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Chapter 2

State Responsibility

State Responsibility

Responsibility liability under the law (original


notion)
State responsibility (SR) notion under
international law breach of treaty or custom
2 categories of SR
(1) breach of State to State obligation if State
fails to comply with treaty obligations,
(2) breach of obligation of a State to national of
another State mistreatment of aliens e .g. if a
foreign tourist is killed, police must exercise
reasonable care if not, State is responsible

Source of Law on State


Responsibility

1949 Intl Law Commission (ILC) prepare


Draft Articles on SR
1996 Part 1 of it was approved & sent to
UNGA but not completed overall so not
convention but has some weightage
Art 2 elements of SR (1) breach of
international obligations, (2)
attributability/imputability i.e. whether the
breach is attributable to the State

Elements of State Responsibility

Art. 1 Articles on SR:

Every internationally wrongful act of a State


entails international responsibility of that State
International wrong

When is there an international


wrong?
When conduct (action or
omission):
1.Is attributable to the State
under international law
2.Constitutes a breach of
international obligation of that

International
responsibility

Elements of SR
(1) breach of
international obligations,
(2) attributability /
imputability

Attribution of Conduct to the State

Identify State identify govt (all organs)


Art 4 ASR conduct of any State organs (including
the individuals) is considered as the conduct of the
State:

Not only superior authority but also subordinate


For federal States not necessarily federal govt but also
State govt:

whatever its character as an organ of the central govt or of


territorial unit of that State in Art. 4(1) ASR
LaGrand case implementation of measures indicated under
the Order was under jurisdiction of Governor of Arizona. It is on
the govt of US to transmit the Order to the Governor.

The act is in official capacity - not mentioned in text but


in ILC Commentary to ASR & case law (Mallen case)

Persons / entities exercising elements of


governmental authority (Art 5)

Non-State organ, but empowered by the law


of that State to

Exercise elements of governmental authority

The conduct of such person/entity is


considered act of the State but

Must act in that capacity at the time in question

Responsibility for Ultra Vires Act

i.e. breach of intl obligation by govt acting


beyond its powers
Art 10 ASR govt responsible even for ultra
vires act
Youmans Claim (US v. Mexico) defence act of
officers was according to their will & ultra
vires. But this was rejected they acted in
official capacity (on duty) & under the
command of lieutenant.

Responsibility for Ultra Vires


Act

Southern Pacific Property Case


Co entered into a contract with with Egyptian
govt developing land around Giza pyramid for
tourism. Public opposed coz it could damage
antiques. Egyptian govt arbitrarily terminated
the contract & brought the case before ICSID
Egypts arguments permission to develop the
land was null & void for against Egyptian law
esp. consti. Also permission given by
Presidential decree was unconstitutional
ICSID held rejected the arguments the govt
acted in official capacity

Conduct of Persons Directed or


Controlled by a State

Art 8 - `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 instruction
of, or under the direction or control of, that
State in carrying out the conduct.

1. Persons

acting under States instruction pvt


persons used by State agencies for police, public
order & other State functions, if cause injury to
foreign national, can be attributable to the State

Zafiro case the conduct by private person was


under the command of a merchant captain who
was under the orders of US naval officer

Conduct of Persons Directed or


Controlled by a State
2.

Persons under the direction or control of a


State e.g. insurgents in State A helped by
State B is it attributable to State B
Depends on whether there is effective control
defined in Nicaragua case as that the State
had directed or controlled the specific
operation and the conduct complained of was
an integral part of that operation
Compare with Tadic case the test was
overall control more flexible (i.e. easier to
make the State responsible).

Conduct of Persons Directed or


Controlled by a State
3.

Responsibility for conduct of State-owned


corporations

not attributable coz of doctrine of separate


legal entity unless the State is exercising
elements of govt authority in the meaning
of Art 5.
Compare SEDCO Inc & Foremost Tehran
cases on what can constitute the exercising
of elements of govt authority:
Ownership (Sedco) vs govt representative
sitting in BoD (Foremost Tehran)

Conduct of Insurrectional or other


Movement (Art. 10)

Conduct of successful insurrectional movement


which becomes the new govt
Attributable to the State (Art 10(1)) Bolivar Railway Co
the nation is responsible for the obligations of a
successful revolution form its beginning
but must be performed by agents of revolutionary
movement not mere supporters (Short v Iran)
But must be read in light of 10(3):

this Article is without prejudice to attribution to State any


conduct which is considered its act under Articles 4 to 9.

