CHAPTER 9 STATE RESPONSIBILITY

1. CHAPTER 9STATE RESPONSIBILITY PIL 111/GEN 111 FOR LL.M CAVENDISH UNIVERSITY UGANDA

2. 9.1 NATURE OF STATE RESPONSIBILILTY • State responsibility refers to ‘liability’ of a state under international law. • 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. • 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.

3. (1) Substantive rules of international law (Primary rules): customary or treaty rules laying down substantive obligations for States (2) The law of State responsibility (Secondary rules): rules relating to (a) whether there has been a breach of a primary rule; and (b) the legal consequences of such a breach.

4. 9.2 ELEMENTS OF STATE RESPONSIBILITY[pp. 253-54] Art. 1: “Every internationally 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 action or omission: (1)   Is attributable to the state under international law; and (2) Constitutes a breach of an international obligation of the state.

5. Conduct: actions or omissions • Conduct attributable to the State can consist of actions or omissions. • An example of an omission: • 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.

6. Actions or omissions [Cont.] • 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.

7. Article 2 specifies the two constituent elements of an internationally wrongful act: (1) attribution of conduct to the State; and (2) breach of an international obligation by the State. [See Tehran Hostage case] • In principle, the fulfilment of these elements is a sufficient. In some cases, however, the respondent State may claim that it is justified in its non-performance, by referring to a ‘defence’. • Three requirements: attribution; breach and absence of any defence.

8. 9.3 ATTRIBUTION OF CONDUCTTO THE STATE[The first element] • The State is an abstract entity. It cannot act of itself. • 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 organs or agents. • The question is which persons should be considered as acting on behalf of the State.

9. 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. • As a corollary, the conduct of private personsacting in their private capacity is not as such attributable to the State.

10. 9.3.1 Conduct of State organs[Art. 4] [Text Book p. 255] 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.

11. Executive organ • Massey claim: Failure of Mexican authorities to punish the killer of Massey, a US citizen. • Rainbow Warrior incident: Rainbow Warrior was blown up by French secret service agents.

12. Judicial organ • Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1999) ICJ Rep. 87 • [Dato’ Pram Cumarasuamy case] • “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.…”

13. Acting in an official capacity • 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.

14. Mallen case • a Mexican consul had been violently attacked and beaten twice by an American police officer. • As for the first attack, the evidence indicated a wanton act of a private individual who happened to be an official. • 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.

15. Conduct of persons or entities exercising elements of governmental authority (para-Statal entities) [Art. 5] 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.

16. 9.3.2 Liability for ultra vires act[Art. 7] 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.

17. Caire claim(1929) 5 RIAA 518 • 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. • 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.

18. Youmans claim(1926) 4 RIAA 110 • 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. • 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.

19. Southern Pacific Properties (Middle East) Ltd v Egypt(1993) 32 ILM 933, ICSID • 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. • 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.

20. 9.3.3 Conduct of persons directed or control by the State [Art. 8] • Article 8, “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 instruction of, or under the direction or control of, that State in carrying out the conduct.”

21. Nicaragua case [pp. 259-60] • The test of “effective control” • “It would in principle have to be proved that that State had effective control of the military and paramilitary operations in the course of which the alleged violations are committed. The Court …takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua.: [Must issue specific instructions concerning each of the unlawful action.]

22. Prosecutor v Tadi`c [p. 260] • The test for whether the conduct of group is attributable to the State is whether they are under the ‘overall control’ of a State, without necessarily this State issuing instructions concerning each specific action. • The ILC Article 8 adopts the somewhat stricter test of the Nicaragua case.

23. 9.3.4 Conduct of an Insurrectional or other Movement (1)Conduct of a successful insurrectional movement which becomes a new government [Art. 10] 1. The conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law.

24. Short v Iran (1987) 16 Iran-US CTR 76 • Short, an American citizen, was employed by an American co. in Iran. He alleged that he was forcefully expelled from Iran 3 days before the Revolutionary Govt. took office and claimed damages for his loss of employment benefits. • Held: (a) Where a revolution leads to the establishment of a new government the State is responsible for the acts of the overthrown government insofar as the latter maintained control of the situation.

25. Short v Iran [Cont.] (b)The successor government is also responsible for the acts imputable to the revolutionary movement even if those acts occurred prior to its establishment, as a consequence of the continuity existing between the new organization of the State and the revolutionary movement. (c) The claimant is unable to identify any agent of the revolutionary movement, the actions of which compelled him to leave Iran. The acts of supporters of a revolution [as opposed to its agents] cannot be attributed to the government. See judgment of the ICJ in Tehran Hostage case.

