What is State Responsibility?
By: Pradeep yadav
Date: 8 June, 2019
Date: 8 June, 2019
In International law, State responsibility refers to the liability of one state to another for the non-observance of the obligations imposed by the international legal systems. It is based on the doctrine of equality of states and State sovereignty. If one state commits an internationally unlawful act against the other state then international responsibility is established between the two.
The draft articles on the Responsibility of States for internationally wrongful Acts were adopted by the International law commission in 2001. The Draft is divided into 4 parts with 59 Articles:
• Article 1 to 27: The International Wrongful Act of a State
• Article 28 to 41: Content of the International Responsibility of a State
• Article 42 to 54: The Implementation of the International Responsibility of a state
• Article 55 to 59: General provisions relating to Articles as a whole
• Article 1 to 27: The International Wrongful Act of a State
• Article 28 to 41: Content of the International Responsibility of a State
• Article 42 to 54: The Implementation of the International Responsibility of a state
• Article 55 to 59: General provisions relating to Articles as a whole
A state is held responsible for an act if it fails to honour its obligations under a treat if it violates the territorial sovereignty of another state, if it injures the diplomatic representatives of another state, or if it mistreats the nationals of another state.
It is a International responsibility of a state to conserve environment
Nature of State Responsibility
A sovereign state owes a responsibility towards its own citizens and those of the aliens who are on its soil. On the breach of this responsibility, the issue can be taken to the international forums on behalf of the aggrieved party. If a state by its acts commits a breach of an international obligation, it incurs international responsibility.
The International Court of Justice (ICJ) in the Corfu Channel Case (1949) held Albania liable for the absence of a warning of the danger of mines laid in her territorial waters. The ICJ stated: “These grave omissions involve the international responsibility of Albania and there is a duty upon Albania to pay compensation to the UK for the damage and loss of Human life which resulted from them.”
Elements of State Responsibility
The State responsibility arises not only with the treatment of Aliens but also as a result of unlawful acts of a State which cause damage to another State. There are various theories regarding the fixation of State responsibility. Some of them are as follows:
1. Damage Theory: In order to make a state responsible for its acts, the claimant state must show that it has suffered some damage on account of the failure of the acting State. Article 31 of the Draft Code on State Responsibility deals with the full reparation for the injury caused by the internationally wrongful act and injury includes any ‘damage’.
1. Damage Theory: In order to make a state responsible for its acts, the claimant state must show that it has suffered some damage on account of the failure of the acting State. Article 31 of the Draft Code on State Responsibility deals with the full reparation for the injury caused by the internationally wrongful act and injury includes any ‘damage’.
2. Fault Theory: A 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. In the Corfu Channel case, the ICJ appeared to use fault theory by saying that it cannot be concluded from the mere fact of the control exercised by a State over its territory that it knew about that unlawful act.
3. Risk Theory: This theory creates the liability of the State arising out of the performance of certain activities which are lawful but create serious risks to another States and mankind. This liability depends upon the facts and circumstances of the case.
3. Risk Theory: This theory creates the liability of the State arising out of the performance of certain activities which are lawful but create serious risks to another States and mankind. This liability depends upon the facts and circumstances of the case.
The Act of State (Rule of Attribution)
The State is responsible only for the acts of its servants that are immutable/attributable to it as its own. Article 4 of the ILC Articles provides that the conduct of any state organ shall be considered as an act of the State under the international law where the organ exercises legislative, executive, Judicial or any other functions of the state. An unlawful act is imputed to the state provided that the officials ‘have acted at least to all appearances as competent officials. Article 11 says that the conduct which is not attributable to the State shall never be considered an act of state.
International Crimes and Delicts
International crimes and delicts constitute breaches of international obligations. International crimes consist of the obligation of the state towards the whole international community as a whole. International crimes come out of the breach of international obligation, for e.g. Maintenance of international peace and security, safeguarding human beings and preservation of the Human Environment.
