STATE RESPONSIBILITY |P U B L I C I N T E R N A T I O N A L L A W

STATE RESPONSIBILITY It is international law that determines what constitutes an

internationally unlawful act, irrespective of any provisions of municipal
State responsibility is a fundamental principle of international law, law.
arising out of the nature of the international legal system and the
doctrines of state sovereignty and equality of states. A breach that is of a continuing nature extends over the entire period
during which the act continues and remains not in conformity with the
It provides that whenever one state commits an internationally international obligation in question, while a breach that consists of a
unlawful act against another state, international responsibility is composite act will also extend over the entire period during which the
established between the two. act or omission continue and remains not in conformity with the
international obligation.
A breach of an international obligation gives rise to a requirement for
reparation. There are contending theories as to whether responsibility of the state
for unlawful acts or omissions is strict or whether it is necessary to
Rainbow Warrior (Arbitration between France and New Zealand) show some fault or intention on the part of the officials concerned.
The arbitral tribunal decided that the law relating to treaties was PRINCIPLE OF OBJECTIVE PERSONALITY (RISK THEORY)
relevant, but that the legal consequences of a breach of a treaty,
including the determination of the circumstances that may exclude  Maintains that the liability of the state is strict.
wrongfulness and the appropriate remedies for breach, are subjects  Once an unlawful act has taken place, which has caused injury and
that belong to the customary law of state responsibility. It was noted which has been committed by an agent of the state, that state will
that international law did not distinguish between contractual and be responsible in international law to the state suffering the damage
tortuous responsibility, so that any violation by a state of any irrespective of good or bad faith.
obligation of whatever origin gives rise to state responsibility and
consequently to the duty of reparation. SUBJECTIVE RESPONSIBILITY CONCEPT (THE FAULT THEORY)

Gabcikovo-Nagymaros Project case,  Emphasizes that an element of intentional (dolus) or negligent

(culpa) conduct on the part of the person concerned is necessary
determination of whether a convention is or is not in force, and before his state can be rendered liable for any injury caused.
whether it has or has been properly suspended or denounced, is to be  A leading case adopting the subjective approach is the Home
made pursuant to the law of treaties. On the other hand, an evolution Missionary Society claim in 1920 between Britain and the US. In the
of the extent to which the suspension or denunciation of a convention, Corfu Channel case, the IC appeared to lean towards the fault theory
seen as incompatible with the law of treaties, involves the by saying that: ‘it cannot be concluded from the mere fact of the
responsibility of the state which proceeded to it, is to be made under control exercised by a state over its territory and waters that that
the law of state responsibility. state necessarily knew, or ought to have known, of any unlawful act
perpetrated therein, nor yet that it necessarily knew, or should have
NATURE OF STATE RESPONSIBILITY
known, the authors. This fact, by itself and apart from other
circumstances, neither involves prima facie responsibility nor shifts
When an injury has been inflicted, there is need to determine whether
the burden of proof’. On the other hand, the Court emphasized that
the State can be held responsible for it
the fact of exclusive territorial control had a bearing upon the
Internationally wrongful act – committed when a State violates a methods of proof available to establish the knowledge of that state
customary rule of international law or a treaty obligation as to the events in question.

What need to be understood? Imposing upon the state absolute liability wherever an official is
involved encourages that state to exercise greater control over its
1. Elements of an Internationally wrongful act various departments and representatives. It also stimulates moves
2. Attributability of the wrongful act to the State towards complying with objective standards of conduct in
3. Enforcement of the obligation that arises from the wrongful international relations.
act
State responsibility covers many fields. It includes unlawful acts or
The essential characteristics of responsibility hinge upon certain basic omissions directly committed by the state and directly affecting other
factors: states: for instance, the breach of a treaty, the violation of the territory
of another state, or damage to state property.
1. the existence of an international legal obligation in force as
between two particular states; The doctrine depends on the link that exists between the state and the
2. that there has occurred an act or omission which violates person or persons actually committing the unlawful act or omission.
that obligation and which is imputable to the state The state is not responsible under international law for all acts
responsible performed by its nationals. Since the state is responsible only for acts
3. that loss or damage has resulted from the unlawful act or of its servants that are imputable or attributable to it, it becomes
omission. necessary to examine the concept of imputability (also termed
attribution).

