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Week 9 - State Responsibility

Arises when one state commits internationally unlawful act against another
• breach of international obligation give rise to requirement for reparation
• includes e.g. breach of treaty; violation of territory; damage to other state's property
ILC working extensively on issue of state responsibility
Draft articles divided in three parts
1. origins of international responsibility (IR)
2. content, forms and degrees of IR
3. settlement of disputes and implementation of IR

Nature of State Responsibility
hinges on:
• existence of international legal obligation between two states
• occurrence of act or omission which violates that obligation & is imputable to state responsible
• loss or damage has resulted from unlawful act or omission

IL determines what constitutes internationally unlawful act irrespective of municipal law
• any violation by a state of any obligation gives rise to SR, therefore duty for reparation
Must distinguish between international crimes and international delicts
• all breaches of international obligation internationally wrongful acts
• Article 19 says any internationally wrongful acts breaching international obligations essential for protection of fundamental interests of international community is recognized as international crime
• e.g. aggression; colonial domination; slavery; genocide; apartheid; massive pollution of atmosphere or seas
While concept of state criminality controversial, changes since 1945 indicate moves in this direction:
• development of jus cogens
• rise of individual criminal responsibility under IL
• UN Charter and provision for enforcement action

Question of Fault
Is liability strict or dependent on fault or intention? Two theories:
'Risk'/objective theory: state liability strict
'Fault'/subjective theory: must be element of intentionality or negligence
Doctrine and practice support primacy of objective theory

Imputability
Legal fiction, assimilates actions or omissions of officials to state itself
• renders state liable for damage to property or person of alien
Threat of absolute liability encourages states to exercise greater control over organs and representatives
Also promotes compliance with objective standards of conduct in IR
State may incur responsibility for activity of officials in injuring national of another state – activity needn't be authorized by the authorities of the state
This doctrine depends on link between state and person(s) committing unlawful act or omission
But states not responsible under IL for acts performed by its nationals provided due diligence
Ultra vires acts:
• unlawful acts may be imputed to state even if beyond legal capacity of official involved if officials appear to have acted as competent officials or have used powers or methods appropriate to their capacity
• Article 10 – any organ with governmental authority and acting thus is considered an active state even if exceeded its competence or contravened instructions -- seems to introduce absolute rule of liability
• Although private individuals not regarded as state officials, state maybe responsible for failing to exercise control necessary to prevent such acts
Individuals:
• conduct of person or group considered act of state if:
1. Person or group was acting on behalf of state;
2. Was exercising elements of governmental authority in the absence of official authorities in circumstances justifying exercise of such authority
• Iran case: ICJ said initial attack not imputable to Iran, but subsequent approval translated attack into state act – militants became agents of Iranian state & state bore responsibility

Mob violence, insurrections and civil wars:
• if government acted in good faith and without negligence general principle is nonliability for acts of rioters or rebels
• state under duty to show due diligence
• if insurrectionist movement successful, will be held responsible for activities prior to assumption of authority
• acts of supporters cannot be attributed to government following successful insurrection
Injured state
• only injured state may invoke responsibility of 'author' state and obtain compensation
• Article 5(2): with in some circumstances of multilateral treaties all parties to relevant rule may be regarded as injured enabling them to claim compensation or to take countermeasures
• Article 5(3): if internationally wrongful act constitutes international crime then injured state means all other states – very controversial
Reparation
• must wipe out consequences of illegal act as though act had not been committed
1) restitution in kind – many cases now involve expropriation, therefore monetary restitution more common
2) punitive damages unusual (i.e. I'm Alone; Rainbow Warrior)
3) satisfaction: nonmonetary compensation, including official apologies, punishment of officials or formal acknowledgment of unlawful character of act
• countermeasures may not:
• include force
• extreme economic or political coercion designed to endanger territorial integrity or independence of state
• endanger inviolability of diplomatic agents etc.
• derogate from basic human rights
• contravene peremptory norms
• principle of proportionality paramount