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PUBLIC INTERNATIONAL LAW

ASSIGNMENT ON
STATE RESPONSIBILTY

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CONTENTS

Meaning of the State responsibility

History
Codification
Draft Articles
Internationally wrongful acts
International Crimes
Attribution
Defences
Consequences of breach
Reparations
Original and vicarious liability
State responsibility in different fields
Calvo Doctrine
India and International law
Conclusion
Bibliography

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MEANING OF THE STATE RESPONSIBILITY

Often it is said that the sovereign has no obligation under law. This statement is true only in
respect of the subjects of the sovereign because a State may change its law and its will and may
thus bring about changes in its obligations. The position is however different in respect of the
obligation towards others. In that respect, obligation of the state is that of an international person.
A State has certain obligations under international law. The State responsibility concerning
international duties is, therefore a legal responsibility, for a state cannot abolish or create
international law in the same way that it can abolish or create municipal law. 1 Thus, the rules
of international law as to State responsibility concern the circumstances in which and the
principles whereby the injured state becomes entitled to redress for the damage suffered.2
In the Chorzow Factory (indemnity) case, 3 the permanent Court of International Justice
said.it is a principle of International law, and even a general conception of law, that any
breach of an engagement involves an obligation to make reparation 4 In the Corfu Channel
case,5 the International Court of Justice held Albania responsible for the explosions which
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. As pointed out by Starke, 6 The law of State responsibility is still in evolution and

1 L. Oppenheim, International law, Vol. 1, Eight Edition; p. 337. See also W.

Friedmann, Law in a changing society (First Indian Reprint, 1970), pg336; F.V
Gracia Amador, State Responibility in the light of the New Trends of International
Law , 49 A.J.I.L. (1995), p.339.
2 J.G. Starke, An introduction of International law, English Edition (1977), p. 319.
3 (1928)P.C.I..J Series A. No. 17,p. 29
4 The World Court further observed, the essential principle contained in the actual
notion of an illegal act--- a principle which seems to be established by international
practice and in particular by the decision of arbitral tribunals---is that reparation
must, as far as possible. Such as the principles which should serve to determine the
amount of compensation due for an act of an contrary to international law. Ibid at p.
47
5 I.C.J. Reports (1949), p. 23
6 Starke, see supra note 2, at page 320

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may possible advance to the state where States are fixed also with responsibility for breaches of
international law and international crimes.7
State responsibilities during the wars have been generally accepted in Article 3 of Hague
Convention, 1907. According to it, if a belligerent State violates rules of war, it shall be
responsible for the acts committed by persons of its armed forces. State responsibility, like the
question of the definition of the pedigreed subject. It was considered by the Hague conference of
1930. It has been considered by the Commission in the early fifties but the present work has been
done since 1969 by Professor Ago as the Special Repporteur.. The object of the current
work of the U.N. International Law Commission on State responsibility, which was stated three
years ago, is to codify the rules governing State responsibility as a general and independent
topic.8 Under the general plan for the draft on State responsibility adopted by the Commission,
the origin of international responsibility forms the subject of Part I of the Draft, which is
concerned with determining on what grounds and under what circumstances a State may be held
to have committed an internationally wrongful act which, as such, is a source of international
responsibility. Part II deals with the content, forms and degrees of international responsibility,
that is to say, the determination of the consequences an internationally wrongful act of State may
have under international law. Once these two types of consequences, material are completed, the
Commission may, if it seems fit decide to add to the draft Part III concerning the settlement of
disputes and the implementation.9

HISTORY
Traditionally, the term "state responsibility" referred only to state responsibility for injuries to
aliens. It included not only "secondary" issues such as attribution and remedies, but also the
primary rights and duties of states, for example the asserted international standard of treatment
and the right of diplomatic protection. Early efforts by the League of Nations and private bodies
to codify the rules of "state responsibility" reflected the traditional focus on responsibility for
injuries to aliens.[3] The League's 1930 Codification Conference in The Hague was able to reach
an agreement only on "secondary" issues such as imputation, not on substantive rules regarding
the treatment of aliens and their property.
7 Dr. S.P. Jagota, The Role of the International Law in the Development of
International Law, I.J.I.L. Vol. 16 (1976), p. 459 at p. 464
8 For details see: Richard D. Kearney, The Twenty fifth Session of the International
Law Commission, A.J.I.L., Vol. 68 (1974), p. 454 at 455-462
9 U.N. Monthly Chronicle, Vol. XIII, No.8 (August-September,1976) p. 49

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Attempts to codify and develop the rules of state responsibility have continued throughout the
life of the United Nations. It took nearly 45 years, more than thirty reports, and extensive work
by five Special Rapporteurs in order for the International Law Commission to reach agreement
on the final text of the Draft Articles as a whole, with commentaries. At the same time, the
customary international law of state responsibility concerning matters such as detention and
physical ill-treatment of aliens and their right to a fair trial has been rendered less important than
formerly by the development of international human rights law, which applies to all individuals,
whether aliens or nationals. The concept of a general regime of legal responsibility, which the
rules of state responsibility have taken on, is an inception of the civil law system and is largely
foreign to the common law tradition.