Unsuccessful/on-going insurrectional or other


movements

Not attributable to the State (Home Missionary Society


Claim)

Conduct Acknowledged/Adopted by
a State as its Own

Art 11 - `conduct which is not attributable to a State


under the preceding articles shall nevertheless be
considered an act of that State under international law
if and to the extent that the State acknowledges and
adopts the conduct in question as its own.
Attribution not at the time of commission of the wrong
but acknowledgment/adoption after the commission
US Diplomatic & Consular Staf in Tehran case 2
phases before completion of occupation of embassy
& and after. Before not attributable coz was
committed by mere supporters not agents. But after,
the conduct (endorsing the occupation & issuing a
decree that the embassy was used for espionage was
attributable.

Acts of Private Individuals Unrelated to


State to Make State Responsible

Conditions where Acts of private individuals


make State responsible
1.
2.

Failure to take reasonable care (diligence)


Asian Agricultural Products v Sri Lanka
Denial of justice (failure to punish individuals)
Janes claim

Acts of insurgents/terrorists State is not


responsible but act in good faith & no
negligence
Sam Baggio insurgents not under the
control of the State. So it is not responsible

Breach of International Obligation

Art 12 there is a breach of international


obligation by State when act of that State is
not in conformity with what is required by the
obligation regardless its origin & character.
CIL, treaty, judgment by ICJ & other international
tribunals or decision of competent IO

Intertemporal law

Circumstances Precluding
Wrongfulness (Defences)
1.

2.

3.

Consent by a State to the commission of an act


by another State (Art 20) valid consent (with
authorisation & freely given)
the act whose wrongfulness is precluded
remains within the limits of that consent
Self-defence (Art 21) must be read in light of Art
51 which provides an exception to prohibition of
use of force in Art 2(4) UNC
Countermeasures (Art 22 & GabcikovoNagymaros)
Types of countermeasures (1) retorsion
unfriendly act (not illegal) against an unfriendly
act of another State, (2) reprisal illegal act
against illegal act of another State armed
reprisal is now illegal under international law

Circumstances Precluding
Wrongfulness (Defences)

Force majeure (Art 23(1)) - `the


occurrence of an irresistible force or of
an unforeseeable event, beyond the
control of the State, making it materially
impossible in the circumstances to
perform the obligation

4.

Rainbow Warrior Arbitration - `materially


impossible does not cover circumstance which
makes it difficult to perform an obligation
To invoke force majeure, a State must come
with clean hands Libya Arab Foreign
Investment v Burundi

Circumstances Precluding
Wrongfulness (Defences)
5.

6.

Distress (Art 24(1)) no option to save lives


but for example to enter into foreign
territory @ foreign military ship to save lives
Rainbow Warrior Arbitration
Necessity (Art 25(1)) unlawful act is
performed to safeguard an essential interest
against a grave & imminent peril & does
not seriously impair an essential interest of
the State(s) towards which the obligation
exists or of the international community as
a whole Torrey Canyon & GabcikovoNagymaros Project cases

Circumstances Precluding
Wrongfulness (Defences)

Defences must not contrast jus cogens.

Legal Consequences of An
Internationally Wrongful Act

Continued duty of performance (Art 29)


duty to perform obligation in the future
Cessation & non-repetition (Art 30)
Assurances & guarantees of non-repetition
apology is not enough
Reparation for injury

Reparation for Injury

Art. 34 full reparation for injury caused by


internationally wrongful act shall take the form of
restitution, compensation & satisfaction.
injury in Art 31(2) includes material & moral (not
financially assessable) damage
Types of Reparation:
1. Restitution (Art 35 DASR) reestablish the situation
which existed before the wrongful act was committed
provided that it is (a) not materially impossible (b)
does not involve a burden out of all proportion to the
benefit deriving from restitution instead of
compensation
Temple of Preah Vihear case
2. Compensation (Art 36) damages in terms of money
The Im Alone case

Types of Reparation
3.

Satisfaction (Art 37) meant for moral damage


examples:

apology
Nominal damages for satisfaction of
victims
Disciplinary action against govty
committing misconduct
Punishment of the culprits
Borchgraves case (Belgium v
Spain)

Treatment of Foreign Nationals

2 standards of treatment (justice):


1.
2.