In the case of the international delicts, only the state directly injured in its own interests has the right to submit a claim invoking the responsibility of the State committing an internationally wrongful act.
In the case of the international delicts, only the state directly injured in its own interests has the right to submit a claim invoking the responsibility of the State committing an internationally wrongful act.
Expropriation of the Property of Aliens
Many western companies come to do business in other developing countries. They buy properties in those countries and sometimes the developing companies take over the property in the name of nationalization of resources. This expropriation of the foreigner property may create a problem at the international level. The developed states maintain that the expropriation is only legitimate if it complies with an international minimum standard of compensation.
In Article 4 of the General Assembly resolution on permanent sovereignty, it is given that the expropriation or nationalization of the property should be based on the ground of public utility, security or national interest.
Expropriation of property is valid on the fulfilment of 3 conditions:
1. Expropriation is for a public purpose and public interest
2. There is no discrimination between citizens and foreigners.
3. There should not be any commission of unjustified irregularity.
Expropriation of property is against international law if:
1. Compensation is nominal
2. Payment of compensation is postponed
3. Compensation is vague in nature and it is non-committal
4. It is discriminatory as against citizen and the foreigner
Expropriation of property is valid on the fulfilment of 3 conditions:
1. Expropriation is for a public purpose and public interest
2. There is no discrimination between citizens and foreigners.
3. There should not be any commission of unjustified irregularity.
Expropriation of property is against international law if:
1. Compensation is nominal
2. Payment of compensation is postponed
3. Compensation is vague in nature and it is non-committal
4. It is discriminatory as against citizen and the foreigner
Calvo Clause
This clause is named after its originator, an Argentinian Jurist. The object of this clause is to ensure that the disputes arising out of the contracts shall be referred to the municipal courts and not to the international courts. This Clause is often held as void on various fronts like when this clause is trying to waive the sovereign right of a state to protect its citizens. This clause is also void when there is any breach of international law.
Defences /Exceptions to state responsibility
International law recognizes certain grounds justifying non-compliance by a state with its international obligations. The Draft Articles on the responsibility of State (2001) enlist these defences:
1. Consent (Article 20): A state can give valid consent to another state, which would otherwise be inconsistent with its international obligations, precludes the wrongfulness of that act in relation to the consenting state.
2. Self Defence (Article 21): A state can act in self-defence to save itself from various types of harm by other states. This self-defence should be in conformity with the UN Charter. Article 51 of the UN Charter gives states a right to self-defence in the situation of an armed attack.
3. Countermeasures (Article 22): Article 22 states that “the wrongfulness of an act of a state not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State.” It is like self-help which states can use in times of need.
4. Force Majeure (Article 23): A state is not responsible for the acts where the non-performance of an international obligation is outside the control of the state.
5. Distress (Article 24): In a situation of extreme distress, the wrongfulness of an act of a state not in conformity with an international obligation can be precluded. This defence is limited to cases where human life is at stake.
6. Necessity (Article 25): When a state is having no defence left then necessity can serve as a defence. Necessity serves as a defence when there is a need for the safeguard of an essential interest against a grave and imminent peril.
1. Consent (Article 20): A state can give valid consent to another state, which would otherwise be inconsistent with its international obligations, precludes the wrongfulness of that act in relation to the consenting state.
2. Self Defence (Article 21): A state can act in self-defence to save itself from various types of harm by other states. This self-defence should be in conformity with the UN Charter. Article 51 of the UN Charter gives states a right to self-defence in the situation of an armed attack.
3. Countermeasures (Article 22): Article 22 states that “the wrongfulness of an act of a state not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State.” It is like self-help which states can use in times of need.
4. Force Majeure (Article 23): A state is not responsible for the acts where the non-performance of an international obligation is outside the control of the state.
5. Distress (Article 24): In a situation of extreme distress, the wrongfulness of an act of a state not in conformity with an international obligation can be precluded. This defence is limited to cases where human life is at stake.
