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Unit 8: State

Responsibility

Miss E. Siangandu

Introduction

State Responsibility (SR) - General rules of IL


which determine whether a state is in breach
of its international obligation.
Provides that when one state commits an
internationally unlawful act against another
state
International responsibility is established
between the two
SR concerns the liability of one state to
another.

General Principle

Chorzow Factory Case PCIJ. Ser. A. no 17:

It is a principle of international law


and an even greater conception of
law that any breach of an
engagement involves an obligation
to make reparations

The 2001 International Law Commission Draft (ILC)


Articles on Responsibility of States for Internationally
Wrongful Acts

Art 1 Wrongful acts by a state


entails responsibility
Art 2 Commission of Internationally
wrongful acts (any state)
Art 3 Characterisation of an act as
an internationally wrongful act,
governed by international law.

Fault

Debate about responsibility of states for


unlawful acts or omissions
Does it require an element of fault
Or whether liability is strict?


ILC Draft articles provide no assistance in the
matter
& there are a number of conflicting
authorities.
Brownlie argues that the nature of liability will
depend on the precise nature of the particular
obligation
There is objective and subjective responsibility
views

Objective Responsibility

most popular view


An objective test should be applied to
actions of state.
Provided that the acts complained of can
be attributed to the state then it will be
liable
If those acts constitute a breach of IL
regardless of any questions of fault or
intention.

Example of the Objective


Test Caire Claim (1929) RIAA
575.

Most cited example of the objective test is found in


Judgement of Verziji.
Caire was a French national who was asked to obtain
a large sum of money by a major in the Mexican
Army.
He was unable to obtain the money & was
subsequently arrested, tortured and killed by the
major & a number of soldiers.
France placed a claim against the Mexican
government heard by the French- Mexican Claims
Commission.

French- Mexican
Claims Commission

Questions that commission had to consider


was whether Mexico could be responsible for
the actions of individual military personnel
Who were acting without orders & against the
wishes of their commanding officer
Verziji relied on the Objective Responsibility of
the state which provides;
A state is responsible for acts of its
officials & organs even in the absence of
any fault of its own.

Mexico was found to be


responsible

For all acts committed by its officials or organs


which constitute offences from the point of
view of the law of nations, whether the official
or organ in question has acted within or
exceeded the limits of his competence..
[provided that] they must have acted at least
to all appearances as competent officials or
organs, or they must have the powers of
methods appropriate to their official capacity.

Subjective Responsibility

Most IL lawyers argue that


responsibility of states depend on
some element of fault.
Fault intention to harm (dolus)
Or negligence (calpa)

Examples of subjective view:


1. Home Missionary Society
Claim(1920) 6 RIAA 42

Uprising in the British protectorate of


Sierra Leone.
During the course of the uprising
property belonging to the Home
Missionary society was destroyed
& a number of missionaries were killed.
US brought a claim on behalf of the
missionary society against UK


Claim was dismissed by tribunal;

It is a well established principle of IL


that no government can be held
responsible for the acts of rebellious
bodies of men committed in violation of
its authority, where it is itself guilty of
no breach of good faith, or of no
negligence in suppressing insurrection.

Corfu Channel Case [1949] ICJ


Rep 4

Case arose as a result of the sinking of the


mine of a British warship in Albanian territorial
waters.
UK brought a claim against Albania
Ist argument Albania itself had laid the mines.
However was little evidence to support claim
2nd argument was that mines could not have
been laid without the knowledge of the
Albanian authorities.

Corfu Channel Case

ICJ found laying of mines could not have


been achieved without the knowledge
of the Albanian government.
Albanias failure to warn British naval
vessels of the risk of mines gave rise to
interl responsibility.
There was a duty on Albania to pay
compensation to UK.

Imputability

IL is concerned with the responsibility of interl persons


Major interl persons in IL states
States are aggregates of individuals
Implication a state can only act through individuals
Individuals may act for reasons of their own distinct
from intentions of the state
However it is necessary to know which actions of
which persons may be attributed or imputed to the
state,
The state is not liable for all private actions of
its citizens.

