State Responsibility
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The laws of state responsibility are the principles governing when and how a
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
is held responsible for a breach of an international
obligation An obligation is a course of action which someone is required to take, be it a legal obligation or a moral obligation. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. ...
. Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences of that violation. In this way they are "secondary" rules that address basic issues of responsibility and remedies available for breach of "primary" or
substantive In grammar, a noun is a word that represents a concrete or abstract thing, like living creatures, places, actions, qualities, states of existence, and ideas. A noun may serve as an object or subject within a phrase, clause, or sentence.Example ...
rules of
international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
, such as with respect to the use of armed force. Because of this generality, the rules can be studied independently of the primary rules of obligation. They establish (1) the conditions of actions to qualify as internationally wrongful, (2) the circumstances under which actions of
official An official is someone who holds an office (function or Mandate (politics), mandate, regardless of whether it carries an actual Office, working space with it) in an organization or government and participates in the exercise of authority (eithe ...
s, private
individual An individual is one that exists as a distinct entity. Individuality (or self-hood) is the state or quality of living as an individual; particularly (in the case of humans) as a person unique from other people and possessing one's own needs or g ...
s and other entities may be attributed to the state, (3) general defences to liability and (4) the consequences of liability. Until recently, the theory of the law of state responsibility was not well developed. The position has now changed, with the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft Articles") by the
International Law Commission The International Law Commission (ILC) is a body of experts responsible for helping develop and codify international law. It is composed of 34 individuals recognized for their expertise and qualifications in international law, who are elected by t ...
(ILC) in August 2001. The Draft Articles are a combination of codification and progressive development. They have already been cited by the
International Court of Justice The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
and "are considered by courts and commentators to be in whole or in large part an accurate codification of the customary international law of state responsibility". Although the articles are general in coverage, they do not necessarily apply in all cases. Particular
treaty A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...
regimes, such as the
General Agreement on Tariffs and Trade The General Agreement on Tariffs and Trade (GATT) is a legal agreement between many countries, whose overall purpose was to promote international trade by reducing or eliminating trade barriers such as tariffs or quotas. According to its p ...
and the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
, have established their own special rules of responsibility.


History

Traditionally, the term "state responsibility" referred only to state responsibility for injuries to
aliens Alien primarily refers to: * Alien (law), a person in a country who is not a national of that country ** Enemy alien, the above in times of war * Extraterrestrial life, life which does not originate from Earth ** Specifically, a lifeform with ext ...
. It included not only "secondary" issues such as attribution and remedies, but also the primary rights and duties of states, for example the asserted international standard of treatment and the right of
diplomatic protection In international law, diplomatic protection (or diplomatic espousal) is a means for a state to take diplomatic and other action against another state on behalf of its national whose rights and interests have been injured by that state. Diplomati ...
. Early efforts by the
League of Nations The League of Nations (LN or LoN; , SdN) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference (1919–1920), Paris Peace ...
and private bodies to codify the rules of "state responsibility" reflected the traditional focus on responsibility for injuries to aliens. The League's 1930 Codification Conference in
The Hague The Hague ( ) is the capital city of the South Holland province of the Netherlands. With a population of over half a million, it is the third-largest city in the Netherlands. Situated on the west coast facing the North Sea, The Hague is the c ...
was able to reach an agreement only on "secondary" issues such as imputation, not on substantive rules regarding the treatment of aliens and their property. Attempts to codify and develop the rules of state responsibility have continued throughout the life of the
United Nations The United Nations (UN) is the Earth, global intergovernmental organization established by the signing of the Charter of the United Nations, UN Charter on 26 June 1945 with the stated purpose of maintaining international peace and internationa ...
. It took nearly 45 years, more than thirty reports, and extensive work by five Special Rapporteurs in order for the
International Law Commission The International Law Commission (ILC) is a body of experts responsible for helping develop and codify international law. It is composed of 34 individuals recognized for their expertise and qualifications in international law, who are elected by t ...
to reach agreement on the final text of the Draft Articles as a whole, with commentaries. At the same time, the
customary international law Customary international law consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or c ...
of state responsibility concerning matters such as detention and physical ill-treatment of aliens and their
right to a fair trial A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
has been rendered less important than formerly by the development of international
human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...
law, which applies to all individuals, whether aliens or nationals. The concept of a general regime of legal responsibility, which the rules of state responsibility have taken on, is an inception of the civil law system and is largely foreign to the
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
tradition.