CODIFICATION
The topic of state responsibility was one of the first 14 areas provisionally selected for the ILC's
attention in 194910. When the ILC listed the topic for codification in 1953, "state responsibility"
was distinguished from a separate topic on the "treatment of aliens", reflecting the growing view
that state responsibility encompasses the breach of an international obligation.11
The ILC's first special rapporteur on state responsibility, F.V. Garcia Amador of Cuba, appointed
in 1955 noted, "It would be difficult to find a topic beset with greater confusion and
uncertainty."12 Garcia Amador attempted to return to the traditional focus on responsibility for
injury to aliens but his work was essentially abandoned by the ILC when his membership ended
in 1961. His successor, Roberto Ago of Italy, reconceptualised the ILC's work in terms of the
distinction between primary and secondary rules, and also established the basic organisational
ructure of what would become the Draft Articles. By focusing on general rules, stated at a high
level of abstraction, Ago created a politically safe space within which the ILC could work and
largely avoid the contentious debates of the day. From 1969 until his election to the ICJ in 1980,
Ago completed work on part 1 of the draft articles, addressing the origin of state responsibility.
Most of the thirty-five articles adopted during his tenure are reflected in the final draft.
10 Report to the General Assembly, 1949 Yearbook of the International Law
Commission
11 1949 Year Book of the International Law Commission
12 F. V. Garca Amador, First Report on International Responsibility 1956 2 Yearbook
of the International Law Commission

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Work on the remainder of the articles proceeded slowly throughout the 1980s and early 1990s.
Willem Riphagen of the Netherlands, who served as special rapporteur to 1986, stressed that
particular primary rules may specify the consequences of their breach - an idea conveyed by the
articles through the recognition of lex specialis. Gaetano Arangio-Ruiz, special rapporteur from
1988, helped clarify the consequences of breaches of international obligations. Over the next
eight years, the ILC completed its first reading of parts 2 and 3.
In 1995, the United Nations General Assembly adopted a resolution in effect pressing the
Commission to make progress on the state responsibility articles and other long-pending
projects.13James Crawford of Australia, appointed as special rapporteur in 1996, approached the
task pragmatically. The ILC moved rapidly through a second reading of the draft articles,
adopting what it could agree on and jettisoning the rest, most notable of which was Article 19 on
state crimes and the section on dispute settlement.

Draft Articles
The final text of the Draft Articles was adopted by the ILC in August 2001, bringing to
completion one of the Commission's longest running and most controversial studies. On 12
December 2001, the United Nations General Assembly adopted resolution 56/83, which
"commended [the articles] to the attention of Governments without prejudice to the question of
their future adoption or other appropriate action."14Crawford notes that the rules are "rigorously
general in character,"15 encompassing all types of international obligations.

Internationally wrongful acts

According to the Draft Articles, an internationally wrongful act must:

be attributable to the state under international law; and

13 GA Res. 50/45
14 GA Res. 56/83
15 James Crawford, The International Law Commission's Articles on State
Responsibility: Introduction, Text and Commentaries (Cambridge University Press,
2002) at 12.

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Constitute a breach of an international obligation of the state.16

International Crimes
Earlier drafts of the Articles on State Responsibility contained Article 19, which provided for
"state crimes."17Article 19 included the following provisions:
1. An internationally wrongful act which results from the breach by a State of an international
obligation so essential for the protection of fundamental interests of the international community
that its breach is recognized as a crime by that community as a whole constitutes an international
crime.
2. Subject to Paragraph 2, and on the basis of the rules of international law in force, an
international crime may result, inter alia, from:
(a) A serious breach of an international obligation of essential importance for the maintenance of
international peace and security, such as that prohibiting aggression;
(b) A serious breach of an international obligation of essential importance for safeguarding the
right of self-determination of peoples, such as that prohibiting the establishment or maintenance
by force of colonial domination;
(c) a serious breach on a widespread scale of an international obligation of essential importance
for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;
(d) A serious breach of an international obligation of essential importance for the safeguarding
and preservation of the human environment, such as those prohibiting massive pollution of the
atmosphere or of the seas.
4. Any internationally wrongful act which is not an international crime in accordance with
paragraph 2 constitutes an international delist18.Article 19 was deleted from the final Draft
Articles.19

Attribution
16 Note 1, Article 2
17 International Law Commission's Draft Articles on State Responsibility, 1991
18 International Law Commission's Articles on Responsibility of States for
internationally wrongful acts, as adopted 2001
19 Note 1, Art 5

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Before a state can be held responsible for any action, it is necessary to prove a causal connection
between the injury and an official act or omission attributable to the state alleged to be in breach
of its obligations. This has become an increasingly significant contemporary issue, as non-state
actors such as Al Qaeda, multinational corporations, and non-governmental organizations play
greater international roles, and as governments privatize some traditional functions.
The state is responsible for all actions of its officials and organs, even if the organ or official is
formally independent20 and even if the organ or official is acting ultra vires. 21 Persons or entities
not classified as organs of the State may still be imputable, when they are otherwise empowered
to exercise elements of governmental authority, and act in that capacity in the particular instance.
Persons or entities not performing public functions may equally be imputable, if they in fact
acted under the direction or control of the State. 22 Where there is a breakdown of normal
governmental authority and control, such as in so-called "failed states", the actions of those
acting as the "government" in a de facto sense will be acts of the state. 23 The acts of an
"insurrectional or other movement that becomes the new government of an existing state or
succeeds in establishing a new state" can also be attributed to the state. 24 This is also the case
where a state acknowledges and adopts the conduct of private persons as its own.25
Despite their apparent concreteness, the standards stated in some rules involve important
ambiguities, and their application will often require significant fact-finding and judgment. Most
rules state responsibility involving private acts already arise under primary rules. For example,
environmental and human rights agreements require states to prevent abuses by private parties.

Defences
20 Note 1, Art 7
21 Note 1, Art 8
22 Note 1, Art 9
23 Note 1, Art 10. See further Liesbeth Zegveld, The Accountability of Armed
Opposition Groups in International Law (Cambridge University Press, 2002)
24 Note 1, Article 11.
25 Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970
ICJ Reports 4, 32

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If the general elements to establish state responsibility are established, the question arises as to
whether any defences may be available to the respondent state. These include force majeure
(Article 23), distress (Article 24), state of necessity (Article 25) and counter measures (Articles
49-52), self-defence (article 21) and consent (article 20).

