| Introduction | jurisprudence |
| relevant case laws | Corfu Channel Case Nicaragua Case(Nicaragua vs USA) La Grand Case(Germany vs USA) |
| present problem | question related |
| conclusion | decision as per our reasoning |
State responsibility is a fundamental principle of international law, arising out of the nature of the international legal system and the doctrines of state sovereignty and equality of states. It provides that 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.
The laws of state responsibility are the principles governing when and how a state is held responsible for a breach of an international obligation. Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences of that violation.
Nature of State Resposibility:
The essential characteristics of responsibility hinge upon certain basic factors:
(1)First, the existence of an international legal obligation in force as between two particular states;
(2)Secondly, that there has occurred an act or omission which violates that obligation and which is imputable to the state responsible; and finally, that loss or damage has resulted from the unlawful act or omission.
Article 1 of the International Law Commission’s Articles on State Responsibility reiterates the general rule, widely supported by practice, that every internationally wrongful act of a state entails responsibility. Article 2 provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and constitutes a breach of an international obligation of the state.
Constituent Elements of International Responsibilities:
Damage Theory –
One of the views is that State responsibility is not engaged by the conduct of a State in disregards
of its obligations unless some further element exists, in particular, “damage” to another State. Thus, in order to invoke State responsibility of a State, it should be shown that it acted in disregard of its obligations and caused damage to another State.
If no damage has been done to a State, it cannot invoke the responsibility of another State. The ILC commentary makes it clear that there is no general rule in this respect. Whether the element of damage is required depends on the content of the primary obligation.
For example, the obligation under a treaty to enact a uniform law is breached by the failure to enact the law, and it is not necessary for another State party to point to any specific damage it has suffered by reason of that failure. Whether a particular obligation is breached forthwith upon a failure to act on the part of the responsible State, or whether some important event must occur, depends on the content and interpretation of the primary obligation and cannot be determined in the abstract.
Fault Theory –
The fault theory raises the question as to whether fault constitutes a necessary element of the internationally wrongful act of a State. It is not necessary for State responsibility that there should be an intention to cause harm. In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of the State that matters, independently of any intention.
Absolute / Risk Theory –
Apart from the aforesaid theories, there can also be absolute liability theory to fix the State responsibility. The absolute liability theory establishes the liability of States arising out of the performance of certain activities which are highly risky but lawful, such as nuclear and spatial activities.
According to this theory, the principle of risk is applied, not as a general principle of responsibility, but in circumstances and conditions which are clearly defined in international treaties. For example, the Convention on International Liability for Damage Caused by Space Objects, 1972 imposes absolute liability on launching States for all damages caused by its space object on the earth or to aircraft in flight.
Reparation for Injury:
1. Restitution –
Restitution in kind is designed to re-establish the situation which would have existed if the wrongful act or omission had not taken place, by performance of the obligation which the state failed to discharge:
revocation of the unlawful act, return of a property wrongfully removed or abstention from further wrongfully removed or abstention from further wrongful conduct.
The PCIJ held that restitution is the normal form of reparation and indemnity could only take its place if restitution in kind is not possible.
2. Indemnity –
This is the most usual form of reparation since money is the common measure of valuable things. Since monetary compensation must, as far as possible, wipe out all the consequences of the illegal act and correspond to
the value which a restitution in kind would bear, loss of profits are included and the value of a confiscated property must be determined at the time of payment and not at that of confiscation.
3. Satisfaction –
This third form of reparation is appropriate for non material damage, or moral injury to the dignity or personality of the state.
The Illustration of satisfaction are: presentation of official regrets and apologies, the punishment of the guilty officials and particularly the formal acknowledgement or judicial declaration of the unlawful
character of the act.
4. Guarantee against Repetition –
Article 30 of the Draft code of ILC on Responsibility of States for Internationally Wrongful Acts, 2001 imposes an
obligation on responsible state to cease the wrongful act and give guarantee of non repetition.
Rules of Attribution:
The term “attribution” means imputation. For example, if an agency of State A has caused injury to a citizen of State B in breach of international law, State A will be responsible to state B for the injury done. The wrongful Act of the organ or official of a state is imputed to the State. Imposing upon state absolute liability wherever an official is involved encourages that state to exercise greater control over its various departments and representatives. It also stimulates moves towards complying with objectives standards of conduct in international relations.
Imputability: Since the State is responsible only for acts of its servants that are imputable/attributable to it as its own, it becomes necessary to examine the concept of imputabilty/attribution. 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. The doctrine depends on the link that exists between the State and the person or persons actually committing the unlawful act or omission. Articles 4-11 of the ILC’s Draft Articles deal with acts can be attributed to a State.
Relevant Case Laws:
Corfu Channel Case
facts:
On May 15th 1946 the British naval warships went across the Corfu Channel without the permission of the Albanian government and were fired upon by Albanian coastal batteries. Afterwards, on October 22nd, 1946, a fleet of British warships (two cruisers and two destroyers), left the port of Corfu and advanced northward through a channel previously swept for mines in the North Corfu Strait. Both destroyers were struck by a mine and were heavily damaged. This occurrence resulted in many human deaths and severe injuries. The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel.After the mining accident of 22nd October, the United Kingdom Government sent a note to the Albanian Government. The note asserted the UK government’s intention to sweep the Corfu Channel shortly. Concurrently, at the United Kingdom Government’s request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania’s consent. London received the reply of the note from the Albanian government on 31st October. It expressed that the Albanian Government would not give its consent to mine sweeping unless the operation in question took place outside Albanian territorial waters. The Albanian government directly expressed that any minesweeping carried on without the permission of the Albanian Government inside Albanian territorial waters will be regarded as a deliberate violation of Albanian sovereignty and territory. On 12th and 13th November of 1946 the British Royal Navy launched ‘Operation Retail’ and carried out the minesweeping against the wishes of the Albanian Government. This case was brought before the Court on May 22nd, 1947, by an Application filed by the Government of the United Kingdom of Great Britain and Northern Ireland instituting proceedings against the Government of the People’s Republic of Albania.
issue:
- Whether Albania is responsible under international law for the mine explosions which occurred on the 22nd October, 1946 in Albanian waters and for the damage of machinery and loss of human lives which resulted due to it?