Codification

The topic of state responsibility was one of the first 14 areas provisionally selected for the ILC's attention in 1949. When the ILC listed the topic for codification in 1953, "state responsibility" was distinguished from a separate topic on the "treatment of aliens", reflecting the growing view that state responsibility encompasses the breach of an international obligation. The ILC's first special rapporteur on state responsibility, F.V. García Amador of
Cuba Cuba, officially the Republic of Cuba, is an island country, comprising the island of Cuba (largest island), Isla de la Juventud, and List of islands of Cuba, 4,195 islands, islets and cays surrounding the main island. It is located where the ...
, appointed in 1955 noted, "It would be difficult to find a topic beset with greater confusion and uncertainty." García Amador attempted to return to the traditional focus on responsibility for injury to aliens but his work was essentially abandoned by the ILC when his membership ended in 1961. His successor,
Roberto Ago Roberto Ago (26 May 1907 – 24 February 1995) was an Italian jurist. He served as a judge on the International Court of Justice from 1979 until 1995. He was Professor of International Law at the Universities of Catania (1934–1935), Genoa (193 ...
of
Italy Italy, officially the Italian Republic, is a country in Southern Europe, Southern and Western Europe, Western Europe. It consists of Italian Peninsula, a peninsula that extends into the Mediterranean Sea, with the Alps on its northern land b ...
, reconceptualised the ILC's work in terms of the distinction between primary and secondary rules, and also established the basic organisational structure of what would become the ''Draft Articles''. By focusing on general rules, stated at a high level of abstraction, Ago created a politically safe space within which the ILC could work and largely avoid the contentious debates of the day. From 1969 until his election to the ICJ in 1980, Ago completed work on part 1 of the draft articles, addressing the origin of state responsibility. Most of the thirty-five articles adopted during his tenure are reflected in the final draft. Work on the remainder of the articles proceeded slowly throughout the 1980s and early 1990s.
Willem Riphagen Willem () is a Dutch and West FrisianRienk de Haan, ''Fryske Foarnammen'', Leeuwarden, 2002 (Friese Pers Boekerij), , p. 158. masculine given name. The name is Germanic, and can be seen as the Dutch equivalent of the name William in English, Gu ...
of the
Netherlands , Terminology of the Low Countries, informally Holland, is a country in Northwestern Europe, with Caribbean Netherlands, overseas territories in the Caribbean. It is the largest of the four constituent countries of the Kingdom of the Nether ...
, who served as special rapporteur to 1986, stressed that particular primary rules may specify the consequences of their breach - an idea conveyed by the articles through the recognition of ''
lex specialis The ''lex specialis'' doctrine, also referred to as ''generalia specialibus non derogant'' ("the general does not derogate from the specific"), states that if two laws govern the same factual situation, a law governing a specific subject matter (' ...
''.
Gaetano Arangio-Ruiz Gaetano (anglicized '' Cajetan'') is an Italian masculine given name. It is also used as a surname. It is derived from the Latin ''Caietanus'', meaning "from ''Caieta''" (the modern Gaeta). The given name has been in use in Italy since medieval pe ...
, special rapporteur from 1988, helped clarify the consequences of breaches of international obligations. Over the next eight years, the ILC completed its first reading of parts 2 and 3. In 1995, the
United Nations General Assembly The United Nations General Assembly (UNGA or GA; , AGNU or AG) is one of the six principal organs of the United Nations (UN), serving as its main deliberative, policymaking, and representative organ. Currently in its Seventy-ninth session of th ...
adopted a resolution in effect pressing the Commission to make progress on the state responsibility articles and other long-pending projects. James Crawford of
Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...
, appointed as special rapporteur in 1996, approached the task pragmatically. The ILC moved rapidly through a second reading of the draft articles, adopting what it could agree on and jettisoning the rest, most notable of which was Article 19 on
state crime State crimes are crimes committed on behalf of or with the connivance of governments. The investigation and prosecution of such crimes is made more difficult by a number of circumstances. Criminology In criminology, state crime is activity or f ...
s and the section on dispute settlement.


Draft Articles

The final text of the Draft Articles was adopted by the ILC in August 2001, bringing to completion one of the Commission's longest running and most controversial studies. On 12 December 2001, the
United Nations General Assembly The United Nations General Assembly (UNGA or GA; , AGNU or AG) is one of the six principal organs of the United Nations (UN), serving as its main deliberative, policymaking, and representative organ. Currently in its Seventy-ninth session of th ...
adopted resolution 56/83, which "commended he articlesto the attention of Governments without prejudice to the question of their future adoption or other appropriate action." Crawford notes that the rules are "rigorously general in character," encompassing all types of international obligations.


