State Responsibility

Table of Contents
Serial Content Page No.
No.
1 Acknowledgement 2

2 Responsibility of states for Internationally 4

3 Elements of Responsibility of a State 5

4 Consequences in case of breach of 7

6 Conclusion 8

7 Bibliography 9

Responsibility of states for Internationally Wrongful Act

1
In the current world all states are equal in status and thus they share equal rights as well as
corresponding duties with respect to each other. Thus, there exists an obligation placed on each
state whose breach can cause injury to another. Thus, under international law if a state causes
injury to another it must be held accountable and make reparations to the injured party.

The U.N. General Assembly decided in 1953 that "it is desirable for the maintenance and
development of peaceful relations between States that the principles of international law
governing State responsibility be codified1. The United Nations General Assembly departed
the duty to codify the principles related to state responsibility to the International Law
Commission in 1975. In August 2001 the international law commission finally adopted the
Articles on Responsibility of States for Internationally Wrongful acts (hereafter ARSIWA).

The basic principle of “State Responsibility” in international law provides that any state that
violates its international obligations must be held accountable for its acts. It acts as a
compulsion on the states to respect and maintain their international duties, prevents illegal
actions, and in case of breaches provides reparations to the injured. In the Phosphates in
Morocco case2, PCIJ affirmed that when a State commits an internationally wrongful act
against another State international responsibility is established “immediately as between the
two States. This is a fundamental principle, which forms part of international customary law,
and is binding upon all states.
The rules on “state responsibility” do not specify the content of a state’s obligations under
international law, for example torture is forbidden, or that a state must provide medical services
to the civilian population. These obligations are specified in numerous international law treaties
and in international customary law. State responsibility governs when and how a state is held
responsible for a breach of an international obligation.
After the ARSIWA articles community interest has come in light i.e. breach of international
obligation does not just influence the state directly deprived but the complete international
community as a whole. This was expressed in the judgment of the International Court of Justice
in the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) by “essential
distinction should be drawn between the obligations of a State towards the international

1
Sompong Sucharitkul, State Responsibility And International Liability Under International Law(1996)
2
Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J. (ser. A/B) No. 74 (June 14)

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community as a whole, and those arising vis-à-vis another State in the field of diplomatic
protection. By their very nature the former is 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.3”

Elements of Responsibility of a State -

Every internationally wrongful act of a State entails the international responsibility of that
State4. For a state liability to arise out of state responsibility there are certain prerequisites that
are required. First, the existence of an international legal obligation in force as between two
particular states; secondly, that there has occurred an act or omission which violates that
obligation and which is imputable to the state responsible, and finally, that loss or damage has
resulted from the unlawful act or omission5.

There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character 6.
This implies that the obligation that is breached by the state must be binding upon that state
and if that state is in any way exempt or excused the responsibility of the state cannot arise.

The State is represented by the organs of the State whose acts are attributable to the State even
in instances where they contravene their instructions, or exceed their authority as a matter of
national law as under article 7 of AIRSIWA. No distinction is made based on the level of the
particular organ in the organizational hierarchy of the State; State responsibility can arise from
the actions of a local policeman, just as it can from the actions of the highest officials, for
instance a head of state or a foreign minister7. In the La Grand (Germany v. United States of
America) case “ The ICJ held that the Vienna Convention on Consular Relations of April 24,
1963, granted rights to individuals on the basis of its plain meaning, and that domestic laws
could not limit the rights of the accused under the convention, but only specify the means by
which those rights were to be exercised.8”

3
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962)
4
Article 1, Articles on Responsibility of States for Internationally Wrongful acts
5
Malcolm N. Shaw, International Law Pg. 781 (Cambridge University Press, 6th Ed. 2008)
6
Article 12, Articles on Responsibility of States for Internationally Wrongful acts
7
https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/responsibility-state
visited on : 04/04/2020
8
https://en.wikipedia.org/wiki/LaGrand_case visited on: 04/04/2020

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The general rule is that a State is not responsible for the acts of private individuals. The
exception to this is that ‘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 instance9’. Under a joint
declaration by Judge Petrén and Judge Onyeama “the absence of a genuine connecting link
between a State and a natural person who has acquired its nationality may be set up against the
exercise by that State of diplomatic protection of the person concerned.10”
Under Article 8 of ARSIWA if private individuals act on the instruction, direction or control
of the State then also State is held responsible. With regard to certain obligations, a State may
incur responsibility even though actions have been carried out by private individuals, because
the essence of the obligation was to ensure that a given result occurred11.

