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State Responsiblity
Public International Law (University of Technology Sydney)
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STATE RESPONSIBLITY
i.
Introduction
-->Main legal instrument: Draft Articles on Responsibility of States for Internationally Wrongful Acts
-->The Draft Article are presented as a combination of codification and progressive development->they are concerned with secondary, not the primary rules of state responsibility
Secondary Rules-->the general conditions under international law for the State to be considered
responsible for wrongful actions or omissions, and the legal consequences which flow from them.
-->the article does not define the content of legal obligations which give rise to responsibility.
Primary Rules-->responsibility arises for the breach of any obligation owed under international law->eg: failure to honour a treaty, if it violates the territorial sovereignty of another state, if it damages
the territory of another state etc.
CASE: Spanish Zone of Morocco Claims
PRINCIPLE: Responsibility is the necessary corollary of a right. All rights of an international character
involve international responsibility. If the obligation is not met, responsibility entails the duty to
make reparations.
-->Status of the ILC articles-->it does not take form of a convention, they are although of considerable
weight-->a number of articles also reflect customary international law.-->they constitute a starting
point for any assessment of the law relating to state responsibility
.
ii.
Scope of responsibility
Article 1
Every intentionally wrongful act of a State entails the international responsibility of that State
Article 2-->elements of intentionally wrongful act
There is an intentionally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the state
State Responsibility arises in the following circumstances:
1. Existence of an international legal obligation in force between two or more states, or a legal obligation to the
‘international community’ (obligations erga omnes)
2. Occurrence of an act or omission that: i. is attributed to that state ii. breaches that obligation (‘internationally
wrongful act’) -->Article 2
3. The state cannot raise any circumstances or justifications for the internationally wrongful act that would
preclude wrongfulness
4. Another state (the ‘invoking’ state) is entitled to make a claim (ie question of admissibility)
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CASE: Corfu Channel case (United Kingdom v Albania)
FACTS: Albanian (D) forces fired at British warships (P) which were sailing though the North Corfu
Channel. The Albanian (D) government maintained that foreign ships had no right to pass through
Albanian territorial waters without prior notification and permission from its authorities when the
United Kingdom (P) protested the actions of the Albanian (D) forces. The argument United Kingdom
(P) put forward was that states could send their ships for innocent purposes through straits used for
international navigation but the Albanian (D) refuted this on the ground that the channel did not
belong to the class f international highways through which a right of passage exists because it was
exclusively for local traffic. This channel has also been a subject of territorial disputes between
Greece and Albania, though Albania was afraid of Greek incursions.
PRINCIPLE: ICJ, held that it was insufficient basis for Albanian responsibility that it knew, or must of
known the presence of mines in its territorial waters and did nothing to warn third States of its
presence. -->omissions can be deemed as attribution.
--> According to the principle of state responsibility-->Albania should have done all necessary steps
immediately to warn ships near the danger zone, more especially those that were approaching that
zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave
omissions involve the international responsibility of Albania. But Albania’s obligation to notify
shipping of the existence of mines in her waters depends on her having obtained knowledge of that
fact in sufficient time before October 22nd; and the duty of the Albanian coastal authorities to warn
the British ships depends on the time that elapsed between the moment that these ships were
reported and the moment of the first explosion.
CASE: Caire Claim (France v. United Mexican States)
FACTS: On 11 December 1914, M Jean-Baptiste Caire, a French national, was unlawfully shot and
killed at an army barracks in Mexico by two Mexican army officers, a major and a captain aided by a
few privates, after M Caire refused a demand by one of the officers to pay a sum of money. In
awarding an indemnity in the sum of 20,000 Mexican gold piastres in favour of M Caire’s widow, the
French-Mexican Claims Commission held that Mexico was internationally responsible for the conduct
of the army officers.
PRINCIPLES: A state may be held internationally responsible for the unauthorised acts of state
officials, such as the unlawful killing of a foreign national by an army or police officer, where those
officials purported to act in an official capacity and “used the means placed at their disposition by
virtue of that capacity”.