Consequences of breach
The breach of an international obligation entails two types of legal consequences. Firstly, it
creates new obligations for the breaching state, principally, duties of cessation and non-repetition
(Article 30), and a duty to make full reparation (Article 31). Article 33(1) characterizes these
secondary obligations as being owed to other states or to the international community as a whole.
An article indirectly acknowledges in a savings clause also that states may owe secondary
obligations to non-state actors such as individuals or international organizations.
Second, the articles create new rights for injured states, principally, the right to invoke
responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles 49-53).
These rights, however, are heavily state-centered and do not deal with how state responsibility is
to be implemented if the holder of the right is an individual or an organization. The principal
element of progressive development in this area is Article 48, which provides that certain
violations of international obligations can affect the international community as a whole such
that state responsibility can be invoked by states on behalf of the larger community. This
provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some obligations
are owed erga omnes, toward the international community as a whole.

Reparations
If illegal actions are continuing, the state has a duty to cease. 26 The state also has duties to make
reparation, which could involve restitution, compensation, or satisfaction. Remedies will be
dependent on the particular forum, such as the United Nations, International Court of Justice,
World Trade Organization, International Tribunal for the Law of the Sea, International Criminal
Court, and on the purpose of reparation.27

26 Note 1, Art 30
27 Hardman Reis, T., Compensation for Environmental Damages under International
Law, Kluwer Law International, The Hague, 2011

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ORIGINAL AND VICARIOUS RESPONSIBILITY

The original responsibilities of the State are for the works of its government and the vicarious
responsibilities are for its citizens and the work done by its agents. When the citizens of a State
harm other State through their acts then the question of vicarious responsibility of States arises.
In such a situation it becomes the duty of the State concerned to punish the guilty or accused and
compel him to pay compensation. In this connection Prof. Oppenheim has aptly pointed out,
Original responsibility is borne by a state for its ownthat is for its governments action and
such actions of the lower agents or private individuals as are performed at the Governments
command or with its authorization.the responsibility of States for acts other than their own is
vicarious responsibility. Since the law of nations is primarily though not exclusivelya law
between States only, it must make every state in sense responsibility for certain internationally
injurious acts committed by its official subjects and such aliens as are temporarily residents of its
territory.28 It is to be admitted that the legal consequences of the two categories of certain acts
may not be the same, but there is no fundamental difference between the two categories and in
any case, the use of vicarious liability here is surely erroneous.29

STATE RESPONSIBILITY IN DIFFERENT FIELDS:

(1) International Delinquency: As pointed out by Prof. Oppenheim, An international
delinquency is any injury to another State committed by the Head or Government of a State
in violation of an international legal duty. Equivalent to acts of the Head and Government are
acts of the official or other individuals commanded or authorized by the Head or
Government. The comprehensive notion of an international delinquency ranges from
ordinary of breaches of treaty obligations, involving not more than pecuniary compensation
to violations of International Law amounting to a criminal act in the generally, accepted
meaning of the term..International delinquenciesa term applying both to wrongs
consisting of breaches of treaties and to wrongs independent of treaty may be committed in
regard to different objects. Thus a State may be injured in regard to its independence through
unjustified intervention; in regard to its treaty rights through an act violating a treaty; or in
regard to its right of protection over citizens abroad through any act that violates the person
or the property of one of its citizens abroad. Starke has explained the term international
delinquency in the following words: In practice most cases of state responsibility, at least
before international tribunals, arise out of wrongs alleged to have been committed by the
28 See Supra Note 1, at pp. 337-38
29 Ian Brownlie, Principle of Public International Law, Second Edition (1973), p.442

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State concerned. By wrong in this connection is meant the breach of some duty which rests
on a State at international law and which is not the breach of a purely contractual obligation.
To such wrongs, more frequently the term international delinquency is applied.. Most
of the cases that come under this head concern injuries suffered by citizens
abroad.Generally speaking, a person who goes to live in the territory of foreign
State must submit to its law; but that is not to say that certain duties under international law
in respect to the treatment of that person do not bind the State. Examples are, the duty of the
State to provide proper judicial remedies for damage suffered, and the duty to promote alien
citizens from gratuitous personal injury by its official or subjects.30
Thus according to the Starke, International delinquency is a wrongful act committed by a
State which is not a breach of a purely contractual obligation. International delinquency is a
wrongful act which is the breach of international obligation and is independent of any
contractual obligation. On the other hand, crimes are violations of customary or treaty rules
of International law. For international delinquency, generally the remedy is pecuniary
compensation. The remedy for international crime may be punishment or reparation as the
case may be. It is in respect of a crime against international law, the observation of the
Nuremberg judgment that individuals who commit crimes against International law may be
punished is relevant.
(2) The Notion of Third-State Countermeasures in International Law
A. Justification
In such a decentralized legal system in which as a matter of general rule resort to the use of
armed force is prohibited, the notion of countermeasures comes to fill the legal lacuna and to an
extent contributes towards compliance with and even the enforcement of international law. In
particular, this notion corresponds to measures, unilateral in character, taken in response to an
internationally wrongful act which was previously committed by the State against whom they are
turned and which, under normal circumstances, they would themselves be unlawful as infringing
the rules of international law. The concept of countermeasures finds justification in the need to
restore the equality between sovereign States and to restore the balance that has been disturbed
with the commission of the internationally wrongful act. Despite the fact that they are otherwise
internationally wrongful acts themselves, countermeasures are justified, and thus responsibility is
precluded, by reasons of self-protection, reciprocity, and the need to induce the defaulting State
to cease the wrongful act, to offer full reparation for the injury, material or moral, suffered by the
aggrieved party, and to secure guarantees for non-repetition in the future. It is now clearly
established that for countermeasures to be legitimate they must not be aimed at revenge and they
must have temporary effect.31 Nevertheless, whilst the right to resort to countermeasures by an
30 Starke, See Supra note 2, at pp. 330-31
31 O. Elagab, The Legality of Non-forcible Counter-measures in International Law
(1988) 46. Also see J. Crawford, The International Law Commissions Articles on