National treatment std equal treatment between


foreign & own nationals
International minimum std treatment of aliens
according to established treatment in civilised society
(international std)

National treatment std State still not responsible


though treatment below intl min. std.

First championed by Latin American countries now


favoured by developing countries (found in Art 9
Montevideo Conv on Rights & Duties of States 1933)
can make States impose severe criminal penalties on
foreigners @ nationalise the property of foreign
companies if it does the same to own nationals

Treatment of Foreign Nationals

International minimum standard

Not refer to national laws & regulations


Used by developed countries
Also supported by many tribunals & claims
commissions

Neer Claim
Claims Commission held treatment of an
alien should not be an international
delinquency amounting to a willful neglect
of duty @ insufficiency of governmental
action far short of international stds in the
eyes of every reasonable/impartial person

Treatment of Foreign Nationals


Which one is to be followed?
No consensus so no CIL
But with globalisation intl min std (IMS) is more
appealing
Some principles in IMS can be useful:

Duty not to harm (Youmans Claim)


Not to mistreat in lawful custody (Roberts Claim)
Denial of justice Harvard Research Draft creates
responsibility if injury to alien causes a denial of
justice - exists when there is denial, unwarranted
delay or obstructn of access to courts, gross
deficiency in admin of justice, manifestly unjust
judgment, failed remedial process (Chattin Claim)

Expropriation

Means deprivation by the State of foreign rights to


property or its enjoyment (Brownlie)
The process of expropriation:
1.
2.

Direct expropriation nationalisation or confiscation


Indirect expropriation forced sales of property,
cancellation of licences/permits to do business,
exorbitant taxation.
But States may not be responsible if injury results
from bona fide regulation within the accepted police
power of States (Sedco v NIOC)

How expropriation is legal under IL?


1. Public purpose
2. Appropriate compensation
3. Non-discrimination not CIL?

Invocation of Responsibility: Responses


by the Injured State & Other States
2

ways:
1. Invocation of responsibility by
an injured State
2. Invocation of responsibility by
other States: the concept of
obligations ergam omnes

Invocation of Responsibility by an
Injured State

Art 42 - A state is an injured State if


obligation breached is owed to that State
individually or a group of States including
that State or the international community as
a whole, and the breach of the obligation
specially affects that State
Situation concerned individual right of the
State has been infringed by internationally
wrongful act of another State
Injured State can resort to all means of
redress (e.g. raise a claim, institute
proceedings, take countermeasures

Invocation of Responsibility by Other States


the Concept of Obligation Erga Omnes

Obligation erga omnes enforceability of norms of international


law, the violation of which is an offence not only against the State
directly affected by the breach, but also against all members of the
international community.
Art 48(1) - `any State other than the injured State is entitled to
invoke the responsibility of another State in accordance with para.
2 if: (b) the obligation breached is owed to the international
community as a whole
Existence of obligation erga omnes is confirmed in Barcelona
Traction, Light & Power Co case also laid down examples of such
obligations prohibition of acts of aggression, genocide, slavery &
racial discrimination.
Rights available from the invocation (1) cessation, assurances &
guarantees of non-repetition (Art 48(2)(a)), (2) reparation for
injured State or beneficiaries of the obligation breached (Art 48(2)
(b))

Law of Diplomatic Protection


2 types of responsibility
1. State to State
2. In context of diplomatic protection (injury to
foreign nationals / property)

Admissibility of Claims
Art 44 2 requirements:
1. Nationality of claims
2. Exhaustion of local remedies

Nationality of Claims:
Under CIL, State has a right to protect its
nationals (diplomatic protection)

Nationality of Claims
Mavrommatis Palestine Concession Case
Initially was a dispute between pvt person & a State
(Mavrommatis v GB). Later Greek govt took up the
case & sue GB. Issue whether State (Greece)
had the right to protect nationals
Held if no remedies for individual, then State can
take action on his/her/its behalf (exhaustion of
local remedies)
Basis of claim bond of nationality PanevezysSaldutiskis Case (Estonia v Lithuania) Lithuania
expropriated Estonian railway co. & the later ICJ
ag. The former on the co.s behalf
Held: it is the bond of nationality between State &
individuals which confers right of diplomatic
protection & taking up the claim on the State

Treatment of Foreign Nationals


Nationality of Claims

Protection of private individuals


State can only protect its nationals. Nationality
legal connection between State & its citizens
conferring rights & duties on both
IL is neutral as to how to determine nationality
(citizenship). So look to domestic law (Art 1 of
Hague Convention on Questions Rel. to Conflict
of Nationality Laws) basic principle each
State determines under its own law who are
their nationals, but national laws will only be
recognised by other States if conform with IL
dual nationality - Art 5 in a third State, a
person with more than 1 nationality is accepted
to have only one nationality how to decide?

