Chapter 6: State Responsibility

Introduction

Intrusion of the rights of a legal person by another person or the failure of a person to observe the obligations imposed by law creates liability in various forms under any legal system. International law also imposes such liability on its subjects, principally on states. This liability is known as state responsibility. Besides states, other international persons such as international organizations are also responsible for their wrongful acts. State responsibility arises because of the breach of an obligation or a legal duty owed by a state under international law. Unlike municipal law, international law does not make a distinction between civil liability and criminal liability as well as between liability in contract and tort in the case of civil liability. State responsibility is not based upon delict (wrong or misdemeanor) in the municipal sense. International responsibility relates to both breaches of a treaty and other breaches of a legal duty.

The Scope of International Responsibility of a State

Article 1 of the Draft Articles reads that “every internationally wrongful act of a State entails the international responsibility of that State.” The Principle enshrined in Article 1 spells out a rule of customary international law. This rule was acknowledged by the Permanent Court of International Justice (PCIJ) in a number of cases. State practice, however, does not make it clear that whether the state responsibility is absolute or based on fault. In other words, is liability strict or must there be a degree of blameworthiness attributable to the state? However, the proliferation of state organs and agencies has seen an increased application of strict liability.

Historically, states have been the primary subjects of international law. The burden of compliance and obligations rests primarily with states. However, there can be legal persons other than states who can also be responsible under international law.

Serious breaches of peremptory norms of international law (jus cogens) by a certain state impose an obligation on other states, which should refrain from recognizing as lawful the situation created thereby or from rendering aid and assistance in maintaining it (Draft Arts. 40/2 and 41/2). In the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory (2004), the ICJ held that given the character and the importance of the rights and obligations involved, other states are under an obligation not to recognize the illegal situation resulting from the construction of the Wall, and they are also under an obligation not to render aid and assistance in maintaining the situation created thereby. Moreover, according to the ICJ, other states have an obligation “to see that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end.” The Court further stated that the General Assembly and the Security Council should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall.

Elements of State Responsibility

The international responsibility of a State results from an omission or commission of an internationally wrongful act. An internationally wrongful act of a state presupposes that there is a conduct consisting of an action or omission which (a) is attributable to the State under international law and (b) constitutes a breach of an international obligation of the State (Art. 2, Draft Articles). In principle, the presence of these two elements will entail the international responsibility of a state. This has been affirmed by the Court in a number of cases. However, the respondent state may justify its action by claiming self- defense or force majeure (superior or irresistible force) for its non-performance. There are three important elements regarding state responsibility: attribution (imputability), breach (causation), and the absence of any valid justification or legal excuse.

Conduct attributable to the state: Conduct attributable to the state may consist of actions or omissions. For a particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the state to create its responsibility either generally or specifically in certain circumstances. In order for an act of the state to be attributable, it must involve some action or omission by its actor or actors. Then the question remains as to which persons should be considered as acting on behalf of the state. The official position of a person is immaterial to creating responsibility for the state. Some senior officials under international law enjoy inherent authority to bind the state. Some officials act on the basis of ostensible authority. However, for the purposes of state responsibility, any state official, at any level, may commit an internationally wrongful act which is attributable to the state. The official’s level of seniority in the state hierarchy is inconsequential, and so long as he/she is acting in his/her capacity, the state responsibility will be there. The general rule is that the only conduct attributed to the state at the international level is that of its organs or of others who have acted under the direction, instigation, or control of those organs, i.e., as agents of the state. The scope of state responsibility for official acts is broad, and the definition of ‘organ’ for this purpose is comprehensive and inclusive.

Breach of an international obligation: In determining the responsibility of a state, it is necessary to establish that the given conduct attributable to a state constitutes a breach of its international obligations. “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 by that obligation, regardless of its origin or character” (Art. 12, Draft Articles). An international obligation may be established by a customary rule of international law, by a treaty, or by a general principle applicable within the international legal order. States may also assume international obligations by their unilateral acts. The essence of an internationally wrongful act lies in the non- conformity of the state’s actual conduct with the conduct it ought to have adopted to comply with a particular international obligation. A breach by a state of its international obligation gives rise to its international responsibility. Breach of an international obligation, prima facie (at first sight), gives rise to state responsibility. However, before a state is held responsible, a number of other issues also arise such as causation (fault), injury, damage, and the time of its occurrence (for the purposes of non-retrospectivity). On these aspects, rules of international law are distinct from those of municipal law. Therefore, a state cannot invoke its municipal law to avoid its responsibility under international law.

