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Dr. Raju KD
Assistant Professor of Law
Rajiv Gandhi School of Intellectual Property Law
y The law of responsibility is concerned with the
incidence and consequences of illegal acts, and particularly the payment of compensation for loss caused Ian Brownlie
Spanish Zone of Morocco claims, 1923
y J. Huber: y Responsibility is the necessary corollary of a right. All
rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met.
Chorzow Factory, PCIJ, 1927
y it is a principle of international law that the breach of
an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.
Chorzow Factory, 1928
y It is a principle of international law, and even a general
conception of law, that any breach of an engagement involves an obligation to make reparation.
y State responsibility for internationally wrongful acts. y State acts in breach of international law. y State cannot evade international obligation under
municipal law. y International criminal responsibility. y Crime of apartheid y Racial discrimination y State responsibility in nuclear experiments
y Responsibility of component state is imputed or
attributed to the federal state, in the same way as the conduct of its federal organs, y Federal state is vicariously liable for the conduct of a component state.
1974 ILC Report
y The principle that the state is responsible for acts and
omissions of organs of territorial governmental entities, such as municipalities, provinces and regions, has long been unequivocally recognised in international judicial decisions and the practice of States.
Defense to state responsibility
y Coercion by another state to commit a wrongful act. y Consent by the affected state. y Countermeasures recognised by international law. y Force majeure contributing to the unlawful act.
Breach of treaty
y If any treaty provision is broken responsibility follows. y PCIJ in Chorzow Factory (Indemnity), (1928) PCIJ Ser
A, No.17, p.29. y any breach of an engagement involves an obligation to make reparation. y The compensation or punishment may be in accordance with the illegality and seriousness of the act committed. y Rainbow Warrior case KDR/IIT KGP/RGSOIPL/-2008 10
y On 10 July 1985 an undercover operation conducted by
the French military security service (DGSE) sank the British-registered Greenpeace ship Rainbow Warrior berthed in Auckland Harbour. y The Greenpeace ship was planning to disrupt French Nuclear tests on the islands of French Polynesia. New Zealand subsequently caught and convicted several members of the French secret forces.
y France initially offered an official apology and
acknowledgement of breach of international law. y Additionally, the UN secretary-general awarded New Zealand 7 million USD. This is in addition to compensation which France paid to the family of the only victim of the mission and to Greenpeace (settled privately).
y Excluded from international law purview y Specifically provides international law as the
Liability for expropriations
regarding mining, manufacturing, transportation, utilities and communications. y Anglo Iranian Oil Co Case ICJ 1952. (UKThe Anglo Iranian Oil company case.docx v. Iran) y The UN Resolution on Permanent Sovereignty over Natural Resources, 1962.
General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources"
y Nationalization, expropriation or requisitioning shall be based on
grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. y In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. y In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. y However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.
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Expropriation of foreign private property
be for a public purpose in accordance with a declared national policy. 2. Not discriminate between aliens and citizens, or between different foreign nationalities. 3. Not involve the commission of an unjustified irregularity. 4. Be accompanied by the payment of appropriate compensation.
Standard of reparation
monetary equivalent. y Damnum emergens market value of assets y Lucrum cessans loss of expected profits
y Restitutio in integrum
y Argentinian jurist Calvo y Legal disputes arising out of the contract shall be
referred to the municipal courts of the state granting the concession or grants. y Oust the jurisdiction of the international arbitral tribunals. y North American Dredging Co Case
y A number of developed countries endorsed the Hull formula , first
articulated by the United States Secretary of State Cordell Hull in response to Mexico s nationalisation of American petroleum companies in 1936.
y Hull claimed that international law requires
compensation for the expropriation of foreign investments. Developing countries supported the Calvo y doctrine during the 1960s and 1970s as reflected in major United Nations General Assembly resolutions. In 1962, the General Assembly adopted its Resolution on Permanent Sovereignty over Natural resources which affirmed the right to nationalise foreign owned property and required only appropriate compensation .
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y Lord Palmerston s theory
1848 intervene diplomatically and even resort to military intervention against defaulting debtor state. y The Drago doctrine Argentinian Minister 1902 non use of military force y Included in the Hague Convention of 1907 Employment of Force for the Recovery of Contract Debts non use of force.
Person or property
y Immutability y 1. conduct of the state organ or official in breach of an
obligation defined in a rule of international law. y 2. That breach would be attributed to the state.
Conditions for state responsibility
y 1. state organ r official is guilty of the relevant act with
state authority. y 2. state responsible at international law if the person exceeds authority impute liability on the state. y Youman s case Mexican troops exceeded orders and killed Americans. y 3. Under municipal law there is no authority imputation will fail.
Protection of citizens abroad
y Denial of justice y Chattin Claim (1927)
US-Mexico y Exhaustion of local remedies is a condition precedent.
y One state is not responsible to another state for
unlawful acts committed by its agents unless such acts are committed willfully and maliciously or with culpable negligence. y Jessie British American Claims Arbitral Tribunal in 1921. y any government is responsible to other governments for errors in judgment of its officials purporting to act within the scope of their duties and vested with power to enforce their demands.
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y Presence of malice or culpable negligence is not a
condition precedent of state responsibility. y A state can bring claims if one of its subjects has sustained unlawful injury for which another state is responsible. y Mavrommatis Palestine Concessions Case, 1924, PCIJ once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is the sole claimant.
y Nationality of claims canon
nationality of the
company. y Barcelona Traction (Belgium v. Spain) y Only the national of the company (Canada) can initiate any claim. y Belgium claim on behalf of its citizens fail. y Real and effective nationality is the criteria Cf Florence Strunsky Merge Case (1955). y Artificial personality in corporations - only nationality is criteria.
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y Material damage or pecuniary loss. y Nicaragua Case