Slide 1: Responsibility of the state

Slide 2: Outline
Slide 3: (The Doctrine of State Responsibility) State responsibility is a fundamental
principle of international law, arising out of the nature of the international legal
system and the doctrines of state sovereignty and equality of states.
Slide 4:( The International Law Commission) the international law Commission for
some years now has been working on the codification of the law on the subject. At
its 53rd session, the ILC adopted on second reading a complete text of the Articles
on Responsibility of States for Internationally Wrongful Acts.
Although its work has not yet been finalize, much of what it has done so far consists
of principles which are widely accepted.
Slide5: what we need to understand.
The elements of an internationally wrongful act;
The attributability of the wrongful act to the state; and
The enforcement of the obligation that arises from the wrongful act.
Slide 6: Chapter I lays down three basic principles for responsibility from which the
articles as a whole proceed.
Slide 7: Article 1. Responsibility of a state for its internationally wrongful
acts.
Every internationally wrongful act of a State entails the international
responsibility of the state.
Article 1 states the basic principle underlying the articles as a whole, which that a
breach of international law by a state entails its international responsibility of that
state
An internationally wrongful act of a state may consist in one or more actions or
omissions or a combination of both.
Whether there has been an internationally wrongful acts depends
First, on the requirements of the the obligation which is said t be breached and
Secondly, on the framework conditions for such an act.
Slide 8: The permanent court of international justice applied the principles set out in
Article 1 in a number of cases. For example in the Phosphates in Morocco case..

Slide 9: That every internationally wrongful act of a State entails the international
responsibility of that State, and thus gives rise to new international legal relations
additional to those which existed before the act took place, has been widely
recognized, both before and since article1 was first formulated by the Commission.

Slide 10: there is a question whether the legal relations arising from the occurrence
of an internationally wrongful act were essentially bilateral
Slide 12: A significant step in this direction was taken by ICJ in the Barcelona
traction case when it noted that an essential distinction should be drawn
between the obligations of a State towards the international community as a whole,
and those arising vis--vis another State in the field of diplomatic protection. By
their very nature the former are the concern of all States. In view of the importance
of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes
Slide 13: Thus the term, international responsibility in article 1 covers the
relations which arise under international law from the internationally wrongful act of
a State, whether such relations are limited to the wrongdoing State and one injured
State or whether they extend also to other States or indeed to other subjects of
international law, and whether they are centered on obligations of restitution or
compensation or also give the injured State the possibility of responding by way of
countermeasures.
Slide 14: Article 2 specifies the conditions required to establish the existence of an
internationally wrongful act of the State, i.e. the constituent elements of such an
act. Two elements are identified.
First, the conduct in question must be attributable to the State under international
law.
Secondly, for responsibility to attach to the act of the State, the conduct must
constitute a breach of an international legal obligation in force for that State at that
time.
Slide 15: The elements of an internationally wrongful act consists of a subjective
and an objective elements.
Subjective Element- the act must be attributable not to the persons or agencies
who performed it but to the state itself.
Objective Element-is a violation of an international obligation. It may consist of
something either active (action) or passive (an omission).
Slide 16: The term breach of an international obligation of the state is long
established and is used to cover both treaty and non-treaty.
In its judgment on jurisdiction in the Factory at Chorzw case, PCIJ used the words
breach of an engagement.
The arbitral tribunal in the Rainbow Warrior affair referred to any violation by a
State of any obligation.
Slide 17: The two elements were specified by ICJ on several occasions . In the United
States Diplomatic and Consular Staff in Tehran case

it pointed out that, in order to establish the responsibility of the Islamic Republic of
Iran:

[f]irst, it must determine how far, legally, the acts in question may be regarded as
imputable to the Iranian State.

