State Responsibility

GENERAL ISSUES OF STATE

RESPONSIBILITY

Introduction
Rules of state responsibility indicate the

circumstances in which a state will be fixed with

legal responsibility for the violation of an
international obligation & the consequences
State responsibility in 2 terms:
1.To denote the procedural rules which apply to the
establishment of responsibility for a violation of
any & every international obligation
2.To denote the procedural & substantive rules
relating to the particular case of responsibility for
injury to foreign nationals (aliens)

General Issues of State Responsibility

State responsibility occurs when a state violates an

international obligation owed to another state or

when a state ill-treats the nationals of another state
or acts contrary to a legally binding decision of a
competent international organization
If the states failed to raise a valid defense, then the
consequence of responsibility is liability to make
reparation/consequences of being internationally
responsible
Responsibility will arise if there has been an
internationally unlawful act attributable to the
delinquent state ie. The Im Alone Case (1935)

Adoption of the Draft Articles on the Responsibility of

States for Internationally Wrongful Acts ("Draft

Articles") in August 2001
The law of state responsibility is the principles governing
when & how a state is held responsible for a breach of an
international obligation
The rules of state responsibility determine when an
obligation has been breached and the legal consequences
of that violation
They establish:
1.the conditions for an act to qualify as internationally
wrongful,
2.the circumstances under which actions of officials, private
individuals & other entities may be attributed to the state,
3.general defences to liability, and
4.the consequences of liability

Internationally Wrongful Acts

According to the Draft Articles, an internationally

wrongful act must:

1.be attributable to the state under IL; and
2.constitute a breach of an international obligation of
the state
"Breach of an international obligation" is defined as
"an act ... not in conformity with what is required ... by
that obligation
Responsibility can arise as long as there is a breach of
international obligation from either an act or an
omission by a state
Eg. Janes Claim (US v Mexico) 1926, the Corfu Channel
Case 1949; AAPL v
Republic of Sri Lanka (1991)

The obligation may derive from a treaty,

custom or a general principle of law

The state cannot avoid responsibility by
declaring something legal under its own
domestic law
States are more "strictly liable" for the
actions of their officials than for the actions
of private individuals

Attributability
Before a state can be held responsible for any action, it is

necessary to prove a causal connection between the injury &

an official act or omission attributable to the state alleged in
breaching its obligations
In other words, in order for a state to be fixed with
responsibility, there must be an unlawful act or omission
which is attributable to the state, in that it must be an
unlawful act of the state itself & not of some private
individuals acting for themselves
This has become a significant issue as non-state actors, MNCs
& NGOs play greater international roles & governments
privatise some traditional functions
The state is responsible for all actions of its officials and
organs, even if the organ or official is formally independent
and is acting ultra vires

Activities of Organs of the State

Generally, any act or omission of an organ of a state shall

be considered an act of that state under IL, 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
Thus, this rule makes the state responsible for the
activities of all its organs such ie. army, police, judiciary,
department of state & security services
As long as these organs were acting on behalf of the
state, the state will be responsible even if the organs
exceeded their power
ie. Youmans Claim (US v Mexico 1926)

Activities of Private Individuals

In general, activities by private citizens do not normally be

attributable to the state & incur no international responsibility

However, there are circumstances in which acts of private
citizens may be attributable to the state such that it incur
international responsibility:
1. Private individual acting on behalf of the state in circumstances
which cause injury to a foreign national ie. Yeager v Iran 1987
2. Persons/entities not classified as organs of the state but are
empowered to exercise elements of governmental authority &
act in that capacity at that particular instance ie. Zafiro Case
(Great Britain v US)1925
3. Persons/entities who, in the absence of official authorities,
exercise government authority in circumstances which justified
the exercise of such authority ie. A-G of Israel v Eichman 1961

Activities of Revolutionaries
When there is a breakdown of normal governmental authority

& control (so-called "failed states), the actions of those acting

as the de facto government will be considered as acts of the
state
The conduct of insurrectionist movement is not considered an
act of the state & state is not responsible for the actions of its
rebellious subjects ie. Sambaggio Case (Italy v Venezuela)
1903
The acts of an "insurrectional or other movement that
becomes the new government of an existing state or succeeds
in establishing a new state" will be considered as an act of that
state under IL & thus, are attributable to the state ie. Bolivar
Railway Case (Great Britain v Venezuela) 1903

Activities of Groups Acting in Another States Territory

It is possible for one state to be internationally

responsible for the acts of revolutionaries

(armed groups) in the territory of another state
For eg. State A supports guerilla activities in
State B in an attempt to overthrow the existing
government of State B ie. Nicaragua v USA
1986
This required a high burden of proof to
establish evidence of control & dependency &
delegation ie. Tadic Case (1997)

Primary Responsibility of the State

A state may incur responsibility due to a

breach of some other international

obligation even though the trigger of that
obligation was caused by a non-attributable
act of an individual
ie. Janes Claim
AAPL v Sri Lanka
Hostages Case (US v Iran) 1980

Consequences of Breach
The breach of an international obligation entails 2 types of

legal consequences:
1.It creates new obligations for the breaching state - duties
of cessation & non-repetition (Art. 30) & a duty to make
full reparation (Art. 31)
2.It creates new rights for injured states - the right to invoke
responsibility (Arts. 42 and 48) & a limited right to take
countermeasures to induce the delinquent state to comply
with its international obligation to make reparation (Arts.
49-53)
These countermeasures must be proportionate with
injuries suffered (Art.51) & must avoid unlawful actions
(Art.50)

Art. 48 provides that certain violations of

international obligations can affect the

international community as a whole such
that state responsibility can be invoked by
states on behalf of the larger community ie.
serious breach of a rule of jus cogens

Reparations
Reparation can take many forms ie. apology - The Im

Alone Case; restitution of property unlawfully taken

Temple of Preah Vihear Case 1962; restitution in kind
Texaco v. Libya 1977 or any combination of those
If illegal actions continue, the state has a duty to cease
Reparation could involve restitution, compensation or
satisfaction ie Iraqs compensation fund
The Security Council established Iraq's legal responsibility
for such losses in its resolution 687 of 3 April 1991:
"Iraq...is liable under international law for any direct loss,
damage, including environmental damage and the
depletion of natural resources, or injury to foreign
Governments, nationals and corporations, as a result of
Iraq's unlawful invasion and occupation of Kuwait"

Defences
IL recognizes that a state may have a valid defense to a

charge of unlawful conduct - circumstances precluding

wrongfulness that prevent responsibility from arising:
1.Consent of the potential victim state to the unlawful act
(Art.20); ie. humanitarian intervention
2.The act was a legitimate countermeasure to an
internationally wrongful act of the complaining state (Art.22);
ie. sanctions, on Iraq following its attack on Kuwait,
Gabcikovo-Nagymaros Project, East Timor Case, Barcelona
Traction Case
3.Unforeseen event which makes it impossible to fulfill the
international obligation which is violated (Art.23); ie. war,
strike, riot, natural disaster, Hackney Borough Council v Dore
1992, Matsoukis v. Priestman & Co. 1915, re Dharnrajmal
Gobindran v Shamji Kalidas

4. Perpetrator of the unlawful act was in a

situation of extreme distress where no other
means was available to save his life or that
of persons entrusted to him (Art.24);
Rainbow Warrior Case
5. A narrow ground of state necessity (Art.25)
ie. Danube Dam Case;
6. Lawful self-defense (Art.21); Corfu Channel
Case, Nicaragua Case, GabcikovoNagymaros Project