State Responsibility

State Responsibility
Dr. Raju KD
Assistant Professor of Law
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL-2009 1
State responsibility
The law of responsibility is concerned with the
incidence and consequences of illegal acts, and
particularly the payment of compensation for loss
caused Ian Brownlie
Responsibility may arise in the context of resolutions
of the SC or the General Assembly of the United
Nations.
Reparation and restitution
International responsibility relates both to breaches of
treaty and to other breaches of a legal duty.
International tort (international responsibility) in
breach of duty.
Spanish Zone of Morocco claims, 1923
J. Huber:
Responsibility is the necessary corollary of a right. All
rights of an international character involve
international responsibility. Responsibility results in
the duty to make reparation if the obligation in
question is not met.
Chorzow Factory, PCIJ, 1927
it is a principle of international law that the breach of
an engagement involves an obligation to make
reparation in an adequate form. 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.
Chorzow Factory, 1928
It is a principle of international law, and even a general
conception of law, that any breach of an engagement
involves an obligation to make reparation.
Corfu channel case, ICJ 1949
Albania was liable for the consequences of a mine
laying in her territorial waters and the absence of a
warning of the danger.
Nicaragua case ICJ found that US was responsible for
laying of mines in Nicaraguan internal or territorial
waters and certain attacks on Nicaraguan prots, oil
installations and a naval base by its agents.
State responsibility for internationally wrongful acts.
State acts in breach of international law.
State cannot evade international obligation under
municipal law.
International criminal responsibility.
Crime of apartheid
Racial discrimination
State responsibility in nuclear experiments
Gabcikovo-Nagymaros project case
ICJ, 1997 it was held that a determination of whether
a convention is or is not in force, and whether it has or
has not been properly suspended or denounced, is to
be made pursuant to the law of treaties.
On the other hand, an evaluation of the extent to
which the suspension or denunciation of a convention,
seen as incompatible with the law of treaties, involves
the responsibility of the state which proceeded to it, is
to be made under the law of state responsibility.
Component state
Responsibility of component state is imputed or
attributed to the federal state, in the same way as the
conduct of its federal organs,
Federal state is vicariously liable for the conduct of a
component state.
Individuals
State is not responsible under international law for all
acts performed by its nationals.
State is responsible only for acts of its servants that are
imputable or attributable to it.
General overall control is insufficient to ground
responsibility. Nicaragua case. ICJ 1986.
Individual criminal responsibility
Physical control of a territory and not sovereignty or
legitimacy of title is the basis of the state
responsibility. Namibia case ICJ 1971
1974 ILC Report
Art.1 every internationally wrongful act of a state
entails responsibility.
The principle that the state is responsible for acts and
omissions of organs of territorial governmental
entities, such as municipalities, provinces and regions,
has long been unequivocally recognised in
international judicial decisions and the practice of
States.
Wrongful act
International wrongful act or omission is attributable
to the state under international law and constitutes a
breach of an international obligation of the state.
Chorzow Factory case
Defense to state responsibility
Coercion by another state to commit a wrongful act.
Consent by the affected state.
Countermeasures recognised by international law.
Force majeure contributing to the unlawful act.
Rainbow warrior-France-New Zealand
Defence of state necessity?
Breach of treaty
If any treaty provision is broken responsibility follows.
PCIJ in Chorzow Factory (Indemnity), (1928) PCIJ Ser
A, No.17, p.29.
any breach of an engagement involves an obligation to
make reparation.
The compensation or punishment may be in
accordance with the illegality and seriousness of the
act committed.
Rainbow Warrior case -
Rainbow Warrior
On 10 July 1985 an undercover operation conducted by
the French military security service (DGSE) sank the
British-registered Greenpeace ship Rainbow
Warrior berthed in Auckland Harbour.
The Greenpeace ship was planning to disrupt French
Nuclear tests on the islands of French Polynesia.
New Zealand subsequently caught and convicted
several members of the French secret forces.
Rainbow warrior
France initially offered an official apology and
acknowledgement of breach of international law.
Additionally, the UN secretary-general awarded New
Zealand 7 million USD. This is in addition to
compensation which France paid to the family of the
only victim of the mission and to Greenpeace (settled
privately).
Contracts
Excluded from international law purview
Specifically provides international law as the
governing law?
Liability for expropriations
Concessions regarding mining, manufacturing,
transportation, utilities and communications.
Anglo Iranian Oil Co Case ICJ 1952. (UKThe Anglo
Iranian Oil company case v. Iran)
The UN Resolution on Permanent Sovereignty over
Natural Resources, 1962.
General Assembly resolution 1803 (XVII) of 14 December 1962,
"Permanent sovereignty over natural resources"
Nationalization, expropriation or requisitioning shall be based on
grounds or reasons of public utility, security or the national interest
which are recognized as overriding purely individual or private
interests, both domestic and foreign.