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injured State is undisputed, the same does not apply with the right of third States to respond with
countermeasures or, as otherwise known, solidarity measures, 32 whenever the fundamental
interests of the international community as a whole are endangered.
Bearing in mind that in some cases of gross violations of international law there is no injured
State but injured people, nationals of the same State committing the violation such as in the case
of genocide, apartheid and torture, to preclude the possibility of peaceful but nonetheless
coercive action by independent components of the international community means to deny those
most in need the hope of justice. Furthermore, and although aggression has for long been
considered as the most serious offence of international law threatening peace and security, now
other violations such as the ones mentioned above are worth of equal attention. The paradox
however lies on the fact that whilst third States are entitled to resort to the use of force on the
basis of collective self-defence in response to armed attack, the current international legal order
seems to prohibit third States from resorting to milder means, such as countermeasures, in
reaction to serious infringements of specific international rules, including aggression.
B. The Evolution of the Concept of Third-State Countermeasures
The concept of third-State countermeasures is closely associated with the early realization in
international legal doctrine that not all internationally wrongful acts were of the same legal
weight, significance and effect. In 1915 for instance Professor Elihu Root, making a comparison
between municipal and international law, pinpointed to the necessity for a distinction in the
international legal order between wrongs that affected only the parties directly involved in the
dispute and wrongs which inflicted a legal injury to every nation.33 However, it was not until the
end of the Second World War that a real current opinion emerged according to which general
international law provided for two different regimes of responsibility: one that would apply as a
result of the breach of obligations of great significance to the international community as a
whole, and another that would apply to breaches concerning obligations of lesser importance.34
The debate over the existence of two categories of international obligations became more intense
with the adoption of the 1969 Vienna Convention on the Law of Treaties and in particular of
Article 53 on peremptory norms, identified as norms accepted and recognized by the
international community as a whole and from which no derogation is permitted; and, the 1970
State Responsibility: Introduction, Text and Commentaries (2003) 283.
32 Koskenniemi, Solidarity Measures: State Responsibility as a New International
Order?, 71 BYIL (2001) 337, at 339.
33 Root, The Outlook for International Law, Proceedings of the American Society of
International Law (1915) 8, 9.
34 Fifth Report on State Responsibility by Mr Roberto Ago, Yearbook of the ILC
(1976) vol. II, Part One, 26, para 80.

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obiter dictum of the International Court of Justice in the Barcelona Traction case according to
which a distinction must be made between obligations in the observance and the protection of
which all States have an interest, and obligations arising vis--vis another State in the field of
diplomatic protection.35
Consequently, contemporary international law has been enriched with new principles, new rules
and new concepts. In a highly interdependent world, community values have surfaced
formulating a distinction between wrongful acts and legal consequences, whilst widening the
spectrum of actors which have a legal interest to invoke the responsibility of the Wrongdoing
State. In this regard, current international law consists of more than just reciprocal obligations
between two States: the recognition of interests and values placed to serve collective interests
and the international community is now undisputed. Most significantly, international law is now
moving towards adopting new mechanisms for its enforcement in an attempt to escape from the
legal stagnation imposed by its own lack of compulsory jurisdiction over the most flagrant
violations of international law. Similarly, the role of individual in contemporary international law
has been enhanced: thus, international law is not merely drafted to protect sovereign States, but
also individuals and peoples.
C. The Law on State Responsibility
The question regarding the differentiation between two types of internationally wrongful acts and
accordingly of two types of responsibility is further related to the determination of the subjects
entitled to invoke the responsibility of the State that has committed the wrongful act. The right of
third States to resort to countermeasures was extensively dealt with by the ILC in the context of
State responsibility. In 1979 the Special Rapporteur Roberto Ago considered in particular
whether the right to countermeasures belonged to the monopoly of directly affected States or
whether it extended beyond those, especially in relation to violations of obligations that were
established to protect collective interests. Nevertheless, aware of the risks behind recognizing
that third States had the right to resort to countermeasures in response to a breach that did not
directly affect them, the Special Rapporteur expressed the view that the task of determining the
existence of a breach of an obligation of fundamental significance for the international
community as a whole, and of deciding the measures that should be taken in response, should be
vested not to individual States but to international organizations such as the United Nations.36
Twenty-five years later and the concerns that prevailed then against recognition of third- State
countermeasures have not been diluted nor has the United Nations taken up the role of the
enforcer of international law. With the finalization of the Articles on State responsibility in 2001
no mention to such right is made. On the contrary, Article 49 which defines the object and limits
of countermeasures speaks only of the right of the injured State, and Article 54 concerning
35 Barcelona Traction, Light and Power Company Limited, Second Phase, ICJ Reports
1 (1970) 3, at 32, para 33.
36 Eighth Report on State Responsibility by Mr Roberto Ago, Yearbook of the ILC
(1979) vol. II, Part One, at 43-44, paras 91-92.

