State Responsibility

(1)

State Responsibility I

General Course of Public General Course of Public

(2)

What is State

Responsibility?

 Draft Articles on Responsibility of States Draft Articles on Responsibility of States

for Internationally Wrongful Acts, 2001 for Internationally Wrongful Acts, 2001

 Art. 1 :Art. 1 :

 Every Internationally wrongful act of a state entails Every Internationally wrongful act of a state entails

the international responsibility of that state the international responsibility of that state

 Basic principleBasic principle

 It may consist in one or more actions or omissions or a It may consist in one or more actions or omissions or a combination of both

combination of both

 The ICJ has applied the principle in many cases :The ICJ has applied the principle in many cases :

(3)

Nicaragua Case 1986

 Nicaragua V. the U.S.Nicaragua V. the U.S.

 the action conducted by the U.S., by laying mines in the action conducted by the U.S., by laying mines in territorial waters of Rep of Nicaragua, was indeed a

territorial waters of Rep of Nicaragua, was indeed a

breach of its obligations under CIL:

breach of its obligations under CIL:  Not to use force against another stateNot to use force against another state  Not to intervene its affairsNot to intervene its affairs

 Not to violate its sovereigntyNot to violate its sovereignty

 Not to interrupt peaceful maritime commerceNot to interrupt peaceful maritime commerce

 The U.S. under an obligation to make reparation to The U.S. under an obligation to make reparation to the Rep. of Nicaragua for all injury caused to

(4)

Corfu Channel Case 1949

 UK v. AlbaniaUK v. Albania

 UK UK brought brought the the case case claiming claiming

compensation for damage caused by compensation for damage caused by mines to the Saumarez and the Volage mines to the Saumarez and the Volage during their passage through the Corfu during their passage through the Corfu

Channel on 1946 Channel on 1946

 Albania was responsible even though there Albania was responsible even though there

(5)

What is State

Responsibility?

 The articles only deal with the The articles only deal with the responsibility of states

responsibility of states

 The articles do not cover the The articles do not cover the responsibility of other int’l legal responsibility of other int’l legal person which special considerations person which special considerations

apply apply

(6)

Reparation for Injuries Case

1949

 The United Nations “is a subject of The United Nations “is a subject of

international law and capable of possessing international law and capable of possessing international rights and duties… it has the international rights and duties… it has the capacity to maintain its rights by bringing capacity to maintain its rights by bringing

international claims international claims

 Responsibility of the UN for the conduct of Responsibility of the UN for the conduct of

its organs or agents its organs or agents

 Responsibility for wrongful conduct Responsibility for wrongful conduct _ basic basic

element in the possession of international element in the possession of international

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General Principles

 An act or omission imputable to it An act or omission imputable to it produces a breach of an international produces a breach of an international obligation arising from a treaty or obligation arising from a treaty or

any other source of international law any other source of international law  International obligation is as broad as International obligation is as broad as

international law international law

 The law of the sea, human rights, the The law of the sea, human rights, the use of force and treatment of aliens

(8)

Damage creates state

responsibility?

 Classical int’l law would consider yes Classical int’l law would consider yes

since “no one could maintain an action

against the offending state unless he

had a direct legal interest arising from

the fact that he had been injured by

that state’s activities”

 May no longer be necessaryMay no longer be necessary

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Damage creates state

responsibility?

 ILC in 1973 states that ILC in 1973 states that _ actual actual injury is not necessary to invoke injury is not necessary to invoke

state responsibility

state responsibility  human rights human rights

law

law  not damaging another state not damaging another state

but it is an internationally wrongful but it is an internationally wrongful

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Imputability

 A state is liable for its own acts and A state is liable for its own acts and omissions

omissions

 The state is identified with its The state is identified with its

governmental apparatus which

includes the legislature, the judiciary, includes the legislature, the judiciary, the executive, local and central the executive, local and central

authorities (art.4) authorities (art.4)

(11)

Rainbow Warrior Case 1990

 France v. New ZealandFrance v. New Zealand

 In 1985, French secret agents destroyed In 1985, French secret agents destroyed

the Rainbow Warrior, a ship belonging to the Rainbow Warrior, a ship belonging to

the Greenpeace environmental movement, the Greenpeace environmental movement,

killing one of the crew, in the harbor of killing one of the crew, in the harbor of

New Zealand New Zealand

 France became internationally liable to pay France became internationally liable to pay

(12)

Acts of private individuals ?

