1. INTRODUCTION
State responsibility refers to the liability of the nation-states for any violation of international law. The basis of this responsibility is Hugo Grotius’ legal maxim which propounds that every fault creates the obligation to make good the losses. In terms of laws governing the same, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles) adopted by the International Law Commission in August 2001 play a crucial role. The Draft articles define state responsibility, provide for consequential restitution, reparation, non-repetitive guarantees and other remedies for any violations.[1]
2. ELEMENTS OF STATE RESPONSIBILITY
Article 1 of the draft articles points out that “every internationally wrongful act” makes the state internationally responsible.[2] This responsibility can be invoked by the states wronged or by other states who are a part of the group or the international community to whom the obligation was collectively owed. Under Article 2 these internationally wrongful acts are acts or omissions.[3] For example, in the Corfu Channel case,[4] Albania was held responsible for omitting to warn other states about the presence of mines in its territorial waters. However, the three requirements or elements for such act or omission to culminate in state responsibility are:
- Breach of International obligations
- Attribution to the state under International Law
- Absence of a legitimate defence claimed by the state
2.1. Breach of International obligations
Article 12 of the Draft Articles define breach of an international obligation as an act or omission not in conformity with that obligation, regardless of its origin or character. “Regardless of its origin or character” means that “the origin or provenance of an obligation does not, as such, alter the conclusion that responsibility will be entailed if it is breached by a State”[5] be it customs, treaties, unilateral acts[6] and the like. There is a single regime of state responsibility which means that the consequential state liability follows without any distinction between tortuous and contractual[7] or civil and criminal responsibility.[8] Only the gravity of the wrong affects the extent of consequence.
2.2. Attribution to the state under International Law
This refers to the existence of a relationship between the state and the violation so caused. Since the state is an abstract entity, all its actions are executed by persons.
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Organs and state officials
The government and its organs are equivalent and representative of the state which includes the legislature, judiciary, executive along with all other central and local authorities[9] irrespective of its hierarchical status. Liability is vested upon the state if its organs or officials empowered to exercise government authority, while acting in such capacity, make violations, exceed the power so vested or disobey instructions.[10]
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Private individuals
For private individuals, actions of those acting on the instruction of or under state control make the state responsible. Such control refers to “overall control” without the state’s direction for each and every step.[11] The state can also be made responsible if it fails to take action against the wrongful acts of private entities. “The basis of responsibility here is not the attribution to the State of the acts of the individuals; it is the failure by the State as an entity to comply with the obligations of prevention and prosecution incumbent on it.”[12] The state is also responsible for insurrectional movements if it leads to the establishment of a new government.[13] However, the new government would also be liable for the wrongful acts of the previous government.[14]
However, under article 11, if such wrongful acts are not attributable as above, the state can be made liable if it acknowledges such acts as its own.
2.3. Absence of a legitimate defence claimed by the state
Defences available to the states are specified under article 20 to 26. In order to make the state responsible, any of these defences must not be available to the states. These defences may be summarized as under:
1. CONSENT: Consent of the state claiming to be wronged for the wrongful act committed by the other state. Provided the act remains within the scope of such consent.[15]
2. SELF DEFENCE: If the wrongful act is committed as a measure of self-defence taken in resonance with the United Nation’s charter.[16]
3. COUNTER-MEASURE: If the act was a counter-measure against the wrongful act committed by another state.[17]
4. FORCE MAJEURE: When the wrongful act was committed due to some “irresistible force” or “unforeseen event” out of the state’s control.[18]
5. DISTRESS: There is a situation of distress when there exists no reasonable way to save the lives of others and hence the wrongful act so committed seemed the only viable option. The defence of distress does not apply where the distress occurred due to the state’s own conduct or the wrongful act taken as a measure to save the situation, might lead to greater peril.[19]
6. NECESSITY: Necessity may be invoked where the wrongful act was the only measure to prevent a grave peril or such act does not hamper the essential interest of other states or the international community holistically. This defence cannot be taken up by a state where it has on its own created the situation of necessity or a situation is internationally excluded as an obligation.[20]
3. CONSEQUENCES
The legal consequences of the international wrongs committed by the state are in the form of reparations further categorized under article 34. Article 34 allows reparations to be made by the state responsible in the form of restitution, compensation or satisfaction, alone or combined.
- RESTITUTION: Under article 35, restitution is re-establishing the original position, as if the damage was never done.[21] It must not be materially impossible to make such restitution and must not involve a “burden out of all proportion to the benefit which the injured state would gain from obtaining restitution in kind instead of compensation”.[22]
- COMPENSATION: If restitution is not possible, the state responsible has to make compensation. It includes financially assessable damage including any loss of gains made to the injured state. Financially assessable damage excludes “moral” damage or “injury caused by a violation of rights not associated with actual damage to property or persons”.[23]
- SATISFACTION: Under article 37, satisfaction is resorted when the damage is moral or not financially assessable. It must be proportional to the damage done and not hurdle humiliation upon the state responsible. It may be executed in the form of a formal apology, acknowledgement of the wrong, expressing regret or some other suitable means.[24]
4. CONCLUSION
Thus, a state can be credited with the responsibility or liability of the wrongs committed by it in the form of actions or omissions. As already mentioned the fulfilment of the three essentials is necessary in order to make the state responsible and hence face the legal consequences. This reduces the possibility of wrongful behaviour of states and helps preserve proper international relations and harmony.
[1] J. Crook, The United Nations Compensation Commission: A New Structure to Enforce State Responsibility, American Journal of International Law, 144 (1993).
[2] Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 1 [hereinafter Draft Articles].
[3] Id at 2.
[4] United Kingdom v. Albania, [1949] I.C.J. 4.
[5] Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, p 55 [hereinafter Commentary].
[6] Nicaragua v. United States of America, [1986] I.C.J. 14.
[7] New Zealand v. France, [ 1990 ] I.L.R. 82.
[8] Commentary, supra note 5, p 55.
[9] Dr. W. Abdulrahim, State Responsibility, Private Site for Legal Research and Studies, https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/4-state-responsibility.
[10] Draft Articles, supra note 2, art. 7.
[11] Prosecutor v tadic, [1996] 35 I.L.M. 32.
[12] LawTeacher, The Elements of State Responsibility (Nov. 2013), https://www.lawteacher.net/free-law-essays/international-law/the-elements-of-state-responsibility-international-law-essay.php?vref=1.
[13] Draft Articles, supra note 2, art. 10.
[14] Short v Iran, [1987] 16 C.T.R. 76.
[15] Draft Articles, supra note 2, art. 20.
[16] Draft Articles, supra note 2, art. 21.
[17] Draft Articles, supra note 2, art. 22.
[18] Draft Articles, supra note 2, art. 23.
[19] Draft Articles, supra note 2, art. 24.
[20] Draft Articles, supra note 2, art. 25.
[21] Draft Articles, supra note 2, art. 35.
[22] Supra note 9.
[23] Commentary, supra note 5, p 105.
[24] Draft Articles, supra note 2, art. 37.
This Article is Authored by Vanshika Gahlot, 2nd Year, B.A.LLB (HONS.) Student at Rajiv Gandhi National University of Law, Punjab.
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