LWN158: PUBLIC INTERNATIONAL

LAWSEMINAR WEEK 8: STATE

RESPONSIBILTY

Doctrine of State Responsibility• States are the primary subjects of international law.

• They can be held responsible for violations of international law.

• Such responsibility can flow from the actions of a government official, individual or company.

Spanish Zone of Morocco Claims (PCIJ, 1925), per Judge Huber: ‘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.’

Articles on State Responsibility International Law Commission (ILC) was given the task of codifying the rules of state responsibility

Articles on the Responsibility of States for Internationally Wrongful Acts (ASR)

• approved by the General Assembly in 2001• soft law (not a treaty) but represent customary rules

Articles on State Responsibility art 1: ‘Every wrongful act of a State entails the international responsibility of that State.’

art 2: ‘There is an internationally wrongful act of a State when conduct consisting of an act or omission:

(a) Is attributable to the State under international law; and(b) Constitutes a breach of an international obligation of the State

Two elements of state responsibility

Act or omission which amounts to an internationally wrongful act

Act or omission is attributable to the State

1. Internationally wrongful act• Violation of international treaty or customary international law.• Even if the act is lawful under domestic law

“The characterization of an act of State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”

ASR art 3:

2. Attribution • All actions of the State must necessarily be carried out by

individuals or corporate entities.• But States are not responsible for every action of their

nationals - the relationship between the State and the individual must be of a certain character.• ASR set out a number of circumstances in which conduct will

be considered attributable to a State.

Situations of attribution• Organ of the state (Art 4)• Conduct of entities exercising governmental authority (Art 5)• Conduct directed or controlled by State (Art 8)• Private persons carrying out State functions in absence of official

authorities (Art 9)• State accepts conduct as its own (Art 10)• Actions of insurrection or independence movement which becomes new

government (Art 11)• Where a State aids, assists, directs or controls another State in the

commission of a violation of international law (Art 16, 17, 18)

Art 4: Organ of a state(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 organisation 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.’

What is an ‘organ of the State’?ILC’s Commentary on the Draft Articles: Covers all the individual or collective entities which make up the

organisation of the State and act on its behalf. Not limited to persons designated as ‘organs’ under internal law Not limited to high level officials or persons involved in external affairs,

but any official of any arm of government. Includes territorial governmental entities within the state But distinction will be made where individual is acting in a private

capacity

Art 5: Persons exercising governmental authority“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 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.”

What about a person acting ultra vires?

“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.”

• The State will still be responsible, even if the person was acting beyond their authority (art 7)

“Acting in an official capacity”• Caire Claim (France v Mexico) (1929) 5 RIAA 516: A

person with an official capacity is deemed to be acting in that capacity where they:• Hold themselves out to be acting in their official

capacity; or• Use means or methods made available to them by

virtue of their official capacity.

Conduct directed or controlled by a state

“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.”

Art 8:

Conduct directed or controlled by a State

• Can make a state responsible for the acts of a private individual

• Requires that person acts under instructions of the state

• Or that state exercises effective control or direction• Nicaragua (Merits): not enough that State benefits

from or even depends on their actions, must have effective control over those actions.

Art 9: Private persons acting in absence of official authorities• Where a private person carries out official functions in the absence of

official authorities because circumstances require.

• Three elements must be established:1. Conduct must be governmental in nature2. There must be an absence or default of official authorities3. Circumstances must require that governmental powers be exercised.

• Eg in a state of emergency where legal authorities are absent or non-functioning and circumstances require private actors to fill the void, their actions will be considered actions of the state.

Art 10: Insurrection and rebel groups• Where an insurrection or independence movement

becomes the new government of a State, that State will be responsible for the actions of the movement.

◦ Won’t be attributable unless the group goes on to replace the State

◦ State will be retrospectively responsible

art 11: Where state adopts conduct

• Does not have to be by way of formal proclamation

• But requires more than a mere statement of approval or support – the State must do something to indicate it adopts the conduct (Tehran Hostages Case)

“Conduct will be considered an act of the State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.”

Aiding or assisting another state• A State can be responsible if it aids or assists another State

in committing an internationally unlawful act (art 16)◦ With knowledge of the circumstances of the wrongful act◦ And where it would have been internationally wrongful for them to

commit it themselves

• Attribution can also be made out where a State directs or controls another State to commit an internationally wrongful act (arts 17 & 18)

Legal Consequences of State Responsibility

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.

The State must cease the act and offer assurances of non-repetition.

If an internationally wrongful act can be attributed to a State:

Art 30:

Art 31:

Reparations

“any breach of an engagement involves an obligation to make reparation...Reparation therefore is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.”

“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.”

Chorzow Factory (Indemnity) (Jurisdiction) case (Germany v Poland) PCIJ (1927)

ReparationsThree kinds of reparations:1. Restitution2. Compensation3. Satisfaction

Restitution (art 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 the 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.

• Art 35 arguably adopts a narrower definition than in Chorzow Factory. There, the purpose was to establish the situation which would have existed had the act never occurred.

• Here, it is to put things back the way they were before.

Compensation (art 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.2. The compensation shall cover any financially assessable damage including loss of profit insofar as it is established.”

• Damage includes both material and moral damage (art 31)

Satisfaction (art 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 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.”

• Rainbow Warrior case (New Zealand v France) (1990)

Situations which excuse wrongfulness• Consent (ASR art 20)• Self-defence, within the limits of UN Charter (ASR art 21)• Counter-measures (art 22) but conditions apply:

◦ Proportionate (art 51)◦ Intended to induce another State to comply with its obligations (art 49(1))◦ Must not breach prohibition on use of force, human rights obligations, jus cogens

obligations or prohibition of reprisals (art 50)◦ Must be suspended once wrongful act has ceased or dispute is before court or

tribunal (art 52).