 A state is not responsible for the acts of A state is not responsible for the acts of

private individuals private individuals

 Unless they were acting on behalf of that Unless they were acting on behalf of that

state state

 Acts of individuals may also be Acts of individuals may also be

accompanied by some act or omission on accompanied by some act or omission on the part of the state which state is liable, the part of the state which state is liable,

(13)

Ultra Vires Acts

 An unlawful act may be imputed to the An unlawful act may be imputed to the

state even where it was

state even where it was beyond the legal beyond the legal capacity of the official involved

capacity of the official involved (Art.7)(Art.7)

 Art.91 of the 1949 Geneva Protocol I Art.91 of the 1949 Geneva Protocol I

Additional to the Geneva Conv

Additional to the Geneva Conv  “a party “a party

to the conflict… shall be responsible for all to the conflict… shall be responsible for all

acts by persons forming part of its armed acts by persons forming part of its armed

(14)

Youman’s Claim 1953

 Mexico v. the U.SMexico v. the U.S

 Mexican militia was ordered to Mexican militia was ordered to

protect threatened American Citizens protect threatened American Citizens

in a Mexican town in a Mexican town

 Instead joint the riotInstead joint the riot

 Americans were killedAmericans were killed

 The unlawful acts were imputed to The unlawful acts were imputed to the state of Mexico

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Abuse of Rights

 a state act is not wrongful under int’l a state act is not wrongful under int’l law and is done as a matter of right law and is done as a matter of right

but produces harmful consequences but produces harmful consequences

 Extreme Extreme implementation implementation caused caused damage to another state

damage to another state

 For instance, the use of its own For instance, the use of its own territory to harm another

(16)

Reparation

 Art. 31 :Art. 31 :

 The responsible state is under an obligation The responsible state is under an obligation to make full reparation for the injury caused

to make full reparation for the injury caused

by the internationally wrongful act

 Injury includes any damage, whether Injury includes any damage, whether material or moral, caused by the

material or moral, caused by the

internationally wrongful act of a state

(17)

Reparation

 Factory at Chorzow, PCIJ, 1928Factory at Chorzow, PCIJ, 1928

 It is a principle of int’l law that the breach of an It is a principle of int’l law that the breach of an

engagement involves an obligation to make

reparation in an adequate form.

 Reparation must as far as possible, wipe out all the Reparation must as far as possible, wipe out all the

consequences of the illegal act and re-establish

the situation which would, in all probability, have

existed if that act had not been committed

 Restitutio in integrum Restitutio in integrum __ restoration of the original restoration of the original

(18)

Chorzow Factory Case

(1928)

 Germany v. PolandGermany v. Poland

 The illegal expropriation by Poland of a The illegal expropriation by Poland of a

factory at Chorzow

 A contradiction to the Geneva A contradiction to the Geneva

Convention of 1922 between Germany

and Poland

 The court judged that the seizure of The court judged that the seizure of

property, rights, and interests which

could not be expropriated

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Basis for responsibility

 On the basis of an action :On the basis of an action :

 Diplomatic and Consular Staff Case Diplomatic and Consular Staff Case

1980 1980

 On the basis of omission :On the basis of omission :

 Corfu Channel Case 1949 Corfu Channel Case 1949

 On the basis of both omission and On the basis of both omission and

(20)

Diplomatic and Consular Staff

Case 1980

 The U.S. vs. IranThe U.S. vs. Iran

 Iranian students and demonstrators together with the Iranian students and demonstrators together with the Iranian Revolutionary Government seized the

Iranian Revolutionary Government seized the

American embassy and hostage the diplomatic agents

and its consular staff

 The students discovered the documents, later The students discovered the documents, later

published by the Iranian Govt., that the embassy had

been for many years a “centre of espionage and

conspiracy”

 The court voted unanimously for restitution by Iran of The court voted unanimously for restitution by Iran of US diplomatic and consular premises and property

US diplomatic and consular premises and property

presumably because these still were in existence and

could not be returned, and also voted for mandatory