Legal Excuses (Defenses) for Breaches of International Law

International law recognizes certain grounds justifying or excusing non-compliance by a state with its international obligations. These defenses preclude the responsibility of a state for its wrongful conduct. The Draft Articles in Chapter V of Part One enlist these defenses under the heading of “circumstances precluding wrongfulness,” though they are not exclusive. It sets out six circumstances (defenses):

Consent: Valid consent by a State to a particular conduct of another State, which would otherwise be inconsistent with its international obligations, precludes the wrongfulness of that act in relation to the consenting state, provided that the conduct remains within the limits of the consent given (Art. 20). However, Consent may be vitiated by error, fraud, corruption, or coercion.

Self-defense: Self-defense precludes the wrongfulness of the conduct taken within the limits laid down by international law. Article 21 of the Draft Articles states: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations.” Under Article 51 of the UN Charter, a state has an inherent right of selfdefense in the face of an armed attack.

Countermeasures: Under certain circumstances, the commission by one state of an internationally wrongful act may justify another (injured) state in taking nonforcible countermeasures in order to procure its cessation and achieve reparation for the injury. Article 22 of the Draft Articles provides that “the wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State.” Legality of the countermeasures has been accepted in judicial decisions and the state practice.

Force Majeure: International law does not impose any responsibility in circumstances where the nonperformance is entirely outside the control of the state. Article 23/1 of the Draft Articles provides that “the wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” Thus, force majeure as a defense is available only where the following three elements are met:

• the act in question must be brought about by an irresistible force or by an unforeseen event,
• which is beyond the control of the State concerned, and
• which makes it materially impossible in the circumstances to perform the obligation.

Distress: Distress operates to excuse the wrongfulness of an act if the author of the act had “no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care” (Art. 24). The wrongfulness of the conduct is precluded in circumstances where the state agent had no other reasonable way of saving life. Thus, defense is limited to cases where human life is at stake. Most of the cases of distress under international law have involved aircraft or ships entering a state territory under stress of weather or following a mechanical or navigational failure.

Necessity: Necessity operates to excuse an act done where that act was “the only way for the State to safeguard an essential interest against a grave and imminent peril.” Yet necessity should not seriously impair an essential interest of another state or states toward which the obligation exists or of the international community as a whole (Art. 25). A state cannot invoke necessity if it has contributed to the situation of necessity. Unlike distress, necessity consists not in danger to the lives of individuals in the charge of a state official but in a grave danger either to the essential interests of the state or of the international community as a whole.

Despite the fact that the wrongfulness of an act may be precluded in certain circumstances, it is subject to two conditions. First, the wrongfulness of the conduct will be precluded so long as the circumstance precluding wrongfulness exists. When the circumstance precluding wrongfulness ceases or ceases to have its preclusive effect for any reason, the obligation in question will again have to be complied with. Secondly, the preclusive effect may be relative rather than general and may not be justified erga omnes (towards all). In certain circumstances, the state having committed the act might have to provide some form of compensation for any material loss caused by the act in question (Art. 27).

Consequences of Internationally Wrongful Acts

The core legal consequences for the responsible state on the commission of an internationally wrongful act are twofold: to cease the wrongful conduct (Art. 30) and to make full reparation for the injury caused by the internationally wrongful act (Art. 31). Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a state. These consequences are aimed at the restoration of the legal relationship that has been threatened or impaired by the breach. The obligation continues to bind the responsible state. Therefore, the state remains obliged to perform the obligation in question (Art. 29). Where the internationally wrongful act constitutes a serious breach of an obligation arising under a peremptory norm of general international law, the breach may entail further consequences both for the responsible state and for other states. In particular, all states in such cases have obligations to cooperate to bring the breach to an end, not to recognize as lawful the situation created by the breach, and not to render aid or assistance to the responsible state in maintaining the situation so created (Articles 40–41).

