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“State Responsibility”
Prof. S.D. Bhosale
(..7..)
State Responsibility
QUESTION BANK
1. What is state responsibility? What are the defenses available to the violating State?
2. Comment on the concept, basis, kinds and consequences of State Responsibility.
3. Discus meaning, basis and kinds of “State Responsibility”.
4. Explain the concept of international legal responsibility. What are the kinds of State
Responsibility?
Short Notes
1. State responsibility.
SYNOPSIS
I. Concept / Meaning of State Responsibility-
(1) According to the “Fault Theory”-
(2) According to the “Objective theory”-
(3) According to “Liability theory”-
II. Essential Elements or basis of International Responsibility-
1. An act or omission of the State-
2. Such act of omission must be attributable to the State-
3. Violation of International Obligation-
III. Kinds of State Responsibility-
1. Direct State Responsibility-
2. Indirect State Responsibility-
IV. Consequences / Liability of State-
1. Restitution-
2. Compensation-
3. Satisfaction-
V. Defenses available to the State-
1. Consent-
2. Self-Defence-
3. Counter Measures-
4. Force Majeure-
5. Distress-
6. Necessity-
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“State Responsibility”
Prof. S.D. Bhosale
I. Concept / Meaning of State Responsibility-
We will discuss the meaning of ‘State Responsibility’ with the following important
theories.
(1) According to the “Fault Theory”-
The theory of State Responsibility is introduced by Hague Grotius. According to
this theory, a state, like any other community, is not bound by the act of its agent. unless
there is some act or omission on behalf of the state itself.
In other words, the state should not be held vicariously liable for the wrongful act
of its servant unless the state itself was at fault or intended for that act.
Thus, the act of agent/servant is the fault of the state = State Responsibility.
However, this theory has lost its importance because it is very difficult to prove
fault or culpable intention of the State to fix Responsibility e.g. the State of Pakistan
sponsors terrorism on the country it shows off that the state itself is the biggest victim of
terrorism.
(2) According to the “Objective theory.”-
This theory is propounded by Dionisio Anzilotti. He rejects the theory of fault.
According to this theory, the state is responsible for the non-fulfilment of the obligation
imposed upon it by International Law and not for its fault. In other words, it does not have
a fault or malicious intention on behalf of the State, making it responsible. Still, its lack or
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“State Responsibility”
Prof. S.D. Bhosale
want of diligence resulted in a violation of International obligation, making the state
responsible. Thus, irrespective of any fault on behalf of the state, the state is held
responsible for violating International obligations.
Most writers and decisions of the International Court of Justice support this theory.
(3) According to “Liability theory”-
According to absolute theory, a state is responsible for any harm caused to another,
even if it is not at fault and exercising a lawful act.
In other words, the theory makes absolute liable for its act even lawful, which causes
damage to others. In the case of oil transportation, nuclear energy production, and outer
space operations, there is a high risk. There must be an absolute liability in cases of high-
risk activities of the state.
Several treaties regulate such dangerous activities and establish absolute liability,
such as the Convention on International Liability for Damage Caused by Special Objects,
1971, and the Paris Convention on Third Party Liability in the Field of Nuclear Energy,
19670.
II. Essential Elements or Basis of International Responsibility-
As per Art. 2 of Draft articles of the International Law Commission, there are the
following basis or elements to attribute responsibility on any state viz-
1. An act or omission of the State-
To make the state responsible internationally, it must do some act that it was not
expected to do, or it must have omitted to do something which it was supposed to do.
The International Court of Justice, in the case of United Kingdom v. Albania 1949,
held that the Albanian State was responsible for causing damage by placing mines in its
territorial waters to the vessels of other states. The Court further observed that the Albanian
State must have known the presence of the mines in its territorial waters but did nothing to
warn such vessels.
2. Such act or omission must be attributable to the State-
Merely an act or omission on behalf of the state does not make it responsible unless
it is attributed to such a delinquent State.
As we know the State acts through its agents, officials, etc.; therefore, any act or
omission on behalf of them ispo facto does not make the state responsible unless such act
or omission is attributed to the state. Attribution is the process by which International Law
establishes whether the conduct of a natural person or other intermediaries can be
considered an act of state to hold the state responsible. If the act or omission of an
individual or any authority is not attributable to the State, the state cannot be held
responsible. For example, Pakistan uses terrorism to unstable other states; however, it
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“State Responsibility”
Prof. S.D. Bhosale
denies its responsibility, saying these are non-state actors.
However, in such circumstances, if a terrorist is found to be Pakistani, the State of
Pakistan must be attributed with the responsibility for a terrorist act.
3. Violation of International Obligation-
In addition to the above two, the third ingredient is that the act or omission
attributable to the state must cause a breach of International obligations.
International obligations may be created by custom, treaty, or general principles
applicable to international legal order. Thus, violation of International obligation gives rise
to the state’s responsibility.
Different connotations of this element are expressed by the International Court of
Justice in the Factory at Chorzow (Germany v. Poland) case in 1927, in the Repartition for
Injuries Case in 1949, and in the Rainbow Warrior Affairs Case in 1990.
