PUBLIC

INTERNATIONAL
LAW
STATE
RESPONSIBILITY
THE PRINCIPLE
“ Whenever one state commits an
internationally unlawful act
against another state,
international responsibility is
established between the two”.

“ A breach of an international
obligation gives rise to a
requirement for reparation” (Shaw, 2007)
THE PRINCIPLE (2)

“…international law did not

distinguish between contractual
and tortious responsibility, so
that any violation by a state of
any obligation of whatever
origin gives rise to state
responsibility and consequently
the duty of reparation”(Shaw, 2007)
CHARACTERISTICS OF
STATE RESPONSIBILITY
1. “Existence of an international
legal obligation in force as
between two particular states.
2. There has occurred an act or
omission which violates that
obligation and which is imputable
to the state responsible
3. Loss or damage has resulted from
the unlawful act or omission” .
(Shaw 2007)
CHARACTERISTICS OF STATE
RESPONSIBILITY (2)
“…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” (Spanish Zone of Morocco Claims).
“…it is a principle of international law, and
even a greater conception of law, that any
breach of an engagement involves an
obligation to make reparation (Chorzow
Factory Case).
SOURCES OF LAW
▪ILC Articles on Responsibility of
States for Internationally Wrongful
Acts, 2001 (ARSIWA)
▪ILC Articles on Diplomatic
Protection, 2006
▪ILC Draft Articles on Responsibility
of International Organisations, 2011
▪International Customary Law
 RESPONSIBILITY OF A STATE
FOR ITS INTERNATIONALLY
WRONGFUL ACTS
Article 1, International Law Commission’s
Articles on State Responsibility

Every internationally wrongful

act of a State entails the
international responsibility of
that State.
 ELEMENTS OF AN INTERNATIONALLY
WRONGFUL ACT OF A STATE
Article 2, ILC Articles on State Responsibility
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.
 CHARACTERIZATION OF AN ACT OF A
STATE AS INTERNATIONALLY WRONGFUL
Article 3, ILC Articles on State
Responsibility

The characterization of an act of a

State as internationally wrongful
is governed by international law.
Such characterization is not
affected by the characterization
of the same act as lawful by
internal law.
 STRICT LIABILITY THEORY VS
SUBJECTIVE RESPONSIBILITY CONCEPT
(FAULT THEORY)
▪There are conflicting views on the question of
fault.
“… the majority tends towards the strict
liability (objective theory of responsibility)”
(Shaw, 2007).
▪Even the ILC Articles “did not take a
definitive position , on this controversy, but
noted that standards as to objective or
subjective approaches, fault, negligence or
want of due diligence would vary from one
context to another depending upon the terms
of the primary obligation in question” (Shaw, 2007).
STRICT LIABILITY THEORY

“ Once an unlawful act has taken

place, which has caused injury
and which had been committed
by an agent of the state, that
state will be responsible in
international law to the state
suffering the damage
irrespective of good or bad
faith”
(Shaw, 2007)
STRICT LIABILITY (2)
Caire Claim
• French citizen shot by Mexican
soldiers for failing to provide them
with 5000 Mexican dollars.
• Held: Mexico was responsible for the
injury caused in accordance with the
objective responsibility doctrine, that
is ‘the responsibility for the acts of the
officials or organs of a state, which
may devolve upon it even in the
absence of any “fault” of its own’
SUBJECTIVE APPROACH

“…an element of intentional

(dolus) or negligent (culpa)
conduct of the on the part of
the person concerned is
necessary before his state
can be rendered liable for
any injury caused” (Shaw 2007).
SUBJECTIVE APPROACH (2)
Home Missionary Society Claim 1920
▪Imposition of a ‘hut tax’ in the
protectorate of Sierra Leone triggered
off a local uprising in 1898 in which
Society property was damaged and
missionaries killed.
▪Held: it was established in international
law that no government was
responsible for acts of rebels where
itself was guilty of no breach of good
faith or negligence in suppressing the
revolt.
 SUBJECTIVE APPROACH (3)
Corfu Channel case
ICJ stated: it cannot be concluded from the
mere fact of the control by a state over its
territory and waters that that state
necessarily knew, or ought to have known, of
any unlawful act perpetrated therein, nor yet
that it necessarily knew, or should have
known, the authors. This fact, by itself and
apart from other circumstances , neither
involves prima facie responsibility nor shifts
the burden of proof.
 IMPUTABILITY…FOR WHOSE
ACTIONS IS THE STATE
RESPONSIBLE?
▪“The state is an abstract legal
entity …it cannot in reality ‘act’
itself.
▪However, it is not responsible
under international law for all acts
performed by its nationals.
▪It is responsible only for acts of its
servants that are imputable or
attributable to it”( Shaw, 2007).
IMPUTABILITY (2)