Internationally wrongful acts

According to the ''Draft Articles'', an internationally wrongful act must: *be attributable to the state under international law; and *constitute a breach of an international obligation of the state.


International crimes

Earlier drafts of the Articles on State Responsibility contained Article 19, which provided for "
state crime State crimes are crimes committed on behalf of or with the connivance of governments. The investigation and prosecution of such crimes is made more difficult by a number of circumstances. Criminology In criminology, state crime is activity or f ...
s". Article 19 included the following provisions: ''2. An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.'' ''3. Subject to Paragraph 2, and on the basis of the rules of international law in force, an international crime may result,'' inter alia, ''from:'' ''(a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression;'' ''(b) a serious breach of an international obligation of essential importance for safeguarding the right of
self-determination Self-determination refers to a people's right to form its own political entity, and internal self-determination is the right to representative government with full suffrage. Self-determination is a cardinal principle in modern international la ...
of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination;'' ''(c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;'' ''(d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.'' ''4. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.'' Article 19 was deleted from the final Draft Articles.


Attribution

Before a state can be held responsible for any action, it is necessary to prove a causal connection between the injury and an official act or omission attributable to the state alleged to be in breach of its obligations. This has become an increasingly significant contemporary issue, as non-state actors such as
Al Qaeda , image = Flag of Jihad.svg , caption = Jihadist flag, Flag used by various al-Qaeda factions , founder = Osama bin Laden{{Assassinated, Killing of Osama bin Laden , leaders = {{Plainlist, * Osama bin Lad ...
,
multinational corporation A multinational corporation (MNC; also called a multinational enterprise (MNE), transnational enterprise (TNE), transnational corporation (TNC), international corporation, or stateless corporation, is a corporate organization that owns and cont ...
s, and
non-governmental organisation A non-governmental organization (NGO) is an independent, typically nonprofit organization that operates outside government control, though it may get a significant percentage of its funding from government or corporate sources. NGOs often focus ...
s play greater international roles, and as governments
privatise Privatization (rendered privatisation in British English) can mean several different things, most commonly referring to moving something from the public sector into the private sector. It is also sometimes used as a synonym for deregulation wh ...
some traditional functions. The state is responsible for all actions of its officials and organs, even if the organ or official is formally independent and even if the organ or official is acting ''
ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
''. Persons or entities not classified as organs of the State may still be imputable, when they are otherwise empowered to exercise elements of governmental authority, and act in that capacity in the particular instance. Persons or entities not performing public functions may equally be imputable, if they in fact acted under the direction or control of the State. Where there is a breakdown of normal governmental authority and control, such as in so-called "
failed states A failed state is a state that has lost its ability to fulfill fundamental security and development functions, lacking effective control over its territory and borders. Common characteristics of a failed state include a government incapable of t ...
", the actions of those acting as the "government" in a de facto sense will be acts of the state. The acts of an "insurrectional or other movement that becomes the new government of an existing state or succeeds in establishing a new state" can also be attributed to the state. This is also the case where a state acknowledges and adopts the conduct of private persons as its own. Despite their apparent concreteness, the standards stated in some rules involve important ambiguities, and their application will often require significant fact-finding and judgment. Most rules state responsibility involving private acts already arise under primary rules. For example, environmental and human rights agreements require states to prevent abuses by private parties.


Defences

If the general elements to establish state responsibility are established, the question arises as to whether any defences may be available to the respondent state. These include ''force majeure'' (Article 23), distress (Article 24),
necessity Necessary or necessity may refer to: Concept of necessity * Need ** An action somebody may feel they must do ** An important task or essential thing to do at a particular time or by a particular moment * Necessary and sufficient condition, in l ...
(Article 25) and counter measures (Articles 49-52), self-defence (article 21) and consent (article 20).


Consequences of breach

The breach of an international obligation entails two types of legal consequences. Firstly, it creates new obligations for the breaching state, principally, duties of cessation and non-repetition (Article 30), and a duty to make full reparation (Article 31). Article 33(1) characterises these secondary obligations as being owed to other states or to the
international community The international community is a term used in geopolitics and international relations to refer to a broad group of people and governments of the world. Usage Aside from its use as a general descriptor, the term is typically used to imply the ...
as a whole. Articles indirectly acknowledges in a savings clause also that states may owe secondary obligations to non-state actors such as individuals or international organisations. Second, the articles create new rights for injured states, principally, the right to invoke responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles 49-53). These rights, however, are heavily state-centred and do not deal with how state responsibility is to be implemented if the holder of the right is an individual or an organisation. The principal element of progressive development in this area is Article 48, which provides that certain violations of international obligations can affect the international community as a whole such that state responsibility can be invoked by states on behalf of the larger community. This provision picks up on the ICJ's celebrated suggestion in '' Barcelona Traction'' that some obligations are owed ''
erga omnes In legal terminology, rights or obligations are owed toward all. is a Latin phrase which means "towards all" or "towards everyone". For instance, a property right is an entitlement and therefore enforceable against anybody infringing that right ...
'', toward the international community as a whole.