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measures taken by States other than the injured States (as those are defined in Article 48) refers
only to lawful measures against the defaulting State. The ILC intentionally chose not to include
this notion in the Final Articles as third-State countermeasures were still very much disputed
whilst State practice was embryonic. 37 The action of States other than the injured was limited
to securing the cessation of the breach and reparation on behalf of the injured State or the
beneficiaries by other means permissible under international law because of the fear that by
codifying and establishing such right would open Pandoras box where powerful States could
behave in an arbitrary way as the laws executers and enforcers.
More analytically, according to the conclusions of the ILC, State practice did not provide
evidence for the existence of a rule allowing countermeasures by States other than the injured,
even in the case of gross and systematic violations of obligations established either for the
collective interest of a group of States, or owed to the international community as a whole.
Nevertheless, from an examination of the State practice one can see that it does not exclude
third- State countermeasures either. When for instance the European Economic Community
decided in the 1980s to take action against Poland, the Soviet Union or Argentina it never
specifically addressed the issue of legitimacy or illegitimacy of its action in international
law.38When in 1978 the Congress of the United States decided to take measures against Uganda
after having determined that the latter had committed genocide against its own people, it justified
its decision as an exceptional response to Ugandas serious misconduct. 39 In the Teheran
Hostage crisis the United Kingdom justified its own sanctions imposed against Iran on the
ground that the latter had to cease disregarding international law.40 Despite the fact that in these
and certain other examples explicit reference is made to the serious violations of international
law that preceded the coercive action, there exists a veil of uncertainty with respect to the legal
ground on which these measures actually relied. There are two possible interpretations in this
regard: that either the States resorting to such measures were knowingly acting in violation of
international law, or that they were relying on something which justified their course of action.
37 Crawford, supra note 2, at 305.
38 For the EEC sanctions against Argentina see Council Regulation 877/82, OJ 1982
L102/1. For the EEC reaction against Poland and the Soviet Union see the Final
Communique of 4 January 1982, para. 10 in Bulletin of the European Communities
(1981: 12) 1.4.2. More on the matter in Bulletin of the European Communities
(1982:1) 2.2.38 and (1982:2) 2.2.44. For the sanctions imposed by the European
Union against Yugoslavia (which came before a Security Council authorization) see
Bulletin of the European Communities, No 7/8, Vol. 24 (1991) 1.4.3 and Common
positions of 7 May and 29 June 1998, OJ 1998 L 143/1 and L 190/3.
39 Pub. L. 95-435, 1978 HR 9214, section 5, Oct. 10, 1978, 92 Stat. 1052; to be
found in Section 2151, United States Code Annotated, Title 22, Foreign Relations
and Intercourse Sections 1251 to 2500 (1979 edition by West Publishing CO).
40 House of Commons Debates, vol. 985, Written Answers, col. 347: 22 May 1980
also in 29 BYIL (1980) 413-14

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Although this by itself would not preclude wrongfulness, it does reveal a certain opinio juris that
is moving in the direction of gradually formulating a customary rule of international law.
Therefore, although no concrete conclusion can be made that de lege lata third-State
countermeasures are permissible, these examples at least reveal a tendency towards de lege
ferenda. Furthermore, what at least the current State practice reveals is that States would not
hesitate to repeat such non-forcible action in the future should new gross infringements of
international law be repeated, retaining what it looks to be claimed as their right to do so, even
if this was never before determinatively out spelled.
(3)The Principle of Proportionality
A. The Need for Restraint
Professor Koskenniemi argues that in view of the unwillingness of States to commit themselves
to clear-cut definitions of notions such as erga omnes obligations, serious breaches, or the
fundamental interests of the international community, which may in the future trigger
automaticity of action, and their preference of flexible terminology allowing them discretion
for the protection of their national interests should such a need arise in the future, makes the
danger of abuse of solidarity measures apparent. It is therefore imperative, in the name of
community interests, that resort to such measures is restricted. Nonetheless; as long as the issue
of third-State countermeasures remains unresolved the dangers arising from the use of such
measures, even in violation of international law, are not eliminated. It therefore seems that only
two alternatives exist: either that third-State countermeasures are prohibited, in which case
however there exist no guarantees that the stronger components of the international community
will respect their international obligations arising from such prohibition, especially in view of the
absence of any enforcement mechanism against them or, in the need to make the international
legal order more effective particularly with respect to the protection of collective values, to
legitimize third-State countermeasures on the basis of stringent conditions. For this purpose, and
in order to mitigate the fears of many States regarding authorization of countermeasures by
States other than the injured one, it is necessary to reduce the risks of abuse by those States that
are favored in terms of military and economic strength. This is exactly where the principle of
proportionality gains significance. Proportionality serves to restrict the intensity and nature of
unilateral power that legitimizes what in other circumstances would be illegitimate and therefore
safeguarding the own rights of the defaulting State. 41 At the same time, it aims to bring legal
certainty and predictability in international relations by setting the conditions with which
excessiveness of a certain action can be measured.
B. The Content of the Principle
Countermeasures must be viewed as exceptional measures against a State that has committed an
internationally wrongful act and the scope of which is restricted to the cessation of the
internationally wrongful act, safeguards for non-repetition, and reparation. It is also widely
accepted in international law that countermeasures, whenever allowed, must be proportionate.
The crucial question with respect to proportionality is to what countermeasures must be
41 Cannizzaro, The Role of Proportionality in the Law of International
Countermeasures 12 EJIL (2001) 890.