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Imputability is the legal fiction which assimilates the actions or The first proposition is uncontroversial, but difficulties have arisen in
omissions of state officials to the state itself and which renders the seeking to define the necessary direction or control required for the
state liable for damage resulting to the property or person of an alien. second proposition. In the Nicaragua case, the IC declared that in order
for the conduct of the contra guerrillas to have been attributable to the
ACTS OF STATE ORGANS US, who financed and equipped the force, ‘it would in principle have to
Article 4 of the ILC articles provides that the conduct of any state organ be proved that that state had effective control of the military or
shall be considered as an act of the state concerned under paramilitary operation in the course of which the alleged violations
international law where the organ exercises legislative, executive, were committed’. In other words, general overall control would have
judicial or any other function, whatever position it holds in the been insufficient to ground responsibility.
organization of the state and whatever its character as an organ of the Case concerning US Diplomatic and Consular Staff in Tehran
central government or of a territorial unit of the state. This approach
reflects customary law. Iranian students seized the US embassy in Tehran and a number of
consulates in the outlying cities. The Iranian authorities failed to
a. Acts of any State organ whether the organ exercises protect the embassy and later appeared to adopt the students’
legislative, executive, judicial or any other functions, actions. Over 50 US nationals were held hostage for 444 days.
whatever position it holds, and whatever its character Court must decide whether the initial attack by the students could
o Organ – includes any person or body which has be attributed to the Iranian government and whether Iran was
that status in accordance with the international therefore in violation of its international obligations.
law of the State
b. Conduct of an entity which is not an organ of the State but In deciding in favor of the US, the ICJ ruled:
which is empowered to exercise elements of governmental a.) The Iranian authorities were fully aware of their obligations
authority provided the entity was acting in that capacity in under the conventions to protect the premises of the US embassy
the case in question and its diplomatic and consular staff and were aware of the urgent
c. Conduct of an entity which is not an organ of the State but need for action. They had the means to perform their obligations
which is empowered to exercise elements of governmental but failed to do so.
authority provided the entity was acting in that capacity in b.) The actions required of the Iranian Government by the Vienna
the case in question Conventions and by general IL is manifest. They must immediately
d. Conduct of a State organ or of an entity empowered to take every effort and opportunity to bring the flagrant
exercise elements of governmental authority, such organ or infringements of the inviolability of the premises, archives, and
entity having acted in that capacity, exceeding its authority diplomatic and consular staff of the US embassy to a speedy end
or contravening instructions concerning its exercise and to restore the consulates to the US control, and in general
reestablish the status quo and offer reparation for damage.
An unlawful act may be imputed to the state even where it was beyond
c.) The Iranian Government’s decision to continue the subjection of
the legal capacity of the official involved, providing, as Verzijl noted in
the embassy to occupation by militants and the staff to detention
the Caire case, that the officials ‘have acted at least to all appearances as hostages clearly gave rise to repeated and multiple breaches of
as competent officials or organs or they must have used powers or the Vienna Conventions, beyond their failure to prevent the attacks.
methods appropriate to their official capacity’. Although private
individuals are not regarded as state officials so that the state is not d.) The Iranian Government did not break of diplomatic relations
liable for their acts, the state may be responsible for failing to exercise with the US, not did it indicate any intention to declare any member
of the US diplomatic or consular staff in Tehran persona non grata.
the control necessary to prevent such acts.
Thus, Iran failed to employ the remedies placed at its disposal by
ACTS OF OTHER PERSONS diplomatic law specifically for dealing with activities it now
complains of.
Art 8 of the ILC provides that the conduct of a person or group of
persons shall be considered as an act of state under international law
if the person or group of persons is in fact acting on the instructional Corfu Channel
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 Facts:
conduct. After a British warship had been struck by mines, Britain sent
additional warships to sweep the minefields within Albanian
a. Conduct of a State organ or of an entity empowered to territory arguing the theory of intervention where its objective was
exercise elements of governmental authority, such organ or to secure the mines for possible fear that they should be taken
entity having acted in that capacity, exceeding its authority away, and the theory of self-help.
or contravening instructions concerning its exercise
Held:
b. Conduct of a State organ or of an entity empowered to
exercise elements of governmental authority, such organ or The Court cannot accept these lines of defense. It can only regard
entity having acted in that capacity, exceeding its authority the alleged right of intervention as the manifestation of policy of
or contravening instructions concerning its exercise force which cannot find a place in international law.

