PUBLIC INTERNATIONAL LAW

LECTURE
ELEVEN
INTERNATIONAL
RESPONSIBILITY
International Responsibility is an important factor in the adherence to
International Law since without it there is no remedy for breach of
international law obligations and no distinction civil and criminal law. In
consequence remedies in International Law depend on International
Responsibility. The principle of International responsibility is
indispensable to and complements International law.
1) The Breach of an International Obligation is an illegal act and
an International Tort.
2) Commission of an International Tort gives rise to a duty to
make reparations
See The Chorzow F. Case It is a Principle of International Law that a breach
of engagement involves an obligation to make reparations in adequate form
Reparation is the inevitable compliment to a breach of International Law
Regarding indemnity. It is a Principle of International Law and a general
concept of law the breach of an obligation gives rise to reparations and the
corollary is that a failure to do so is a violation of the obligation between
states.
Meaning of a breach of International Obligation
1) Ad invitum. It must be against Ds will i.e. prior consent,
retrospective acceptance or aquiescence heals a breach
2) Lack of Justification e.g. Hot Pursuit permits arrest foreign vessel on
high seas for an offence in ones own territory.
3) Breach voluntary and attributable to a subject of international law
and not due to duress.
Therefore must be an act or omission, unjustified, attributable to a subject
of International Law committed voluntarily ie Mens Rea.
Legal Interest in Tortiously Relevant Acts against Objects of
International Law (Locus Standii).
Example : State A imprisons Mr. X and refuses State B access where X is a
foreigner and citizen of State B
International Customary Law sets minimum standards of Justice for states
in respect of International Torts which must be so recognised by
International Customary Law. There is no International Tort regarding
stateless persons.
For a valid international tort claim there must have been an unsuccessful

1
C.H..Spurin & Bryan Garraghty 2006
 LECTURE ELEVEN
exhaustion of remedies by the national concerned.
Regarding Nationality there are 3 groups of exception where a state may
exercise protection.
1) Protective Persons - occupants of a protectorate
2) Members of Armed forces & ships crews and
3) Rights given under treaties.
Preconditions of an international tort include a Time element. A party
must show continuity Dies a quo to dies ad quem. The individual must
be state national at date of tort, though this may work an injustice where a
national dies and the inheritor of a tortious cause of action comes from
another state.
Exhaustion of Local Remedies When the legal interest of the state
commences every reasonable effort must be made by the individual to
gain a remedy from the sovereign state and exhaust such actions resulting
a failure of the claim. Compliance is presupposed by the State with main
standards of justice . one must go to all potential courts.

2
C.H..Spurin & & Bryan Garraghty 2006
 PUBLIC INTERNATIONAL LAW

What is the Position of Delay & the doctrine of

laches ?
Am Gatielos Case . A state against which an International Action is
brought has a right to resist - if the alleged Plaintiff has not exhausted
municipal remedies.
Finnish Ship Case 1934 (F. & U.K.) The object of the rule is to enable the
state to do justice in its ordinary way. The case stressed the importance of
exhaustion and held that this was satisfied since there is no effective
remedy against the Admiralty Board. The Basis of claim was that Finnish
ships were requisitioned in World War I. The Remedy was via application
to an arbitration board which found as a fact that ships had been
requisitioned by Russia. There was a right of appeal to courts on questions
of law but no appeal on questions of fact, so the plaintiff could go to the
International court.
AMGATIELOS . Procedural facilities . If one has a right to call witnesses
and fails to do so, and thus loses a case, there is a failure to exhaust local
remedies.
Exceptions to local remedies rule : Two groups
1) Lack of any effective local remedies and
2) Waiver of this rule by the Defendant state..
1) Lack of effective remedies;
a) Minimum standards - a rule of law - eg providing courts for
foreigners to question treatment by the local authority
b) Lack of Jurisdiction for relief against highest organs of the
state.
c) Lack of power in the courts to give remedy where
International Law and Municipal law are incompatible.
d) Where courts submit to governmental pressure . seldom the
position must be shown beyond doubt : problems with
evidence.
e) Where courts are bound by precedent no room for remedy
problems regarding distinguishing precedent.
2) Waiver of this rule by the Defendant state. This often occurs if there
is a revolution causing Damage to foreign nationals. After the
revolution there is a global treaty containing a waiver and access to
an independent court under International Law.
Identity of Tort feasor : Attributability
An actionable international trot should be the act of or commissioned by
an International Person. However states act through individuals and
institutions . in what circumstances can their acts be attributable to the
state and what kind of acts can be attributed to a state ?
1) Actions instigated by the legislature. Can there be a tort if a law
contravenes International Law but has not yet been implemented or
acted upon ? ie a disaster waiting to happen ? This if a law gives the
state the power to nationalise foreign owned property. If
implemented it amounts to a Tort. The position if the statute is not
used is a nominal breach resulting in presumably in Nominal
compensation. If compensation for nationalisation under the statute

