State Responsibility

•Definition
•Nature
•Kinds
•Original vs. vicarious responsibilities
•Elements of state responsibility
•State responsibilities in different fields
State responsibility:
definition
Oppenheim says:
“The rules of international law as to state responsibility
concern the circumstances in which and the principles where
by the injured state becomes entitled to redress
for damage suffered”
According to Permanent Court of Justice-Chorzow factory
(Indemnity) case,
“It is the principle of international law and even a general conception
of law that any breach of an engagement involves an obligation to
make reparations”
In Corfu Channel Case,
“These Grave omissions involve the international responsibility of
Albania and their is a duty upon Albania to pay
compensation to United Kingdom”
And as Starke says,
“The law of state responsibility is still in evolution and may possible
advanced to the stage where states are fixed also with responsibility
for breeches of international law and international crimes”
Explanation
 State responsibility is incurred when one State
commits an internationally wrongful act against
another. For instance, Article 2(4) of the UN Charter
prohibits dictatorial non-intervention by stating that
every State is under a legal obligation not to use or
threaten to use force against others. However, non-
intervention is not merely limited to the prohibition of
the usage of force. Any form of coercive interference
in the internal affairs of a State would invite State
responsibility. As Oppenheim’s international law puts
it, “the interference must be forcible or dictatorial, or
otherwise coercive, in effect depriving the State
intervened against of control over the matter in
question. Interference pure and simple is not
intervention”.
The Chorzow Factory case
The Chorzow Factory case is a landmark example
of state responsibility in international law. It
involved the expropriation of a German-owned
factory in Chorzów, Poland, by the Polish
government in 1924. The Permanent Court of
International Justice ruled that Poland was
responsible for violating the Franco-German
Treaty of 1922, which guaranteed protection
against expropriation without adequate
compensation. Poland was ordered to pay
indemnity to Germany, highlighting the principle
that states are accountable for breaches of their
international obligations, including those related
to property rights.
The Corfu Channel Case,
1946
In the United Kingdom v. Albania case, commonly
known as The Corfu Channel Case, the
International Court of Justice ruled on October 22,
1946, that Albania was responsible for the
damage caused to British warships passing
through the North Corfu strait within Albanian
territorial waters. Despite Albania denying direct
involvement in laying the mines, the Court
concluded that the Albanian government must
have had knowledge of the mines being laid and
thus held them accountable. Consequently,
Albania was ordered to provide reparations to the
United Kingdom for the damage and loss of life
suffered by the British crew members.
Nicaragua v. United States: A
landmark case of state responsibility
◦ A landmark case in this regard is
Nicaragua v. United States; the case
concerning military and paramilitary
activities in and around Nicaragua. It
involved the United States supporting
rebellion groups against the Nicaraguan
government. The Court found in its
verdict that the United States was “in
breach of its obligations under
customary international law not to use
force against another State” and “not to
intervene in its affairs”.
Factors determining the liability
of a State (elements)
Firstly, the State must be under a
legal duty not to commit the act.
Secondly, the State must commit
the act. (or omission)
Attributable or imputable act
And finally, the act must cause
injury (loss or damage) to
another entity.
Nature and scope of state
responsibility
A state is considered responsible only for the wrongful acts which
constitute international delicts. State responsibility for international
crimes is not clear.
 International crimes
◦ The international crimes are particularly serious and affect the international
peace and security (genocide, crimes against humanity, war crimes, and the
crime of aggression).
 International delicts
◦ represent forms of international offences which are less serious for the States
that due to this reason were not included in the category of crimes (piracy,
illicit trafficking in persons, illicit trafficking in narcotic drugs, torture, offences
against the environment, computer crimes the offences of corruption, etc.
In its 1996 draft on State responsibility, the International Law
Commission (ILC) distinguished between international delicts and
international crimes. The question of State responsibility in cases of
international crimes has been highly controversial. While some state
that criminal liability of States holds no legal value, others are of the
view that there has been a whirlwind change in the attitude of States
against international crimes since 1945, and that States could be held
responsible for such acts.
Original and Vicarious Liability
Issue of Imputability
Direct Responsibility:
◦ Government entities, including executive, legislature, judiciary, central, and local
authorities, represent the State.