NOTES
-->Reparation for Injuries case-->the UN is a subject of international law and capable of possessing international
rights and duties
--> The element of attribution-->subject and the element of breach-->objective. Whether there has been a
breach of rule may depend on the intention or knowledge of relevant State organs or agents and in that sense
(subjective).
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Characterisation of an act as internationally wrongful
Article 3
The characterization of an act of a State as internationally wrongful is governed by international law.
Such characterization is not affected by the characterization of the same act as law by internal law.
[Internationally wrongful act-->governed by sources of international law-->not determined by
internal law of states]
-->Article 3 makes explicit-->characterization of a given act as internationally wrongful is
independent of its characterization as lawful under the internal law of the state concerned.
2 ELEMENTS
(1) An act of a state cannot be characterized as internationally wrongful unless it constitutes
a breach of an international obligation, even if it violates a provision of the State's own law.
(2) Most importantly-->a state cannot by pleading that its conforms to the provision of its
internal law, escape the characterization of that conduct as wrongful by international law
iii.
Elements of Responsibility
Attribution of a Conduct of State
 State Organs
Article 4
(1) The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions, whatever position
it holds in the organization of the state, and whatever character is an organ of the central
government or of a territorial unit of the state.
(2) An organ includes any person or entity which has the status in accordance with the internal law of
the state.
NOTE:
-->article 4-->extends to organs of government of whatever kind or classification, exercising whatever
functions and whatever level in the hierarchy-->includes even local level.
-->organs representing state actions-->customary in nature
-->Pellat case-->'the principle of the international responsibility...of a federal State for all acts of its
separate States which give rise to claims by foreign States cannot be denied, not even in cases where the
federal Constitution denies the central Govt. control over separate States...'
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-->It is irrelevant that a person who is a state organ acts ultra vires-->who may have ulterior or
improper motives or may be abusing public power. Where the person acts in an apparently official
capacity
or under colour of authority, the actions in question will be attributable to the state
\
-->Caire case-->excluded responsibility of the state in relation to actions of state organs only in
cases where 'the act had not private conduct connection with the official function and was, in fact
merely the act of a private individual'-->not to be confused with the organ function as such in an
official manner but acting ultra vires or in breach of the rules governing its operation.
CASE: Genocide I case (Bosnia and Herzegovina v. Serbia and Montenegro)
FACTS: The republics of Bosnia and Herzegovina (P), Croatia, Macedonia and Slovenia declared
independence when the Socialist Federal Republic of Yugoslavia began to break up in the early
1990s. this led Serbia and Montenegro to declare themselves the Federal Republic of Yugoslavia
(FRY) (D). A massacre was perpetrated by Serbian forces on 8000 Bosnia Muslim men of fighting age
in a small village called Srebrenica in July 1995 during armed conflicts that arose in 1992-1995 within
Bosnia and Herzegovina (P). A suit was filed against the FRY (Serbia and Montenegro) (D) by Bosnia
and Herzegovina (P) in 1993 in the International Court of Justice, claiming violations of the
Convention on the Prevention and Punishment of the Crime of Genocide, on the theory that the FRY
(D) was responsible for the actions of Serbian forces.
HELD/PRINCIPLES: No evidence showed that the Serbian forces were de jure organs of FRY (D) and
this case did not show that the army of the FRY (D) took part in the massacres or that the political
leaders of the state had any part of it. Though the FRY (D) was providing some sought of financial and
other support to the Serbian forces, this does not automatically make them organs of the FRY (D).