Nicaragua v US (Merits) 1986


ICJ Rep 14

Principle of responsibility established that;


A state will not be liable to the acts of private
individuals which cannot be attributed to it.
This is confirmed by Article 11Draft Articles
(supra)
However responsibility may arise if it can be
established that there was a duty to exercise
due diligence & that diligence was not
exercised.

Rainbow Warrior Incident 74


ILR 241

A state is liable for actions of its agents &


servants whatever their particular status.
Thus Rainbow Warrior July 1985
French secret agent sank the Greenpeace ship
Rainbow Warrior
France became internationally liable
Issue of whether this act was ordered at a high
or low level within the French government was
irrelevant.

Further principles of
responsibility

The ILC Draft on State Responsibility state the


following principles
Art. 4 Responsibility of state organs
(1) the status of organ of the state in internal
constitutional law irrelevant.
(2) the organ of a state having that status
under internal law presumed to be capable of
acting on behalf of the state.


Art. 5 & 8 quasi- governmental agencies &
conduct directed or controlled by a state.
see Zafiro Claim 6 RIAA 160
See also Yeager v. Iran (1987) 17 Iran-US
Claims Tribunal Reports 92.

Liability for ultra vires acts- I

Question whether a state would be


held responsible for action that is ultra
vires
Thus acting outside authority.
General rule in IL
Just because a state acts outside its
authority it does not mean that it will
not be held liable for its actions.

Liability for ultra vires acts- II

Article 7, 10 ILC Draft


Caire Claim (1929) RIAA v. 516 (supra)
Union Bridge Company Claim (1924) 6 RIAA
138
A British government official wrongly
appropriated neutral property during the Boer
war.
The arbitration tribunal held Britain liable for
act.

Youmans Claim (1926) 4


RIAA 110

Mexican troops sent to protect US nationals


surrounded by rioters
Joined in the attacked which US nationals were
killed.
Mexico argued that since the soldiers had
acted in complete disregard of their
instructions Mexico could not be held
responsible for the deaths.


Tribunal recognised a state might not be
responsible for the malicious acts of officials
acting in a personal capacity
But state would be responsible for wrongful
acts
Committed by soldiers under the command of
an officer
Soldiers were under immediate supervision &
in presence of their commanding officer.

Tehran Embassy Hostages Case


(US v Iran) [1980] ICJ 3

ICJ considered the status of the students who


initially took possession of the US Embassy in
Tehran.
ICJ ist considered;
their conduct might be considered as itself
directly imputable to the Iranian state only if it
were established that, in fact, on the occasion in
question the militants acted on behalf of the state,
having been charged by some competent organ of
the Iranian state to carry out a specific operation.

Hostages Case

However 17th Nov 1979 Ayatollah Khomeini


issued a decree which declared premises of
the Embassy & hostages would remain as they
were until US handed over the Shah for trial:

ICJ commented:

The approval given to these facts by


Ayatollah Khomeini & other organs of the
Iranian state..translated continuing
occupation of the Embassy & detention by
into acts of that state. The militants, authors
of the invasions & jailers of the hostages, had
now become agents of the Iranian state for
whose act the state itself was internationally
responsible.
Iran supported it therefore was held liable

Insurrection or other
movement

Acts of rebels or insurrectionaries


are not normally attributed to the
state (see Home Missionary Society
Case supra)

Defences

Defences are available


Burden of establishing
defences is placed upon the
defence the fact of the breach
of obligation is established.

Defences & justifications


Circumstances precluding
wrongfulness

The defences are:


Consent
Self-defence
Permissible countermeasures
Force majeure see Danube Dam Case
Distress
Necessity- see Danube Dam Case, Palestinian Wall
Advisory opinion, ICJ Reports 2004
Compliance with peremptory norms (Draft Article
20-27).


Self defence need to be in accordance art 51
UN Charter
Art 23 force majeure
There must be irresistible force which was
foreseen event, beyond control of the state,
making it materially impossible in the
circumstances to perform obligations.
New Zealand v France (Mafart and Prieur)
(supra)

Reparations - I

Every breach of an interl obligation carries


with it the duty to make reparations:
Chorzow Factory Case PCIJ Ser A No 17
Im Alone 7 ILR 297
Compensation was awarded for non-material
damage
Ship registered in Canada was sunk by US
Coastguards
Tribunal found that ship was wholly owned by
US

Reparations- II

Nationals there no compensation ought to be


paid to Canada in respect to loss of ship.
However US was ordered to formally apologise
to Canada &
Pay $25,000 compensation as
acknowledgment of the wrong done to
Canada.