Excuses cont/…• Force majeure: “occurrence of irresistible force or of an

unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” (art 23)

• Distress: where individual State agent is in situation of peril (art 24)

• Necessity: where act was the only way to safeguard an essential interest against grave and imminent peril and did not impair essential interest of another State (art 25)

Doctrine of Diplomatic Protection• The doctrine of diplomatic protection allows a State to bring a claim

on behalf of its nationals where they have been injured by the internationally wrongful act of another State.

• If a State mistreats the national of another State, it is regarded as being a wrong against the State itself, because of the special relationship a State has with its nationals.

• The principles on diplomatic protection are set out in the Articles on Diplomatic Protection

• Operates to give standing to the State in international courts and tribunals on behalf of its national.

Is a State obliged to exercise diplomatic protection?

• States are entitled, but not obliged, to provide diplomatic protection.

ADP, art 2:

A State has the right to exercise diplomatic protection in accordance with the present draft articles.

Diplomatic Protection & State Responsibility

ADP, art 1:

Diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.

• Diplomatic protection flows from the doctrine of state responsibility – it is the mechanism by which a State seeks to hold another State accountable for an internationally wrongful act which affects its national(s)

Diplomatic Protection and State Responsibility cont/…

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.

ASR art 44:

Two elements:1. Nationality of claim;2. Exhaustion of local remedies

Nationality of Claims• A State can only exercise diplomatic protection on behalf of its nationals• Whether a person is a national of a state is determined according to the

domestic law of each state

For the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States, or in any other manner, not inconsistent with international law.

ADP art 4:

Dual Nationality• What if a person is a national of more than one State?

• Art 6: If a person has more than one nationality, any State of which that person is a national may exercise protection on his/her behalf against a State of which that person is not a national

A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.

ADP, art 7:

• Nottebohm: where an individual lacks genuine bonds with a State he/she can not enjoy protection of that State against another State with whom he/she does have genuine connection.

Dual Nationality

NationalityNon-

nationality

Predominant

nationality

Lesser nationality

Equal nationality

Lesser nationality

Equal nationality

Predominant nationality

ADP art 6

ADP art 7

ADP art 7

ADP art 7Nottebohm

Nationality of Corporations• States can exercise diplomatic protection on behalf of their corporate

nationals

ADP, art 9:

For the purposes of the diplomatic protection of a corporation, the State of nationality means the State under whose law the corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and has no substantial business activities in the State of incorporation, and the seat of management and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality.

Stateless Persons & Refugees: art 8

1. A State may exercise diplomatic protection in respect of a stateless person who, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.

2. A State may exercise diplomatic protection in respect of a person who is recognized as a refugee by that State, in accordance with internationally accepted standards, when that person, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State.

3. Paragraph 2 does not apply in respect of an injury caused by an internationally wrongful act of the State of nationality of the refugee.

Standard of Treatment• So diplomatic protection enables a State to act when one

of its nationals has been mistreated by a foreign State. • But what counts as ‘mistreatment’? What standard of

treatment are States expected to afford to foreign nationals?

• There are two possible standards:1. National treatment standard2. International minimum standard

Standard of Treatment cont/…NATIONAL TREATMENT STANDARD INTERNATIONAL MINIMUM

STANDARD

A foreign national is entitled to be treated no worse than a person possessing local nationality

A foreign national is entitled to certain minimum standards of treatment, regardless of how a State treats its own nationals

International minimum standard is preferred by most publicists, and has been strengthened by the development of international human rights law.

Local remedies rule• International proceedings to protect a national can not be

commenced until local remedies have been exhausted• This is a rule of customary international law (see Interhandel

case (Switzerland v. United States of America) (Preliminary objections) [1959] ICJ Rep 6, 27

Articles on Diplomatic Protection, art 14:

1. A State may not present an international claim in respect of an injury to a national… before the injured person has, subject to draft article 15, exhausted all local remedies.2. “Local remedies” means legal remedies which are open to the injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury.

Articles on Diplomatic Protection, art 15

Local remedies do not need to be exhausted where:

a) There are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress

b) There is undue delay in the remedial process which is attributable to the State alleged to be responsible;

c) There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury;

d) The injured person is manifestly precluded from pursuing local remedies; or

e) The State alleged to be responsible has waived the requirement that local remedies be exhausted.

Local Remedies Rule• So diplomatic protection will be available where the injured party

has exhausted options for obtaining a remedy under local laws• Exceptions to this requirement exist where no remedy is available,

or where it would be unfair to expect the injured party to pursue these remedies, or where the accused State waives the requirement to pursue local remedies

Consular Assistance• The Vienna Convention on Consular Relations grants States the right to access

and provide consular assistance to their nationals within the territory of another State.

• This can apply where there has been no internationally wrongful act, but where the national requires assistance of some form

◦ Eg immigration issues while travelling overseas◦ involvement with domestic criminal laws.

• A State is not obliged to provide consular assistance to its nationals but may do so where it chooses

• The receiving state may not prevent the provision of consular assistance provided consular relations are established.

Consular Assistance cont/…• VCCR: consular relations between States can be established by mutual consent

(art 2) in the form of establishing consular posts (art 4).

• Consular posts can carry out consular functions, which include (art 5):

(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;

(i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State…