This article has been written by Sakshi Powar pursuing a Diploma in Advanced Contract Drafting and Negotiation from LawSikho.
This article has been edited and published by Shashwat Kaushik.
Table of Contents
Introduction
We are all well versed in the concepts of rights and duties. Rights and duties are in correlation with each other, which means that where there is a right with an individual, the other will simultaneously have a duty upon him, which he should be obliged to. We can understand this with an example: suppose A has land. Now A has the right over that land to use it for commercial purposes, agriculture, etc. Now, B here will now have a duty to respect the rights of A by not interfering in A’s land. B is bound to follow the duties incurred upon him. If B breaches his duty or infringes on the rights of A, B will be liable for his acts and will also be liable for punishment.
Where there is a violation of duty, a wrongful act is said to have been committed by the individual, and because of such acts, the wrongdoer will be held responsible.
What if we apply this same concept to the States? Under international law, every state has certain rights and duties incurred upon them that they are bound or obliged to follow. If any state infringes on the rights of another state or does not fulfil its duties towards the other state, the state will be held liable and shall be responsible for its acts. This concept, where not the individuals but the states are involved, is known as “state responsibility.”
Meaning
State responsibility is one of the important concepts under international law.
State responsibility, in simple terms, means the responsibility or accountability that arises for the state after committing wrongful acts against other states. Where a state infringes on the rights of another state or fails to perform its duties towards the other state. Under these circumstances, the state shall be held liable or responsible for its act.
This responsibility is rooted in the legal maxim coined by Hugo Grotius:Every fault creates the obligation to make up for the losses.
The primary point of reference in relation to the law of state responsibility is the Articles on the Responsibility of States for Internationally Wrongful Acts (the ILC Articles), adopted by the International Law Commission (ILC) in 2001, which constitute the fruit of the ILC’s attempt to codify and progressively develop the law in this area. Also, 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.
Trail smelter arbitration
Trail Smelter Arbitration took place between the USA and Canada, under which the Canadian company began smelting lead and zinc located in Trail, on the banks of the Colombian River, which is about 10 miles from the border of the two countries.
The USA claimed that the fumes from the plant were carried down by the Colombian river valley, which caused significant damage to crops, forests, and properties in the State of Washington.
In 1938, both countries decided to resolve the dispute through arbitration. The panel of the arbitration tribunal consisted of three arbitrators, where each country appointed its own arbitrator and a neutral arbitrator who heard the case.
In 1941, the tribunal issued its award, which is called the Trail Smelter Arbitration Award, under which Canada was held responsible for the pollution caused by the Trail Smelter and that it had violated its duty to prevent emissions that would cause harm and damage to the property and interests of other countries. Canada was ordered to pay compensation amounting to $78,000 for the damage caused.
Types of state responsibility
State responsibility can be categorised primarily into two types, which are discussed below:
Direct responsibility
In international law, state responsibility refers to the legal consequences arising from a state’s wrongful acts or omissions that violate international obligations. It encompasses a range of legal principles and mechanisms that govern the responsibility of states for their actions, both domestically and internationally.
- Breach of international obligation:
- It occurs when a state does not fulfil an obligation enshrined in international treaties, conventions, or customary international law.
- Examples include failure to protect diplomatic personnel or engaging in armed aggression against another state.
- Denial of justice:
- Refers to the failure of a state to provide fair and impartial judicial proceedings to individuals or entities within its jurisdiction.
- Examples include arbitrary detention, lack of due process, or denial of access to courts.
- Abuse of rights:
- It arises when a state exercises its sovereign rights in a manner that infringes upon the rights of other states or individuals.
- Examples include excessive use of force, pollution of the environment, or illegal exploitation of natural resources.
- Failure to prevent:
- It occurs when a state fails to take the necessary measures to prevent harm caused by activities within its territory or jurisdiction.
- Examples include failure to prevent cross-border pollution or transnational crimes.
- Complicity in wrongful acts:
- It involves aiding or assisting another state in committing a wrongful act, even if the complicit state does not directly participate.
- Examples include providing military support or financial assistance to a state engaged in aggression.
Consequences and enforcement of state responsibility:
- Reparations:
- Aim to restore the situation to the state that would have existed had the wrongful act not occurred.
- Common forms include restitution, compensation, or satisfaction.
- Non-material remedies:
- Involve measures such as apologies, expressions of regret, or symbolic acts aimed at acknowledging and addressing the harm caused.