Circumstances also matter in these cases and there are certain conditions which might serve as
an excuse regarding the state’s responsibility. For instance if the consent of the state whose
obligation is breached is taken prior to such breach will prevent the breach from being
wrongful. Also a State’s breach of obligation in response to a prior wrongful act of the other
State, in order to force the other State to comply with its obligations is also not considered to
be wrong and acts as an excuse. Certain other parameters such as force majeure, distress, and
necessity can also serve as excuses to branch of obligation under certain circumstances. There
are certain obligations that are considered to be absolute and under no circumstances is the
breach of these excusable including and not limited to obligation of not using threat or force,
protection of fundamental human rights etc.

Consequences in case of breach of responsibility –

9
Article 5, Articles on Responsibility of States for Internationally Wrongful acts
10
Barcelona Traction, Light and Power co. (Belg. V. Spain) New Application, 1970 ICJ REP.4, 32
11
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/4-state-responsibility visited on:
04/04/2020

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The breach of an obligation or responsibility can lead to several consequences. If a state is
continuing its act or omission that causes its breach of international responsibility then the state
is under an obligation to cease that act also known as cessation, and offer assurances and
guarantees of non-repetition if circumstances so require. In the La Grand case Germany
demanded assurances of non-repetition from USA.

When a state commits a wrongful act, certain new legal obligations come into effect i.e. that
state comes under an obligation to make reparation for the injury caused due to the act.
Reparation can be classified into three types i.e. restitution, compensation, and satisfaction.
Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with
the provisions of this chapter12. Restitution is a method to “wipe out all the consequences of
the illegal act and re-establish the situation which would, in all probability, have existed if that
act had not been committed.13” Restitution is always given priority over compensation and
satisfaction as can be seen in the Chorzow Factory14 case where it was expressed that it is
a general principle of international law that reparation is to be made for violations of
international law and is the first to be opted for resolution. In the Bosnian Genocide case15 the
court held that Serbia had committed a breach of the Genocide Convention by failing to prevent
the genocide from occurring and directed to provide assurances and guarantees of non-
repetition.

Compensation is the payment of damages to one whose rights have been violated by the breach
of the responsibility of the state international law. compensation or satisfaction. Satisfaction
includes an acknowledgement of the breach, an expression of regret, a formal apology or
another appropriate modality but it cannot be humiliating to the responsible state as according
to article 37 of the ARSIWA.

Article 31 of the Articles on State Responsibility provides that the responsible state is under an
obligation to make full reparation for the injury caused by the internationally wrongful act and
that injury includes any damage, whether material or moral, caused by the internationally

12
Article 34, Articles on Responsibility of States for Internationally Wrongful acts
13
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1094 visited on:
04/04/2020
14
Chorzow Factory (Ger V. Pol), 1928 PCIJ (Ser.A.) No.17 (Sept.13)
15
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43

5
wrongful act of a state16. Chapter III of Part II of ARSIWA is dedicated to the serious breaches
of obligations under peremptory norms of general international law. Chapter II of Part III of
ARSIWA gives the affected state the right to take certain countermeasures in such a way as to
permit the resumption of performance of the obligations in question. Countermeasures may be
a form non-compliance by the injured State with its legal obligations towards the prior State
which through neglected its obligations, or unilateral coercive actions taken by the injured State
against the other state. These measures are utilized in order to induce the wrongdoing State to
discontinue its wrongful act and to provide reparation for its actions. This type of
countermeasures do not fall under breach of a state’s duty towards another.

Conclusion –

In international law, it becomes the responsibility of each state to carry out its obligation
towards other states and if it does not do so it leads to an international wrongful act which in
turn gives rise to the duty to give reparation. For an act to be attributable to a State must be
committed by its agencies or officials or in the exercise of its authority in any manner.
In current context the world has moved from the bilateral concept of state responsibility to it
becoming a community thing as can be seen through Article 42 of ARSIWA which not only
the right to injured party but also any subsequent party to whom such a breach could cause a
serious effect or even change the nature of international obligation in a manner which harms
its interest.
A state’s liability arises out of an act or omission of an act which violates a pre-existing
obligation, imputable to the state responsible, causes loss or damage to another. This breach
leads to creation of new legal obligation to account for such a breach. Such breach can be
accounted by first cessation of such act if it is in motion along with proper assurances and also
provide for reparations in form of restitution, compensation and satisfaction, either singly or in
combination. Thus can be said that states are held accountable to a certain standard of
obligation and responsibility if a state ever commits an act which is considered to be wrong at
an international level and can be attributed to it.

Bibliography –

16
Malcolm N. Shaw, International Law Pg. 802 (Cambridge University Press, 6th Ed. 2008)

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1. Malcolm N. Shaw, International Law (Cambridge University Press, 6th Ed. 2008)
2. Articles on Responsibility Of States For Internationally Wrongful Acts
3. lawteacher.net
4. ckadvocates.co.ke
5. encyclopedia.com
6. casebook.icrc.org
7. icj-cij.org
8. wikipedia.org
9. opil.ouplaw.com