“Imputability is the legal

fiction which assimilates the
actions or omissions of state
officials to the state itself
and which renders the state
liable for damage resulting
to the property or person of
an alien”(Shaw, 2007)
 IMPUTABILITY (3)
Article 4, ILC Articles
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.
IMPUTABILITY (4)
Difference Relating to Immunity from
Legal Process of a Special Rapporteur
Stated: “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”
 IMPUTABILITY (5)
Article 5, ILC Articles
The conduct of a person or entity which is
not an organ of the State under article 4
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.
▪This covers privatised corporations which
retain certain public or regulatory functions.
 ULTRA VIRES ACTS
▪ “Anunlawful act may be imputed to
the state even where it was beyond
the legal capacity of the official
involved, provided:

Caire case - “that the officials have

acted at least to all appearances as
competent officials or organs or they
must have used powers or methods
appropriate to their official capacity”.
 ULTRA VIRES ACTS (2)
Mosse case
“Even if it were admitted that…officials …had
acted…outside the statutory limits of the
competence of their service, it should not be
deduced, without further ado, that the claim
is not well founded. It would still be
necessary to consider a question of law…
namely whether in international order the
state should be acknowledged responsible
for acts performed by officials within the
apparent limits of their functions in
accordance with a line of conduct which was
not entirely contrary to the instructions
received”
 ULTRA VIRES ACTS (3)
Sandline Case
Stated: “It is a clearly established principle
of international law that acts of a state will
be regarded as such even if they are ultra
vires or unlawful under the internal law of
the state…their [institutions, officials or
employees of the state] acts or omissions
when they purport to act in their capacity
as organs of the state are regarded as
those of the state even though they
contravene the internal law of the state”.
ULTRA VIRES ACTS (4)
Union Bridge Company case
▪British official of the Cape
Government Railway mistakenly
appropriated neutral property
during the Boer War.
▪Held: There was still liability
despite the honest mistake and the
lack of intention on the part of the
authorities to appropriate the
material in question.
RESPONSIBILITY FOR PRIVATE
INDIVIDUAL’S ACTIONS
“A state is not responsible for the
acts of mobs or of private
individuals as such. Their conduct
will only be attributable to the State
if they were in fact acting on the
instructions, or under the direction
or control of the State in carrying
out the particular conduct”
(Cassese, 2005)
TEHRAN HOSTAGES
The International Court held that although
initially the students who took control of the
US embassy in Tehran were not acting as
agents of Iran, a subsequent decree of
Ayatollah endorsing the occupation of the
embassy: “translated continuing occupation of
the Embassy and detention of the hostages
into acts of [Iran]. The militants, authors of
the invasion and jailers of the hostages, had
now become agents of the Iranian State for
whose acts the State itself was internationally
responsible.
INVOCATION OF STATE RESPONSIBILITY
Article 42, ILC Articles
A State is entitled as an injured State to invoke
the responsibility of another State if the
obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or
the international community as a whole, and
the breach of the obligation:
(i) specifically affects that State; or
(ii) is of such a character as radically to change
the position of all the other States to which the
obligation is owed with respect to the further
performance of the obligation.
LOSS OF THE RIGHT TO INVOKE
RESPONSIBILITY
Article 45, ILC Articles
The responsibility of a State may not
be invoked if:
(a) the injured State has validly
waived the claim;
(b) the injured State is to be
considered as having, by reason of
its conduct, validly acquiesced in
the lapse of the claim.
 STATE RESPONSIBILITY AND
INJURIES TO NATIONALS
“Pegged upon:
1.Attribution to one state of the unlawful acts
and omissions of its officials and its organs
2.The capacity of the other state to adopt the
claim of the injured party
Nationality is the link between the individual
and his or her state as regards particular
benefits and obligations. It is also the vital
link between the individual and the benefits
of international law
”(Shaw, 2007)
 STATE RESPONSIBILITY AND INJURIES TO
NATIONALS (2)
Mavrommatis Palestine Concessions
case
Stated: “By taking up the case of one of
its subjects and by resorting to
diplomatic action or international
judicial proceedings on his behalf, a
state is in reality asserting its own
rights, its right to ensure, in the
person of its subjects, respect for the
rules of international law.
▪Once a state has taken up a case on
behalf of one of its subjects before an
 STATE RESPONSIBILITY AND
INJURIES TO NATIONALS (3)
“Diplomatic protection may not extend
to the adoption of claims of foreign
subjects, although it has been
suggested ‘as an exercise in
progressive development of the law’
that a state may adopt the claim of a
stateless person or refugee who at
the dates of the injury and
presentation of the claim is lawfully
and habitually resident in that state”
(Shaw, 2007)
EXHAUSTION OF LOCAL
REMEDIES
▪Rule of customary international
law – “before international
proceedings are instituted or
claims or representations made,
the remedies provided by the
local state should have been
exhausted” (Shaw, 2007)
EXHAUSTION OF LOCAL
REMEDIES (2)
▪The remedy applies only to
available effective remedies.
“It will not be sufficient to dismiss
a claim merely because the
person claiming had not taken
the matter to appeal, where the
appeal would not have affected
the basic outcome of the case” (
2007)
Shaw,
EXHAUSTION OF LOCAL
REMEDIES (3) – EFFECTIVE
LOCAL REMEDIES
Finnish Ships Arbitration Case
Held: Since the appeal could
only be on points of law, which
could not overturn the vital
findings of fact that there had
been a British requisition of
ships involved, any appeal
would have been ineffective.
EXHAUSTION OF LOCAL
REMEDIES (4)
▪Rule does not apply where one
state has been guilty of a direct
breach of international law
causing immediate injury to
another state.
▪Applies where the state is
complaining of injury to its
nationals(Shaw, 2007)
 ADMISSIBILITY OF CLAIMS
Article 44, ILC Articles
The responsibility of a State may not be
invoked if:
(a) the claim is not brought in
accordance with any applicable rule
relating to the nationality of claims;
(b) the claim is one to which the rule of
exhaustion of local remedies applies
and any available and effective local
remedy has not been exhausted.
QUESTIONS…
▪Who counts as the state?
▪What are the acts/omissions in
question?
▪Relevant IMMUNITIES?
▪Number of claimants/respondents?
Eg in environmental /economic
claims
▪What remedy is being sought?
CIRCUMSTANCES PRECLUDING
WRONGFULNESS
▪Consent
▪Self-Defence
▪Force Majeure
▪Distress and Necessity
▪Countermeasures
 CONSENT
“Vitalconsent by a State to action by another
State which would otherwise be inconsistent
with its international obligations precludes the
wrongfulness of that action as against the
consenting State” (Cassese, 2005)

