What is State Responsibility?

Definition: State responsibility refers to the legal accountability of a state when it commits an
internationally wrongful act against another state. This principle is based on the idea that states
must adhere to their international obligations and can be held liable if they fail to do so.

Key Principles of State Responsibility

1. Internationally Unlawful Acts:

o An act is considered unlawful if it violates an international obligation. This can
include treaties, customary international law, or general principles of law.
o Example: If Country A attacks Country B without justification, it commits an
internationally unlawful act.
2. Breach of Obligation and Reparation:
o When a state breaches an obligation, it must provide reparation (compensation) to
the injured state.
o Example: If Country C spills oil into the waters of Country D, damaging its
environment, Country C must compensate Country D for the damage caused.
3. Procedural and Consequential Issues:
o The law of state responsibility focuses on the consequences of a breach rather
than the substantive rules themselves.
o This includes how disputes are settled and what remedies are appropriate.

Burden of Proof

When asserting a claim of state responsibility, the burden of proof lies with the party making the
claim. This means:

 Evidence Requirement: A party claiming state responsibility must provide clear and
convincing evidence.

Development of State Responsibility Law

The International Law Commission (ILC) has played a crucial role in formulating the laws
governing state responsibility. Here’s how this has evolved:

1. Draft Articles on State Responsibility:

o In 1975, the ILC decided to draft articles to systematically address state
responsibility.
o These articles were finalized and adopted in 2001 and are intended to clarify the
rules regarding when and how states can be held responsible for wrongful acts.
2. Structure of the Draft Articles:
o Part I: Origin of international responsibility (what constitutes an internationally
wrongful act).
o Part II: Content and forms of responsibility (what reparation looks like).
 o Part III: Dispute settlement and implementation of responsibility (how states can
resolve these disputes)

Essential Characteristics of State Responsibility

State responsibility hinges on several key factors:

1. Existence of an International Legal Obligation:

o There must be a valid international legal obligation in force between the states
involved. This can arise from treaties, customary international law, or general
principles of law.
o Example: A treaty may require countries to protect the environment; if one
country violates this obligation, it may be held responsible.
2. Violation of that Obligation:
o An act (or failure to act) must occur that violates this obligation. The act must be
attributable to the state, meaning it is performed by state agents or bodies.
o Example: If a government fails to regulate a hazardous industry, resulting in
environmental damage, this omission can be viewed as a violation of its
international obligations.
3. Resulting Loss or Damage:
o There must be a loss or damage that results directly from the unlawful act or
omission. The injured party must be able to demonstrate that they suffered harm.
o Example: If a state conducts military operations that accidentally harm civilians
in another country, the affected state may claim compensation for the damage
caused.

Complicity in State Responsibility

 A state can be held responsible for assisting another state in committing an internationally
wrongful act if it acts with knowledge of the wrongful act and the act would also be wrongful if
committed by the assisting state.
 Example: If State A helps State B in conducting an illegal military operation against State C, State
A may also be held responsible for its involvement.

Coexistence of State and Individual Responsibility

 State responsibility can coexist with individual criminal responsibility. This means that
individuals within a state can also be held accountable for international crimes, such as war
crimes or genocide, while the state itself bears responsibility for its actions.
 Example: After World War II, both the Nazi regime (as a state) and individuals (Nazi leaders)
were prosecuted for war crimes. This demonstrates the dual nature of responsibility in
international law.

Types of Breaches
1. Continuing Breach

Definition: A continuing breach occurs when an unlawful act or omission persists over time.
The violation does not stop until the act is remedied or the state complies with its international
obligations.

Key Characteristics:

 The unlawful action remains in effect, and its effects continue to harm the rights or interests of
another state or entity.
 The state can be held responsible for the duration of the breach, and reparations may be
required for the ongoing harm.