Cessation and non-repetition: The first requirement in eliminating the consequences of the wrongful conduct is the cessation of that conduct. Reparation in many cases may not be the central issue in a dispute between states related to responsibility. The state responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require (Art. 30). Most commonly, the obligation to cease wrongful conduct will arise in the case of a continuing wrongful act. There are also situations where a state has violated an obligation on a series of occasions, implying the possibility of further repetitions. Cessation and the offer of assurances and guarantees of non-repetition by the responsible state are particularly important where there is a threat of repetition.

Reparation: The responsible state is obliged to make full reparation for the consequences of its breach, especially where actual harm or damage has occurred, provided it is not too remote or indirect. Article 31 of the Draft Articles deals with reparation. Material damage in Article 31 refers to damage to property or other interests of the state and its nationals which is assessable in financial terms. Moral damage includes such items as individual pain and suffering, loss of loved ones or personal affront associated with an intrusion on one’s home or private life. The underlying principle is that reparation must restore the status quo ante (the previous or last contested state before the current state). In other words, reparation must wipe out the consequences of the breach, putting the parties as far as possible in the same position as they would have been if the breach had not occurred. Reparation may take several forms, including monetary compensation.

Treatment of Aliens and Diplomatic Protection

The treatment of aliens (foreign nationals) has been a controversial subject under international law. There are two principal approaches in this respect:

• international minimum standard of treatment which must be accorded to aliens by all states, irrespective of how they treat their own nationals; and
• national treatment, that is, treatment equal to that given by the concerned state to its own nationals must be accorded to aliens.

Whereas the first approach is backed by developed nations, developing countries favor the second approach. Regardless of these approaches, international law does not control the treatment of aliens by states. However, if an alien is ill-treated contrary to the law of state responsibility, this will be treated as an injury to his or her national state. The national state may under its right of diplomatic protection espouse the cause of its citizen at the international level against the delinquent state, if its citizen fails to get any relief from the state in breach of its responsibility.

It is for this reason that under international law, only states in general have procedural capacity to bring an action before an international tribunal. The non-state actors, individuals or corporations, do not enjoy this capacity. In the absence of a special treaty arrangement that grants the nonstate actors access to international tribunals, their claims must be channeled through the State of their nationality on the ground of diplomatic protection. The rationale behind this is that it is the state (of which that individual is a national) that has been wronged and therefore the state can bring an action in respect of that wrong. The victim’s state may bring a claim against the delinquent state by exercising its right of diplomatic protection. This will require compliance with the law on admissibility of claims. In particular, the state exercising the right of protection must satisfy the rules concerning the nationality of claims and the exhaustion of local remedies available under the law of the delinquent state. Article 1 of the Draft Articles on Diplomatic Protection (adopted by the International Law Commission in 2006) defines “ diplomatic protection ” as follows: “diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.”

Nationality of claims rule: Nationality is critical in the context of state responsibility. When injury is suffered by its national, it is only the state of victim’s nationality that has the right to bring a claim against the delinquent state. The responsibility of a state may not be invoked if the claim is not brought in accordance with any applicable rule related to the nationality of claims (Art. 44/a of the Draft Articles on State Responsibility). By resorting to diplomatic action or international judicial proceedings on behalf of its national, a state in reality is asserting its own right to make sure that the rules of international law are respected. A State may only espouse a claim against another state on behalf of its nationals. The state is the sole authority to decide whether to grant diplomatic protection as well as to determine its extent and duration. In this respect, it retains discretionary power that may be influenced by political considerations rather than the legal merits of a particular claim.

Exhaustion of local remedies: Art. 44(b) of the Draft Articles on State Responsibility provides that “the responsibility of a State may not be invoked if: the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.” It is an established rule of customary international law that before diplomatic protection is afforded or before recourse may be made to international arbitral or judicial processes, local remedies must be exhausted. The rule only applies in those cases where the state brings a claim on behalf of a national. In principle, exhausting local remedies is not required when a state brings a claim to protect its direct interests. The obligation to exhaust local remedies relates only to legal remedies and, therefore, would exclude remedies that are discretionary. Local remedies must be exhausted to the fullest extent, including the appeal procedure provided in local law.