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The Court is also unable to accept the theory of self help as between breached is owed to that state individually or to a group of states,
independent States, the respect for territorial sovereignty is an including that state or is of such a character as radically to change the
essential foundation for international relations. position of all the other states to which the obligation is owed with
respect to the further performance of the obligation. Where several
Art 9 of the ILC provides that the conduct of a person or a group of states are injured by the same wrongful act, each state may separately
persons shall be considered as an act of the state under international invoke responsibility, and where several states are responsible, the
law if the person or group was in fact exercising elements of the responsibility of each may be invoked.
governmental authority in the absence or default of the official ACTS OF REVOLUTIONARIES
authorities and in circumstances such as to the call for the exercise of
those elements of authority. a. Conduct of an insurrectional movement, which becomes the
new government of a State
Where the governmental authorities have acted in good faith and b. Conduct of a movement, insurrectional or other, which
without negligence, the general principle is one of the non-liabilities succeeds in establishing a new State in part of the territory
for the actions of rioters or rebels causing loss or damage. The state, of a pre-existing State or in a territory under its
however, is under a duty to show due diligence. Where a state administration
subsequently acknowledges and adopts conduct as its own, then it will
be considered as an act of state under international law entailing The consequences of internationally wrongful acts:
responsibility, even though such conduct was not attributable to the
state beforehand. Cessation → the state responsible for the internationally wrongful act
is under an obligation to cease that act, if it is continuing, and to offer
Where a state consents to an act by another state, which would appropriate assurances and guarantees of non-repetition if
otherwise constitute an unlawful act, wrongfulness is precluded circumstances so require.
provided that the act is within the limits of the consent given. The most
common example of this kind of situation is where troops from one Reparation → the essential principle contained in the actual notion of
state are sent to another at the request of the latter. an illegal act is that reparation must, as for as possible, wipe out all the
consequences of the illegal act and re-establish the situation which
Wrongfulness is also precluded where the act constitutes a lawful would, in all probability, have existed if that act had not been
measure of self-defense taken in conformity with the charter of the committed. The obligation to make reparation is governed in all its
UN. Further, the ILC Commentary makes it clear that the fact that an aspects by international law, irrespective of domestic provisions. While
act is taken in self-defense does not necessarily mean that all restitution has occurred in the past, it is rarer today, if only because
wrongfulness is precluded, since the principles relating to human rights the nature of such disputes has changed. A large number of cases now
and humanitarian law have to be respected. involve expropriation disputes, where it is politically difficult for the
state concerned to return expropriated property to multinational
The IC states in the Gabcikovo-Nagymaros Project case that, ‘In order companies. Monetary compensation is clearly of importance in
to be justifiable, a countermeasure must meet certain conditions. In reparation and is intended to replace the value of the asset
the first place it must be taken in response to a previous international confiscated. Art 36(1) provides that in so far as damage caused by an
wrongful act of another state and must be directed against that state. internationally wrongful act is not made good by restitution, the state
Secondly, the injured state must have called upon the state committing responsible is under an obligation to give compensation. Art 36(2)
the wrongful act to discontinue its wrongful conduct or to make states that the compensation to be provided shall cover any financially
reparation for it. In the view of the Court, an important consideration assessable damage including loss of profits in so far as this is
is that the effects of a countermeasure must be commensurate with established. The aim is to deal with economic losses actually caused.
the injury suffered, taking account of the rights in question and its Compensation is usually assessed on the basis of the ‘fair market value’
purpose must be to induce the wrongdoing state to comply with its of the property lost, although the method used to calculate this may
obligations under international law, and the measure therefore be depend upon the type of property involved. Damage includes both
reversible’. In other words, lawful countermeasures must be in material and non-material (or moral) damage. Monetary
response to a prior wrongful act and taken in the light of a refusal to compensation may thus be paid for individual pain and suffering and
remedy it, directed against the state committing the wrongful act and insults. Satisfaction constitutes a third form of reparation. This relates
proportionate. Countermeasures shall be terminated as soon as the to non-monetary compensation and would include official apologies,
responsible state has complied with its obligations. Force majeure has the punishment of guilty minor officials or the formal
long been accepted as precluding wrongfulness, although the standard acknowledgement of the unlawful character of an act. In some cases,
of proof is high. The emphasis is upon the happening of an event that a party to a dispute will simply seek a declaration that the activity
takes place without the state being able to do anything to rectify the complained of is illegal. In territorial disputes, for example, such
event or avert its consequences. The difference between distress and declarations may be of particular significance.
force majeure is that in the former case there is an element of choice.
This is often illusory since in both cases extreme peril exists and 1. Obligation to make full reparation for the injury caused by
whether or not the situation provides an opportunity for real choice is the internationally wrongful act
a matter of some difficulty. 2. Injury consist of any damage, whether material or moral,
arising in consequence of the internationally wrongful act
Art 42 of the ILC Articles stipulates that a state is entitled as an injured
state to invoke the responsibility of another state if the obligation

