FLB 307: PUBLIC

INTERNATIONAL LAW

LESSON 5: RESPONSIBILITY OF
STATES
 INTRODUCTION

General Principle: Every wrongful act of a state

entails its responsibility.
primary rules; set out the international
obligations in terms of substantive codes of
conduct
secondary rules; specify the sanctions for
breaches of obligations
state responsibility is not really codified; the
procedures for its invocation usually informal
diplomatic negotiations
 Introduction…

Dearth of case law on the subject matter but

very few statements on this principle
International Law Commission, Draft
Articles on State Responsibility are weighty
on this subject matter though some articles
are controversial.
State practice reflected on the less
controversial articles.
International Law Commission Draft Articles

Article 1 - every wrongful act of state entails

responsibility
Article 2 - every state can be held responsible
for an internationally wrongful act
Article 3 - A wrongful act occurs when: a) acts
or omissions are committed that are
attributable to the state; and b) those acts
violate international obligations
Article 4 - Acts are only unlawful if they violate
international law and internal law on the
conduct is irrelevant
 Basis of Responsibility

Corfu Channel Case (Merits)(United

Kingdom v. Albania [1949]
FACTS: British war ship travelling in Albanian
waters and was damaged by a mine. The U.K.
then cleared the waters of all mines. U.K. could
not prove if Albania had laid the mines or if it
had done so with Yugoslavia.
ISSUE: If a wrongful act is committed in the
territorial waters of a state, can responsibility
be automatically imputed?
 Corfu Channel Case (Merits)(United
Kingdom v. Albania [1949]
HELD: There is no automatic
imputability but where indirect
evidence shows that a state did or
ought to have known of the potential
for an international wrong, beyond a
reasonable doubt, responsibility is
imputed.
 I’m Alone Case (Canada v. U.S.) (1935)

 Britain entered into bilateral treaty with US which allowed

US to visit, board and arrest people engaged in rum-running
 Cdn ship was only within 1 hr normal sailing distance of US
coast when pursued onto high seas
 US shot and sank Cdn ship and 1 crewman died so question
was where did pursuit begin?
 commissioners held that sinking by US Revenue of a Cdn
ship was unlawful act b/c it was not justified by any
provision of 1924 convention that governed case so awarded
monetary dmges
 measures must be proportionate not excessive
 Imputability

issue is whether or not an act may be

attributed to a state is a key element in
international responsibility because it makes
establishing liability easier
problem areas are the specification of state
actors and responsibility for the activities of
non state actors
Case law: BiH v. Serbia (ICJ), Nicaragua v.
USA (ICJ)
 Imputability

Iran Hostage Case—actions of agents are

imputable to the state if they act in violation
of int’l law
even in the case where state agents exceed
orders. Examples…
 Imputability

Draft Articles on State Responsibility—

doctrine of agency
where there is a principal - agent
relationship, there is attribution
Article 5 - conduct of a state organ that has
that status under internal law is imputable
to the state as long as the organ was acting
in that capacity
 Imputability

Article 6 - as long as it is an organ of any

branch of the state, the state is responsible for
its acts
Article 7 - acts of sub national governmental
entities and organs thereof (must have been
delegated governmental authority) are also
attributable to the state
Article 8: (Vicarious Liability) - if the person is
in fact acting on the part of the state or
exercising governmental authority they are
responsible
 Imputability

Examples: 2nd phase of Iran Hostage

incident—people that overtook the embassy
became agents of the state in fact when the
revolutionary gov’t took over
-Jaffe Case—bail bondsmen took a prisoner
from Canada—Canada argued that these
men were acting on behalf of Florida
because of the incentive provided in the
form of a bond
 Imputability

acts of private individuals are not

attributable to the country of citizenship of
the nationals unless the home country has
been negligent in failing to act and not
performing due diligence
Article 10-Ultra Vires Acts: acts of state
organs are attributable even if they exceed
their instructions or competance
Youmans Case (620) (1926) (U.S. v. Mexico)
FACTS:
dispute between a Mexican labourer and an
American engineer involved in construction of a
tunnel in Mexico (Americans were working for
British company)
produces a riot, Medina( Mexican) got the other
labourers to throw stones at the American and
approach his house with a drawn machete
Connolly(American) fired shots in the air—a mob
then attacked the engineers and killed three of them
one engineer was killed by the Mexican troops who
were assigned to protect them
 Youman’s case

ISSUE: Imputability? Lack of Due Diligence in

stopping the mob?
US had two arguments for why Mexico should be
responsible for deaths:
a) Mexico had not used due diligence to protect the
father of the claimant from the fury of the mob (like
in Hostages case where Iranian gov’t did not prevent
acts of citizens)
b)Responsibility based on the actions of the soldiers
who fired on the house of the engineers
 Youman’s

