INTERNATIONAL

LAW: STATE
RESPONSIBILITY
◦ The UN International Law Commission started to discuss on “state responsibility” in this took 26 years
and in Draft Articles on State Responsibility were finally adopted now it is waiting the accession of states
to this convention. These Draft Articles includes both “codification” and “progressive development of
international law”.
◦ Art. 1 of the ILC Convention-----“every international wrongful act of a state entails the international
responsibility of that state”.
◦ Articles on Responsibility of States for Internationally Wrongful Acts (2001)
◦ Not only states, but also international organizations, because they can conclude treaties.
◦ Individuals + corporations and non-governmental organization to the extent they act as subject of
international law.
◦ Individuals international responsibility only developed in criminal field, in crimes against peace +
humanity so on.
◦ Draft articles include all---but so far there has been no development in practice of civil responsibility of
individuals and corporations for breaches.
Elements of State Responsibility
1. There has to be an act or omission violating a rule of international law unlawful act or we call it
“internationally wrongful act” OR an act-omission consistent with the rules of international law in which a
responsibility can be attributed to its consequences.
2. This act must cause a damage or loss
3. This act must be attributable or imputable to a person of international law.
4. There should not be a reason terminating responsibility or deleting the consequences of that act we call
them as “circumstances precluding responsibility.”
 Omissio

An Unlawful Act or Omission---

n means
not to
act

Internationally wrongful act

◦ There are opposing approaches to the nature of this “act or omission”
◦ “Principle of objective responsibility” (the risk theory) maintains that “once an unlawful act has taken
place and has cause damage, that state will be responsible irrespective of “good or bad faith”. This
approach does not ask the existence of a “culpability/fault”
◦ “Subjective responsibility” (the fault theory)----element of “intentional” or “negligent” conduct is
necessary for international responsibility.
Issue of Injury or Damage
◦ Debate in international law about “the role of harm or damage” in the law of state responsibility.
◦ Some claimed that the state must have suffered some form of actual harm or damage before
responsibility can be attributed.
◦ BUT in the ILC Draft there is no general requirement of harm or damage.
◦ Mere breach of an obligation will be sufficient to give rise to responsibility, like minor infringement of
the inviolability of an embassy or consular building. In such cases of breach, with no damage, the aim of
asserting responsibility may be to avoid repetition of the problem rather than to obtain compensation.
◦ 1- This harm must occur against a “protected right” instead of “a benefit”
◦ Example: termination of a foreigner’s privileged tax status in another country would not create international
responsibility
◦ .2- There may be a distinction between “direct damage” and “indirect damage”
◦ direct damage means “the unavoidable consequences of an internationally wrongful act”.
◦ indirect one is “the damage that occurs as a result of a direct damage”
◦ Example: 19th century UK’s selling of the armed ship “Alabama” to the South America (confederate---north--
union)-----The Arbitration took into consideration the casualty created by this ship but not the “rise of ship
insurance prices” and “rise in the prices of ship transportation”.
◦ 3- Material Damage + Mental sufferings since 1920’s not only the material one but also the “mental
sufferings of relatives of the person killed are taken into consideration”.
◦ 4- Internationally wrongful act may damage the “international legal person” directly or through its
citizens like inhuman treatment to the diplomatic agent may be deemed as damage to state the institution
or the concept of “diplomatic protection” developed as a result of this connection.
Attribution
◦ Another important point EVEN if any organ or official of a state acts “ultra vires” (acts beyond their
legal capacity----excess of authority----contravening instructions) acts or omissions of that organ may be
attributable to the state.
◦ In 1920’s a French national was shot and killed by the members of the Mexican Army without any
official instruction to them to do so. BUT the tribunal held Mexico responsible for these “ultra vires” acts
and attributable to the state of Mexico.
◦ Organs, officials or agents of states, when they act in their capacity as organs of the state, their acts and
omissions shall be regarded as those of the state, even when they contravene the internal law or
directives therefore one must pay attention to the employment of agents carefully.
◦ Normally, a state is not responsible for the acts of mass or of private individuals, their conduct will only
be attributable to the state if they are in fact acting under the control of the state, or the state adopts their
acts as its own, or they are empowered to exercise elements of governmental authority.
“Circumstances Precluding
Responsibility-Wrongfulness”
◦ These are the excuses which transform a wrongful act that would otherwise constitute an unlawful act.
Under the ILC’s Draft Articles non of these circumstances can operate to excuse a conduct which
violates a peremptory norm of international law.
◦ Consent: state may consent to military action on its territory.
◦ Self defense
◦ Force majeure: If non-performance of an obligation is due to the circumstances outside the control of the state and
if the reason was an unexpected + unforeseen + irresistible event “beyond the control of the state” there shall be no
responsibility. BUT this force majeure will not apply if the situation is “due to the conduct of the state invoking it”.