6. Necessity (Article 25): When a state is having no defence left then necessity can serve as a defence. Necessity serves as a defence when there is a need for the safeguard of an essential interest against a grave and imminent peril.
Rule of Exhaustion of Local Remedies
This rule says that the local remedies must be exhausted before taking recourse to international courts or tribunals. This rule allows the state concerned the opportunity to afford redress within its own legal system. It also helps in reducing the number of international claims. This rule is in conformity of the principle of sovereignty of States.
This rule of local remedy is recognized in the International law commission Draft code. Article 44 of the code deals with the admissibility of claims and states that the responsibility of a state may not be invoked if there is any local remedy which is not exhausted. This local remedy must be effective and genuinely available.
There are some exceptions to the rule of exhaustion of Local Remedy:
1. Local remedy provides no reasonable possibility of effective redress.
2. There is an undue delay in the remedial process.
3. There is no relevant connection between the injured person and the state.
4. When that state has waived the requirement that local remedies must be exhausted.
This rule of local remedy is recognized in the International law commission Draft code. Article 44 of the code deals with the admissibility of claims and states that the responsibility of a state may not be invoked if there is any local remedy which is not exhausted. This local remedy must be effective and genuinely available.
There are some exceptions to the rule of exhaustion of Local Remedy:
1. Local remedy provides no reasonable possibility of effective redress.
2. There is an undue delay in the remedial process.
3. There is no relevant connection between the injured person and the state.
4. When that state has waived the requirement that local remedies must be exhausted.
Consequences of State Responsibility (Forms of Reparation)
When any state has done international wrongful act then it involves legal consequences. These involve 2 stages. The first stage aims to cease the wrongful conduct and the second stage makes full reparation for the injury caused. The Draft articles of the ILC codify obligations of a responsible state.
a. Cessation and Non-Repetition
Article 30 provides that the state responsible for the internationally wrongful act is under an obligation to cease the activity and to offer an appropriate guarantee of non-repetition.
b. Reparation for Injury
Article 31 provides that the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage caused by the internationally wrongful act of a state.
a. Cessation and Non-Repetition
Article 30 provides that the state responsible for the internationally wrongful act is under an obligation to cease the activity and to offer an appropriate guarantee of non-repetition.
b. Reparation for Injury
Article 31 provides that the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage caused by the internationally wrongful act of a state.
States are liable for Raparation if they violate international laws
Forms/Kinds of Reparation: Articles 34 to 39 of the Draft Articles codify provisions regarding reparation for injury.
1. Restitution: It is given to re-establish the situation which would have existed if the wrongful act had not taken place (Article 35). It may take the form of material restoration or return of territory, person or property.
2. Indemnity (Monetary Compensation): Restitution is not possible in most of the scenarios. So indemnity is the most usual form of reparation. It takes place only when restitution is not available.
3. Satisfaction: In the cases of non-material damages, satisfaction is the normal mode of reparation. Article 37 (1) says that the responsible state is under an obligation to give satisfaction to other State for the injury caused by its wrongful acts in cases where restitution and compensation aren’t possible. Satisfaction may consist of an acknowledgement of the breach, regret or formal apology.
Forms/Kinds of Reparation: Articles 34 to 39 of the Draft Articles codify provisions regarding reparation for injury.
1. Restitution: It is given to re-establish the situation which would have existed if the wrongful act had not taken place (Article 35). It may take the form of material restoration or return of territory, person or property.
2. Indemnity (Monetary Compensation): Restitution is not possible in most of the scenarios. So indemnity is the most usual form of reparation. It takes place only when restitution is not available.
3. Satisfaction: In the cases of non-material damages, satisfaction is the normal mode of reparation. Article 37 (1) says that the responsible state is under an obligation to give satisfaction to other State for the injury caused by its wrongful acts in cases where restitution and compensation aren’t possible. Satisfaction may consist of an acknowledgement of the breach, regret or formal apology.