Secondly, it must consider their compatibility or incompatibility with the obligations

of Iran under
treaties in force or under any other rules of international law that may be
applicable.
Slide 18:
Article 3 makes explicit a principle already implicit in article 2, namely that the
characterization of a given act as internationally wrongful is independent of its
characterization as lawful under the internal law of the State concerned.
Article 3. Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is governed by
international law. Such characterization is not affected by the characterization of the
same act as lawful by internal law.
Slide19: There are two elements to this.
First, an act of a State cannot be characterized as internationally wrongful unless it
constitutes a breach of an international obligation, even if it violates a provision of
the States own law.

Secondly and most importantly, a State cannot, by pleading that its conduct
conforms to the provisions of its internal law, escape the characterization of that
conduct as wrongful by international law.

An act of a State must be characterized as internationally wrongful if it constitutes a

breach of an international obligation, even if the act does not contravene the States
internal laweven if, under that law, the State was actually bound to act in that
way.
Slide 20:The treatment of Polish Nation case The Court denied the Polish
Government the right to submit to organs of the League
of Nations questions concerning the application to Polish nationals of certain
provisions of the Constitution of the Free City of Danzig, on the ground that:

according to generally accepted principles, a State cannot rely, as

against another State, on the provisions of the latters Constitution, but
only on international law and international obligations duly accepted
... [C]onversely, a State cannot adduce as against another State its own
Constitution with a view to evading obligations incumbent upon it under
international law or treaties in force ... The application of the Danzig
Constitution may ... result in the violation of an international obligation
incumbent on Danzig towards Poland, whether under treaty stipulations
or under general international law ... However, in cases of such a nature,
it is not the Constitution and other laws, as such, but the international
obligation that gives rise to the responsibility of the Free City
Slide 21: this principle was endorsed in the 1969 Vienna Convention, article 27 of
which provides that:
A party may not invoke the provisions of its internal law as justification for its failure
to perform a treaty.

Slide 22: Chapter II defines the conditions under which conduct is attributable to the
State.
Slide 23: Imputability Doctrine (Principle of Attribution)

A state is liable only for its own acts and omissions, and in this context, the
State is identified with its governmental organs and apparatus, not with the
population (not with private acts of government agents)
Slide 24: Article 4 states the basic rule attributing to the state the conduct of its
organs.
Article 4. Conduct of organs of a State
1. The conduct of any State organ shall be considered
an act of that State under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in the
organization of the State, and whatever its character as an organ of the central
Government or of a territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with
the internal law of

the State.
Thus, the reference to a State organ in article 4 is intended
in the most general sense. It is not limited to the organs
of the central government, to officials at a high level
or to persons with responsibility for the external relations
of the State. It extends to organs of government of whatever
kind or classification, exercising whatever functions,
and at whatever level in the hierarchy, including those at
provincial or even local level. No distinction is made for
this purpose between legislative, executive or judicial organs.
Thus, in the Salvador Commercial Company case,
the tribunal said that:
a State is responsible for the acts of its rulers, whether they belong to
the legislative, executive, or judicial department of the Government, so
far as the acts are done in their official capacity.

Slide 25: Article 5 deals with conduct of entities empowered to exercise the
governmental authority of a State.
Article 5 deals with the attribution to the State of
conduct of bodies which are not State organs in the sense
of article 4, but which are nonetheless authorized to
exercise governmental authority. The article is intended
to take account of the increasingly common phenomenon
of parastatal entities, which exercise elements of governmental
authority in place of State organs, as well as
situations where former State corporations have been privatized
but retain certain public or regulatory functions.
Article 5. Conduct of persons or entities exercising elements of governmental
authority.
The conduct of a person or entity which is not an organ of the State under article 4
but which is empowered by the law of that State to exercise elements of the

governmental authority shall be considered an act of the State under international