Nationality of Claims
Protection of Individuals (contd)
Nottebohm case court looked at:

Where was his main seat of business Genuine connection of existence & strong
sentimental attachment
Settled in Guatemala for 34 years (his main
seat of business)
No close connection between him &
Liechtenstein & the latter cant exercise
diplomatic protection.

Nationality of Claims
Protection of Individuals (contd)
ILC Draft Articles on Diplomatic Protection
does not require genuine link as requirement
of nationality.
Art 4 State of nationality means State
whose nationality that person has acquired in
accordance of the law of that State by birth,
descent, naturalisation, succession of States
not inconsistent with international law.
Art. 5 nationality must exist at date of
injury & continue until at least the date of
presentation of claim.

Nationality of Claims
Protection of Individuals (contd)
2 situations:
Dual/multiple nationality & claim against 3rd State:

1.

No need to establish genuine link

Dual/multiple nationality & claim against State of


nationality:

2.

State with more effective & dominant connection has


right to exercise diplomatic protection
Merge claim between US & Italy
Looked at habitual residence, conduct of individual in
his economic, social, political, civic and family life
Which has closer & more effective bond

Art. 7 A State may not exercise diplomatic


protection against another national State unless
nationality of that State is predominant both at
date of injury & date of presentation of the claim

Treatment of Foreign Nationals


Nationality of Claims

Protection of Companies Barcelona Traction,


Light & Power case
BTLP incorporated in Canada, did business in
Spain. Declared bankrupt in Spanish ct. other
steps injuring the co were also taken by Spanish
authorities. Canada intervened on behalf of
BTLP but later withdrew. Then Belgium brought
a claim on behalf of the shareholders
Held under IL only State of nationality of the
co. can bring intl claim on behalf of it. BTLP still
existed (put under receivership but if already
liquidated then Belgium could take action

Treatment of Foreign Nationals


Nationality of Claims

Protection of Companies:
Art. 9 national State State whose law the
corporation was incorporated

But if corporation is controlled by nationals of other


States & has no substantial business activities in
State of incorporation & seat of mgt & financial
control located in another State, that other State will
be State of nationality.

How national State of shareholders can extend


diplomatic protection:

Corporation ceases to exist under law of State of


incorporation for reasons unrelated to injury
Corporation had at the date of injury nationality of
State causing the injury & incorporation in that State
was required as precondition to do business there.

Exhaustion of Local Remedies


Ambatielos Arbitration (Greece v UK)
Ambatielos contracted with UK govt to buy
ship. UK breached & Ambatielos sued UK in
UK court. HC defeated, CoA defeated.
Did not go to HoL. Then Greece took up the
matter.
Held (Arb) failure to appeal to HoL
precluded Greece from bringing action.
Exception local remedies are futile obviously

Exhaustion of Local Remedies


Finnish Ship owners' Arbitration
13 ships belonging to Finnish ship-owners but
used by UK govt during war & were lost. The
shipowners claimed damage through
Admiralty Arb. Board in UK. The board
rejected. No compensation made & no appeal.
Finland took up the case before international
tribunal
Held where no effective remedy/obviously
futile. Remedies did not apply. No appealable
points of law. No British legislation allowing
compensation. Finland had exhausted local
remedies though not go to CoA

Countermeasures

1.
2.
3.
4.
5.

Countermeasures may be taken only in response


to international wrongful act & only against the
State responsible for that act
Cant be used to punish
Only temporary non-performance of obligations
Limitations to countermeasures (Art 51 ASR):
Only directed against wrongdoer State to compel cessation
of wrongful act or make reparation
Not involve use of force
Not violate basic obligations under international law
Not affect dispute settlement procedure between 2 parties
& inviolability of diplomatic agents
Proportionality commensurate with injury suffered