HELD: Mexico was responsible. These acts were

ultra vires b/c the soldiers did not have orders to fire
on Americans.
The ILC takes the position that military personnel
who exceed their instructions or act contrary to their
instructions, as long as they are acting in a military
capacity, the state is responsible directly. Not all acts
of soldiers would result in responsibility for example
if they act in a private capacity to loot, commit
wanton destruction, etc.
 Acts of Private Persons

International Law Commission Draft

Articles on State Responsibility
Article 11-conduct of persons not
acting on behalf of state are not an act
of State under I.L.
this does not preclude attribution as it
is laid down in articles 5-10
 Acts of private persons

the state is generally not responsible for the

act of private citizens
generally, that person is prosecuted or sued
domestically
but if the state refuses to provide justice, it
may be responsible
or else, if the person is transformed from a
person acting in a personal capacity to a state
agent
 Types of Private Persons

1. Military assistance
Military and Paramilitary Activities in and
Against Nicaragua—(Nicaragua v. U.S.)
[1986]
FACTS: Nicaragua argued that CIA’s
involvement w/ the contras made them US
state agents.
allegations of U.S. planting of mines in
Nicaraguan harbours
ISSUE:
Was the U.S.
responsible for the acts
of the Contras?
RATIO: A consideration of the degree of
control over the private citizens is necessary.
Just because you finance a group does not
mean you are controlling them as agents. In
certain circumstances they may have
autonomy. The U.S. was responsible for
certain specific acts of the contras (ie: Mine
planting) however in response to the general
question of U.S. responsibility the answer was
negative.
 2. Insurgents

International Law Commission Draft

Articles on State Responsibility
Article 14-Acts of insurgent groups are not
attributable to the state
Article 15-Insurgents bring their baggage
with them when they come to power. Even
though they are not in government when
they did what they did, they can be made
responsible when they enter gov’t.
 Acts of International Organizations
if an int’l organization situated on the
terrritory of a state and the
organization or its agents commit a
wrong on the territory of the state, the
state is not responsible
if a wrong is committed by UN
peacekeepers, then the UN may be
liable
 Circumstances Precluding Wrongness

1. Consent: Article 29—If a state consents to

another state doing something in its territory,
you cannot argue that there has been a breach of
sovereignty
-the consent must be genuine and voluntary, no
undue influence or duress on the state or its
officials, no bribery or corruption and also the
scope of consent must not be exceeded
a state cannot consent to any matter that would
violate a peremptory norm of international law
 2. Counter-Measures

Article 30: If state A expropriated foreign

property and refuses to give compensation,
state B could not settle the dispute and state B
decides to expropriate the property of state A’s
nationals, the wrongfulness of the act could be
precluded if it was a counter-measure which in
the circumstances of the case is appropriate.
must be a a legitimate counter measure under
international law
 3. Force Majeure and Fortuitous Events

Article: Where a state breaches an

obligation due to an irresistable force or
unforeseen external event that makes it
materially impossible to comply with
obligations, or to know that they are not in
compliance, it is not responsible
this does not apply if the state created the
situation of material impossibility
 4. Distress

Article 32: where the author of the conduct

was threatened or had his family threatened
such that he has no other choice to save his
own life, responsibility is precluded
this does not apply where the state creates
the peril or the peril that will result from the
impugned conduct is comparable or greater
then the distress
 5. Necessity

(Article 33)—most discussed Article—1. a) the act must be

the only way of safeguarding an essential interest against
grave and imminent peril; and
b) the act does not seriously impair an essential interest of
the state to which an obligation existed
2. Necessity cannot be invoked if a) the international
obligation arises out of a peremptory norm of general
international law; or
b) the obligation is laid down by a treaty which precludes the
defence of necessity
c) if the state in question has created the situation of
necessity
 6. Self defence

Article 34: Precludes wrongfulness if

the act is a valid self defense measure
according to the Charter of the UN
 Case law

In Case Concerning the Gabcikovo-Nagymaros

Project (Hungary/Slovakia) [1997] ICJ Hungary
and Czechoslovakia concluded a treaty in 1977,
to build a series of dams in Slovakia and
Hungary on the Danube. Hungary abandoned
the project because of environmental problems.
Slovakia insisted on compliance and planned
and put into effect a project on Slovak
territory.This project affected Hungary’s access
to the water.
ISSUE: What are the criteria for invoking a claim of
necessity?
RATIO: 1) the invoking state must have an “essential
interest” affected
the interest must have been threatened by a grave and
imminent peril
peril evokes the idea of risk BUT peril is not the mere
apprehension of harm—imminence means immediate
and not contingent—a peril that is unavoidable and
certain even if in the long term can be grave and
imminent
The act must be the only means of
safeguarding that interest
The act cannot seriously impair the essential
interest of the state to which the obligation
was breached
The state claiming necessity cannot have
created the situation of necessity
RESULT: Hungary’s defence of necessity
failed.