CHAPTER 2 STATE RESPONSIBILITY 1 NATURE OF

CHAPTER 2: STATE RESPONSIBILITY

1. NATURE OF STATE RESPONSIBILILTY [Text Book pp. 265 -67] l State responsibility refers to ‘liability’ of a state under international law. l Responsibility arises from the breach by a State of an international obligation. That obligation can be one of customary international law or a treaty obligation. l The main reference: the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts 2001, adopted by the GA on 28 Nov. 2002.

Internationally wrongful act of a State [Art. 1] [Text Book p. 267] “Every internationally wrongful act of a State entails the international responsibility of that State. ”

Two elements of an internationally wrongful act [Art. 2] There is an internationally 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.

Conduct: actions or omissions Conduct attributable to the State can consist of actions or omissions. l An example of an omission: l Corfu Channel case (1949) ICJ Rep. 4, where the ICJ held that Albanian was responsible because it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn third States of their presence. l

Actions or omissions [Cont. ] l In the US Diplomatic and Consular Staff in Tehran case, 1980 ICJ Rep. 3, the Court concluded that Iran was responsible for the “inaction” of its authorities which failed to take appropriate steps to protect the embassy and its staff.

2. ATTRIBUTABILITY [The first element] [Textbook p. 268 -80] The State is a legal person with full authority to act under international law. But since the State is an abstract entity, it cannot act of itself. l An “act of the State” must involve some action or omission by a human being or group. States can act only by and through their agents and representatives. l The question is which persons should be considered as acting on behalf of the State. l

The general rule: A State organ is considered as acting on behalf of the State and its conduct is considered as an “act of the State” for which the State is responsible under international law. l The conduct attributable to the State is that of its own organs (i. e. State officials), or of others who have acted under the direction, instruction or control of those organs (i. e. as agents of the State). l As a corollary, the conduct of private persons acting in their private capacity is not as such attributable to the State. l

2. 1 Conduct of State organs [Art. 4] [Text Book p. 268] 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 its character as an organ of the central government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.

Executive organ l Massey [Textbook p. 269] claim: Failure of Mexican authorities to punish the killer of Massey, a US citizen l Rainbow Warrior incident: Rainbow Warrior was blown up by French secret service agents.

Judicial organ Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1999) ICJ Rep. 87 l [Dato’ Pram Cumarasuamy case] l “According to a well established rule of international law, the conduct of any organ of a State must be regarded as an act of that State. This rule…is of a customary character. …” l

Acting in an official capacity l Even though a person or entity has the status of a State organ, the State will be responsible only when that person acts “in an apparent official capacity”. If the person acts in a private capacity, just as a private citizen, the State will not be responsible.

Mallen case [Textbook p. 270] a Mexican consul had been violently attacked and beaten twice by an American police officer. l As for the first attack, the evidence indicated a wanton act of a private individual who happened to be an official. l On the second attack, the American police officer, showing his badge to assert his ‘official capacity’, struck Mallen with his revolver, and then took him at gun point to the county jail. It was held that the US was responsible for this second assault. l

Conduct of persons or entities exercising elements of governmental authority [Art. 5] [Text Book p. 33] The conduct of a person or entity which is not an organ of the State under Art. 4 but which is empowered by the law of that State to exercise elements of 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.

2. 2 Liability for ultra vires acts [Art. 7] [Text Book pp. 34 -35] 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 as 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.

Caire claim (1929) 5 RIAA 518 [Text book, p. 34] Caire, a French national, was killed in Mexico by two Mexican military officers. After failing to extort money, they took Caire to the military barracks and shot him. l Held: The officers in question, even if they are to be regarded as having acted outside their competence…and even if their superior officers issued a counter-order, have involved the responsibility of the State, since they acted in their capacity as military officers and used the means placed at their disposal by virtue of that capacity. l

Youmans claim (1926) 4 RIAA 110 [Text book, p. 34] A mob gathered around a house in Mexico within which were 3 US nationals. The mayor ordered a lieutenant to proceed with troops to put an end to the attack upon the Americans. Instead of doing that they opened fire on the house which resulted in the death of all the Americans. l Held: We do not consider that …acts of soldiers committed in their private capacity…. it is clear that …the men were on duty under the immediate supervision and in the presence of a commanding officer. l