Also, no evidence was provided to prove that the Serbs were under the effective control of FRY (D)
while conducting the massacre at Srebrenica. This can only imply that those who were responsible
for the massacre were not organs of the FRY (D) and the FRY (D) cannot take responsibility under
international law for the massacres
--->Test-->of effective control-->the state must have effective control over the state organs whether
or not they are acting ultra vires--->organs must have complete depends on the state and the state
organs can also be instruments through which the state can be acting (in this case court decided
against this; FRY not acting through the Serbian troops ->also determined in Nicaragua v. United
States
Case: Military and paramilitary Activities in and Against Nicaragua, ICJ 1986 Effective control test
rendering agents dependent on state: Has state financed, coordinated, supervised, and delivered
specific instructions to agents as pertaining the acts? (overall control, general encouragement,
support, supply, training, assisting with planning, financing or organization is deemed not enough),
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CASE: LaGrand case (Germany v. United States)
PRINCIPLES: 'Whereas the international responsibility is engaged by the action of competent organs
and authorities acting that State, whatever they maybe be; whereas the US should take all measures
to ensure that LaGrand is not be executed; pending this decision...the implementation of the Order
falls within the jurisdiction of the Governor of Arizona; whereas the the Govt. of USA is consequently
under the obligation to transmit the present Order to the said Governor; whereas the Governor of
Arizona is under the obligation to act in conformity with the international undertakings of the US..'
 Other persons or entities exercising governmental authority
Article 5
The conduct of a person or entity which is not an organ of the State under article 4 but which is
empowered by the law of that State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in that
capacity in the particular instance
NOTE:
-->The above article includes public corporations, semi-public entities, public agencies of
various kinds and even some cases private companies, provided that in each case the entity
is empowered by the of the State to exercise functions of a public character normally
exercised by State organs and the conduct the entity relates to the exercised of the govt
authority concerned. EG: private security firms as prison guards who act in capacity to
exercise public powers of detention and displace subject to internal laws.
CASE: Yeager v Iran 17 Iran-USCTR
FACTS: In its 1987 award in the Yeager v.Islamic Republic of Iran case, the Tribunal, in determining
whether an agent of Iran Air (which was controlled by the Iranian Government) had acted in his
official capacity when he had requested an additional amount of money in order to get the
claimant’s daughter onto a flight for which she had a confirmed ticket
PRINCIPLE/HELD: --> The tribunal found that, in the said instance, the agent had acted in a private
capacity and not in his official capacity as an organ of Iran Air.
It is widely accepted that the conduct of an organ of a State may be attributable to the State, even if
in a particular case the organ exceeded its competence under internal law or contravened
instructions concerning its activity. It must have acted in its official capacity as an organ,
however.Acts which an organ commits in a purely private capacity, even if it has used the means
placed at its disposal by the State for the exercise of its function, are not attributable to the State.
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 Conduct of organs placed at the disposal of a State by another State
Article 6
The conduct of an organ placed at the disposal of a State by another State shall be considered an act
of the former State under international law if the organ is acting in the exercise of elements of the
governmental authority of the State at whose disposal it is placed
NOTE:
-->Examples may include a section of the health service or some other unit placed under the
orders of another country to assist in overcoming an epidemic or natural disaster or judges
appointed in particular cases to act as judicial organs of other states.
-->These organs exercise the authorities of the disposing state and not the receiving state.
 Ultra Vires Acts
Article 7
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
NOTE:
-->The state cannot refuge behind the notion that according to internal law or to instructions
given, the actions or omissions of the agents or organs should of not have occurred. -->even
when the entity has overly committed unlawful acts under the guise of official status.
-->reaffirms article 3-->that a state cannot rely on its internal laws to discharge international
obligations.
CASE: Caire Claim (France v. United Mexican States)
PRINCIPLES/HELD: French national killed by Mexican officers after failing to extort money; case held
'that the two officers even if they are deemed have acted outside their competence...and even if
their superiors countermanded an order, have involved the responsibility of the State, since they
acted under cover of their status as officers and used means placed at their disposal on account of
that status..'
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 Conduct directed or controlled by a State
Article 8
The conduct of a person or group of persons shall be considered an act of a State under international
law if the person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct.