Reparation

If illegal actions are continuing, the state has a duty to cease. The state also has duties to make reparation, which could involve
restitution Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages (the law of compensation), restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability ...
,
compensation Compensation may refer to: *Financial compensation *Compensation (chess), various advantages a player has in exchange for a disadvantage *Compensation (essay), ''Compensation'' (essay), by Ralph Waldo Emerson *Compensation (film), ''Compensation'' ...
, or satisfaction. Remedies will be dependent on the particular forum, such as the
United Nations The United Nations (UN) is the Earth, global intergovernmental organization established by the signing of the Charter of the United Nations, UN Charter on 26 June 1945 with the stated purpose of maintaining international peace and internationa ...
,
International Court of Justice The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
,
World Trade Organization The World Trade Organization (WTO) is an intergovernmental organization headquartered in Geneva, Switzerland that regulates and facilitates international trade. Governments use the organization to establish, revise, and enforce the rules that g ...
,
International Tribunal for the Law of the Sea The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea. It was established by the United Nations Convention on the Law ...
,
International Criminal Court The International Criminal Court (ICC) is an intergovernmental organization and International court, international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute ...
, and on the purpose of reparation.Hardman Reis, T., ''Compensation for Environmental Damages under International Law'', Kluwer Law International, The Hague, 2011,


See also

* Nuremberg Principles *
Rule according to higher law The rule according to a higher law is a philosophical concept that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule accordin ...
*
Sovereign state A sovereign state is a State (polity), state that has the highest authority over a territory. It is commonly understood that Sovereignty#Sovereignty and independence, a sovereign state is independent. When referring to a specific polity, the ter ...
*
Collective responsibility Collective responsibility or collective guilt is the responsibility of organizations, groups and societies. Collective responsibility in the form of collective punishment is often used as a disciplinary measure in closed institutions, e.g., b ...


Notes


Further reading

*Harriet Moynihan
"Aiding and Assisting: Challenges in Armed Conflict and Counterterrorism"
(2016). *Helmut Philipp Aust, "Complicity and the Law of State Responsibility" (2011), *Daniel Bodansky and John R. Crook, "Symposium: The ILC's State Responsibility Articles" (2002) *James Crawford, "The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries" (2002), *96 ''American Journal of International Law'' 77

*The ILC's Draft Articles on State Responsibilit

*Draft Articles on Responsibility of States for Internationally Wrongful Act


External links



on the ''Articles on Responsibility of States for Internationally Wrongful Acts'' in th

* ttp://legal.un.org/avl/ls/Crawford_S.html Lectureby James Crawford entitled ''The International Law Commission's Articles on State Responsibility: Past and Future'' in th
Lecture Series of the United Nations Audiovisual Library of International Law


by Giorgio Gaja entitled ''The Impact of Security Council Resolutions on State Responsibility'' in th

* ttp://legal.un.org/avl/ls/Gowlland-Debbas_S.html Lectureby Vera Gowlland-Debbas entitled ''The Relationship between Collective Security and State Responsibility'' in th
Lecture Series of the United Nations Audiovisual Library of International Law


by
Kenneth Keith Sir Kenneth James Keith (born 19 November 1937) is a New Zealand judge. He was elected to the International Court of Justice in November 2005, serving a nine-year term during the years 2006 through 2015. Keith was educated at the Auckland G ...
entitled ''The Rainbow Warrior Case'' in th
Lecture Series of the United Nations Audiovisual Library of International Law


by
Alain Pellet Alain Pellet (born 2 January 1947) is a French lawyer who teaches international law and international economic law at the Université de Paris Ouest - Nanterre La Défense. He was director of the university's Centre de Droit International (CED ...
entitled ''Responsibility in International Law - An Introduction'' (also available in French) in th
Lecture Series of the United Nations Audiovisual Library of International Law
{{DEFAULTSORT:State Responsibility International law Social responsibility Military ethics