Southern Pacific Properties (Middle East) Ltd v Egypt (1993) 32 ILM 933, ICSID [Text Book, p. 35] l The co. entered into a contract with Egypt to develop land for tourism. There was strong opposition in Egypt because the plan would damage valuable antiquities. Egyptian government withdrew permission. They argued that Egypt was not responsible because the permission was contrary to Egyptian law and therefore ultra vires. l Held: A State is responsible for unlawful acts of State organs, even if accomplished outside the limits of their competence and contrary to domestic law.

2. 5 Liability for conduct acknowledged or adopted by a State as its own [Text Book, pp. 279 -81] [Article 11] Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.

United States Diplomatic and Consular Staff in Tehran Case (1980) ICJ Rep. 3 [Text Book, pp. 279 -80] In 1979, several hundred student-demonstrators occupied the US Embassy in Tehran by force and held the embassy staff as hostages. l The Court divided the events into two phases. l In the first stage, the attack was carried out by militants who in no way could be regarded as “agents” or organs of the Iranian State’. Therefore, according to the Court, the militants’ conduct could not be imputable to the State on that basis. l

Tehran Hostage case [Cont. ] Nevertheless Iran was held responsible in that it failed to protect the embassy and the diplomats as required by international law (Vienna Convention on Diplomatic Relations, 1961). l The second phase started after completion of the occupation of the embassy. At this stage, the Iranian Government was legally bound to bring to an end the unlawful occupation and pay reparation. Instead, it approved and endorsed the occupation and even issued a decree stating that the American embassy was a centre of espionage. l

Tehran Hostage case [Cont. ] The decree went on expressly to declare that the embassy and the hostages would remain as they were until the US had handed over the former Shah for trial. l The approval given to the acts of the militants and the decision to perpetuate them translated continuing occupation of the embassy and detention of the hostages into acts of that State. The militants had now become agents of the Iranian State for whose acts the State itself was internationally responsible. l

3. BREACH OF AN INTERNATIONAL OBLIGATION [The Second Element] [Text Book, pp. 280 -81] [Article 12] 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.

Art. 12: Explanation The phrase “regardless of its origin” refers to all possible sources of international obligations. l In the Rainbow Warrior Arbitration (1990) 20 RIAA 217, it was held that “ any violation by any State of any international obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation. l

Art. 12: Explanation l International obligations may be established by a customary rule of international law, by a treaty, by a judgment given by the ICJ or any other international tribunal. l In international law, there is no distinction between “contractual” and “tortious” responsibility nor between “civil” and “criminal” responsibility.

4. DEFENCES [Text Book, pp. 281 -85] [Arts. 20 -26] These articles deal with the six types of ‘defences’ available to a respondent State, namely: (1) consent; (2) self-defence; (3)countermeasures; (4)force majeure; (5) necessity; and (6) compliance with peremptory norms.

5. INTERNATIONAL CLAIMS [pp. 291 -99] l Legal consequences of an internationally wrongful act of a State include: (1) initiate an international claim (invocation) ; or (2) take countermeasures.

5. 1 Admissibility of claims [Text Book, p. 292] Article 44 The responsibility of a State may not be invoked if: (a) The claim is not brought in accordance with any applicable rule relating to the nationality of claims; (b) The claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.

5. 1. 1 Nationality of claims A state can make an international claim against another State when the injured person is its national. The general rule on ‘protection of nationals’ can be found in the following leading case:

Mavrommattis Palestine Concession case (Jurisdiction) (1924) PCIJ Ser. A, No. 2, p. 12 [Text Book, pp. 292 -93] l It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights.

