State responsibility (SR)

Nature of SR

 Arises from breach by a State of an international obligation (i.e. Customary IL or treaty obligation)
 The law of responsibility establishes
 Conditions for an act to qualify as internationally wrongful
 Circumstances where actions of officials, private individuals or other entities may be attributed to
the State
 General defences to liability
 Consequences of liability
 After adoption of Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft
Articles), established further the theory of SR
 Under DA, internationally wrongful act must
 Be attributable to the state under IL
 Constitute a breach of an international obligation of the state
 A state cannot declare something legal under its domestic law to avoid responsibilities
 States are strictly liable for actions of their officials than private persons
 To hold state responsible for acts of private persons, “failure to control” private person
must be established

Attribution of conduct to the State

 Articles on the Responsibility of States (ARS) 2001 provides authority for SR

 GR= State organ is acting for the State and their conduct can be attributed to the State
 Conduct of State Organs (Art 4)
 Covers all individual or collective entities which makes the organisation of the State and act on
its behalf
 Executive
o Rainbow Warrior incident
 Rainbow Warrior was a Greenpeace vessel which was blown up by the French
secret service agents
 French government admitted responsibility New Zealand sought and received
apology and compensation for breach of territorial sovereignty
 Judiciary
 Responsible from the context of “denial of justice”
 Their decline to give effect to the treaty or unable to do so because necessary changes in
the national laws have not been made will involve the State in a breach of treaty
 Legislative
  State bears full international responsibility for legislative acts of parliament that are
contrary to IL
 Superior and subordinate organ
 Conduct carried out by lower level officials in an official capacity will be attributable to
the state
o Massey claim
 US citizen was murdered in Mexico and culprit was arrested but later escaped
with the help of the assistant prison warden
 Tribunal rejected Mexico’s argument that they were not responsible for acts of
low level officials and granted US damages
 In an official capacity
 State is responsible if a person or entity acts in an official capacity
 Acts of individual of private capacity have no connection to the state
o Mallen Case US v Mexico
 Mexican consul was attacked and beaten twice by an American police officer
 First attack was in a private capacity while second attack was in an official
capacity when he showed his badge
 US held responsible for second assault
 Persons or entities exercising elements of governmental authority (Art 5)
 These entities are attributable to the State because certain laws empowers the person or entity to
exercise elements of governmental authority
 i.e. Private security firms contracted as prison guards
 Responsibility for ultra vires acts (Art 7)
 Regardless if the organ of State, person or entity empowered to exercise governmental authority,
the State is responsible
o Youmans v United Mexican States
 Mob gathered around a house with 3 American nationals in Mexico
 Local mayor ordered a lieutenant to quell the riot and end the attack upon the Americans
 Instead of dispersing the mob, troops opened fire on the house which resulted in the death
of the Americans
 Commission stated that participation of the solders could not be regarded as acting in a
private capacity as the men were under duty and immediate supervision of a commanding
officer
 Mexico held to be responsible
 Conduct of persons directly or controlled by a State (Art 8)
 Conduct of such person is considered an act of the state
 2 situations:
  Acting on instruction of the State
o Zafiro case
 US held responsible for looting by the civilian crew of a merchant vessel,
employed by the American Naval forces during US war with Spain under t
command of the merchant captain, who in turn was under the orders of an
American naval officer
 Acting under direction or control of the State
o Nicaragua case
 Whether conduct of the insurrection movement against the Nicaraguan
Government was attributable to the US?
 Held there was no “effective control” of the military and paramilitary
operation by the US and therefore they are not responsible for the
insurrection movement
 Conduct acknowledged and adopted by a State as its own (Art 11)
 Attribution of a State for a conduct what was or may not be attributable to the state at the time
but is subsequently acknowledged and adopted by the State
o Tehran case
 Student-demonstrators occupied US Embassy in Tehran and held embassy staff as
hostages
 First stage was carried out by militants who are not agents or organs of the Iranian State
 State was not attributable for the attack but for failure to protect the embassy and
its diplomats
 Second stage was carried out after completion of occupation of the embassy
 Iranian government was legally bound to end the occupation but instead approved
and endorsed the occupation
 Court held the approval by the Iranian government had made the militants become agents
for the Iranian State and therefore made them internationally responsible
 Conduct of private persons or entities
 GR= Not attributable to the state
 i.e. Violence against foreigners by private individuals, insurgents, terrorists, etc
 Exceptions: State will be responsible for acts of private persons for the following omissions
 Failure to exercise “due diligence”
 If there is failure of “due diligence” by a State to prevent a private person from
attacking foreign nationals or destroying foreign property
o Asian Agricultural Products Ltd v Sri Lanka
 British company brought an action against Sri Lanka for destruction of it
Sri Lankan farm
  Farm management offered to dismiss staff which was thought to be related
to the Tamil Tiger rebels
 Sri Lankan government neglected the offer and launched an offence which
killed company workers and destroyed the farm
 Sri Lanka held responsible for violating its due diligence obligation
 Denial of justice
 State is responsible if it fails to punish responsible individuals or to provide
injured foreign national with opportunity to compensation
o Janes claim
 Janes was an American citizen who was murdered in a mine in Mexico
 The murderer was well-known in the community and there was evidence
that the Mexican magistrate was informed of the shooting after it happened
 But after 8 years, the murderer was not brought to justice and the
Commission held Mexico responsible for denial of justice

Standard of care

 2 criteria for determining how a state is supposed to act

 National standard
 Favoured by Third world countries
 State should treat an alien as it treats its own nationals
 Criticisms
 No protection for aliens if the nationals themselves are mistreated
 In extreme, aliens would be given same privileges as nationals
 International standard
 Favoured by major Western countries
 They must treat the alien in a civilized manner
 Failure will result in a crime or tort
 Examples of crime: Deny the right to self-determination, failure to safeguard
human life and dignity, injury to the environment
 Examples of tort: Expropriation of the property of aliens and foreign businesses,
denial of justice