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3. Responsible State may not rely on the provisions of its effective remedies. It will not be sufficient to dismiss a claim merely
internal law as justification for failure to comply with its because the person claiming had not taken the matter to appeal,
obligation where the appeal would not have affected the basic outcome of the
case. The local remedy rule does not apply where one state has been
One of the major debates taking place with regard to state guilty of a direct breach of international law causing immediate injury
responsibility concerns the question of international crimes. A to another state, as for instance where its diplomatic agents are
distinction was drawn in art 19 of the ILC Draft Articles 1996 between assaulted. But it does apply where the state is complaining of injury to
international crimes and international delicts within the context of its nationals. The local remedy rule may be waived by treaty
internationally unlawful acts. It was provided that an internationally stipulation.
wrongful act which results from the breach by a state of an
international obligation so essential for the protection of fundamental The Treatment of aliens
interests of the international community that its breach was
recognized as a crime by that community as a whole constitutes an Protection of Aliens
international crime. However, the question as to whether states can
be criminally responsible has been highly controversial.  ALIENS = “Nationals Abroad”
 No state is obliged to admit aliens into its territory unless
The doctrine of state responsibility with regard to injuries to nationals there is a treaty requiring it
rests upon twin pillars, the attribution to one state of the unlawful acts  Generally, it is difficult to deny admission to all; Hence, States
and omissions of its officials and its organs (legislative, judicial and impose legal standards for admission
executive) and the capacity of the other state to adopt the claim of the  Once admitted, at least under democratic regimes, aliens
injured party. may not be expelled without due process
 States protect aliens within their jurisdiction in the
Nationality is the link between the individual and his or her state as
expectation that their own nationals will be properly treated
regards particular benefits and obligations. It is also the vital link
when residing or sojourning abroad
between the individual and the benefits of international law. A state is
under a duty to protect its nationals and it may take up their claims Forms of ill-treatment of foreign nationals:
against their states. However, there is under international law no
obligation for states to provide diplomatic protection for their  Mistreatment by judicial or police authorities
nationals abroad. The scope of a state to extend its nationality to  Unlawful expropriation of property
whomsoever it wishes is unlimited, except perhaps in so far as it affects  Denial of justice or denial of due process of law – failure to
other states. prosecute those who attack foreign nationals

