. Consequently, the acts and/or omissions of any governmental body (including the legislature, executive and judiciary) and,
those agencies which are not formally part of the State but which ‘exercise elements of governmental authority’ shall constitute
State conduct for the purpose of establishing State responsibility.
 State Resp contd.,
A State is only responsible for the actions of
• The government
• Political subdivisions of the state
• Organ , Agency or Official Employee or other agent of its government acting within the scope of its
employment

• International law attributes responsibility to States for the acts and omissions of their officials (and those exercising
governmental authority). This broad definition of a State for the purpose of State responsibility prevents the avoidance of
responsibility for a violation of international law because of a State’s internal structures of governance. This approach is
strengthened by the principle that a State cannot invoke its own national law to avoid international responsibility. The idea
is that the State should ensure that its national legal system and its internal system of government enable it to comply with
its international legal obligations and thus to adhere to its international responsibility.
 State Resp contd.,
• State resp for public officials covers those situations where they are acting
within the scope of their actual and implied authority and may also impute
liability to states in circumstances where the public official acts outside the
scope of their authority
• See for eg the Youmans Claim 1926 - In this case, Mexico was held to be
responsible for murders carried out by Mexican police, even when it was
clear that they were disobeying their orders.
https://www.youtube.com/watch?v=A1WCQqAjD4I
 State Resp contd.,
• States will not be responsible for acts of mob violence or insurrection unless it was incited by the state or if they failed to exercise due diligence in
restoring order
• See for eg Noyes Claim
• Facts : On June 19, 1927, Mr. Walter Noyes, an American citizen, passed through the village of Juan Diaz in his automobile, on his return to
Panama City from the trip to the Tapia River. In the center of the village a crowd blocked the road and Mr. Noyes stopped and sounded his
horn, whereupon the crowd slowly open. Whilst he was progressing very slowly through it, he had to stop again, because somebody lurched
against the car and fell upon the running-board. Thereupon members of the crowd smashed the windows of the car and attacked Mr. Noyes,
who was stabbed in the wrist and hurt by fragments of glass
• Issue: Whether or not the State of Panama was liable on the ground that it fails to provide th eadequate police protection, to exercise due
diligence in the maintenance of order and to take adequate measures to apprehend and punish the aggressors
• Held The mere fact that an alien has suffered at the hands of private persons an aggression, which could have been averted by the presence
of a sufficient police force on the spot, does not make a government liable for damages under international law. There must be shown
special circumstances from which the responsibility of the authorities arises: either their behavior in connection with the particular
occurrence, or a general failure to comply with their duty to maintain order, to prevent crimes or to prosecute and punish criminals. There
were no such circumstances in the present case. Accordingly a lack of protection has not been established.
 When will a State resp contd.,
• Individuals : States not generally responsible for acts of individuals in their private
capacity but will be responsible for actions of its citizens against foreigners when it
fails to properly prosecute and punish them for those acts or in circumstances where
the individual or group of individuals act on its instruction or direction
 State Resp
Treatment of Aliens
• If an individual is injured in another state redress can only be sought through the individuals state of
nationality. State determines whether to seek redress and is not compelled to hand over compensation
to the affected individual . See for example Marvomatis Palestinian Concessions Case 1924
• Facts - The Palestinian authorities refused to recognize concessions held by Mavrommatis and obtained from the
previous sovereign authority. The Greek government made a claim against the UK (the mandatary power) on his behalf.
• Legal Principle -The PCIJ noted that: ‘It is an elemental principle of international law that a state is entitled to protect its
subjects, when injured by acts contrary to international law committed by another state . . . By taking up the case of one
of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality
asserting its own rights – its right to ensure, in the person of subjects, respect for the rules of international law. The PCIJ
noted that: ‘It is an elemental principle of international law that a state is entitled to protect its subjects, when injured by
acts contrary to international law committed by another state . . . By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own
rights – its right to ensure, in the person of subjects, respect for the rules of international law.
 State Resp
Treatment of Aliens contd.,
• States will only pursue claims on behalf of its citizens – problems arise where
citizenship is recent or in instances of dual Nationality . See for example Nottebohm
Case
• In instance of dual nationality the state with dominant nationality can bring a claim
.Effective nationality is determined by family ties , centre of interest , participation in
life . See for example the Canevero Case
 Who can invoke State Resp

There are two roots to invoking State responsibility depend on whether you qualify as
the injured State or whether you qualify as a non-injured State.