◦ Breach of international law by any of these organs results in direct liability for the
State.
◦ Diplomatic ambassadors, as representatives of the sending State's head, make the
sending State liable if they commit wrongful acts in their diplomatic capacity.
◦ The State is accountable for the wrongful acts of its armed forces if it authorized
those acts.
Indirect Responsibility:
◦ A State can be held responsible for acts committed by other parties if authorized
by it.
◦ Indirect responsibility, or vicarious responsibility, arises when one entity is held
liable for the actions of another authorized entity.
◦ The authorizing State is indirectly liable for the authorized State's actions.
◦ Even if authorized entities exceed or disobey instructions, the State is held liable
if they act under 'apparent authority'.
United States v. Iran
(1980)
 Background:
◦ November 4, 1979: Iranian rebels invade the US embassy in Tehran.
◦ Embassy is damaged, and documents destroyed during the invasion.
◦ More than sixty American diplomats and citizens held hostage until
January 20, 1981.
◦ Iranian military forces arrive late and do not attempt to free the
hostages.
 Legal Action:
◦ November 29, 1979: US files a claim against Iran in the International
Court of Justice (ICJ).
 ICJ Ruling:
◦ Rebels deemed 'agents' of the Iranian Government.
◦ Iranian Government's approval and perpetuation of rebel actions
translated the occupation of the embassy and detention of hostages
into official State acts.
◦ Perpetrators, initially private actors, considered agents of the Iranian
State.
The question of ‘Fault’
 Risk Theory:
◦ State is strictly liable if a State official or organ commits a
wrongful act.
◦ Focuses on the outcome of the act rather than the
intention behind it.
◦ Holds the State responsible regardless of intent or fault.
 Fault Theory:
◦ Takes into account the element of 'intention' or
'negligence' in committing the wrongful act.
◦ State is responsible only if the act is committed
intentionally or negligently.
◦ Considers the mental state or level of culpability of the
State's officials or organs.
◦ Holds the State accountable based on the presence of
fault in its actions.
Most jurists have inclined themselves towards the ‘risk
theory’ of State responsibility….why?
State responsibility in different
cases
 International delinquency (crime)
◦ Injury to other by head or government of state in violation of
international law duty
◦ violation of same by officials agents authorized by the head of
the state
◦ breach of treaty or wrong independent of treaties
◦ direct or indirect injury in to aliens in country
◦ country citizens in other country
◦ remedies
 Cessation of the wrongful act
 Reparation
 Diplomatic protection and nationality of claims (it is only through the
State the individual could seek a remedy)
 The exhaustion of local remedies (International law requires that before
State responsibility could be invoked, all local remedies in the defendant
State must be exhausted.)
 Unreasonable delay and improper activities of the injured national
 Unreasonable delay in filing a suit for State responsibility renders the accused State not
liable.
 State responsibility is impermissible if injuries result from the State's own improper acts.
Remedies continued…
 Countermeasures
 International law does not universally prohibit the use of force, as
there is no higher sovereign body to enforce compliance with legal
obligations.
 States may sometimes disregard their legal obligations, prompting
injured States to lawfully resort to force in certain circumstances.
 These acts of force, termed as "reprisals," are retaliatory measures
taken by an injured State against a wrongdoer State.
 Reprisals involve actions that are illegal when taken alone but
become legal when adopted in response to a prior illegal act by
another State.
 They serve as a form of "self-help" aimed at compelling the
wrongdoer State to cease its wrongful acts or provide reparation.
 However, countermeasures, including reprisals, are subject to legal
constraints.
 Article 2(4) of the UN Charter prohibits the use of force, imposing
restrictions on the legality of countermeasures.
 Countermeasures must strictly adhere to the principle of
proportionality, ensuring that they are commensurate with the
initial wrongful act.
State responsibility for injuries
to Aliens
1. State responsibility for acts of
individuals
2. State responsibility for acts of
mob violence
3. State responsibility for acts of
insurgents
Calvo doctrine
State responsibility for acts of
Government organs
State responsibility for
contracts with foreigners
State responsibility for breach of
treaty or contractual obligations
State responsibility in respect of
expropriation of foreign property
State responsibility in respect of acts of
multinational cooperation including
environmental law