- International dispute settlement:
- States can seek resolution of disputes related to state responsibility through diplomatic negotiations, mediation, arbitration, or adjudication before international tribunals.
- Countermeasures:
- Legitimate measures taken by an injured state in response to a wrongful act committed by another state.
- Must be proportionate and aimed at inducing compliance with international law.
- Collective security measures:
- In cases of serious violations, the United Nations or regional may take collective measures, such as sanctions or peacekeeping operations, to address state responsibility.
Understanding the principles and mechanisms of state responsibility is crucial to maintaining international order, promoting respect for international law, and ensuring accountability for wrongful acts committed by states. It also contributes to the peaceful resolution of disputes and the protection of the rights of individuals and entities in the international arena.
The Executive, Legislature, Judiciary, local authorities, central authorities, etc. represent the state, and hence any acts that cause violations of international obligations by these organs shall be regarded as acts of that specific state.
Following are the acts that make the state directly responsible
Executive acts
The executive branch manages the state’s day-to-day operations. Thus, when an act is committed by the Head of Government or any official or any individual authorised or commanded by the Head of State, the State shall be directly responsible for the injury to the aggrieved party.
Acts of judiciary
The main function of the judiciary is adjudication. But when the court of a state passes any order, decree, or judgement that violates any convention, treaty, or international obligation, the state’s responsibility will be involved. It will be directly responsible.
Acts of armed forces
A state shall be held directly responsible for injurious acts committed by its armed forces under the authority or command of the state. If such acts are committed without the authorization or command of the state, the state will not be held responsible. But if the soldiers commit any acts mistakenly, show recklessness in their conduct, or act under negligence, the state will be held responsible for such acts. The best example of responsibility arising from mistaken but culpable action is the shooting down of a Korean commercial aircraft in 1983.
Indirect responsibility
When an act is committed by an individual or by a group of individuals that infringes on the rights of another state or is a breach of any international obligation, the state to which they belong will be held responsible.
Article 5 of the Draft Articles prepared by the International Law Commission states that if any person or entity empowered by the law of that state commits any act that causes damage to the other state or violates the international obligation, such acts shall be regarded as acts of that state.
It is the indirect responsibility of the state only when there are any omissions or lack of due diligence by its organs to prevent such acts. Oppenheim has rightly stated that if the state has not exercised reasonable care to prevent such injurious acts, it can be made responsible and held liable to pay damages. This implies that the state will be held responsible only when the organs of the state have not exercised sufficient care in preventing the offences.
The wrongful acts of individuals that may give rise to state responsibility are as follows:
- Mob violence:- When damages are caused because of the mob violence and the state fails to prevent the violence by not exercising due diligence or by omissions of it’s duty to prevent such acts, the state will be made indirectly responsible for the damages that occurred.
- Violence in insurrections and civil wars: injury caused to an alien in the state as a consequence of civil strife makes the state indirectly responsible because it’s its duty to prevent violent acts of revolution on its own territory.
United States of America vs. Iran (1980)
On November 4, 1979, the US Embassy situated in Teheran, Iran, was seized by Iranian militants. They damaged the embassy as well as the documents. Also, 52 American diplomats and citizens were held hostage for 444 days. The US was angry that, despite repeatedly requesting it, the Iranian military force did not arrive on time at the location and failed to prevent the violence by not exercising the necessary preventive steps. It was also alleged that Iran violated international law, specifically the Vienna Convention on Diplomatic Relations. It was Iran’s duty to protect the US Embassy in its territory.
The International Court of Justice held Iran responsible for its acts, stating that Iran has breached its obligations under international law.
Conclusion
In a nutshell, state responsibility refers to a state’s legal obligations and accountability under international law. State responsibility is nothing but holding the state responsible for its actions or omissions that cause damage to other states and ensuring compliance with international law on a global stage. It is like a limitation on the actions of states, where if they violate any international obligation, they will be made accountable and will be liable to pay damages to the aggrieved party.
References
- https://www.un.org/en/about-us/un-charter
- https://lawbhoomi.com/state-responsibility-under-international-law/
- https://www.icj-cij.org/case/64/summaries
- https://blog.ipleaders.in/need-know-state-responsibility-international-law/
- https://lawcorner.in/the-responsibility-of-state-under-international-law/
- https://www.oxfordbibliographies.com/display/document/obo-9780199796953/obo-9780199796953-0031.xml
- Book:- International Law and Human Rights, 23rd edition by Dr. H. O. Agarwal