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proportionate. Although the principle of proportionality in the law of countermeasures has a

fundamental role in the safeguarding of international legitimacy and restraint, it remains a
principle the exact context of which even today has not been entirely unveiled. Some authors
view proportionality in the light of the injury suffered; others on the basis of significance and\
nature of the infringed rule whilst there are also those who support that proportionality must be
addressed in the context of the seriousness of the breach. Zoller takes the view that
proportionality becomes relevant whenever the response to the wrongful act goes beyond the
suspension or termination of a right or obligation equivalent to the right or obligation which has
initially been infringed. In this context, the notion of proportionality implies a harmonious
relationship between different things and therefore calls not for mathematical approximation but
rather for relative equality. Proportionality in relation to countermeasures was the subject of
examination of the Arbitral Tribunal established with the agreement of the US and France in the
Case Concerning the Air Services Agreement of 27 March 1946.42 The dispute broke out
between the parties when France refused to allow a Pan American aircraft travelling from the US
to Paris with change of gauge in London to disembark its passengers and freight, whilst
suspending future Pan Am flights to Paris. France argued in particular that the decision of the
Pan American Airlines to use smaller aircraft for the route from London to Paris was in violation
of the 1946 Agreement. In response the US, and for as long as the French authorities enforced
the restrictions against Pan Am, ordered two French airlines to file the schedule of their flights
whilst few days later they prohibited Air France from operating certain flights to the US. Both
orders were passed under Part 213 of the US Civil Aeronautics Boards Economic Regulations.
In the meantime the two countries by common agreement submitted their dispute to an Arbitral
Tribunal requesting it among others to determine whether the US orders were lawful and
proportionate. In assessing the lawfulness of the US action the Tribunal noted that it would have
to rely its conclusions on the aim actually pursued and whether that was confined to reciprocity,
quicker settlement of the dispute, or prevention of future violations by other States. The Tribunal
reaffirmed in this regard the rule that countermeasures should be equivalent to the breach
although it acknowledged that proportionality could be assessed only by approximation. To also
add that,
In the Tribunals view, it is essential, in a dispute between States, to take into account not only
the injuries suffered by the companies concerned but also the importance of the questions of
principle arising from the alleged breach.43
The Tribunal stressed that a mere comparison of the losses the parties in the dispute suffered or
would have suffered, did not suffice for the determination of whether the US action was
proportionate. Rather, it gave emphasis on the interests and principles at stake by the initial
action of France and its impact on the general air transport policy of the US and on a large
number of international agreements with States other than France concerning changes of gauge
in third countries. What mattered in this regard was the proportionality between the effects
sought by the countermeasures. Zoller further illustrated this point by associating the case before
42E. Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (1984)
131.
43 Ibid, at 338, para 83.

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the Tribunal with the restriction of civil rights by police for the maintenance of public order. The
determinative factor for proportionality in this latter case would be to balance the effects of the
exercise of the civil rights and the effects of the implementation of the police measure. As Zoller
very characteristically points out, this principle is reflected in the aphorism that, The police
may not use machine guns to kill birds. Subsequently, what proportionality measures is not the
breach and the response but the purpose aimed at and the means used in order to achieve it.
For the determination of the appropriateness of the aim Cannizzaro suggests an external element
whereby the appropriateness of the aim of the response is examined in the light of the infringed
rule and the legal consequences of the breach, and an internal according to which the
appropriateness of the aims of the measures adopted is judged on the basis of the result they want
to achieve.
(4) Notious of Imputability
As pointed out by the Starke, In the subject of international delinquencies, it is important to
apply the notion of imputability. This notion assists in clarifying the subject and in providing a
proper frame work for its theory. It is sometimes said that A State is not responsible to another
State for unlawful acts committed by its agents unless such acts are committed by its agent
unless such acts are committed willfully and maliciously or with culpable negligence. It is
difficult to accept so wide a conclusion and so invariably a requirement. A general floating
condition of malice or culpable negligence rather contradicts the scientific and practical
considerations underlying the law as to State responsibility..It is only in
specific cases when particular circumstances demand it that willfulness or malice may be
necessary to render a State responsibility for example if the state knowingly connives in the
wrongful acts of insurgents or rioters, it would become liable although not generally
otherwiseFurther the actual decision of arbitral tribunals fail to justify a general condition
of malice or culpable negligence.44 Every State has to protect Aliens nationals under the terms
of International Law. The State responsibility changes depending on the circumstances and is
of three types:
State responsibility for the acts of individuals.
State responsibility for acts of mob-violence.
State responsibility for acts of insurgents.
(1) State responsibility for the acts of individuals
When a resident of a state injures an alien national, the resident is to be punished according to
the municipal law and the resident is individually responsible to compensate for the loss of the
alien national. When the compensation is not sufficient, the alien can approach his home country
to initiate a dialogue and claim the full and complete compensation.
(2) State responsibility for acts of mob-violence
44 Sarke , Supra note, 2 at pp. 339-40

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The State is responsible to take due diligence to detect and avoid a mob-violence. The State is
responsible to protect its own nationals as well as aliens.
(3) State responsibility for acts of insurgents
According to the Calvo Doctrine propounded by Calvo, no State is liable to pay any
compensation to the injured / suffered alien at time of civil war of a State. However, every State
should advice to its nationals not to visit certain countries and certain areas from time to time.
Example: The US Government releases travel advisories to avoid travel to certain countries
because of some specific reasons.