26. (2) Unsuccessful or on-goinginsurrectional or other movement - In fact the conduct of unsuccessful or on-going insurrectional movement can be assimilated to that of private individuals. - It can be placed on the same footing as that of persons or groups who participate in a riot or mass demonstration, and it is likewise not attributable to the State [unless the State itself is guilty of breach of good faith or negligent in suppressing insurgency, etc.].

27. Home Missionary Society Claim(1920) 6 RIAA 42 The natives of Sierra Leone revolted against the British because they did not want the collection of a new tax. During the rebellion, all the United States’ missions were attacked and destroyed, and some of the missionaries were murdered. Held: It is a well-established principle of international law that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing insurrection.

28. Sambaggio case (1903) 10 RIAA 499 An Italian national sought compensation for damage caused by unsuccessful revolutionaries in Venezuela. Held: The very existence of a revolution presupposes that a certain set of men have gone beyond the power of the authorities; and unless the government has failed to use promptly and with appropriate force its constituted authority, it cannot reasonably be said that it should be responsible for a condition of affairs created without its volition.

29. 9.3.5 Conduct acknowledged and adopted by a State as its own [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.

30. United States Diplomatic and Consular Staff in Tehran Case (1980) ICJ Rep. 3 • In 1979, several hundred student-demonstrators occupied the US Embassy in Tehran by force and held the embassy staff as hostages. • The Court divided the events into two phases. • 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.

31. 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) . • 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.

32. 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. • 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.

33. 9.3.6 Conduct of private persons – not attributable • In principle, a State is not responsible for the acts of private individuals, unless they were in fact acting on behalf of that State. • However, sometimes the acts of private individuals may be accompanied bysome act or omission on the part of the State, for which the State is liable. The following are examples of such act or omission:

34. State will be responsible for its own omission or inaction (1) Failure to take reasonable care (due diligence) to prevent private individuals from committing wrongful acts against foreign nationals; (2) Failure to punish responsible individuals or to provide the injured foreigner with the opportunity of obtain reparation from the wrongdoers in the local courts. [Denial of justice];

35. (a) Failure to exercise “due diligence” Asian Agricultural Products Ltd v Sri Lanka • A British company brought an action against Sri Lanka and claimed compensation for the destruction of its Sri Lankan farm. • The farm was in an area that was largely under the control of Tamil Tiger rebels. The farm management had offered to dismiss farm staff thought by the Government to be in league with them.

36. Neglecting this offer, the Government forces launched a vast counter-insurgency operation in that area. • Some company workers were killed and the • farm was destroyed. • The Tribunal held that Sri Lanka was responsible because it violated its due diligence obligation.

37. (b) Denial of justice • A State is responsible under international law if it fails to punish responsible individuals or to provide the injured foreign national with the opportunity of obtaining compensation from the wrongdoers in the local courts. • In Janes Claim, Janes, an American citizen, was murdered at a mine in Mexico. The person who killed Janes was well known in the community where the killing took place.

38. There is evidence that a Mexican magistrate was informed of the shooting within five minutes after it took place. However, even after eight years had elapsed, the murderer had not been apprehended and punished by the Mexican authorities. • The Commission found that Mexico was responsible for the denial of justice and awarded damages accordingly.

39. 9.4 BEACH OF AN INTERNATIONAL OBLIGATION[The Second Element] [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.

40. Art. 12: Explanation • The phrase “regardless of its origin” refers to all possible sources of international obligations. • 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.

41. Art. 12: Explanation • 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. • In international law, there is no distinction between “contractual” and “tortious” responsibility nor between “civil” and “criminal” responsibility.

42. 9.5 DEFENCES [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) distress; and (6) necessity.

43. Force majeure • It is defined in Article 23 (1) as “the occurrence of an irresistible force or of an unforeseeable event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.” • Rainbow Warrior Arbitration: France argued that urgency of medical treatment amounted to force majeure. • Held: “the test for force majeure was one of ‘absolute and material impossibility’. It does not cover a circumstance rendering performance of the obligation more difficult or burdensome.”

44. Distress • Distress is defined in Article 24 (1) as a situation where “the author of the [otherwise wrongful] act…has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”.

45. Necessity • Article 25 (1): An act which (a) is the only means for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. The ILC, in its commentary affirms the exceptional nature of the plea of necessity.

46. 9.6 LEGAL OCNSEQUENCES OF AN INTERNATIONAL WRONGFUL ACT • The following are the legal consequences of an internationally wrongful act: (1) Continued duty of performance; (2) cessation and non-repetition; (3) Reparation; (4) Countermeasures.

47. (1) Reparation for injury A important legal consequence of an internationally wrongful act is that the injured State is entitled to obtain reparation from the wrongdoing State.

48. Chorzow Factory Case 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 ….

49. Forms of reparation [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.

50. Restitution [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.