This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. It is an exhaustive article dealing with the issue of State responsibility in international law.
Table of Contents
State responsibility is incurred when one State commits an internationally wrongful act against another. For instance, Article 2(4) of the UN Charter prohibits dictatorial non-intervention by stating that every State is under a legal obligation not to use or threaten to use force against others. However, non-intervention is not merely limited to the prohibition of the usage of force. Any form of coercive interference in the internal affairs of a State would invite State responsibility. As Oppenheim’s international law puts it, “the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the State intervened against of control over the matter in question. Interference pure and simple is not intervention”.
Nicaragua v. United States
A landmark case in this regard is Nicaragua v. United States; the case concerning military and paramilitary activities in and around Nicaragua. It involved the United States supporting rebellion groups against the Nicaraguan government. The Court found in its verdict that the United States was “in breach of its obligations under customary international law not to use force against another State” and “not to intervene in its affairs”.
United Kingdom v. Albania (The Corfu Channel Case)
On October 22, 1946, a few British warships, while passing through the North Corfu strait within the territorial waters of Albania, were severely damaged due to mine explosions. Most of the crew members were either killed or gravely injured. The Albanian waters had previously been swept clean of mines. The United Kingdom, through an application filed on 22 May 1947 accused Albania of having laid or allowed a third State to lay the mines after mine-clearing operations had been carried out by the Allied naval authorities.
The Court found that Albania was responsible under international law for the explosions that had taken place in Albanian waters and for the damage and loss of life which had ensued. Although it did not accept the view that Albania had itself laid the mines or granted permission to another entity, it held that the mines could not have been laid without the knowledge of the Albanian Government. Therefore, it was concluded that the Albanian government had authorized the laying of mines, and therefore was ordered to make reparation to the United Kingdom.
Basis and nature of State responsibility
There are three factors employed to determine the liability of a State. Firstly, the State must be under a legal duty not to commit the act. Secondly, the State must commit the act. And finally, the act must cause injury (loss or damage) to another entity. If these factors are satisfied, the State is bound to make reparation to the injured parties.
However, a State is considered responsible only for the wrongful acts which constitute international delicts. State responsibility for international crimes is not clear. In its 1996 draft on State responsibility, the International Law Commission (ILC) distinguished between international delicts and international crimes. The question of State responsibility in cases of international crimes has been highly controversial. While some state that criminal liability of States holds no legal value, others are of the view that there has been a whirlwind change in the attitude of States against international crimes since 1945, and that States could be held responsible for such acts. Examples of international crimes include apartheid, genocide, slavery, colonial domination, aggression, and massive pollution of the atmosphere.
The government, which includes the executive, the legislature, judiciary, and the central authorities and local authorities, is what represents the State. Therefore, in the event of any of these organs committing a breach of international law, the State shall be held directly liable. For instance, by the representative theory, diplomatic ambassadors are considered to be representatives of the head of the sending State. Therefore if they commit a wrongful act in the capacity of their diplomatic status, the sending State shall be held liable. Similarly, a State is held liable for the wrongful acts of its armed forces, if it had authorised the armed forces to carry out those acts.
A State could also be held responsible for the acts committed by other parties if those acts were authorized by it. This rule depends on the link that exists between the State and the person or persons committing the wrongful act or omission. Indirect responsibility/ vicarious responsibility is a condition when an entity is made liable to make reparation, for the acts of another entity. This occurs when the latter has been authorized by the former to commit the act. Therefore, in such cases, the authorizing State is held indirectly liable for the acts of the authorised State. Even if the authorized entities exceed or disobey their instructions, the State shall be held liable, if they are acting under ‘apparent authority’.
United States v. Iran (1980)
On November 4, 1979, a group of Iranian rebels invaded the US embassy in Tehran. They damaged the embassy and destroyed embassy documents. The invasion lasted for hours, but despite repeated requests, Iranian military forces did not arrive until later. More than sixty American diplomats and citizens were held hostage until January 20, 1981. Some of the hostages were released earlier, but 52 hostages were held hostage until the end. Once on scene, the Iranian military did not attempt to free the hostages. On November 29, 1979, the U.S. filed a claim against Iran in the International Court of Justice (ICJ). The ICJ found the rebels to be ‘agents’ of the Iranian Government, because the latter had approved and perpetuated their actions, translating occupation of the embassy and detention of the hostages into official acts of the State, of which the perpetrators, while initially acting in private capacities, were rendered agents of the Iranian State.
The question of ‘Fault’
There are two theories attributed to State responsibility. The ‘risk’ theory says that a State is strictly liable if a State official or organ commits a wrongful act. Whereas the ‘fault’ theory takes the element of ‘intention’ into account and says that a State shall be responsible only if the act is committed intentionally or negligently.