- Whether the United Kingdom has violated the sovereignty of Albania by reason of minesweeping operation without consent of the Albanian Government?
- Whether the United Kingdom is entitled to compensation for the loss suffered?
judgement:
Albania as a state has a responsibility not to breach international law. This responsibility originates from well-recognized principles of humanity which were even more onerous in time of peace than in war, from the principle of freedom of maritime communication, and from the obligation of all states not to knowingly allow their territory to be used contrary to the rights of other states. The Albanian Government had full knowledge about the mines and it had state responsibility to inform other states about the existence of the minefields. The Albanian government had the duty under international law to inform the ships approaching about the danger.
The North Corfu Channel must be viewed as belonging to the ‘class of international highways’ across which an innocent passage does not need special permission and cannot be restricted by a coastal State in time of peace. But Albania was at war with Greece at that time which means that the coastal state was not in time of peace. But the UK violated the territorial sovereignty of Albania by launching Operation Retail without its consent.
The Court held that Albania was responsible under international law for the mine explosions in Corfu channel that had taken place in Albanian territorial waters and for the damage and loss of life which had occurred.
Nicaragua Case (Nicaragua vs USA)
facts:
It was claimed by Nicaragua that US has been engaging itself, since March 1981, in the use of force against Nicaragua through the instrumentality of a mercenary army recruited, paid, equipped, supplied, trained and directed by the US. As a result, Nicaragua suffered grievous consequences consisting of huge loss of life and damage to property.
issue:
Whether the conduct of the contras was attributable to the United States so as to hold the latter generally responsible for breaches of international humanitarian law committed by the contras?
judgement:
The ICJ observed that for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive necessitatis.
Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates.
The Court further stated that the principles such as those of the non-use of force, non- intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated.
The Court, while referring to the occasional violations of the principle of non- intervention, stated: “The court does not consider that for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule.
In order to deduce the existence of customary rules … the conduct of States should, in general, be consistent with such rules and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule and not as indication of the recognition of a new rule.
There are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter ‘supervenes’ the former so that the customary international law has no further existence of its own.
The ICJ Passed judgment on merits holding US liable for acting in breach of its obligation under customary international law by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging , supporting and aiding military and paramilitary activities in and against Nicaragua.
The court called upon US to immediately cease and refrain from such activities and make reparation to Nicaragua for all injury caused to Nicaragua.
La Grand Case (Germany vs USA)
facts:
The Vienna Convention on Consular Relations, Article 36(1)(b), provides that a state trying an alien in a death sentence case must inform the alien of his rights to have his consular authorities informed of the arrest. A suit which claimed the United States law enforcement personnel f ailed to advice aliens upon their arrest of their rights was filed by Paraguay (P), Germany (P) and Mexico (P) at the international Court of Justice. The plaintiffs also claimed that as a remedy for violation of the Vienna Convention, state courts should review and reconsider the death sentences to determine if the lack of consular access prejudiced the aliens. The German’s (P) case involved LaGrand and his brother who were executed before the matter came to the I.C.J. the Court found that the U.S. (D) had breached its obligations to Germany (P) under the Vienna Convention by not giving notice about LaGrand and his brother of right to consular notification, and by failing to provide judicial review of the conviction and sentence.
issue;
Does a state which breaches its obligations to another under the Vienna Convention on Consular Relations by failing to inform an arrested alien of the right to consular notification and to provide judicial review of the alien’s conviction and sentence also violate individual rights held by the alien under international law?
judgement:
The ICJ concluded that Article 36(1) of Vienna Convention on Consular Relations of 1963 creates individual rights, which, by virtue of Article 1 of the Optional Protocol, may be invoked in this Court by the national State of the detained person.
The Court considers in this respect that if the United States, notwithstanding its commitment [to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1(b) of Vienna Convention on Consular Relations, 1963], should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties.
In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.
It follows that where the sending State is unaware of the detention of its nationals due to the failure of the receiving State to provide the requisite consular notification without delay, it is to be considered that the sending State has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1.
Judgement A state that breaches its obligations to another under the Vienna Convention on Consular Relations by failing to inform an arrested alien of the right to consular notification and to provide judicial review of the alien’s conviction and sentence also violate individual rights held by the alien under international law. The meaning adduced to the phrase “authorities shall inform the person concerned without delay of his rights under this subparagraph” of Article 36 suggests that the rights to be informed of their rights under the Convention is an individual right of every national of a state that is party to the Convention.
State A alleges that the terrorist attacks in one of its metropolitan cities are directed by another neighbouring state B’ through its military intelligence unit, State B’ denies this allegation and contends that the attack was the handiwork of private persons for which it is not responsible. State ‘A’ seeks your legal advice to file an application before the International Court of Justice. What would you advise?
Answer: State A can Sue State B before ICJ for compensation that injury caused to him.
