LPU 4041/2961
International Law
State Responsibility
Dr. E.T.M Siang’andu
State Responsibility
• Refers to the duty of a state to respect the international
rights of other countries.
• Where a violation has occurred a state is obliged to make
proper amends and reparations;
• State Responsibility governs the manner in which entities
enforce their rights under IL.
State responsibility
• Is a fundamental area of IL;
• Yet there is no treaty on the subject.
• There is only the Draft articles on Responsibility of States for
Internationally Wrongful Acts 2001.
• Articles have not been transformed into treaty.
• However, the UN GA have commended the articles to the
attention of governments in GA Res 56/83 para 3 (Dec. 12,
2001), GA Res 59/35 Dec. 2, 2004).
General Principles of state
responsibility
• Chorzow Factory ( Germany v. Poland) Case 1927 PCIJ.
Ser. A. no 17:
• It is a principle of international law and an even greater
conception of law that any breach of an engagement
involves an obligation to make reparations
Corfu Channel (United Kingdom v.
Albania) 1949 I.C.J. 4, 23
• ICJ confirmed the fundamental principles in relation to state
responsibility by ruling that;
• A breach by a state of an international obligation engages the
‘responsibility’ of the state for the consequences of that breach;
• In the Corfu channel case ICJ held Albania liable for certain
omissions in particular the absence of a warning of the danger
of mines laid in its territorial waters;
• ICJ ruled these grave omissions involved the international
responsibility of Albania
Corfu Channel (United Kingdom v.
Albania)
• The ICJ concluded that Albania was responsible under IL
for the explosions which occurred …….and for the
damage & loss of human life which resulted from them
and that there was a duty upon Albania to pay
compensation to the United Kingdom.
• Corfu Channel (United Kingdom v. Albania) 1949 I.C.J. 4,
23
State Responsibility
• Responsibility arises whenever there is a breach of an international
obligation regardless of its origin;
• Thus, there is no distinction between breach of a treaty & a violation
of customary IL;
• For example, see the decision;
• Armed Activities on the Territory of the Congo ( Democratic Republic
of the Congo v. Uganda 2005 I.C.J. 168
•
Armed Activities on the Territory of the Congo ( Democratic
Republic of the Congo v. Uganda 2005 I.C.J. 168
• In the case, the DRC successfully proved to the ICJ that
Uganda had violated various norms of IL by its military
intervention in the D. R.C.
• The ICJ thus concluded that Uganda was responsible to
make full reparation for injuries caused by its acts.
Democratic Republic of the Congo v. Uganda 2005 I.C.J. 168
• Uganda was found responsible for the illegal use of force,
• Amounting to violation of sovereignty & territorial integrity,
• military intervention, occupation of Ituri,
• violations of International human rights and International
Humanities law;
• Looting plunder and exploitation of DRC’s natural resources;
• See Armed Activities on the Territory of the Congo ( Democratic
Republic of the Congo v. Uganda 2005 I.C.J. 168 para. 259.
Articles on the Responsibility of States for
Internationally Wrongful Acts – GA Res 56/83
of 12 December, 2001, annex
• General Principle
• Every internationally wrongful act of a state
entails the international responsibility of
that State [Article 1 ARSWAs)
• Must be an international wrongful act;
Article 3
• Must be wrongful act/omission in IL.
• Article 2 – Elements of the wrongful act
• The wrongful act of a state can either be an act or
an omission;
• It must be attributable to the state under IL;
• It must constitute a violation of an international
obligation of the State;
Attribution
• Law on state responsibility is that of attribution;
• The presumption is that States act through individuals;
• This could be via agents of the states such as government
officials, military police, or police, Army.
• In IL a state can be held responsible if these individuals
breach IL in the course of their duties.
•
Attribution II
• A state will not be held responsible for violation of IL by private
parties with no ties to the government;
• Unless if actions of private individuals can be linked to state;
• Read articles 4 – 11 of the Draft articles on Responsibility of
States for Internationally Wrongful Acts 2001.
• Conduct of any state organ can be considered an act of the
state under IL;
• Organ could be an individual or an entity [see Article 4 Articles
on Res]
• Conduct of persons exercising element of the government
authority, conduct is attributed to states as long as
person/entity is acting in that capability at that time. (Art 5)
Breach of an International
Obligation
• There must be a breach of an international obligation by a
state; [Art. 12]
• Act of that state must be contrary to what is required of it
• by that obligation regardless of its origin or character;
• Thus, breach could be based on treaty law, CIL or general
principles of IL.
• Need to prove that state was oblige to act in a particular
manner at the time when the act occurred [Art. 13]
Responsibility of a state in connection with the
act of another state [see arts 16 -19)
• Art. 16 – A State that aids or assists another State in the
commission of an internationally wrongful act by the latter is
internationally responsible for doing so;
• Need to prove that the concerned State did so knowing the
circumstances of the wrongful act;
• Where a state directs another state to commit an
internationally wrongful act would be deemed responsible
for such act [Art. 17];
• Need to prove act as well as mental element – Knowledge
Defenses under the Articles on the
Responsibility of States
• Defences or circumstances that precludes the wrongfulness of
act/omission
• Consent [Art. 20]
• Valid consent precludes the wrongfulness of the act.
• Self defence [Art. 21]
• Undertaken in conformity with the UN Charter is permissible;
• Necessity [Art. 25] to the extent to which it is permitted by IL.
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•
•
Some Examples of Remedies under the
Articles on the Responsibility of States
• Cessation & non- repetition [Art. 30]
• State responsible for the IWA is obliged to cease that act;
• Offer assurance & guarantees of non-repletion if need be.
• Reparations [Art. 31]
• Full reparations for the injuries cause by the internationally wrongful
act is required.
• Note that Reparations could be in form of reparation {Art. 34}
• Restitution {Art. 35}
• Compensation {Art. 35} among others.
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•
•
Case Concerning United States Diplomatic and Consular Staff in
Tehran – United States v. Iran 1980 ICJ Rep 3 Judgement of May 24
• No evidence before the Court to suggests actions of the militants was
imputable to the state.
• Vienna Convention of 1961 and 1963 imposes an obligation on Iran as
a receiving state to protect the inviolability of the premises of a
diplomatic Mission, and the archives and documents of the mission.
• See articles 22(2), 29, 24, 25 1961 convention
• Obligations imposed upon on state in international Law
• Failure to undertake the obligations results in reparations.
Questions/
Comments/Suggestions?