In such cases, the owner shall be paid appropriate compensation in
accordance with the rules in force in the State taking such measures in
the exercise of its sovereignty and in accordance with international law.
In any case where the question of compensation gives rise to a
controversy, the national jurisdiction of the State taking such measures
shall be exhausted.
However, upon agreement by sovereign States and other parties
concerned, settlement of the dispute should be made through
arbitration or international adjudication.
Expropriation of foreign private property
1. be for a public purpose in accordance with a declared
national policy.
2. Not discriminate between aliens and citizens, or
between different foreign nationalities.
3. Not involve the commission of an unjustified
irregularity.
4. Be accompanied by the payment of appropriate
compensation.
Calvo clause
Argentinian jurist Carlos Calvo
Legal disputes arising out of the contract shall be
referred to the municipal courts of the state granting
the concession or grants.
Oust the jurisdiction of the international arbitral
tribunals.
National treatment
North American Dredging Co Case
Hull Formula
A number of developed countries endorsed the Hull formula, first
articulated by the United States Secretary of State Cordell Hull in
response to Mexicos nationalisation of American petroleum companies
in 1936.
Hull claimed that international law requires prompt, adequate
and effective compensation for the expropriation of foreign
investments. Developing countries supported the Calvo
doctrine during the 1960s and 1970s as reflected in major United
Nations General Assembly resolutions. In 1962, the General Assembly
adopted its Resolution on Permanent Sovereignty over Natural
resources which affirmed the right to nationalise foreign owned
property and required only appropriate compensation.
Hull formula
The European Charter Treaty, 1994 approves the Hull
formula.
AMCO v. Indonesia, 1985 the full compensation of
prejudice, by awarding to the injured party, the
damnum emergens (loss sufered) and the lucrum
cessans (expected profits) is a principle common to the
main system of municipal law, and therefore, a general
principle of law which may be considered as a source
international law.
Standard of reparation
Restitutio in integrum monetary equivalent.
Damnum emergens market value of assets
The market value depends on the type of property lost.
Lucrum cessans loss of expected profits
Appropriate compensation approved in Texaco case
CIJ 1928 and Aminoil case 1982.
Debts
Lord Palmerstons theory 1848 intervene
diplomatically and even resort to military intervention
against defaulting debtor state.
The Drago doctrine Argentinian Minister 1902
non use of military force
Included in the Hague Convention of 1907
Employment of Force for the Recovery of Contract
Debts non use of force.
Person or property
Immutability
1. conduct of the state organ or official in breach of an
obligation defined in a rule of international law.
2. That breach would be attributed to the state.
Conditions for state responsibility
1. state organ or official is guilty of the relevant act with
state authority.
2. state responsible at international law if the person
exceeds authority impute liability on the state.
Youmans case Mexican troops exceeded orders and
killed Americans.
3. Under municipal law there is no authority
imputation will fail.
Protection of citizens abroad
Denial of justice
Chattin Claim (1927) US-Mexico
Exhaustion of local remedies is a condition precedent.
Risk theory
Principle of objective responsibility maintains that the
liability of the state is strict.
Once the unlawful act has been committed by an agent
of the state, the state is responsible in international
law to the state suffering the damage irrespective of
good or bad faith.
Neer claim, 1926 American superintendent of a
Mexican mine shot dead.
American claim on behalf of the wife was disallowed.
Fault theory
One state is not responsible to another state for
unlawful acts committed by its agents unless such acts
are committed willfully and maliciously or with
culpable negligence.
Jessie British American Claims Arbitral Tribunal in
1921.
any government is responsible to other governments
for errors in judgment of its officials purporting to act
within the scope of their duties and vested with power
to enforce their demands.
Claims
Presence of malice or culpable negligence is not a
condition precedent of state responsibility.
A state can bring claims if one of its subjects has
sustained unlawful injury for which another state is
responsible.
Mavrommatis Palestine Concessions Case, 1924, PCIJ
once a State has taken up a case on behalf of one of its
subjects before an international tribunal, in the eyes of
the latter the State is the sole claimant.
Corporations
Nationality of claims canon nationality of the
company.
Barcelona Traction (Belgium v. Spain)
Only the national of the company (Canada) can
initiate any claim.
Belgium claim on behalf of its citizens fail.
Real and effective nationality is the criteria Cf
Florence Strunsky Merge Case (1955).
Artificial personality in corporations - only nationality
is criteria.
Claims
In the case of ships only the flag state can sue The
International Tribunal for the Law of the Sea in M/V
Saiga (No.2).
Im Alone, 1929 Canadian flag-de facto owners were
in US irrelevant.
Damages
Material damage or pecuniary loss.
Nicaragua Case
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State Responsibility

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