law, provided the person or entity is acting in that capacity in the particular
instance.
Slide 26: article 6 deals with the special case where an organ of one State is placed
at the disposal of another State andempowered to exercise the governmental
authority of that State.
The words placed at the disposal of in article 6
express the essential condition that must be met in order
for the conduct of the organ to be regarded under international
law as an act of the receiving and not of the sending
State. The notion of an organ placed at the disposal of
the receiving State is a specialized one, implying that the
organ is acting with the consent, under the authority of
and for the purposes of the receiving State. Not only must
the organ be appointed to perform functions appertaining
to the State at whose disposal it is placed, but in performing
the functions entrusted to it by the beneficiary State,
the organ must also act in conjunction with the machinery
of that State and under its exclusive direction and control,
rather than on instructions from the sending State.
Thus article 6 is not concerned with ordinary situations of
inter-State cooperation or collaboration, pursuant to treaty
or otherwise
Article 6. Conduct of organs placed at the disposal of a State by another State
The conduct of an organ placed at the disposal of a State by another State shall be
considered an act of the former State under international law if the organ is acting
in the exercise of elements of the governmental authority of the State at whose
disposal it is placed.
Slide 27: Article 7 makes it clear that the conduct of organs or entities empowered
to exercise governmental authority is attributable to the State even if it was carried
out outside the authority of the organ or person concerned or contrary to
instructions.
Article 7 deals with the important question of unauthorized
or ultra vires acts of State organs or entities.

It makes it clear that the conduct of a State organ or an

entity empowered to exercise elements of the governmental
authority, acting in its official capacity, is attributable
to the State even if the organ or entity acted in excess of
authority or contrary to instructions.
Article 7. Excess of authority or contravention of instructions.
The conduct of an organ of a State or of a person or entity empowered to exercise
elements of the governmental authority shall be considered an act of the State
under international law if the organ, person or entity acts in that capacity, even if it
exceeds its authority or contravenes instructions.
Articles 8 to 11 then deal with certain additional cases where conduct, not that of a
State organ or entity, is nonetheless attributed to the State in international law.
Slide 28: Article 8 deals with conduct carried out on the instructions of a State organ
or under its direction or control
As a general principle, the conduct of private persons
or entities is not attributable to the State under international
law. Circumstances may arise, however, where
such conduct is nevertheless attributable to the State because
there exists a specific factual relationship between
the person or entity engaging in the conduct and the State.
Article 8 deals with two such circumstances. The first involves
private persons acting on the instructions of the
State in carrying out the wrongful conduct. The second
deals with a more general situation where private persons
act under the States direction or control.153 Bearing in
mind the important role played by the principle of effectiveness
in international law, it is necessary to take into
account in both cases the existence of a real link between
the person or group performing the act and the State machinery.
Article 8. Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State
under international law if the person or group of persons is in fact acting on the

instructions of, or under the direction or control of, that State in carrying out the
conduct.
SLIDE 29: Article 9 deals with certain conduct involving elements of governmental
authority, carried out in the absence of the official authorities.
Article 9 deals with the exceptional case of conduct
in the exercise of elements of the governmental authority
by a person or group of persons acting in the absence of the
official authorities and without any actual authority to do
so. The exceptional nature of the circumstances envisaged
in the article is indicated by the phrase in circumstances
such as to call for. Such cases occur only rarely, such as
during revolution, armed conflict or foreign occupation,
where the regular authorities dissolve, are disintegrating,
have been suppressed or are for the time being inoperative.
They may also cover cases where lawful authority is
being gradually restored, e.g. after foreign occupation.
Article 9. Conduct carried out in the absence or default of the official authorities The
conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact exercising elements of
the governmental authority in the absence or default of the official authorities and
in circumstances such as to call for the exercise of those elements of authority.
Slide 30: Article 10 concerns the special case of responsibility in defined
circumstances for the conduct of insurrectional movements.
Article 10 deals with the special case of attribution
to a State of conduct of an insurrectional or other movement
which subsequently becomes the new Government
of the State or succeeds in establishing a new State.
Article 10. Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement which becomes the new Government

of a State shall be considered an act of that State under international law.

2. The conduct of a movement, insurrectional or other, which succeeds in

establishing a new State in part of the territory of a pre-existing State or in a
territory under its administration shall be considered an act of the new State under
international law.