III. Kinds of State Responsibility-
There are the following kinds of state responsibilities-
1. Direct State Responsibility-
When an act causing a breach of an International obligation is committed by the
government of a state or by any person at the government’s command or with the
government’s authorisation, the act is called the ‘direct’ act of the state. In other words, if
any wrongful act is caused by any organ or agency of the government, the government is
held directly responsible for such act. Direct responsibility of the state is also called
‘original responsibility’.
Thus, if the act is caused by any organ or agency like a legislature, executive,
judiciary or other power or any constitutional agency of the government, the act is called a
‘direct act’ of the state.
The state is also held responsible if the act is done in its territory, even if it is not
clear who committed that act. In the Corfu Channel Case (1949), Alabama was held
responsible for laying mines in its territorial waters, even though it was not certain who
exactly laid mines in its territorial waters.
2. Indirect State Responsibility-
When any wrongful act is done by (i) an individual or a group of individuals or (ii)
by foreign subjects living in its territory to another state or its subject, the state is still held
responsible. This responsibility of the state is called ‘indirect responsibility’ or ‘vicarious
liability of the state’.
Vicarious liability of the state arises due to its omission, inaction or lack of due
diligence to prevent that act. Such type of responsibility arises in cases of crime against
foreign sovereigns or ambassadors, offences to the flag of other states, an armed
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Prof. S.D. Bhosale
organisation supporting insurrection in other states, and damage to the person or property
of aliens. The state’s liability for an individual’s act also arises in cases of mob violence,
violations in civil wars, etc.
In US v. Canada (1938), popularly known as the “Trial of Smeller Arbitration”. In
this case, Canada was held responsible for paying damages to the US for the damages
caused to its environment by the Canadian Company Smeller.
IV. Consequences / Liability of State-
A state is under an obligation to make full repartition for the injuries caused by it to
another state. According to Art. 34, full repartition can be of the following forms-
1. Restitution-
As per Art. 35 of Draft Articles, the Responsible state is duty-bound to re-establish
the situation that existed before the wrongful act was committed. The remedy is called
‘restitution’; it means to re-establish the injured in its earlier position. Thus releasing a
person wrongfully detained, returning the property seized, etc.
However, restitution cannot be so ordered if it is materially impossible or out of
proportion to do so. ‘Out of proportion’ means restitution is given to cause much greater
loss than damage it has caused.
2. Compensation-
As per Art. 36 if restitution is not possible, the remedy of ‘compensation’ is
awarded. ‘Damage’ means “any damage whether material or moral”. It also includes loss
of profit caused to the injured. ‘Compensation’ is the most commonly sought international
practice.
In Hungary v. Slovakia in 1997 (Gabcikovo-Nagymaros Project Case). The
International Court of Justice declared that ‘an injured state is entitled to obtain
compensation from the state which has committed an internationally wrongful act for the
damage caused by it.
3. Satisfaction-
The third form of reparation is the ‘satisfaction’ of the injured state by the
responsible state. The responsible state is under an obligation to give satisfaction for the
injury caused by that wrongful act insofar as it cannot be made good by restitution or
compensation (Art. 37). Forms of satisfaction may consist of (i) an acknowledgement of
the breach, (ii) an expression of a right, (iii) a formal apology, or (iv) any other appropriate
mode. However, such satisfaction shall not be out of proportion to the injury caused and
shall not be for the humiliation of the responsible state.
V. Defenses available to the State-
The state against which violation is alleged can take any of the following defaces
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stated in Chapter V of the Draft Code-
1. Consent-
When an act is done with the consent of the state, no one can be responsible for any
damage caused to another state.
2. Self-Defence-
Any wrongful act caused in self-defence is a good defence against the claiming state.
3. Counter Measures-
Countermeasures by one State against another are also a defence to avoid
responsibility by the State. However, such countermeasures must be according to
international law and not be against it.
4. Force Majeure-
Force Majeure is a good defence for the state against holding it responsible. Force
Majeure means the occurrence of an irresistible force or of an unforeseen event beyond the
control of the state, making the state materially impossible in such circumstances to
perform the obligation. In other words, the circumstances are so severe that they disable
the state from performing its obligation. Force Majeure may occur due to natural or
physical events such as earthquakes, floods, draughts, etc. It may also be caused by human
intervention, e.g., insurgency, civil war, terrorism, etc.
However, such an act must not be voluntarily by the State.
5. Distress-
Distress is yet another defence available to the alleged state. Any act done in distress
by the state to save the lives or lives of persons is justifiable. Thus, distress is the situation
where the state has no other option than to break its obligation to save itself from greater
peril.
The distress defence was accepted in the New Zealand v. France (1990) case,
popularly known as the “Rainbow Warrior Case”.
6. Necessity-
Necessity is also a good defence available to the delinquent state (Art. 15).
However, the defence of necessity is only available when the alleged act-
(i) is the only way for the state to safeguard an essential interest against a grave and
immediate peril.
(ii) it 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.
*****