STATE RESPONSIBILITY:  SUMMARY OF THE WHOLE TOPIC

• STATE RESPONSIBILITY:

MEANING

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 international obligation gives rise to a requirement of reparation.

THE NATURE OF STATE RESPONSIBILITY

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.

STATE RESPONSIBILITIES IN DIFFERENT FIELDS

International delinquency: An international delinquency is any injury to another state committed by the Head of a Government of a state in violation of an international legal duty. Equivalent to act of the Head and Government are acts of officials or other individuals commanded or authorised by the Head of Government.

• º International delinquencies is a term applying both to wrongs consisting of breaches of treaties and to wrongs independent of treaty may be committed in regard to different objects.
• (3) State responsibility for injury to aliens-Under International Law it is generally agreed that aliens living in a state should also be conferred upon the same rights which are given to the citizens. It is the responsibility of the State to protect the rights of the aliens in the same way as they protect the rights of the citizens.
• (4) State responsibility for breach of treaty: In chorzow factory indemnity case, the PCIJ held: It is a principle of international law that the reparation of wrong may consist in an indemnity corresponding to the damage which the national of the injured state have suffered as a result of of the act which is contrary to international law.
• (5) State responsibility for Environment: Transboundary pollution.

CONSTITUENT ELEMENTS OF INTERNATIONAL RESPONSIBILITY

1. Damage Theory: A certain conduct is forbidden because it is likely to cause damage to other subjects; however, state A only becomes responsible towards state B if as a result of forbidden acts of State A, state B suffers damage. Thus the failure to fulfil an international obligation is a necessary, but not a sufficient element in the case of international delicts.
   
   º In Order to create the automatic link of responsibility between the acting and the claiming state, the fulfilment of an additional condition namely, damage suffered by the claiming state is required.
2. Fault Theory: There are contending theories as to whether responsibility of the state for unlawful acts or omissions is strict or whether it is necessary to show some fault or intention on the part of the officials concerned. The principle of Objective responsibility ( the so called risk theory) maintains that the liability of the state is strict. Once an unlawful act has taken place, which has caused injury and which has been committed by the agent of the state, that state will be responsible in international law to the state suffering the damage irrespective of good or bad faith.

º To be contrasted with this approach is the subjective responsibility concept (the fault theory) which emphasises that an element of intentional ( dolus) or negligent(culpa) conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused.

1. Fault theory further explained: One view is that a State is not responsible to another state for unlawful acts committed by its agents unless such acts are committed wilfully and maliciously or with culpable negligence. This view holds that the presence of malice or culpable negligence is a condition precedent.
   
   º The above view is, however, not correct. It introduces subjectivity in the field of State Responsibility. What is relevant for the existence of State responsibility is the objective conduct of the State and not the psychological attitude of the individuals acting as organs of state.
   
   º A state is liable for the errors of judgment of its agents, even if they made such error in good faith and without motivation by any element of malice or culpable negligence.

In the Corfu Channel Case, (Great Britian v Albania) The ICJ determined the international responsibility of Albania without resorting to the concept of fault, which was invoked instead by the dissenting judges in their individual opinions. The court reached its conclusion by holding that there had been a violation of a pre-existing obligation: A state which knows or should know that a minefield has been laid in its territorial waters is obliged to notify other states of its existence.

• º It did not reach that conclusion by an enquiry into the mental state of any individual organ or agent of the Albanian Government.
• º Undoubtedly in general, rules of international law do not contain “a general floating requirement of malice or culpable negligence as a condition of responsibility”. Particularly in cases involving nuclear activities, there has to be some form of strict or absolute liability.

The theory of “absolute liability” or “risk” establishes the liability of States arising out of the performance of certain activities which are lawful but create serious risks, such as nuclear activities. However, the principle of risk is applied, not as a general principle of responsibility, but in circumstances and conditions which are clearly defined in international conventions.

THE ACT OF STATE: 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.

LaGrand Case (Germany v. United States)

Held. 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.

CASE LAWS IN THE TOPIC DISCUSSED

• CORFU CHANNEL CASE: The facts of the Corfu Channel case (1949) are as follows:
  North Corfu Channel is between Albania and Greece. A part of it is within the maritime belt of Albania. Before May 1946, the British ships had removed the mines from the channel and had ensured that it was safe for the passage of the ships. That very month some British Ships were fired at from the territory of Albania resulting in damage to the ships. In addition to this, after sometime the British ships suffered loss and damage due to mines which were laid in the territorial waters of Albania. This also resulted in the loss of life of some persons. Consequently the British ships removed mines and explosives substance from the said portion without seeking permission of the Albanian Government in this connection. Albania protested against this and contended that it was a clear violation of Albania’s sovereignty.
  
  Albania and Britain referred the following two questions for adjudication before the ICJ:
  (1) Was Albania liable under International Law for explosions in its maritime belt and if the answer is yes whether, Albania is liable to pay damage for the same?
  (2) Whether Britain violated Sovereignty of Albania by removing explosive substance,mines etc., from the territorial waters of Albania?
• The ICJ answered the first question in favour of Britain. The court answered the second question in favour of Albania.
• In the Corfu Channel case, the International Court appeared to lean towards the fault theory by saying that Albania is responsible for the explosions that occurred and observed: “ These grave omissions involve the international responsibility of Albania…..and there is a duty upon Albania to pay compensation to the United Kingdom.”
• 2. CASE    CONCERNING    UNITED    STATES    DIPLOMATIC    AND CONSULAR STAFF IN TEHRAN ( USA V IRAN) ICJ REP.1980
  
• This case involved the acts of rioters and other militants who attached and occupied U.S. diplomatic and consular premises in Iran. The rioters and militants also seized the occupants and held them as hostages. Since the rioters and militants were persons without official status in the initial stages their acts could not be imputed to the state, the ICJ held Iran not responsible for the initial stages of their acts. But subsequently the situation changed when the militants became agents of the State and hence Iran was held responsible for their acts. The World court also held Iran responsible for breach of its international responsibility to take steps to protect American diplomatic premises and restore status quo.
• 3. NICARAGUA CASE: NICARAGUA V USA, ICJ REPORT 1986:
• 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.
• Nicaragua argues that the US has violated and is violating its express charter and treaty obligations by recruiting , training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding and directing military and paramilitary actions in and against Nicaragua.
• It further requested the court to direct US to cease and desist from such use of force immediately and declare that US has an obligation to pay Nicaragua reparations for damages to person, property and Nicaraguan economy caused by the foregoing violations of international law in a sum to be determined by the Court.
• 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.

FORMS OF REPARATION FOR THE BREACH OF AN INTERNATIONAL OBLIGATION:

A state discharges the responsibility incumbent upon it for breach of an international obligation by making reparation for the injuries caused.

Arechaga points out that the forms of reparation may consist in restitution, indemnity and satisfaction

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.

5. Rule of exhaustion of local remedies

The rule of exhaustion of local remedies is well established in international law. It was evolved in context of State responsibility for injuries to aliens in the second half of the 19^th century. The rule has its root in the general proposition that an alien entering a country submits himself voluntarily to the legal regime prevailing in that state.

• The principle of exhaustion of local remedies is a creative process involving the marriage of its two components- the provision of legal facilities by receiving state and the activity of the claimant in using them.