CALVO DOCTRINE
The doctrine was propounded by Calvo of Argentina and hence it is called Calvo doctrine.
According to this doctrine, during civil war the state is not responsible for the losses suffered by
the alien persons because if this responsibility is accepted then big nations will get an excuse to
intervene in the independence of weaker States. The Calvo Clause is a legal doctrine that
attaches the following five key provisions to an international investment agreement: (1)
submission to local legal jurisdiction; (2) application of local law; (3) assimilation of foreigners
to local contracting arrangements; (4) waiver of diplomatic protection in a foreigners home
state; and (5) surrender of rights under international law exclusion.
Mexico is not the only country that applies the Calvo Clause in transactions involving foreigners.
In fact, the Calvo Clause is universally applied across Latin America, and in Mexico, only
NAFTA-related disputes are exempt. In Mexico, the Calvo Clause is typically found in contracts
of real property sold to U.S. and other foreign investors. Under Article 27 of the Mexican
Constitution, only Mexicans by birth, nationalization or Mexican companies have the right to
acquire property in Mexico. Under this same Article, foreigners may acquire property, but only if
they agree before Mexicos Secretariat of Foreign Relations to consider themselves as nationals
with respect to the property that they purchase and bind themselves to not provoke the

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protection of their government in matters related to contract non-compliance or property

forfeiture. With regard to Mexican coastal properties, the Calvo Clause is typically found in the
Fideicomiso document, not in the purchase contract.
However, in one purchase contract provided to the authors by a U.S. citizen with real property
holdings in La Paz, Baja California Sur, the specific language of the contact reads as follows:
Governing Law and Severability: This agreement is governed by, and will be construed in
accordance with the laws of the State of Baja California Sur, Mexico. The parties hereby waive
any right they may have under any applicable law to a trial by jury with respect to any suit or
legal action which may be commenced by or against the other concerning the interpretation,
construction, validity, enforcement, or performance of this Agreement or any other agreement or
instrument executed in connection with this Agreement. If any such suit or legal action is
commenced by either party, the other party hereby agrees, consents, and submits to the personal
jurisdiction of the State of Baja California Sur, Mexico with respect to such suit or legal
action.Each of the parties hereby acknowledges and agrees that the State of Baja California
Sur, Mexico has the most significant relationship to any claims arising of this Agreement, within
the meaning of the United States Restatement (Second) of Conflicts Law.
To date, Mexico has staunchly enforced the provisions of the Calvo Clause under the guise of
protecting national sovereignty even though the North American Free Trade Agreements
(NAFTA) investment chapter was to have presumably provided remedies for resolving
investment disputes between parties of the United States, Canada and Mexico. Furthermore,
Article 27 of the Mexican Constitution continues to reinforce the provisions of the Calvo Clause.
In direct contradiction to the language embedded in real estate contracts that stipulates that
foreign buyers will be treated as Mexican nationals, the presence of U.S. title insurance
companies and U.S. developers and brokers gives many wouldbe U.S. retirees the false
impression that there will be U.S. legal remedies if issues arise with their planned Mexican real
estate purchases. Because U.S. buyers put more trust in transnational agencies, they may not be
as meticulous in their research, thinking that they are somehow protected by these agencies.
As a case in point, there are at least 70 active real estate brokerage firms with U.S. nationals
acting as individual brokers (out of a total of 100) in the Los Cabos area, some of which have
offices in the U.S., Canada, and Mexico. In addition, buyers from the U.S. are targeted by many
major Mexican real estate projects with sales flyers and websites in English, sales meetings in
the U.S., telephone solicitations for visits, and even U.S. sales offices. It is understandable that
U.S. buyers might believe that they were operating under a U.S. legal framework.
Luckily, across the United States, most states (including Arizona, California, New York) have
protections in place against deceptive marketing and full disclosure requirements for foreign
(defined as out of state) real estate sold in-state. While this is so, in the case of many Mexican
real estate properties sold to Americans, potential home buyers are not provided up front with
full disclosures of their legal limitations as a foreigner in Mexico, nor are the documents
provided to them in English, their primary language. In fact, when homebuyers sign on the
dotted line, they are put at a distinct disadvantage with provisions, such as this one, that states,

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the buyer represents that s/he either received information about the project while the buyer was
in Mexican territory or independently solicited the developer while s/he was in the developers
office in Mexico.45 Developers deliberately include such language because it demonstrates that
the marketing activity took place out of the United States and is exempt from U.S. Federal and
State laws related to disclosure and registration.
(1) Thus in so far such clause attempts to waive in general the Sovereign right of a State to
protect its citizens, it is to that extent void.
(2)it would be obviously improper for the individual to treat the State which he seeks
redress as an inferior and untrustworthy country and to apply for his governments intervention
without making any claim in the local courts.
(3)Where such a stipulation purports to bind the claimants government not to intervene in
respect of a clear violation of international law, it is void.
To sum up, it may be said that Calvo clause is ineffective to bar the rights of States to protect
their nationals abroad, or release the States from their duty to protect foreigners on their
territory.46

State responsibility for Acts of government organs

State Responsibility for acts of Government organs (Departments, Institutions or officers) is
direct. Hence the State Government has to pay compensation to the alien.

State responsibility for expropriation for alien properties

The State is held responsible for expropriation of alien property. With Globalization, it is
common that every country allows businesses set up by foreigners. The policy and treatment
given to such foreign establishments often depend on the policy of the Government in power in
that State. In some cases, the Government might want to nationalize or privatizes the businesses
established by foreigners. In such a case, the State should adequately compensate the company.
Examples Countries like India, China, Cuba and Uganda allow expropriation of alien properties.