Example:

 Ongoing Pollution of a River: If Country A is continuously discharging pollutants into a river that
flows into Country B, this constitutes a continuing breach of international environmental
obligations. The pollution may harm aquatic life, affect drinking water, and disrupt local
economies in Country B. Each day that the pollution continues represents a separate instance of
the breach, and Country A may be liable for damages for the entire period the pollution persists.

2. Composite Act

Definition: A composite act involves a series of actions or omissions that, when viewed
together, constitute a violation of international law. Each individual act may not be unlawful on
its own, but collectively they result in a breach.

Key Characteristics:

 The series of acts must be connected in such a way that they contribute to a single violation of
an international obligation.
 Assessing responsibility may require analyzing the totality of the actions rather than isolating
them.

Example:

 Destruction of Cultural Heritage: Imagine a situation where a state, during military operations,
conducts several actions that together lead to the destruction of a UNESCO World Heritage site.
For instance, if State X first conducts airstrikes that damage nearby structures, then fails to
prevent looting of artifacts, and finally allows further destruction during the conflict, these
combined actions form a composite act that violates international laws protecting cultural
heritage. Even if one individual action (like the airstrike) could be justified, the overall
combination of actions leads to state responsibility for violating its international obligations to
protect cultural sites.
The question of fault in state responsibility is a significant topic in international law,
revolving around whether states should be held liable for unlawful acts based solely on objective
criteria or if some degree of fault or intent must be established. Let’s break down the key
concepts, theories, and real-life examples for better understanding.

Theories of State Responsibility

1. Objective Responsibility (Strict Liability)

Definition: The principle of objective responsibility posits that a state can be held liable for
unlawful acts or omissions without needing to demonstrate fault or intent on the part of its
officials. Under this theory, once a state commits an unlawful act that causes harm, it is
automatically responsible, regardless of the state’s intentions or the circumstances surrounding
the act.

Key Characteristics:

 Liability arises solely from the act itself.

 The focus is on the action and its consequences rather than the mindset of the perpetrators.

Definition: Subjective responsibility requires establishing an element of fault, such as intent

(dolus) or negligence (culpa), on the part of state officials before the state can be held liable for
any resulting harm.

Key Characteristics:

 Responsibility hinges on proving the wrongful intent or negligence of state agents.

 This theory emphasizes fairness and the need to assess the conduct of the individuals
involved.

Commentary on the ILC Articles

The International Law Commission (ILC) Articles on State Responsibility do not definitively
favor one approach over the other. Instead, they recognize that the standards for determining
responsibility can vary based on the specific context and the nature of the obligation in question.
This flexibility is crucial, given the complexity of international relations and the diverse
scenarios in which state responsibility might arise

Attribution of Conduct

1. Attribution Definition:
o Attribution is the legal framework that connects the actions of state officials to the state
itself, establishing liability for harm caused by these actions to other states or their
nationals. It is essential for determining state responsibility, as a state cannot act
independently of its agents.
 2. ILC Articles on Attribution:
o Article 4: Establishes that conduct by any state organ, regardless of its role or position, is
considered an act of the state. This applies universally across state functions (legislative,
executive, judicial).
o Article 5: Extends liability to individuals or entities not classified as state organs but
empowered to exercise governmental authority. This includes private entities acting in
public capacities, such as private security firms or privatized public services.

3. Ultra Vires Acts and State Responsibility in International Law

4. The doctrine of ultra vires acts—actions that exceed the legal authority of a state official
—plays an important role in state responsibility under international law. Even if officials
act beyond their legal capacity, these acts can still be attributed to the state under certain
conditions, particularly when the officials act within the apparent scope of their authority.

Article 7 of the ILC Articles on State Responsibility

Article 7 of the ILC Articles on State Responsibility formalizes the principle that the actions of
state organs or persons exercising governmental authority are attributed to the state, even when
these actions exceed their authority or contravene internal instructions. This article imposes
absolute liability, establishing that states cannot escape responsibility by arguing that the
officials acted beyond their legal limits.