In the Nottebohm case, the ICJ decided that only where the existed a Diplomatic protection – the instrument used for the protection of
genuine link between the claimant state and its national could the right aliens
of diplomatic protection arise. The nationality must exist at the date of
the injury, and should continue until at least the date of the formal  Injury to a national abroad = injury to the individual’s State
presentation of the claim, although this latter point may depend upon of nationality
a variety of other facts, for example any agreement between the  The interest of the State is in the redress of the injury to itself
contending states a regards the claim. Where an individual possesses and not of the injury to the individual
dual or multiple nationality, any state of which he is a national may  Individuals are at the mercy of their own State
adopt a claim of his against a third state and there appears no need to
Corporations and Shareholders
establish a genuine link between the state of nationality and the dual
or multiple national. As far as a corporation is concerned, it appears DOCTRINE OF “EFFECTIVE LINK”
that there must be some tangible link between it and the state seeking
to espouse its claim. Different cases have pointed to various factors, Barcelona Traction Case
ranging from incorporation of the company in the particular state to Facts:
the maintenance of the administrative center of the company in the
state and the existence of substantial holdings by nationals in the The claim arose out of the adjudication of bankruptcy in Space of
company. The position with regard to ships is rather different. The Barcelona Traction, a company incorporated in Canada. The claim’s
object was to seek reparation for damage suffered by its
international Tribunal for the Law of the Sea in M/V Saiga (No.2)
shareholders, Belgian nationals, as a result of acts committed
emphasized that under the Law of the Sea Convention, 1982 it is the
contrary to international law.
flag state that bears the rights and obligations with regard to the ship
itself so that ‘the ship, everything on it and every person involved or Held:
interested in its obligations are treated as an entity linked to the flag The Court found that Belgium lack jus standi to exercise diplomatic
state. The nationalities of these persons are not relevant’. protection of shareholders in a Canadian company with respect to
measures taken against that company in Spain.
Customary international law provides that before international
proceedings are instituted or claims or representations made, the The breach, if any, was committed against the company, hence,
remedies provided by the local state should have been exhausted. The only the company could take action. Whenever a shareholder’s
requirement to exhaust local remedies applies only to available

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interests are harmed by an act done to the company, it is to the e. Manifestly unjust judgment – but error of a national court
latter that he has to look to institute appropriate action. which does not produce manifest injustice is not denial of
justice
As to who should have the right to protect the corporation, it is the
State of Nationality of the corporation, in this case, Canada. Claim of denial of justice may be lost due to failure to answer some
preliminary objections
STANDARD OF PROTECTION OF ALIENS
a. Lack of nationality link
ROMAN LAW b. Failure to exhaust national remedies
o Purpose: to protect international courts from
1. Jus gentium – applicable to both citizens and alien being swamped with cases which are better
2. Jus Civile – applicable only to roman citizens handled locally
o Application: cases founded on diplomatic
MODERN TIMES
protection or on injury to aliens
The question of the protection of foreign nationals is one of those
Enforcement Regimes
issues in international law most closely connected with the different
approaches adopted to international relations by the Western and 3rd Who can resolve issues of violations of the rights of aliens when
World nations. appealed to by States in conflict?
Developing countries, as well as communist countries formerly, have 1. ICJ
long been eager to reduce what they regard as the privileges accorded 2. Ad-hoc tribunals established for the purpose
to capitalist states by international law. They lay great emphasis upon a. US-Iran Claims Tribunal
the sovereignty and independence of states and resent the economic b. UN Compensation Settlements
influence of the West. The Western nations, on the other hand, have 3. Lump-sum settlements (Claims Settlement Agreements)
wished to protect their investments and nationals abroad and provide a. US-Cambodia
for the security of their property. b. US-Vietnam
The developed states of the West have argued historically that there The expropriation of foreign property
exists and ‘international minimum standard’ for the protection of
foreign nationals that must be upheld irrespective of how the state The expansion of the Western economies since the 19th century in
treats its own nationals, whereas other states maintained that all the particular stimulated an outflow of capital and consequently heavy
state need do is treat the alien as it does its own nationals (the investment in the development in the developing areas of the world.
‘national treatment standard’). The reason for the evolution of the This resulted in substantial areas of local economies falling within the
latter approach is to be found in the increasing resentment of Western ownership and control of Western corporations. In assessing the state
economic domination rather than in the necessary neglect of basic of international law with regard to the expropriation of the property of
standards of justice. aliens, one is immediately confronted with two opposing objectives,
although they need not be irreconcilable in all cases.
1. National treatment standard – aliens are treated in the same
manner as nationals On the one hand, the capital-exporting countries require some
o Pros: aliens would enjoy the same benefits as local measure of protection and security before they will invest abroad and,
nationals on the other hand, the capital-importing countries are wary of the
o Cons: If the State is tyrannical and its municipal power of foreign investments and the drain of currency that occurs,
laws are harsh and violative of human rights, then and are often stimulated to take over such enterprises.
aliens would likewise be subject to such laws
2. Minimum International Standard – however harsh the Since it can hardly be denied that nationalization is a perfectly
municipal laws might be, aliens should be protected by legitimate measure for a state to adopt and clearly not illegal as such
certain minimum standards of humane protection. under international law, the problem arises where foreign property is
involved. Not to expropriate such property in a general policy of
DENIAL OF JUSTICE nationalization might be seen as equivalent to proposing a privileged
status within the country for foreign property, as well as limiting the
Harvard Draft Convention on the Responsibility of States for Damages
power of the state within its own jurisdiction. There is no doubt that
(Art. 9.) Denial of Justice exists when there is
under international law, expropriation of alien property is legitimate.
a. Denial This is not disputed. However, certain conditions must be fulfilled.
b. Unwarranted delay or obstruction of access to courts
Property would clearly include physical objects and certain abstract
c. Gross deficiency in the administration of judicial or remedial
entities, for example, shares in companies, debts and intellectual
process
property. The 1961 Harvard Draft Convention on the International
d. Failure to provide those guarantees which are generally
Responsibility of States for Injuries to Aliens discusses the concept of
considered indispensable to the proper administration of
property in the light of ‘all movable and immovable property, whether
justice
tangible, including industrial, literary and artistic property as well as
rights and interests in property’. Expropriation involves a taking of
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property, but actions short of direct possession of the assets in  1962 UN General Assembly Resolution on the Sovereignty over
question may also fall within the category. The expropriation of a given Natural Resources
property may also include a taking of closely connected ancillary rights, o Expropriation shall be based on grounds or reasons of public
such as patents and contract, which had not been directly nationalized. utility, security or the national inters which are recognized as
overriding purely individual or private interests, both domestic
The requirement often stipulated is for prompt, adequate and effective and foreign
compensation, the formula used by US secretary of State Hull on the o In such cases, the owner shall be paid appropriate
occasion of Mexican expropriations. It is the standard maintained in compensation in accordance with the rules in force in the State
particular by the US and found in an increasing number of bilateral taking such measures in the exercise of its sovereignty and in
investment treaties. However, case-law has been less clear. accordance with international law
In the Aminoil Case it was stated that the determination of appropriate CALVO CLAUSE REJECTED
compensation’ was better accomplished by an inquiry into all the
circumstances relevant to the particular concrete case than through o A provision in a contract to the effect that “under no condition
abstract theoretical discussion. shall the intervention of foreign diplomatic agents in any matter
related to the contract” be resorted to
However, while the ‘appropriate compensation’ formula of the 1962 o This was rejected in North American Dredging Company Claim due
resolution is linked to national and international law, the 1974 to the right to seek redress is a sovereign prerogative of a State
Character of Economic Rights and Duties of States links the formula to and a private individual has no right to waive the State’s right
domestic law and considerations only. In the sensitive process of
assessing the extent of compensation several distinct categories
should be noted. There is generally little dispute about according
compensation for the physical assets and other assets of the enterprise
such as debts or monies due.

