Lecture:

State Responsibility
Elvis Bisong Tambe
elvisbisong.tambe@lnu.se
 The Notion of Responsibility in International Law

o What happens when international obligations are breached?

• When international law is not duly applied.

o What are under international law the legal consequences of internationally

wrongful act.

o This question tap into the regime of international responsibility – State

responsibility
 The Notion of Responsibility in International
Law

o Responsibility is a moral and legal concept.

– In every legal system violation of legally binding obligation

involves legal responsibility.
– In this respect international is no different from national law.
The Notion of Responsibility in International
Law

o State responsibility is a fundamental principle of International law

o State responsibility arises from:

1) The nature of the legal system

2) Sovereign & equality of states

3) State cannot just do what they want.

 Defining State Responsibility

• The rules of states responsibility indicate the

hmm! So, a state circumstances in which a state will be fixed with
can be held legal responsibility for the violation of an
responsible! So international obligation.
what then is state
responsibility? • State responsibility deal with when and how a state
is held responsible for the breach of international
obligation.
– The obligation may derive from a
treaty or customary law.

• State responsibility may also occur when a state

ill-treats the nationals of another state.
 Defining State Responsibility

o State responsibility is incurred when one State commits an

internationally wrongful act against another.

– Example: Article 2(4) of the UN Charter

» ‘states that every State is under a legal obligation not
to use or threaten to use force against others’.
o However, non-intervention is not limited only to the prohibition of
force
» Any form of coercive interference in the internal affairs
of a State would invite State responsibility.
 Key element of state responsibility

o There are two elements of State Responsibility.

1) Objective element <if there is a breach>
– Act or omission must constitute a breach of an international
obligation.

2) Subjective element <is there a Damage> < if damage is

attributable to the state >
– Can the damage be attributable to the state?
– Act or omission must be “attributable” to the State.
– In principle, the State is not responsible for the acts or
omission of the individuals.
» However, there are exception (we find out!)
 Where does state responsibility comes
from?
o Main source of state responsibility is FOUND in the International Law
Commission, 2001 articles (2001 ILC).

– The articles are based on << Responsibility of states for

international wrongful acts >>.

– these articles focus on attribution, which actions is considered as

action of the states and the wrongfulness.

– Link to 2001 ILC Article:

<<https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf >>
 Sources of states responsibility: ILC Articles

• Article l:
Responsibility of a State for its internationally wrongful acts:
Every internationally wrongful act of a State entails the international responsibility
of that State.
(where the obligation is coming from)

• Article 2:
Elements of an internationally wrongful act of a State:
There is an internationally wrongful act of a State when conduct consisting of an
action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
 Sources of states responsibility: ILC Articles

o When wrongful act is committed, states tries to justify their actions <
Article 3 is there to guide against this >

• Article 3:

Characterization of an act of a State as internationally wrongful:

The characterization of an act of a State as internationally wrongful is governed by

international law. Such characterization is not affected by the characterization of the
same act as lawful by internal law.

10
 Fault or An illegal act
o Whether an act of a state give rise to responsibility is to be judged according to
international law.
• International responsibility cannot be avoided by pleading that the disputed actions
were lawful in national or domestic law: Questions relating to the Obligation to Prosecute or
Extradite (Belgium v Senegal) ICJ (2012).

<< Hissène Habré, currently a resident of Senegal, was the President of the Republic of Chad from 1982
until 1990. During that time, he established a brutal dictatorship which, by the bias of its political
police, the Bureau of Documentation and Security caused the deaths of tens of thousands of
individuals. Proceedings have commenced and failed against him in the Republic of Chad, Senegal, and
most recently in Belgium The latter State issued an international arrest warrant for Habré in 2005 for
charges of crimes against humanity, war crimes, torture and serious violations of international
humanitarian law. The request was never complied with; the Court of Appeal of Dakar in Senegal held
that Habré enjoyed immunity and it was incompetent to rule on the validity of the arrest warrant for a
former Head of State. Belgium instituted proceedings before the International Court of Justice (ICJ)
alleging that Senegal was in violation of its obligation to prosecute or extradite Habré under the
Convention Against Torture >>

o Once an unlawful act has taken place, which has caused injury, and which has been
committed by an agent of the state that state will be responsible to the suffering state.
 Attributability and activities of the state

o For a state to be fixed with responsibility NOT only must there be an unlawful
act or omission, BUT the unlawful act or omission must be attributable to the
state.
– It must be an unlawful act of the state itself and NOT some private
individual acting for themselves. E.g., if a state refuses to honour a
treat commitment, the act is the act of the state.

o However, remember a State is abstract entity.