This principle is aligned with the objective theory of responsibility, which asserts that a state
can be held liable for wrongful acts regardless of fault, as long as those acts can be attributed to
the state.

Private Individuals and State Responsibility

While private individuals are generally not considered state officials, the state may still be held
responsible for failing to prevent unlawful acts by private actors.

State Control and Responsibility under International Law

Article 8 of the ILC Articles establishes that the actions of individuals or groups can be
attributed to a state if they are acting on the state's instructions or under its direction or control.
However, the level of control required to establish state responsibility has been a subject of
debate, especially in defining "direction or control."

Key Principles of State Control and Responsibility

1. Direct Instructions vs. Control

o The first proposition of Article 8, that actions conducted on the direct instructions of a
state are attributable to that state, is relatively uncontroversial. If a state explicitly
orders or instructs individuals or groups to carry out certain actions, those actions are
considered acts of the state under international law.
 o However, the second proposition—that actions conducted under a state's "direction or
control" are also attributable to the state—is more complex. The Commentary to Article
8 clarifies that state responsibility arises only if the state directed or controlled the
specific operation, and the wrongful conduct was an integral part of that operation.
General control is insufficient; it must be effective control over the specific acts in
question.

Case Law on State Control

2. Nicaragua Case (ICJ)

o In the Nicaragua v. United States case, the International Court of Justice (ICJ)
considered whether the actions of the contra guerrillas could be attributed to the
United States, which had financed and equipped the group. The Court ruled that for the
conduct of the contras to be attributed to the U.S., it would have to be proven that the
U.S. had effective control over the specific military or paramilitary operations during
which the violations occurred.
o Importantly, the Court held that general overall control (e.g., financial and logistical
support) was insufficient to establish state responsibility; the state must have control
over the specific actions.

Effective Control of Territory

 A state’s effective control over a territory can also ground its responsibility for actions
occurring within that area

physical control over a territory, rather than formal sovereignty or legitimacy of title, is the basis of state
responsibility for acts affecting other states.

Article 9 of the ILC Articles: Absence of Authorities

Article 9 of the ILC Articles deals with situations where individuals or groups assume
governmental functions in the absence or default of the official authorities. In such cases, their
conduct is considered an act of the state if they were exercising elements of governmental
authority in circumstances where such authority was needed. This ensures that states remain
responsible even when non-state actors fill a temporary governance vacuum.

Mob Violence, Insurrections, and Civil Wars

In the context of mob violence, insurrections, and civil wars, the general principle in
international law is that a state is not liable for the actions of rebels or rioters if its governmental
authorities have acted in good faith and without negligence. This means that the state must
demonstrate that it took reasonable steps to prevent or stop the violence. However, a state is
obligated to exercise due diligence, though what constitutes "due diligence" can be difficult to
define and is often assessed more in terms of what the state fails to do rather than positive actions
taken.
Due Diligence Obligation

The obligation of due diligence requires the state to take reasonable measures to prevent or
respond to acts of violence committed by non-state actors. For instance, during instances of mob
violence or civil unrest, the state must show that it took steps to control the situation, such as
deploying law enforcement or military forces, or otherwise mitigating the harm. However, the
exact standard of due diligence is often unclear and can depend on the specific circumstances.

Diplomatic and Consular Personnel

There are also special provisions in international law regarding the protection of diplomatic and
consular personnel, requiring heightened diligence on the part of the state in such cases.

Article 10 of the ILC Articles: Insurrectional Movements

Article 10 of the ILC Articles addresses the responsibility of a state for the actions of
insurrectional movements. It outlines two key scenarios:

1. Successful Insurrection: When an insurrectional movement succeeds in overthrowing

the existing government and becomes the new government of the state, it becomes
responsible for its previous actions during the uprising. This means the new government
inherits liability for any violations or damages caused by the insurrectional forces before
they assumed power.
2. Creation of a New State: If an insurrectional movement succeeds in establishing a new
state in part of the territory of a pre-existing state, that new state becomes responsible for
actions committed during the insurrection

Iranian Hostages Case: In this case, the International Court of Justice held that the initial attack
on the US Embassy in Tehran by militants was not attributable to the Iranian state because the
militants were not acting as state agents. However, once the Ayatollah Khomeini and the
Iranian government formally approved the occupation of the embassy, the actions of the militants
became attributable to the state, meaning Iran became responsible for the subsequent detention
of US personnel.