• Art 42: A State can invoke responsibility as an injured State if:

• The State is specially affected - an injured State can essentially invoke State responsibility at full
and is entitled to compensation for losses that can't be made through restitution.
• Obligation owed to that State individually
• The obligation breached results in radically changing the position of all other States to which the
obligation is owed (e.g. disarmament treaty)
 Who can invoke State Resp
Art 48: A non-injured State can invoke responsibility if the obligation breached is owed:
• erga omnes ( right or obligation owed to all community of states ) (eg., Barcelona Traction, ICJ,
1970- brought by Belgium against Spain and it was in relation to a company that was actually
incorporated in Cananda but the majority of the shareholders were Belgian. Belgium brought a claim
on behalf of those Belgian national shareholdres against Spain for various violations of international
law in its treatment of this company. However, Belgium did not have standing as the standing was
under Canada.)
• erga omnes partes (Belgium v Senegal, ICJ, 2012- Belgium succeed in this standing claim because it
show that the obligation here was an erga omnes partes obligation. This case was concerned with the
responsibility of Senegal under the Convention Against Torture.``) Those obligations are obligations
that are owed to the entire group of States that are party to the treaty.
 Defenses to State Responsibility
There are a number of well-established defenses to State responsibility. The most
significant are:
1. Force majeure ( Act of God – frees from liability ) – See Rainbow Warrior
Case 1987
Facts
Two security agents acting on behalf of France sank the ship Rainbow Warrior in New Zealand’s territorial waters. The
dispute was settled by a 1985 treaty between France and New Zealand, in which it was agreed that the agents would be
detained in an overseas military base for three years. The agents were repatriated before the agreed period had elapsed.
France claimed that the reasons for repatriating the agents were beyond its control (force majeure).
Legal principle
France’s defence of force majeure was not established on the facts. Repatriation was justified on medical grounds.
However, the Arbitration Panel decided that this did not render the performance of the agreement impossible.
 Defenses to State Resp Contd. .
Estb. Force Majure rests on a three-part test
• “conduct of the State which would otherwise be internationally wrongful is involuntary or at
least involves no element of free choice.
• An unforeseen event or irresistible or major force makes complying with your international
obligation materially impossible. So the violation of your international law obligation must
effectively be involuntarily as you do not have any other choice but to breach your obligation.
• You do not have to show that it would have to be materially impossible to comply with your
international obligation as you just have to show that there's no other reasonable way in that
situation of saving a person's life. ‘… the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation.’
• Conduct is involuntary or at least involves no free choice e.g. diversion of State aircraft in bad
weather conditions
 Defenses to State Resp Contd. .
2. Distress
• ‘The wrongfulness of an act of a State not in conformity with an international
obligation of that State is precluded if the author of the act in question has no other
reasonable way, in a situation of distress, of saving the author’s life or the lives of
other persons entrusted to the author’s care.’ Eg. The most reasonable way to save a
person's life is to violate the international law obligation. “not acting involuntarily,
even though the choice is effectively nullified by the situation of peril” (For example
the French contention of distress in Rainbow Warrior Case was partially successful.
 Defenses to State Resp Contd.
3. Necessity - Article 25 ASR

• The state of necessity can be invoked under precise conditions, laid down in Article 25 of the International Law Commission’s
Articles on State Responsibility. It traditionally indicates the existence of a situation in which the sole means by which a State can
safeguard an essential interest from grave and imminent peril is by violating international law.
• Key Case: Gabcikovo-Nagymaros Case (1997) ICJ R
• Facts : Hungary invoked the defense of necessity to justify its decision to abandon construction work on a dam project
which would otherwise have resulted in international responsibility.
• Legal principle The ICJ decided that Hungary could not satisfy the requirements of the defence of necessity because there
was insufficient evidence that its decision was made in response to a situation of imminent danger to the environment.
 Defenses to State Resp Contd.
4. Self-defence – Article 21, ASR
• Self-defense in international law refers to the inherent right of a State to use of force in response to an armed
.
attack. Self-defense is one of the exceptions to the prohibition against use of force under article 2(4) of the UN
Charter and customary international law.
• If a state is found to be in violation, and it is an ongoing violation of continuing breach of its international
obligation, then the State is required to cease and make assurances of non-repetition of that violation. Assuming
that the violation has ceased, we also have the question of reparations. When there is a breach of international
law, the State responsible for that breach is required to make a reparation for that breach.
• Reparation (arts 34-37 ASR )
•
 Defenses to State Resp Contd.
Self defence contd.,
• Restitution- place the parties, and in particular the victim State, in the position they would
have been in were not for the violation having been committed.
• Compensation- fairly unusual to be an order for compensation (e.g. Corfu Channel
case- series of confrontations between Albanian and UK during the Greek civil war and
among those confrontations there was an incident where UK ships were passing through the
Corfu channel and they hit a number of mines that were in this channel. Albania was found
responsible by the ICJ for not warning about those mines as they were so close to the
Albania territory and the ICJ ordered Albania to pay the UK compensation) o The ICJ is
not so keen on providing compensations. However, other tribunals such as the European
Court of Human Rights tend to provide compensations more frequently.