DOCTRINE OF STATE RESPONSIBILITY

Q: How do you distinguish between this area of international law and international criminal law?
A: -Under the DOCTRINE OF STATE RESPONSIBILITY, you are talking about a claim that can be made
against the whole state whether the action that triggered it is the action of the whole government or
the action of an agency of the government or an action of one agent of the government, regardless of
those considerations, according to the doctrine, the entire state must respond for the violation of
international law.

-When you talk about international delicts, you are dealing with crimes that are defined and punished
by international law, regardless of whether they are also defined and punished by domestic law.

EXAMPLE: Piracy Jure Gentium distinguished from piracy defined and punished by the RPC.
Jure gentium
genocide
crimes against humanity
war crimes
aggression
*When you are in the area of international criminal law, yes, you are dealing with international law but
you are dealing with specific accused or group of accused.
-So a person or a commander commits genocide or a whole company, a whole battalion commits
genocide. But you don’t say that the state committed genocide.

*On the other hand, if it is a question of waging a war, then that is not only a crime, it is a matter of
state responsibility.

WHEN STATE RESPONSIBILITY APPLIES

1. What must be involved is an organ of a state or individuals or groups in the employ of the state.
EXAMPLE: The Government of China in order to pressure the Philippines in regard to its claim
covering the West Philippine Sea face-off a group of filipinos in order to sabotage our electric plans or
electric distribution lines.

Of course, the people who committed the acts are filipinos, but they committed the acts in the employ
of the Chinese Government. So that would still be a matter of state responsibility. Because those
filipinos who blew up the electric plants where in the employ of the Chinese Government.

-It doesn’t matter if the force that did it was not really the regular military force but only paramilitary,
that is immaterial. For as long as the persons acted as agents, employees, mercenaries of the state,
State Responsibility attaches.

-What is important is, even when not ordered by the state.

Because in international law, the fullness of legal personality is enjoyed by the state,
therefore, if any attribution of a wrongful act must take place, it will be attributed to the state.

A few years ago, there was an American Missionary Couple who used to worked at Summer Linguistic
Institute in Viscaya until they went on a mission in Mindanao. They were kidnapped not by agents of
Philippine Government, the army was not involved in kidnapping them, in fact it was the army that tried
to liberate them. Rather, it was the Abu Sayyaf group that kidnapped them and in the ensuing gun fire,
when the military attempted to liberate the couple, the man died and the woman lived to write a book
about the ordeal they suffered.
TAKE NOTE: Abu Sayyaf, these are rebels against the Philippine government. But if the government
would not have done nothing at all, State responsibility would have been attached to the Philippine
Government.

In this case however, State responsibility didn’t attach because the republic endeavored to liberate the
couple and the accidental shooting of the man was not the fault of the government.

But even if it is a rebel group if the government of the state didn’t do anything, State Responsibility
would apply.

2. The conduct of agents even not ordered by the state would still be a matter of state responsibility

3. Even if ultra vires.

Q: What is an ultra vires act
A: An act that exceeds your authority. -Exactly an opposite.

So if a nurse is ordered by a physician to administer an injection to a patient who is suffering from

COVID and says that “ alam nyo ako ay na aawa sa inyo na natutulog na wala man lang nag aalaga
at nagbabantay sa inyo. So bukod dto sa injection na ibibigay ko, ako’y tatabi sayo sa pagtulog.”
***THAT IS ULTA VIRES.***

4. Even if the conduct violates the laws of the state

EXAMPLE: If Rotary International sends exchange students to the Philippines from Canada, and they
are molested by group of drunkards in Tuguegarao.

The act of the drunkard in molesting the foreigners is in violation of the Philippine law. But from the
perspective of international law, it still involves STATE RESPONSIBILITY of the Republic of the
Philippines. So the Rep of the Phil is duty bound to do something. Either arrest, prosecute, try and
punish the offenders or give more protection to potential victims.

But if the Philippine Government says “ Alam nyo gannyan talaga ang buhay eh, may nararape at may
hindi nararape.”
****THE STATE WILL BE RESPONSIBLE*****

ELEMENTS:
1. State responsibility is only spoken of in the context of violation of international law.
-If there is no violation of international law, there is no sense of speaking about state responsibility. It
answers the question:
When can you hold the state responsible for the illegal acts of its agents, or people in its
employ?
DISTINGUISH WITH:
2. Command Responsibility- Concept that applies to international criminal law. It has uses in military
law, in the law of uniform personnel. But in the international law, it is in the context of international
criminal law that you speak of command responsibility.
It answers the question:
When can you hold a commander responsible for the illegal acts or delicts of his
coordinates?