Acknowledgment and Adoption of Conduct

A state can also become responsible for acts it did not initially commit if it acknowledges and
adopts those actions as its own. This was demonstrated in the Iranian Hostages Case, where
Iran’s government endorsed the militants' actions after the fact, thereby transforming the conduct
into a state act under international law

Concept: Circumstances Precluding Wrongfulness

In international law, sometimes a state can do something that would normally be considered
wrong, but in specific situations, the act is not wrongful. This means the state doesn’t get
punished or blamed because the situation justifies their actions.
These situations are known as circumstances precluding wrongfulness. They act as defenses
that make an otherwise illegal act permissible under international law. Let’s break down the
main circumstances:

. Consent

 What it means: If one state gives permission (consent) to another state to do something that
would normally be illegal, then it’s not wrongful.
 Example: Imagine State A allows State B to send troops into its territory to help deal with a
security threat. Normally, sending troops into another country without permission is illegal, but
because State A gave its consent, it’s allowed.

2. Self-Defence

 What it means: If a state acts in self-defence after being attacked, it can do things that might
otherwise be illegal, like using force. This is allowed under both the UN Charter and customary
international law (which are unwritten rules that countries generally follow).
 Example: If State A attacks State B, then State B can use force to defend itself, even if normally
using force is illegal. However, they must respect human rights and other laws during self-
defence.

3. Countermeasures

 What it means: If a state takes actions against another state in response to an illegal act, these
actions (called countermeasures) can be justified. Countermeasures are like a form of
punishment for a previous wrongful act. However, the countermeasures must be proportionate
(not too extreme) and aimed at getting the other state to fix its wrongdoing.
 Example: Imagine State A breaks an economic agreement with State B. In response, State B
might temporarily stop trading certain goods with State A as a countermeasure until State A
follows the agreement again.

4. Force Majeure

 What it means: This refers to uncontrollable events (like natural disasters or wars) that make it
impossible for a state to fulfill its legal obligations. In these cases, the state is not responsible for
not performing its duties because it wasn’t their fault—they couldn’t control the situation.
 Example: If a hurricane destroys a country’s power grid and they can’t provide electricity to
neighboring countries as agreed, they won’t be blamed because the hurricane (a force majeure)
made it impossible.

5. Distress

 What it means: This happens when a state or its representative (e.g., a pilot, ship captain) takes
an action that would normally be illegal, but they do it to save their life or the lives of others. In
this case, the act isn’t considered wrongful, but it should be the only option available.
  Example: If a plane from State A is about to crash and the pilot enters State B’s airspace without
permission to make an emergency landing, State B cannot claim that State A did something
wrong because the pilot was acting in distress.

6. Necessity

 What it means: A state can argue that an illegal act was the only way to protect an essential
interest against a serious danger. However, this defense can only be used in extreme situations
and must not harm an essential interest of another state or the international community.
 Example: A famous example is the Torrey Canyon incident (1967), where a ship spilled oil near
the UK’s coast. The UK bombed the ship to prevent more oil from leaking, even though bombing
would normally be illegal. The UK argued that it was necessary to protect its coastline and
environment from severe damage.

Additional Points:

 Proportionality: Any action taken under these defenses must be proportional to the problem.
For example, if a state acts in self-defence, it can’t go overboard by using excessive force.
 Reversibility: Countermeasures should ideally be reversible—meaning, if the other state fixes
the problem, the countermeasures should be stopped.