Bond of nationality: basis for the claim Panevezys-Saldutiskis Case 1939 PCIJ Reports, Ser. A/B, No. 76 [p. 293] The case concerned a claim for compensation for the expropriation of a railway company filed by Estonia against Lithuania. [See Textbook, Chapt. 14, pp. 400 -406 for requirements of a lawful expropriation. ] l Held: It is the bond of nationality between the state and the individual which alone confers upon the state the right of diplomatic protection, and… the right to take up a claim. l

(1) Protection of private individuals [Text Book, p. 293 -94] The Hague Convention on the Conflict of Nationality Laws, 1930 Article 1 It is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international customs, and the principles of law generally recognised with regard to nationality …

Hague Convention [Cont. ] Article 5 Within a third state, a person having more than one nationality shall be treated as if he had only one…. A third state shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be most closely connected.

Nottebohm case Liechtenstein v Guatemala; 1955 ICJ Rep. 4 [Textbook pp. 293 -94] - Mr. Nottebohm was born in Germany. In 1905 he went to Guatemala, where he resided and conducted his business activities until 1943. - In 1939, he visited Liechtenstein to apply for naturalization. After acquiring Liechtenstein nationality, he went back to Guatemala. - Later, Guatemala expelled, and seized the property of, Nottebohm. Liechtenstein instituted proceedings against Guatemala argued that Liechtenstein could not extend diplomatic protection to Nottebohm in a claim against it.

Nottebohm case [Cont. ] Judgment of the ICJ l …Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, … the individual upon whom it is conferred … is in fact more closely connected with the population of the state conferring nationality than with that of any other state.

Nottebohm case [Cont. ] He (Nottebohm) had been settled in Guatemala for 34 years. He had carried on his [business] activities there. l In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country. No intention of settling there. … on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. … l

Nottebohm case [Cont. ] These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala. That naturalization …lacking in genuineness requisite to an act of such importance, …It was granted without regard to the concept of nationality adopted in international relations.

Nottebohm case [Cont. ] l (Therefore) Guatemala is under no obligation to recognise a nationality granted in such circumstances. Liechtenstein consequently is not entitled to extend its protection to Nottebohm vis-à-vis Guatemala and its claim must, for this reason, be held to be inadmissible. …

(2) Protection of Companies [Text Book, pp. 294 -95] l A State can bring an international claim on behalf of a company possessing its nationality l A company is regarded as having the nationality of the State under the laws of which it is incorporated.

Barcelona Traction, Light and Power Co. , [1970 ICJ Rep. 3] [p. 294 -95] l Barcelona Co. was established in Canada under Canadian law to develop electricity supplies in Spain. In 1948 a Spanish court declared the Co. bankrupt and ordered the seizure of the assets of the Co. in Spain. Canada intervened on behalf of the company but later withdrew. Belgium brought this claim in respect of the injury to its nationals who were shareholders resulting from the injury to the company. Spain objected that since the injury was to the company, not the shareholders, Belgium had no right to bring the claim.

Barcelona Traction case [Cont. ] Judgment of the ICJ l The concept …of the limited liability company …the separate entity of the company and that of the shareholders, each with a distinct set of rights. … So long as the company is in existence the shareholder has no right to the corporate assets. … l Barcelona Traction has lost all its assets in Spain, and was placed in receivership in Canada….

Barcelona Traction case [Cont. ] l It cannot, however, be contended that the corporate entity of the company has ceased to exist. … It has not become incapable in law of defending its own rights and the interests of the shareholders. Only in the event of the legal demise of the company are the shareholders deprived of the possibility of a remedy available through the company; …that an independent right of action for them and their government could arise.

Barcelona Traction case [Cont. ] The traditional rule attributes the right of diplomatic protection of a corporate entity to the state under the laws of which it is incorporated and in whose territory it has its registered office. l In the present case, it is not disputed that the company was incorporated in Canada and has its registered office in that country. l Accordingly, the Court rejects the Belgian Government’s claim… l

5. 1. 2 Exhaustion of local remedies [pp. 296 -97] l It is an established rule of customary international law that an injured individual (or company) must have exhausted any available and effective local remedy in the responsible State before an international claim can be brought on his behalf. [See Art. 44 (b)].