*The Personal liability of Duterte is a matter of ordinary criminal law.

Q: Would international state responsibility arise on the assumption that the president averted,
encouraged, commanded, the uniform personnel of the Philippines to eliminate drug pushers, and
drug lords?

A: State responsibility would arise. Since one of the elements of state responsibility is the violation of
international law, it will amount to a violation for purposedly and willingly commanding your
subordinates in going after the drug pushers and drug lords in an extra judicial killing instead of the
judicial process.

Q: I’m resting my whole problem on the presumption that DUTERTE in fact averted, encouraged,
commanded, the uniform personnel of the Philippines to eliminate drug pushers, and drug lords.
HOW CAN YOU CLAIM A VIOLATION OF INTERNATIONAL LAW WHEN THE ONLY PERSONS INVOLVED
HERE ARE FILIPINOS?

A: If it were a case of entireticy deliberately rendering unjust judgement, sentencing an accused

filipino to suffer a penalty that the evidence does not warrant. Certainly, there is a violation of law but
there would be no state responsibility because there is really no international law involved there. It is
a judicial error.

However, in the case of human rights, it is a matter of international law. Since the UN Charter. Ever
since the passage of the said charter, human rights have been internationalized, with the result that
even when the state violates of the rights of its own citizens and nationals, it incurs international state
responsibility.

3. No need for showing of malice.

It is enough that international law is violated.
EXAMPLE: The Philippines and Thailand have an extradition treaty.
Thailand has a notorious drug dealer who escapes to the Philippines. When Thai intelligence discovers
that this drug dealer is in the Philippines, Thai immediately filed a petition for extradition with the
Department of National Defense. The court to which the extradition case is raffled has a judge who is
sick of COVID and is isolated for a long time. And because he is not retired, no replacement is
assigned. So, the petition is not acted on. The accused escaped from the Philippines and go to India.
Has state responsibility attached? Is there malice on the part of the Philippines?

A: YES, there is a state responsibility. NO, there is no malice. It was not malicious that the extradition
could not take place. Circumstances just conspired in such a way that we were not able to comply with
our obligation under the international law.

Q: Is it an obligation under the international law?

A: Yes, because it is an obligation arising out of a treaty. The agent was supposed to be our judge who
was not able to act on it. But because he was sick. And under the rules of the SC, no assignment of a
substitute has been warranted.
Q: What is an extradition treaty?
A: When one state enters into a treaty with another state, with the understanding that should a
person be wanted in the first state for prosecution or trial because of a crime, the other state to which
the accused or suspects has fled shall surrender her to the requesting state for prosecution and trial.

4. When you are dealing with private individuals, definitely there is state malice when the state
encourages these private individuals.
In connection with this:

US VS. IRAN-Iran hostage case.

-Iran was ruled by a Shah Reza Pahlevi and he was US backed. This guy is a spoiled brat. On the
anniversary of the monarchy in Iran, he created an artificial City which he called the Perseporis and then
filled it with melts that were better even than houses. And to tap it all, he has snow flow in by airplaines
in order that there be a snow in the pavilion grounds.

For this reason, that it was perceived that Pahlevi was the abettor of corruption and that he had profited
from his rule overn Iran plus the hatred the people had for the US, there was a student led revolution
that overthrew the Shah of Iran. And he escaped to the US.

Meanwhile, an exiled Islamic leader of Iran, Ayatolah Khomeini, returned to Iran and became the de
facto ruler of Iran. The students without any instruction from Ayatolah surrounded the US embassy,
Ayatolah then delivered a speech saying that “the students were acting in a patriotic manner” and he
praised them for what they are doing. Immediately after the speech of Ayatolah, the students entered
to Us embassy, and the worst thing is, the diplomats and employees who are inside were taken as
hostages.

Eventually, through negotiation, they were released. But a case was filed by the Us against Iran to the
ICJ, accusing Iran of violating diplomatic premises and asking the court to pronounced liability of the
state of Iran because of the remarks of Ayatolah.

Interestingly, the international court of justice refused to impute the acts of the students and the
militants to the Ayatolah, in effect the ICJ said “the students and the militants were acting on their own.
They were nit acting on orders by the Ayatolah. Khomeeni may have said words that praised them and
encouraged them but that was not tantamount of authorizing them and it cannot be said that it was the
caused of the hostage taking.” ( so the ICJ is trying to say that to hold the Ayatolah and Iran liable, you
must be able to show that the acts of the students and militants must be through the commands of the
Ayatolah.)