“Valid consent by a State to the commission of

a given act by another State precludes the
wrongfulness of that act in relation to the
former State to the extent that the act
remains within the limits of that consent
(ARSIWA, A.20).
 CONSENT
“...consent only goes so far; a State cannot
waive the application of what in national law
would be called mandatory rules and in
international law are called peremptory norms.
Thus a State cannot...consent to or legitimize
genocide. ...Further, consent will only preclude
the wrongfulness of conduct with regard to the
consenting State; if the obligation breached is
owed in parallel to more than one State, the
wrongfulness of the act will not be precluded
with regard to those States that have not
consented.
SELF DEFENCE

“ The wrongfulness of an act of a

State is precluded if the act
constitutes a lawful measure of
self-defence taken in conformity
with the Charter of the United
Nations” (ARSIWA, A.21).
 FORCE MAJEURE
1.The wrongfulness of an act of a State not in
conformity with an international obligation of
that State is precluded if the act is due to force
majeure, that is the occurrence of an irresistible
force or of an unforeseen event, beyond the
control of the State, making it materially
impossible in the circumstances to perform the
obligation.
2. Paragraph 1 does not apply if:
(a) the situation of force majeure is due, either
alone or in combination with other factors, to the
conduct of the State invoking it; or
▪(b) the State has assumed the risk of that
situation occurring (ARSIWA,A.23)
 DISTRESS
“1. The wrongfulness of an act of a State not in
conformity with an international obligation of
that State is precluded if the author of the act in
question has no other reasonable way, in a
situation of distress, of saving the author’s life or
the lives of other persons entrusted to the
author’s care.
2. Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or
in combination with other factors, to the conduct
of the State invoking it; or
(b) the act in question is likely to create a
comparable or greater peril” (ARSIWA, A.24).
 NECESSITY (ARSIWA, A.25)
1. Necessity may not be invoked by a State as a
ground for precluding the wrongfulness of an act not
in conformity with an international obligation of that
State unless the act:
(a) is the only way for the State to safeguard an
essential interest against a grave and imminent peril;
and
(b) does not seriously impair an essential interest of
the State or States towards which the obligation
exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a
State as a ground for precluding wrongfulness if:
(a) the international obligation in question excludes
the possibility of invoking necessity; or
(b) the State has contributed to the situation of
necessity.
COUNTERMEASURES
(ARSIWA, A.22)

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 in accordance with chapter II of part three.