Invocation of State Responsibility

At its core, state responsibility means that when one state does something wrong under
international law, other states can hold it accountable, much like how individuals or companies
can be sued for breaking laws. But here, it’s about how and when one state can invoke (or "call
upon") the responsibility of another state for breaking a legal obligation.

Article 42 of the ILC Articles

This article talks about when a specific state (called the "injured state") can demand
accountability from another state (the one that caused harm). There are two main situations
where this can happen:

1. Direct Injury: When the obligation (legal duty) is broken, and it was directly owed to the injured
state. Example: If State A had an agreement with State B about protecting each other's borders,
but State B invades State A, State A can hold State B responsible.
2. Collective Interest: When the obligation is owed not just to one state but to a group of states
(including the injured state) or even the international community as a whole. Here, the injured
state has a special role because the breach of obligation harms it more than others or radically
changes the situation for all states involved.

Two Key Points:

 If an injured state has waived (officially given up) its claim or acquiesced (stayed silent and
behaved as though it accepted the situation), it may not be able to invoke responsibility
 anymore. For example, if State A keeps letting State B violate their treaty for years without
complaining, State A might lose the right to later demand accountability.
 Multiple states can invoke responsibility at the same time if several are harmed by the same
wrongful act.
 Obligations that a state owes to another specific state (such as a trade agreement).
 Obligations that a state owes to the international community as a whole (like not
committing genocide, which concerns all states, not just one).

Article 48 expands on this idea and allows states to invoke responsibility even if they are not
directly injured, as long as the breached obligation affects a collective interest (e.g., human rights
or environmental treaties) or concerns the international community (like acts of aggression or
environmental harm that affect the entire planet).

Sure! Let's break this down as clearly as possible.

Invocation of State Responsibility

At its core, state responsibility means that when one state does something wrong under
international law, other states can hold it accountable, much like how individuals or companies
can be sued for breaking laws. But here, it’s about how and when one state can invoke (or "call
upon") the responsibility of another state for breaking a legal obligation.

Article 42 of the ILC Articles

This article talks about when a specific state (called the "injured state") can demand
accountability from another state (the one that caused harm). There are two main situations
where this can happen:

1. Direct Injury: When the obligation (legal duty) is broken, and it was directly owed to the injured
state. Example: If State A had an agreement with State B about protecting each other's borders,
but State B invades State A, State A can hold State B responsible.
2. Collective Interest: When the obligation is owed not just to one state but to a group of states
(including the injured state) or even the international community as a whole. Here, the injured
state has a special role because the breach of obligation harms it more than others or radically
changes the situation for all states involved.

Two Key Points:

 If an injured state has waived (officially given up) its claim or acquiesced (stayed silent and
behaved as though it accepted the situation), it may not be able to invoke responsibility
anymore. For example, if State A keeps letting State B violate their treaty for years without
complaining, State A might lose the right to later demand accountability.
 Multiple states can invoke responsibility at the same time if several are harmed by the same
wrongful act.
Example in Real Life:

Consider environmental harm. If a state pollutes the ocean, it could directly harm another
country’s fishing industry. In that case, the harmed country can invoke responsibility. But if the
pollution spreads globally and harms all states that rely on those waters, multiple countries can
hold the polluting state responsible for breaching a duty owed to a group of states.

Barcelona Traction Case and Article 48:

The Barcelona Traction case introduced a distinction between:

1. Obligations that a state owes to another specific state (such as a trade agreement).
2. Obligations that a state owes to the international community as a whole (like not committing
genocide, which concerns all states, not just one).

Article 48 expands on this idea and allows states to invoke responsibility even if they are not
directly injured, as long as the breached obligation affects a collective interest (e.g., human rights
or environmental treaties) or concerns the international community (like acts of aggression or
environmental harm that affect the entire planet).

Example in Real Life:

A common example here could be nuclear testing. If a country tests nuclear weapons, it might
harm the environment and the health of people across borders. Even countries not directly
affected by the blast may invoke responsibility because nuclear testing affects the safety and
interests of the entire international community.