State responsibility for


treatment of aliens

General Rule: Every state is under an


international obligation not to ill treat
foreign nationals present in its territory.
If state violates this obligation it may
incur interl responsibility to state of
whom person is a national ( see
Mavrommatis Palestine Concessions
Case (1924) PCIJ


SR arises from ill treatment of foreign
nationals or corporations

Examples of illtreatment giving rise to


responsibility

Mistreatment of foreign
nationals in custody ( Robert
Claim, Paraguay v USA)
Failure to punish individuals
responsible for the attacks on
foreign nationals (Janes &
Massey Claim (1927).


Direct injury of foreign
nationals by state officials
(Youmans Claim)
Denial of justice to a foreign
national Chattin Claim (1927)

Nationality of Claims

A state can only advocate claim of its own


national.
SR can arise in relation of ill treatment of
individuals or corporations.
Need for claiming state to right to claim on
behalf of individuals or corporation thats
suffered injury.
Issue right of a state to bring claim.

Individuals

Before a state can claim


compensation/reparations arising from injuries
of individuals or damage to property.
Need to prove that individuals are in fact its
nationals.
Basic rule Victim must be a national of the
plaintiff state at the time the damage was
cause & remain so until the claim is decided
(see Panevezys -Saldutiskis case (1939).

Nottebohm Case [1995]


ICJ Rep 4

Need for effective link between the state &


individual
Case between Liechtenstein & Guatemala
Claim by Liechtenstein against Guatemala
Basis that Guatemala had acted unlawfully
towards the person & property of Nottebohm
a citizen of Liechtenstein.


Guatemala disputed Liechtenstein s right to bring a
claim.
Nottebohm born in Germany 1881
1905 become a resident in Guatemala but retained
his German nationality.
He made few visits to Liechtenstein where his
brother lived
In 1939 he applied & obtained Liechtenstein
nationality.
Obtained a Guatemala visa for his Liechtenstein
passport & returned to Guatemala.

Issue before Court

Whether nationality conferred in Nottebohm in


1939 could be relied upon against Guatemala
in justification of the commencement of
proceedings.
Crt acknowledged granting nationality was a
matter of domestic law
But a right to exercise diplomatic protection of
nationals was a matter of IL

Court found

Nottebohm had little connection with


Liechtenstein
Had settled in Guatemala for 34 years
Had an intention to remain there.
His connection with Guatemala was stronger
than connection with Liechtenstein
On that basis Liechtenstein was not allowed to
extend protection over him.

Nottebohm Rule

Need for a genuine link between state &


individual injured.
Rules established in case There must be an effective link between
the person & state in order for the state
to be able to exercise its right of
diplomatic protection on behalf of the
injured person.

Corporations & their


shareholders

Corporation has nationality of state where it is


incorporated.
Problem arises where companies are
incorporated which have very little
connection.
Right of states to bring claims on behalf of
shareholders - Barcelona Traction Case [1970]
ICJ Rep 3

Barcelona Traction Case


[1970] ICJ Rep 3

Barcelona Traction, light & power Company


was holding company incorporated in Canada
in 1911
To develop & establish an electricity company
in Spain
Three subsidiary company were created in
Canada most shares by owned by it.
They were also a number of companies in
Spain


Case arose following action by Spain which
resulted in company being declared bankrupt
Belgium claimed most Barcelona T shares
owned by Belgian nationals & companies.
Spain claimed injury had been done to
company rather than shareholders
Therefore Belgium lacked Locus standi

Court held;

Although share holders had suffered it was


only as a result of wrongs done to the
company.
Traditionally a corporation has a right of
diplomatic protection under the laws it is
incorporated/ registered.
Belgian s claim was rejected.

Multiple Nationalities

Art 4 Hague Convention on Certain Questions


Relating to the Conflict of Nationality Law
1930
A state may not afford diplomatic protection to
one of its nationals against a state whose
nationality such person also possesses.

