State Responsibility

Overview:

State Responsibility is a complex subject to discuss. It is quite difficult to assign a wrongful act to a state. Because state in itself is a abstract term. State is its people. And it is cumbersome to held a state liable for their wrongful acts. So, in 2001 International law commission prepared a report viz, "Articles on the Responsibility of state for internationally wrongful acts" to codify the customary practices involving state responsibility.

Article 1. Every wrongful act of a state entails international responsibility of that state.

Wrongful act: Violation of I. Law. 

Example 1: In the Phosphates in Morocco case, PCIJ affirmed that when a State commits an internationally wrongful act against another State international responsibility is established “immediately as between the two States”. 

Example 2: In the “Rainbow Warrior” case, the arbitral tribunal stressed that “any violation by a State of any obligation, of whatever origin, gives rise to State responsibility”. 

Article 2. 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. (see article 12)

Example 1: ICJ has referred to these two elements on several occasions. In the United States Diplomatic and Consular Staff in Tehran case, it pointed out that, in order to establish the responsibility of the Islamic Republic of Iran: 

First, it must determine how far, legally, the acts in question may be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the obligations of Iran under treaties in force or under any other rules of international law that may be applicable.

 Example 2: Similarly in the Dickson Car Wheel Company case, the Mexico-United States General Claims Commission noted that the condition required for a State to incur international responsibility is “that an unlawful international act be imputed to it, that is, that there exist a violation of a duty imposed by an international juridical standard”.

Conduct attributable to the State can consist of actions or omissions. 

Example 1 of Omissions: Corfu Channel Case: ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn third States of their presence. 

Example 2: In the United States Diplomatic and Consular Staff in Tehran case, the Court concluded that the responsibility of the Islamic Republic of Iran was entailed by the “inaction” of its authorities which “failed to take appropriate steps”, in circumstances where such steps were evidently called for. 

The second condition for the existence of an internationally wrongful act of the State is that the conduct attributable to the State should constitute a breach of an international obligation of that state. For example, In its judgment on jurisdiction in the Factory at Chorzów case, PCIJ used the words “breach of an engagement”.

Article 3. The characterization of an act of a State as internationally wrongful is governed by international law, not other way around.

 Explanation: an act of a State cannot be characterized as internationally wrongful unless it constitutes a breach of an international obligation, even if it violates a provision of the State’s own law. An act of a State must be characterized as internationally wrongful if it constitutes a breach of an international obligation, even if the act does not contravene the State’s internal law—even if, under that law, the State was actually bound to act in that way.

Note: Read furthur from notes in mobile.

Example 1: As to the first of these elements, perhaps the clearest judicial decision is that of PCIJ in the Treatment of Polish Nationals case. The court said according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations .

Article 4:

 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.

The reference to a “State organ” covers all the individual or collective entities which make up the organization of the State and act on its behalf.

Thus, the reference to a State organ in article 4 is intended in the most general sense. It is not limited to the organs of the central government, to officials at a high level or to persons with responsibility for the external relations of the State. It extends to organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy, including those at provincial or even local level. No distinction is made for this purpose between legislative, executive or judicial organs. Thus, in the Salvador Commercial Company case, the tribunal said that: 

a State is responsible for the acts of its rulers, whether they belong to the legislative, executive, or judicial department of the Government, so far as the acts are done in their official capacity.

ICJ has also confirmed the rule in categorical terms. In Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, it said:

 According to a well-established rule of international law, the conduct of any organ of a State must be regarded as an act of that State. This rule … is of a customary character

The term “person or entity” is used in article 4, paragraph 2, as well as in articles 5 and 7. It is used in a broad sense to include any natural or legal person, including an individual office holder, a department, commission or other body exercising public authority, etc. The term “entity” is used in a similar sense in the draft articles

Article 5: The conduct of a person or entity which is not an organ of the State under article but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.

Article 7 deals with the important question of unauthorized or ultra vires acts of State organs or entities. It makes it clear that the conduct of a State organ or an entity empowered to exercise elements of the governmental authority, acting in its official capacity, is attributable to the State even if the organ or entity acted in excess of authority or contrary to instructions.

Example: A definitive formulation of the modern rule is found in the Caire case. The case concerned the murder of a French national by two Mexican officers who, after failing to extort money, took Caire to the local barracks and shot him. 

 The Commission held: that the two officers, even if they are deemed to have acted outside their competence … and even if their superiors countermanded an order, have involved the responsibility of the State, since they acted under cover of their status as officers and used means placed at their disposal on account of that status.

Article 12: There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

Example: In the “Rainbow Warrior” arbitration, the tribunal said that “any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation”. In the Gabˇcíkovo-Nagymaros Project case, ICJ referred to the relevant draft article provisionally adopted by the Commission in 1976 in support of the proposition that it is “well established that, when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect”.