State responsibility for breach of treaty

45 Desarrollos Punta La Paz, S de RLI. de C.V.

46 Starke, see Supra note 2, at pp. 328-29

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The State is held responsible for breach of a treaty it entered with other States. The degree of
responsibility differs from case to case. A dozen nations sign and ratify a regional nuclear nonproliferation treaty in which they promise not to build or operate breeder-type reactors. Two
years after the treaty enters into force, commercially available satellite imagery reveals that one
of the signatories has begun construction of a containment vessel associated only with breeder
reactors. This Article examines the international legal rules governing responses to breach of an
international treaty from the perspective of various rationalist theories of international relations
("IR") developed by political scientists. The relevant international legal rules consist of two
broad categories. One such category, which this Article calls the "rules of release," governs
responses to breach of a treaty that involve a decision by the victim to cease performing its own
obligations under the breached treaty. The other such category, which this Article calls the "rules
of remediation," governs all other responses to breach of a treaty, such as the victim's decision to
pursue political, economic, or military sanctions against the breaching party, or to sue the
breaching party for damages. Article 60 of the Vienna Convention on the Law of Treaties
codifies the rules of release; the currently unmodified "law of state responsibility" is the source
of the rules of remediation relevant to treaty breaches.
The relevant theories of IR consist of a suite of concepts used by those political scientists who
typically call themselves "neorealists" or "neoliberal institutionalists." These theories are
"rationalist" in the sense that they largely adopt the model of rational, unitary actors so
relentlessly propagated by economists; these theories involve IR because the neorealists and
neoliberal institutionalists have, to some extent, contextualized these theories as they have used
them to conceptualize IR. Neoclassical economics, especially the theory of public goods, is the
wellspring of rationalist IR theory, but rationalist IR theorists also draw their insights and
arguments from game theory, decision theory, and cybernetics. One should also note that this is
an Article concerned with "rationalist" IR theory, yet the misperceptions-spiral theory is what
one might at best call "semi-rational." In the misperceptions-spiral model, the nations involved in
international relations are incapable of seeing reality clearly. Those nations see greater harm and
hostility when little or no hostility actually exists. This may be an accurate characterization of the
real world, but it is not the rational world of foresight and objectivity that tends to characterize
rationalist IR theory more generally.

State immunity
States enjoy immunity from other States in connection with a proceeding of a Court from
measures such as arrest, attachment and execution on the use of its property. This Doctrine of
State Immunity is based on the concept of equality, independence and dignity of States. It
follows the maxim ''par in parem non habet imperium'' (an equal has no authority over an equal).
Absolute Immunity: Immunity is in matters of political, administration and governmental
functions.
Restrictive Immunity: Immunity is not extended to commercial matters.
Immunity is to the State, not to the individuals.
Immunity is on the Act of the State.
State immunity is possible and clearly visible in western and democratic countries but not in
military, communist or autocratic countries where all properties are managed by the State

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Courts use 'natural test' rather than 'purpose test' when dealing with cases related to State
Immunity.

INDIA AND INTERNATIONAL LAW

Constitution of India and the International Law
The framers of the Constitution of India are inspired by the character of the United Nations
Organization. This is evident from the Part I to IV of the Preamble.
The Article 51 states as follows:
Art. 51. Promotion of International peace and security.--- The State shall endeavour to,--(a) promote international peace and security;
(b) maintain just and honorable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples
with one another; and
(d) encourage settlement of international disputes by arbitration.

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The Article 51 is included in the Part IV of the Directive Principles of State Policy and are hence
not enforceable in the Court of Law.
Article 372(1) of the Constitution says that the agreements, treaties etc. entered by the then
British Government on behalf of British India are valid until they are repealed, amended or
altered.
Nationality and India
The word Nationality was not mentioned in the Constitution. However, the word Citizenship was
used. The Citizenship Act, 1955 provides six ways of acquiring citizenship.
Extradition and India
Extradition in India is regulated via Indian Extradition Act, 1903. Extradition treaty, as defined
by Indian Extradition Act, 1962 means, a treaty (agreement or arrangement) made by India with
a foreign state relating to extradition of fugitive criminals and includes any treaty relating to the
extradition of fugitive criminals made before August 15, 1947.

CONCLUSION
Whether or not the Calvo Clause is legal is extremely difficult to say in the presence of so many
conflicting opinions. Later in the decision of the International Fishertes Company case, also
between the United States and Mexico, decided in 1931, the Commission said that "it did not
find any ground for modifying or revoking the doctrine established by this Commission in the
matter of the North American Dredging Company of Texas." The same opinion was held by a
British-Mexican Commission in the Mexican Umon Railway case. But even though the validity
of the Clause has been upheld in many cases, it is equally true that the Calvo Clause has been
rejected in many other instances. It is my personal opinion that a true understanding of the Calvo
Clause will lead to the conclusion that, if adhered to by all States, it performs the function of
enforcing International Law by compelling individuals to accept and use local remedies . The
Calvo Clause stands for non-intervention, which is a universally recognized postulate of the Law
of Nations. Hence, this article should have proved that there is nothing incompatible between the
Calvo Clause and International Law The controversy over the Calvo Clause still continues, as

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manifested in the writings of several publicists. The Latin American States have made several
moves to incorporate the Clause into a Pan-American Convention. " Thus, the Convention on the
Rights of Aliens, which was adopted in 1902 in Mexico City at the Second Pan-American
Conference, had a provision to the effect that whenever an alien has a claim against a State or its
citizens, he shall present it to the competent authorities of the country without resorting to
diplomatic protection except where there is a manifest denial of justice.This Convention was
never ratified by the United States, but the consensus of opinion today seems to be that, even
though the United States and the European countries have opposed the Calvo Clause in principle,
nevertheless they conform to it as a matter of practice except in cases of a clear denial of justice.

BIBLIOGRAPHY
BOOKS REFERRED:
1. International Law By : S.K Kapoor 8th Edition
2. International Law and Human Rights - Dr. H.O. AgarwaEdition- 17th Edition
3. International Law by- M.N.Shaw -3rd Edition
4. Diplomats Handbook of International Law and Practice by B. Sen

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WEBSITE REFERRED:
1. www.jstor.org
2. www.legalserviceindia.com
3. www.preservearticles.com