Breach of an international obligation
Existence of a breach of an international obligation
Article 12, ILC Articles
There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character
Princ iple of inter-temporal law
Article 13, ILC Articles
An act of a State does not constitute a breach of an international obligation unless the State
is bound by the obligation in question at the time the act occurs.
Continuing breaches of an international obligation
Article 14, ILC Articles
1. The breach of an international obligation by an act of a State not having a continuing
character occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character
extends over the entire period during which the act continues and remains not in conformity
with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs
when the event occurs and extends over the entire period during which the event continues
and remains not in conformity with that obligation.
CASE: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)-->
Finally, in relation to the remedy ordered by the Court, she held that even if, for argument’s
sake, the warrant had constituted a violation of an international obligation in 2000, such
violation did not have a continuing character and was no longer illegal at the time of
judgment in 2002 as Yerodia had, in the interim, ceased to be Foreign Minister.
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Responsibility of a State in connection with the act of another State
Aid or assist
Article 16, ILC Articles
A State which aids or assists another State in the commission of an internationally wrongful act by
the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and
(b) the act would be internationally wrongful if committed by that State.
Direct and control
Article 17, ILC Articles
State which directs and controls another State in the commission of an internationally
wrongful act by the latter is internationally responsible for that act if:
(a) that State does so with knowledge of the circumstances of the internationally wrongful
act; and
(b) the act would be internationally wrongful if committed by that State.
Coercion
Article 18, ILC Articles
A State which coerces another State to commit an act is internationally responsible for that act if:
(a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and
(b) the coercing State does so with knowledge of thse circumstances of the act.
PRECULDING WRONGFUL NOTES
Article 25 Necessity 1. Necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(WAYS NECCESSITY CAN BE PRECLUDE IT)
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril;
and (b) does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole. 2. In any case, necessity may not be
invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in
question excludes the possibility of invoking necessity; or (b) the State has contributed to the
situation of necessity.
REPARATIONS
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Article 31 Reparation 1. The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or
moral, caused by the internationally wrongful act of a State.
Article 32 Irrelevance of internal law The responsible State may not rely on the provisions of its
internal law as justification for failure to comply with its obligations under this part.
Article 33 Scope of international obligations set out in this part 1. The obligations of the responsible
State set out in this part may be owed to another State, to several States, or to the international
community as a whole, depending in particular on the character and content of the international
obligation and on the circumstances of the breach. 2. This part is without prejudice to any right,
arising from the international responsibility of a State, which may accrue directly to any person or
entity other than a State. CHAPTER II REPARATION FOR INJURY
Article 34 Forms of reparation Full reparation for the injury caused by the internationally wrongful
act shall take the form of restitution, compensation and satisfaction, either singly or in combination,
in accordance with the provisions of this chapter.
Article 35 Restitution A State responsible for an internationally wrongful act is under an obligation to
make restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not
involve a burden out of all proportion to the benefit deriving from restitution instead of
compensation.
Article 36 Compensation 1. The State responsible for an internationally wrongful act is under an
obligation to compensate for the damage caused thereby, insofar as such damage is not made good
by restitution. 2. The compensation shall cover any financially assessable damage including loss of
profits insofar as it is established.
Article 37 Satisfaction 1. The State responsible for an internationally wrongful act is under an
obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by
restitution or compensation. 2. Satisfaction may consist in an acknowledgement of the breach, an
expression of regret, a formal apology or another appropriate modality. 3. Satisfaction shall not be
out of proportion to the injury and may not take a form humiliating to the responsible State
Obligation not to recognise an unlawful situation
Article 41, ILC Articles
Wall Advisory Opinion ICJ Reports 2004 pp 136, 183-194 and 231-232
Obligation of putting an end to an unlawful situation
Legal Consequence for State of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) ICJ Reports 1971, 16,
54-58
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9.6.2
Invocation by a State other than an injured State
Article 48, ILC Articles
Barcelona Traction, Light and Power Company Ltd case (Belgium v. Spain), Second Phase, ICJ
Reports 1970, p.3
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