Ambatielos Arbitration Greece v UK (1956) 12 RIAA 83 [p. 296] - Ambatielos, a Greek ship-owner, contracted to buy some ships from the British Government and later accused the British government of breaking the contract. - In the litigation before the English HC, Ambatielos failed to call an important witness and lost; his appeal was dismissed by the CA. - Greece made a claim on his behalf before an international arbitral tribunal. - Held: Ambatielos failed to exhaust local remedies ( he had failed to appeal from the CA to the H L).

Finnish Ship-owners Arbitration Finland v UK, (1934) 3 RIAA 1479. During the World War I, 13 ships belonging to Finnish ship-owners were used by the UK Government, of which 4 were lost. l The ship-owners claimed damages before the Admiralty Arbitration Board in the UK. The Board decided: the ships were requisitioned by Russia and not, as required by the British legislation, by the UK, and that accordingly no compensation was payable. l No appeal. The matter was later brought by Finland before an international arbitration tribunal. l

Finnish Ship Owners [Cont. ] The UK objected on the ground that the Finnish ship-owners had not exhausted local remedies in the UK. The arbitrator rejected this objection. Award of the Arbitrator l The local remedies rule does not apply where there is no effective remedy. This is the case where a recourse is obviously futile. … l The appealable points of law obviously would have been insufficient to reverse the decision of the Arbitration Board.

5. 2 Obligations erga omnes [pp. 297 -99] Erga omnes means “towards all”. Obligations erga omnes are concerned with the enforceability of norms of international law, the violation of which is deemed to be an offence not only against the state directly affected by the breach, but also against all members of the international community.

Article 48 [p. 297] Invocation of responsibility by a State other than an injured State 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: … (b) The obligation breached is owed to the international community as a whole. The existence of obligations erga omnes was recognized by the ICJ in the Barcelona Traction case in 1970.

Barcelona Traction, Light and Power Co. Case 1970 ICJ Rep. 3 [p. 298] 33. An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

Barcelona case [Cont. ] 34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning basic rights of the human person including protection from slavery and racial discrimination.

Jus cogens, obligations erga omnes and international crimes [p. 299] There are some similarities between the three concepts. They can be used to prescribe much the same kind of conduct. For example, a treaty to commit genocide would be invalid as contrary to jus cogens, and an act of genocide of a State would both be in breach of an obligation erga omnes and an international crime. l Jus cogens and obligations erga omnes are well established rules of customary international law whereas the concept of criminal liability of States is very much controversial. l

5. 3 Reparation for injury [p. 287] A important legal consequence of an internationally wrongful act is that the injured State is entitled to obtain reparation from the wrongdoing State.

Chorzow Factory Case (Indemnity) (Merits) (1928), PCIJ Ser. A, No. 17 [p. 287] Reparation must, as far as possible, wipe out all the consequences of the illegal act and re -establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear ….

Forms of reparation [p. 288] [Article 34] 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.

Restitution [p. 288 -89] [Article 35] 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.

Restitution [Cont. ] Material restitution (Restitution in kind) [p. 289] An example of restitution in kind is found in the Temple of Preah Vihear Case (1962)ICJ Rep. 6. in which the World Court ordered Thailand to return to Cambodia religious objects it had taken illegally from a temple in Cambodia. l

Compensation [p. 289 -90] [Article 36] 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. … l See, e. g. , The I’m Alone case, where the Commissioners recommended the payment by the United States of $ 25. 000 as a material amend in respect of the wrong committed by the United States in sinking the I’m Alone.

Satisfaction [p. 290 -91] [Article 37] 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 other appropriate modality….

Satisfaction [Cont. ] A good example of different forms of satisfaction can be found in the Borchgrave case, (1937) PCIJ, Ser. A/B, No 72, 165. In this case, a Belgian national was found dead on the roadside in Madrid. The Belgium Government demanded as reparation: (1) an expression of the Spanish Government’s excuses and regrets; (2) transfer of the corpse to the port of embarkation with military honours; …and (3) just punishment of the guilty. See also Rainbow Warrior Arbitration [p. 299]