– So, in cases where the act is committed by a specific individual,
person or organ (i.e., state police, army, judiciary, executive functions)
within the state.
– Act must be attributable if it is clear they were working or acting on
behalf of the state.
– If they are not, then no breach of international law has occurred
for which the state is responsible.
 Attributability and activities of the state

o Article 4 to 11 of the Draft article (International Law Commission) deals

with the question of attribution:
– Conduct of organs of a State:

1. The conduct of any State organ shall be considered an

act of that State under international law, whether the
organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the
organization of the State, and whatever its character as
an organ of the central Government or of a territorial
unit of the State.
2. An organ includes any person or entity which has that
status in accordance with the internal law of the State.
State Responsibility: Example of Cases (Action
of States).
 Case Study 1: Nicaragua v. United States

o the case concerning the use of military and paramilitary

activities in and around Nicaragua.
• involved the United States supporting rebellion
groups against the Nicaraguan government.
o The Court found in its verdict that the United States was
“in breach of its obligations under customary international
law not to use force against another State” and “not to
intervene in its affairs”.
Case 2: United Kingdom v. Albania (The Corfu Channel Case)
Case 3: Rainbow Warrior Arbitration (1987)

17
Case 4: Gaza Flotilla Raid

18
 Actions of private individuals
o In most cases the activities of private individuals or groups
are normally not attributable to the state – simply because
they are acts of private citizens.

• However, there are instance when acts of private's

citizens may be attributable to the state such that
international responsibility arises:
» Private individuals do act on behalf of the
state – by taking the role of a state
representative.
» This is cover by article 5 and 9.
 Actions of private individuals

o Acts of individuals/groups can be attributable if they are empowered by local

law to act on behalf of the state.

– Private citizen are utilized by state agencies for police, public order
and other state function.
– Group acting on the instruction of or under the control of the
state.
– If in the absence of official authorities, private individuals exercise
governmental authority in circumstance that justified the exercise of
such authority, the activities can once gain be attributable to the state.
– If private citizens take on public order responsibilities after serious
internal disturbance have incapacitated the official police force, their
acts may be attributable to the state.
E.g., A-G of Israel v Eichmann (1961) 36 ILR 5.

21
 Actions of private individuals

• Keypoint:
• Overall, where Individuals neither constitutes an organ
of the state nor act on behalf of the state,
• their activities are not attributable to the state and
there is no international responsibility.
 Activities of revolutionaries

o The general rule is that a STATE is not responsible for those actions or conduct
of revolutionaries, rebellious or insurrectionist movements.

– But if the rebels or revolutionaries take control of the state?

»rebel actions may become acts of state – even post-facto.

o Two points should be noted:

1) If a rebellion results in the establishment of an independent state
in part of the territory of an old state, the act of the
revolutionaries can be attributed to the new state and this is made
clear in article 10 (2).
2) It is possible for one state to be internationally responsible for the
acts of revolutionaries who are seeking to overthrow another
state.
 Legal consequences

o In international law, the breach of obligation entailing responsibility

gives rise to legal consequences.

• Common consequences of state responsibility is the obligation to

make REPARATION.

• Reparation can take many forms:

» an apology
» restitution of property unlawfully taken
» restitution in kind
» money compensation go injury suffered (i.e., most
common) example include Eritrea Ethiopia Claims
Commission, Final Award, 17 August 2009
 Treatment of foreign nationals

o Every state is under international obligation not to ill-treat foreign nationals present in its
territory.
• If a state violates this obligation in any way, it may incur international
responsibilities to the state of which the person is a national.
» This is most common form of international responsibility that arises in
international law today.

o Examples of ill-treatment of foreign national that may give rise to international

responsibility:
a) Mistreatment of foreign nationals in custody of judicial authorities
b) Unlawful expropriation of foreign own-property
c) Failure to punish individuals responsible for attacks on foreign nationals
 Treatment of foreign nationals

d) Denial of justice – foreign national been denied due process.

• However, whether or not a state is internationally responsible for

the way it treats foreigners depends on the standard of treatment
which international law obliges that state to adopt.

• So, it is only when the state fall below this standard that it
becomes internationally responsible.
National standard vs international minimum
standards

o most developed countries maintained the treatment of

foreign nationals is governed by international minimum
standard irrespective of how national laws allows that state
to treat its own citizens.

o National standards is more favoured by developing countries

– to avoid interference in their affairs by more powerful
states.
❖ Coming up next…
• Next lecture, 22nd November International environmental law and
international law of the sea
• See Study Guide for what to prepare.