Another real-world scenario is climate change. If one country severely violates environmental
protection laws, even distant countries could invoke responsibility because it threatens the global
environment, which is a concern for all.

Key Takeaways:

1. Injured State (Article 42): A state can invoke responsibility if it is directly harmed, or if the
violation affects the entire international community.
2. Non-injured States (Article 48): Even states not directly harmed can invoke responsibility when
a violation concerns broader global interests.
3. Acquiescence and Waiver: A state must actively respond to violations; otherwise, it may lose
the right to invoke responsibility.

1. Cessation of Wrongful Acts

When a state commits an internationally wrongful act, it must cease the act if it is ongoing. The
responsible state is also required to provide assurances and guarantees that it will not repeat
the wrongful act in the future.

2. Reparation for Damage

Reparation refers to the remedy that the responsible state must provide to the injured state. The
basic principle is that reparation should restore the injured state to the position it would have
been in had the wrongful act not occurred.

Reparation can take three forms:

 Restitution: This aims to restore the original situation before the wrongful act. It is the
preferred method of reparation.
o Example: If a state wrongfully seizes a piece of property, restitution would involve
returning the property to the original owner.

 Compensation: If restitution is impossible, compensation must cover the financial

damage caused by the wrongful act, including any loss of profits.
o Example: In the I’m Alone case, Canada sought compensation for the sinking of a
Canadian vessel. The tribunal suggested a compensation of $25,000 for the unlawful act,
reflecting the damage done.

 Satisfaction: This is a form of non-monetary compensation, which includes apologies or

acknowledgments of wrongdoing.
o Example: In the Rainbow Warrior arbitration, the tribunal noted that public
condemnation of France for its actions could serve as satisfaction to New Zealand.

3. Legal Basis of Reparation

The International Law Commission (ILC) Articles outline the obligations regarding cessation
and reparation:

 Article 31: States that the responsible state must make full reparation for the injury caused.
 Article 34: Specifies that reparation can include restitution, compensation, and satisfaction,
either separately or in combination

4. Practical Implications

In international law, the enforcement of these obligations can be challenging due to issues of
sovereignty and the willingness of states to comply.

 Example of Complicated Reparation: In cases of expropriation, where a state nationalizes

foreign-owned assets, the process of providing restitution is politically sensitive. In the Texaco
case, an arbitrator ruled that restitution in kind should be the norm, but such decisions can
create diplomatic tensions, as seen with Libya’s nationalization of oil concessions.
Serious Breaches of Peremptory Norms (Jus Cogens)

Understanding Key Concepts

1. State Responsibility: This refers to the obligations of states under international law.
When a state commits an unlawful act, it may be held accountable and required to
provide reparations.
2. International Crimes vs. International Delicts:
o International Crimes: These are serious violations of international law that threaten
fundamental interests of the international community. They are recognized as crimes by
the community as a whole. Examples include:
 Genocide: The intentional destruction of a national, ethnic, racial, or religious
group.
 War Crimes: Violations of the laws of war, including the targeting of civilians.
 Crimes Against Humanity: Widespread or systematic attacks against civilian
populations.
 Aggression: The use of armed force against another state without justification.
o International Delicts: These are less serious violations of international law that do not
rise to the level of international crimes. They still constitute wrongful acts but do not
threaten the international community to the same degree.

3. Peremptory Norms (Jus Cogens): These are fundamental principles of international law
that cannot be violated or derogated from. Examples include:
o The prohibition of torture.
o The prohibition of slavery.
o The prohibition of genocide.
o The prohibition of aggressive war.

Article 19 of the ILC Draft Articles (1996)

 The International Law Commission (ILC) drafted guidelines regarding state responsibility, making
a distinction between international crimes and international delicts.
 Article 19 specifically defined international crimes and established that certain breaches of
fundamental international obligations constitute serious violations recognized as crimes.