There have been a number of debates regarding the applicability of each theory in international law. Most jurists have inclined themselves towards the ‘risk theory’ of State responsibility.
Legal consequences of State responsibility
Where there is a right, there is a remedy. When a State commits a breach of international law, it becomes liable to make good the losses faced by the injured parties. The first consequence is the cessation of the wrongful act, and the second is reparation.
Cessation of the wrongful act
International law requires the accused State to cease committing the wrongful act and to offer appropriate assurances and guarantees on non- repetition.
The accused party shall be responsible to make reparation to the injured parties for its wrongful acts. The accused party is liable to make restitution, i.e., materially revert the original party back to the same status before the wrongful act. If restitution is not possible, the accused party shall be liable to make compensation. Compensation involves the making of monetary reparation, with an aim of reverting the injured party to its State prior to the occurring of the act.
Another form of reparation is satisfaction. Satisfaction is considered a more appropriate remedy than compensation, in cases of moral damage. It may include any reasonable act demanded by the injured State, such as the acknowledgement of the wrongful character of the act, the punishment of guilty officials, nominal damage, an official apology, etc.
Diplomatic protection and nationality of claims
Although International Law is now tending to grant certain rights to individuals, the basic rule remains that in a State-oriented world, it is only through the State the individual could seek a remedy. If a national of State A has been injured by an agent of State B, the injured national cannot by himself sue State B under international law. In order to do so, State A would have to adopt the claim of its injured national, and thereby treat it as its own.
While a State is under a duty to protect its nationals, it is not under a duty to provide them with diplomatic protection However, if a State provides diplomatic immunity to its nationals, a wrongful act against them would directly mean a wrongful act against the State. By virtue of the representative theory, a diplomatic agent is considered to be the representative of the head of the sending State. Therefore, an act of aggression against them would be an act of aggression against the sending State. Diplomatic protection is the result of the historical reluctance to permit individuals the right in International Law to bring claims against foreign States.
The exhaustion of local remedies
International law requires that before State responsibility could be invoked, all local remedies in the defendant State must be exhausted. For instance, if a national working under State A commits a wrongful act against State B, the remedies in the national courts of State A must first be exhausted. This rule is reaffirmed in the ILC Articles which provides that before holding a State responsible, all of the effective remedies in the defendant State must be exhausted. However, in certain circumstances, State responsibility could directly be invoked. For instance, when there is a direct breach of international law by one State that causes injury to another, or when the defendant State does not possess effective remedies.
Unreasonable delay and improper activities of the injured national
There are certain circumstances when State liability is impermissible. If there is an unreasonable delay in filing a suit for State responsibility, the accused State shall not be held responsible. Similarly, if a State has incurred injuries as a result of its own improper acts, State responsibility shall be excused. However, in the latter case, the proportionality of the injury with the improper act shall be assessed.
International law does not hold the usage of force unlawful at all times. Since there is no concept of a ‘higher sovereign body’ in international law, States may sometimes not abide by their legal obligations. For instance, if a State, in spite of being ordered to cease the wrongful act, continues it, the injured State may lawfully use force against it. Such acts have been termed as ‘reprisals’. Reprisals refer to acts that are illegal if taken alone but become legal when adopted by one State in retaliation for the commission of an earlier illegal act by another State. They are a type of ‘self-help’ employed by the injured State to induce the wrongdoing State to discontinue the wrongful acts, or make reparation.
However, countermeasures are subject to legal restrictions. Article 2(4) of the UN Charter prohibits the use of force. The countermeasures must strictly be proportionate to the wrongful act.
The Corfu Channel case
A few weeks before the explosions on October 22, 1946, the north Corfu strait had been swept clear of mines. Shortly after the explosions, the United Kingdom government sent a note to the Albanian government declaring its intention to organize a sweeping operation of the mines. The Albanian government sent its reply to the United Kingdom government stating that unless the operation in question took place outside Albanian territorial waters, it would not consent to this operation. However, the United Kingdom government went forward with the operation, and a sweep of the mines was made on November 13.
While the Albanian government accused the United Kingdom government of violating its sovereignty, the United Kingdom government justified the operation as a means of self-protection or self-help. The Court was of the view that the operation was a manifestation of a policy of force that cannot find a place in international law. It declared that “respect for territorial sovereignty is an essential foundation of international relations”, and thereby held the United Kingdom government liable to make reparation.
If a State breaches a treaty, and the breach causes injury to the other parties, it shall be bound to make good the losses. Reparation is the indispensable complement of a failure of a State to apply any of its obligations. If restitutio ad integrum is not possible, the accused party shall be liable to make compensation.
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