The International Minimum


Standard (IMS)

Is there an International minimum standard of


treatment or is equality of treatment with
nationals enough?
There is a dispute between developed &
developing states over this.
Developed states advocate the IMS
Developing states advocate equality of
treatment.

Test of IMS was


applied;

No agreement as to the content of IMS


No discrimination against foreign nationals
Art 9 Montevideo Convention on the Rights &
Duties of States 1933 foreigners cannot
claim more rights than those afforded to
nationals.
See also
Neer Claim 4 RIAA 60
Roberts 3 ILR 227
Chattin Claim

Conduct of host
state;

Should amount to an outrage, to bad


faith, to wilful neglect of duty, or to
an insufficiency of governmental
action so far short of international
standards that every reasonable and
impartial man would readily
recognise it insufficiency.

See also in relation


IMS

Certain German Interests in Polish Upper


Silesia case PCIJ, Series A, No. & 1926, 3 ILR
227.
Garcia Case 4 RIAA 119 (1926).
Chattin Case 4 ILR 248.
Jones Claim 3 ILR 218.
Quintanilla Claim 3 ILR 224.

Expulsion of Aliens

Boffolo Case 10 RIAA 528.


Art 13 ICCPR 1966
Art 3 ECE 1956
Article 4 Fourth Protocol (1963) ECHR.

Waiver

The Calvo Clause agreement between


foreign national & state
Certain Latin American States required foreign
contractors to agree to clauses providing they
would not resort to their own states for
protection in the event of disagreement or
wrongful treatment by host state.
North American Dredging Company Case 4
RIAA
Clause was enclosed insisting on local
remedies.

Exhaustion of Local
Remedies - I

Indirect injury to states claim will not be


admissible on the international plane
Unless individual or corporation has exhausted
remedies provided by the local state.
Rule allows the local state to redress any
wrong committed before level reaches
international dispute settlement

Exhaustion of Local Remedies -II

Interl tribunal only concerned with effective


local remedies.
Ambatielos Arbitration (Greece v. UK) 23 ILR
306
Commission held local remedies include not
only reference to courts & tribunals but also
use of facilities which municipal law makes
available to litigants before such
courts/tribunals.
Availability of Legal protection.

Finnish Ships Arbitration 7 ILR


231

An individual or corporation does not need to


exhaust all appeal mechanisms if such appeals
are clearly going to prove pointless.
UK objected to Finnish claim on the basis that
Finnish nationals failed to appeal against UKs decisions
Arbitrator ruled in favour of Finnish argument that Crt
of appeal would have been unable to overturn the
findings made by Arbitration board
Thus an appeal made no difference
Finland was within its rights in pursuing the claim on
interl plane.

Other examples on
Exhaustion of Local
Remedies
cases

Interhandel Case (Switzerland v US) [1995] ICJ


Rep 6
Robert E Brown Case (1923) RIAA vi, 120
Ellettronica Sicula SpA Case (US v Italy) ICJ
Rep 18

Tutorial 8- state
Responsibility

EnviroCo is a manufacturer of weedkiller. Although it carries out its


manufacturing activities in the developing state of Povertia it is registered in
the developed state of Lucracia. The majority of its shareholders are nationals
of Hegemonia. In June 2001 workers in the EnviroCo plant in Povertia were
directed to strike for higher wages by their government- controlled trade union.
Bob the manager of the plant & a national of Technolia, were attempting to
keep the plant operating, accidentally released a highly toxic chemical into
river Percevia killing most of the fish in the river & polluting the fields along the
river bank. The local population, who rely mainly on fishing and agriculture for
their livelihoods, were annoyed by this and after beating Bob, dragged him
before a local magistrate who sentenced him to ten years imprisonment in a
notoriously unsanitary neighbourhood jail. The government of Povertia has
stated its intention to expropriate the plant, vowing that the foreigners
responsible for this catastrophe will not receive a dollar in compensation
Discuss

Intro:
Rainbow warrior Case
Two types of fault Subjective & Objectives
Who are the actors involved?
What are their nationalities?
Who will be able to bring a claim?
What are the acts or omissions that have occurred?
Consider the Draft Article & case Law
Treatment of aliens/ foreign nationals
Need to exercise local remedies?
Defences?