Evolution of the Concept

 Since 1945, the international community’s view on state responsibility for serious breaches has
evolved:
1. Development of Jus Cogens: These norms are so essential that they cannot be
overridden by states.
2. Individual Criminal Responsibility: Individuals, including state leaders, can be held
accountable for international crimes (e.g., tribunals like the International Criminal
Court).
3. UN Charter: The UN has provisions that allow it to take action against states threatening
peace and security.
Change in the ILC Approach

 Due to the controversial nature of holding states criminally responsible, the ILC's final 2001
Articles omitted direct references to international crimes committed by states. Instead, they
focused on:
o The consequences of breaching obligations erga omnes (obligations owed to the
international community).
o The responsibilities related to peremptory norms.

Article 41 of the ILC Draft Articles

 Cooperation Duty: States are required to work together to prevent and address serious
breaches of peremptory norms.
 Non-Recognition: States must not recognize the legality of situations arising from these serious
breaches, ensuring that they do not legitimize unlawful actions.

Overview of Diplomatic Protection and Nationality of Claims

Diplomatic protection is a vital principle in international law, grounded in the state responsibility
doctrine. It addresses the injuries suffered by nationals due to unlawful acts by foreign states.
The core components of this doctrine include:

1. Attribution of Conduct: The actions and omissions of a state’s officials (legislative,

judicial, executive) are attributable to that state. This establishes responsibility for
violations of international law.
2. Nationality of Claims: A state can only adopt the claims of its nationals. Article 44 of
the International Law Commission (ILC) Articles emphasizes that claims must be
brought in accordance with applicable nationality rules.

The Concept of Nationality

 Link to Benefits and Obligations: Nationality connects individuals to their state,

entitling them to certain rights and protections under international law. Even as
international law evolves to recognize individual rights independent of state authority,
nationality remains the primary conduit for individuals to access international legal
benefits.
 Historical Context: Initially focused on the treatment of foreign nationals, the scope of
diplomatic protection has expanded. The International Court of Justice has recognized
that violations of human rights now fall under its ambit.

Diplomatic Protection Framework

 Definition: As per the ILC Draft Articles (2006), diplomatic protection involves a state
invoking the responsibility of another state for injuries to its nationals caused by
wrongful acts.
  Scope of Protection: This includes various diplomatic actions such as consular support,
negotiation, mediation, and even economic measures. Importantly, states are not legally
obliged to offer diplomatic protection; however, they must consider requests for it
rationally.
 State Sovereignty: A significant aspect is that individuals cannot independently pursue
claims against foreign states in international law; instead, the state assumes the role of the
claimant.

Notable Cases and Principles

1. Mavrommatis Palestine Concessions: This case established that a state, by asserting the
claim of its national, is asserting its rights under international law, underscoring the
exclusive nature of diplomatic protection.
2. Nottebohm Case: The International Court of Justice ruled that a state can only exercise
diplomatic protection for nationals with a genuine link to that state. In this case,
Nottebohm’s ties to Liechtenstein were deemed insufficient compared to his connection
to Guatemala, which he had lived in for decades.
3. Dual Nationality: In scenarios involving dual nationality, any state of which a person is
a national may assert a claim against a third state. The predominant nationality at the time
of injury and claim presentation determines which state can invoke protection. This
principle was affirmed in the Mergé case and later by the Iran–US Claims Tribunal.

Recent Developments and the ILC's Stance

 The ILC's 2006 Draft Articles do not require a genuine link for claims of nationality,
suggesting a shift in the interpretation of diplomatic protection. The emphasis is on
nationality existing at the time of injury and claim submission.
 Corporate Claims: For corporations, a tangible link must exist between the company
and the state asserting protection. Factors include incorporation and administrative
presence.

Overview of the Exhaustion of Local Remedies

1. Definition:
o The exhaustion of local remedies means that before a state can pursue an international
claim on behalf of its national, that national must have used all legal remedies available
within the country where the harm occurred.