In practice, many of the situations involving commercial relations

between states and private parties fall within the framework of
bilateral agreements. These arrangements are intended to encourage
investment in a way that protects the basic interests of both the
capital-exporting and capital-importing states. Indeed, there has been
a remarkable expansion in the number of such bilateral investment
treaties. The provisions of such agreements are remarkably uniform
and constitute valuable state practice.

Some of these common features of such treaties may be noted. First

the concept of an investment is invariably broadly defined. Secondly,
both parties undertake to encourage and create favorable conditions
for investment, to accord such investments ‘fair and equitable
treatment’ and to refrain from impairing by unreasonable or
discriminatory measures the management, maintenance, use,
enjoyment or disposal of investments in its territory. Thirdly,
investments by the contracting parties are not to be treated less
favorably than those of other states.

Many disputes over expropriation of foreign property have in fact been

resolved directly by the states concerned on the basis of lump-sum
settlements, usually after protracted negotiations and invariably at
valuation below the current value of the assets concerned. It has been
argued that non-discrimination is a requirement for a valid and lawful
expropriation. Although it is not mentioned in the 1962 resolution, the
arbitrator in the Liamco case strongly argued that a discriminatory
nationalization would be unlawful. One approach to the question of
foreign investment and the balancing of the interests of the states
concerned is provided by the Convention Establishing the Multilateral
Investment Guarantee Agency, in 1985, which came into force in 1988.

EXPROPRIATION OF ALIEN PROPERTY

 Expropriation can be internally wrong if it is done contrary to the

principles of international law

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