NICARAGUA VS US-
At the time of this case, Nicaragua was controlled by Sandinista Government. The Us didn’t like the
Sandinista Government at all, because they believe that it is a Communist Front.
There was in Nicaragua an active militant group fighting the Sandinista Government called the
CONTRAST, who were Nicaraguans. The US saw its chance to get rid of the said Government by
providing assistance to the Contrast.

Nicaragua went to court. And asked the court to declare the US responsible for the acts of the Contrast
against the Sandinista Government.

Q: Is there a State Responsibility against the US?

A: Similar to the Iran hostage case, the ICJ said “ since there is no proof that the US has effective
control over the Contrast, there is no basis for imputing the acts of the Contrast to the US. In short,
providing assistance was not the same thing as controlling.

Q: What is the lesson that we have learned to the two cases?

A: The ICJ will be willing to find state responsibility or imputability on clear showing of causality or
control.

This contrast with:

Even if the acts of the employees or agents of the states are ultra vires or in violation of the acts of the
state, state responsibility will still apply.

But in these two cases, the ICJ rules so that there can be imputability which is an aspect of state
responsibility: US VS IRAN
1. You must show that the Ayatola’s remarks caused the students to enter the premises.
BUT the ICJ have said “kahit walang sinabi sana si Ayatolah, siguradong papasok parin yung mga bata
kasi talagang mainit na sila at mainit ang dugo nila sa mga kano” So the Ayatolah’s words were not
causally relevant to the hostage taking crisis.

In relevant to the Nicaragua case:

2. Even if the US have sent support, technical as well as material and logistical supports to the Contrast,
absent showing of control by the US over the Contrast. The ICJ refused to find imputability against the
US.

Q: According to the requisites of state responsibility, can China be held responsible for the spread of
COVID?

A: YES. It’s not that the virus that the pandemic outbreak was in China, you can’t blame China with
that. But China can be held responsible with this:
Thee moment China knew that there was pandemic or there was an outbreak of a new virus in Yuhan
and still allowed citizens and residents of Yuhan to board airplaines and tro travel to desstinations
outside Yuhan, and outside China, to that extent, China has State responsibility.

Q: Organs of the state, as well as servants or employees of the state may make the state liable. And
they may be held liable even if their acts are ultra vires. So, assuming that an organ of a state purely
acted on his private capacity and not only outside of his authority but his act was not part of his duty
at all, Would that person make the state liable?
A: YES. Because the imputable person in international law is the state. But State responsibility
attaches only if the state doesn’t do anything in regard of the act of such a person.

Q: So what happens if a person did not only acts purely in private manner but acted in violation of
international law?

A: The state is duty bound to stop him. But if the acts have already been committed, the state is duty
bound to punished him or at least to assessed damages against him or at least to inflict administrative
disabilities on him. If the state does that, then the State excuses itself from state responsibility.

But if the state doesn’t do anything at all, it condones the international wrong that was done by this
person acting in a purely private capacity.

Q: In your example about the judge who is sick due to COVID and was not able to act on the petition
of Thailand regarding the extradition case. Would not that excuse the state due to force majeure?

A: In this case, the mere fact that the accused was able to abscond already makes the State
responsible. As you correctly said, it is a force majeure but still, the court failed to act resulting in the
frustration of the international agreement of extradition.

It does not follow that the Philippines will pay for indemnity; it only follows that the Philippines is
responsible. If Thailand bring a case against the Philippines and demands damages, then the
Philippines can ask to be excused for the payment of indemnity on the basis of force majeure. But
responsibility is still there.

Q: When a state is held liable or responsible, what are the sanctions imposed?

A: usually, when a State is sued because of state responsibility, or a claim was made against the State.
It’s either the State is asked to do something, to desist from doing something or to pay indemnity or
damages.

THERE HAS TO BE AN INTERNATIONAL WRONG FOR INTERNATIONAL RESPONSIBILITY TO ARISE.

Q: With regard to Nicaragua vs US, is there any degree of control required or just an effective control?

A: Effective Control.
In fact, the court didn’t go into that, because from the very beginning, the court already said, “Yes, all
that you alleged is that the US is sending funds and sending military experts to advise the Contrast,
but you didn’t prove that the US is directing your forces. So absent that piece of evidence, we cannot
impute the acts of the Contrast to the US.
So the Contrast were on their own in fighting the Sandinista Government. Since the US doesn’t like the
Sandinista Government, the US send money, arms and technical experts to the Contrast. The
Sandinistas sued US and said that “the acts of the Contrast should be blamed to the US.”

ICJ said “we cannot do that because the only thing that you have proved is that the Us is perhaps
sending money, arms and providing technical advice, but it is not commanding the Contrast what to
do.”