2. Purpose:
o Respect for Sovereignty: This rule respects the sovereignty of states, allowing them the
opportunity to correct their own legal issues without external interference.
o Reduction of International Claims: By requiring individuals to use local remedies, the
rule aims to minimize the number of cases brought before international bodies.

3. Legal Basis:
 o Article 44 of the ILC Articles on State Responsibility states that a state's responsibility
cannot be invoked if the claim falls under the exhaustion rule and local remedies have
not been exhausted.
o Article 14 of the ILC Draft Articles on Diplomatic Protection reiterates that no claim can
be made internationally until local remedies have been fully exhausted.

Exceptions to the Rule

While the exhaustion of local remedies is a general rule, there are exceptions where it may not
apply:

 No Available Local Remedies: If no effective local remedies exist to address the harm, the rule
does not apply.
 Undue Delay: If the local remedies process is unreasonably delayed due to the state’s actions,
the requirement can be bypassed.
 Manifestly Ineffective Remedies: If the available local remedies are unlikely to provide a
reasonable chance of success, they do not need to be exhausted.

Treatment of Aliens: A Beginner's Overview

The treatment of foreign nationals (aliens) and their property involves complex legal and
diplomatic issues. Different countries have varied approaches based on their economic interests,
historical contexts, and political ideologies. This overview will break down the key concepts,
standards of treatment, and significant cases related to the rights of aliens, along with simplified
examples.

1. Protection of Foreign Nationals

The protection of foreign nationals has evolved due to increased international trade and the
movement of people. When conflicts arise, states often engage in diplomatic protection—
intervening on behalf of their nationals who suffer harm abroad.

2. Standards of Treatment

Two primary standards have emerged regarding how states should treat foreign nationals:

 International Minimum Standard: Developed countries argue that there is a universal

standard that must protect aliens, regardless of how a state treats its own citizens. This
standard is designed to prevent abuse and ensure basic rights for all individuals.
 National Treatment Standard: Some countries, particularly in Latin America, maintain
that they should only treat foreigners as well as they treat their own nationals. This stance
emerged from a desire to avoid Western interference in domestic affairs, embodied in the
Calvo Doctrine, which asserts that aliens should only have the same rights as nationals
and must seek justice domestically.
4. Denial of Justice

Denial of justice refers to situations where a state fails to administer proper civil and criminal
justice regarding an alien. This includes:

 Failure to Investigate Crimes: If a crime is committed against an alien and the state does not
investigate or prosecute the offender, it may constitute a denial of justice.
 Unreasonable Detention: Lengthy detention without due process or harsh treatment in prison
can also be classified as denial of justice.

5. Expulsion of Aliens

States generally have the right to expel aliens, but this must be done in accordance with
international law and without prejudice to human rights. Here are some key points regarding
expulsion:

 Right to Expel: A state has the authority to expel an alien, but it must follow specific
legal procedures.
 Reasons for Expulsion: Reasons must be provided, especially in cases of non-justifiable
expulsion. For example, the Boffolo case highlighted that states should only expel
individuals in extreme circumstances and must provide justification for such actions.
 International Covenant on Civil and Political Rights (ICCPR): Article 13 states that
aliens can only be expelled following lawful procedures, with the right to appeal against
their expulsion.

. International Law Commission Draft Articles

In 2014, the International Law Commission adopted Draft Articles on the Expulsion of Aliens,
which emphasize the following principles:

 Lawful Expulsion: Any expulsion must comply with national and international law.
 Protection of Vulnerable Groups: Stateless individuals and refugees have additional protections
against expulsion.
 Prohibition of Collective Expulsions: States cannot expel groups of aliens without individual
assessment of each case.

7. Real-Life Examples

 Example of Protection: If a foreign tourist is injured due to a lack of safety regulations

in a hotel, their home country may file a diplomatic protest against the host country,
seeking compensation for the victim.
 Example of Expulsion: A foreign student who violates visa conditions may be expelled
from their host country. The state must provide a reason and allow the student to appeal
their expulsion if applicable.