3
C.H..Spurin & Bryan Garraghty 2006
 LECTURE ELEVEN
is payable in State As currency and not removable this is the
equivalent of illegal confiscation, not legal expropriation There is no
clear answer in these circumstances though the existence of the
legislation might destroy the marketability of the property contrary
to International Law.
2) Executive actions are problematical in that High or State Authority
for the actions must be established to attribute the act to the state,
similar to the concepts of vicarious liability and agency. See the
Massey Claim 1927 and the Way Claim 1928. There are two
relevant factors, the character of the action and the public office of
the individual concerned. One must consider the use and abuse of
the office and the role of Equity.
The Border Cases. The Mexico / U.S. Cases
1920/30s.
Stephens Claim 1927. Stephens was shot by a sentry from the
auxiliary forces. The carriage he was in had failed to stop. There
was no warning of an intent to fire. The officer was arrested and
convicted but then successfully appealed. Held . Mexico
responsible. Auxiliary forces are goverment armed forces and
agents of the state. The Responsible for denial of justice by not
punishing the officer.

4
C.H..Spurin & & Bryan Garraghty 2006
 PUBLIC INTERNATIONAL LAW

Kling Case 1930 Mexico again held responsible U.S. citizen shot by
Mexican troops. Shots were fired in the air by victims companions
for fun which was imprudent but the Mexican attack was
unprovoked.
Youmans Case 1926 Three United States citizens killed in 1880 .
This involved a Mexican mob and a labour dispute. The Mayor sent
for troops to quell the riot. Instead the troops fired on the U.S.
citizens and killed one, then mob killed three more. There was no
trial of the soldiers. Held: there had been a lack of diligence in
punishing the perpetrators . the troops actions were the direct
responsibility of Mexican Government as Troops on duty, under
supervision of commanding officer. They were not acting in a
private capacity. Soldiers when looting etc. are always acting against
state orders but if this view taken there would never be any
responsibility.
Gordons Claim 1930 Mexico held not liable for the acts of two
officers who injured U.S. citizens durin shooting practice. This was
outside the line of service and not within the scope of their
authority so there was no state responsibility. A failure to punish
them was not a denial of justice (Whilst the acts amounted to gross
negligence the essential ellement was the lack of state authority).
Within the hierarchy of Civil Servants it may be possible to draw a
distinction. See the Massey Claim 1927. It is undoubtedly a sound
general principle whenever there is misconduct that whatever
status or rank of a person under domestic law, it their actis result in
a failure to follow International Law obligations the nation must
bear the responsibility for the acts of its servants. This covers minor
executive officers. See the Quintanilla Case and the Deputy Sheriff
and the Roper Case 1927 regarding that Police officer.
3) Acts of The Judiciary : Needs a high level of commission . reason .
reflects wish of International Law that states should give the
judiciary the maximum degree of independence A High degree
needed resulting in a need to an exorbitant degree of judicial
injustice before International Law will act.
Salem 1932 U.S./Egypt The must be an absolute denial of justice /
inexcusable delay / obvious discrimination of foreigners / palpable
and pernicious (injustice) iniquity of judgement.
Chatham Claim 1927 Mexico/U.S. There must be an outrage bad
faith insufficiency of action apparent to any unbiased man.
What is the standard of proof laid down in respect of direct and
indirect tortious acts by the Judiciary. It must be established where
or not such acts amount to an inability to obtain a remedy or the
imposition of an incommensurate penalty.
Kennedy 1927 Mexico/U.S. Kennedy fired on by a Mexican and was
hospitalised permanently. The assailant got two months Held a
denial of justice by the Judge.
Mallen Case Claim by Mexican consulate twice assaulted by U.S.

5
C.H..Spurin & Bryan Garraghty 2006
 LECTURE ELEVEN
policeman first time they threatened to kill him but Polcieman only
given a $5 fine which was held not to be incommensurate with the
offence even thought there was a failure to warn him about his
conduct. The Second time the Mexican was injured and the U.S.
Authority found him liable and fined him $100. Held this alone was
not a denial of justice in the light of the evidence, but the fine not
paid and he was not jailed and therefore there was a denial of
justice.
Undue delay of a trial is Tortious
The De Galvan Case . 1927 . Mexico v United States. United States held
liable for a failure to prosecute a murderer of a Mexican subject. He had
been indicted before a Grand Jury but Six years later there had still been
no trial.
Dyches Case 1929 Spent 2J years in a Mexican prison for an offence with a
maximum penatly of year awaiting trial then found not guilty !
Dependent States : State Authorities etc. The Mother or Federal state is
responsible for subordinate units in as much as they have no international
personality.

6
C.H..Spurin & & Bryan Garraghty 2006
 PUBLIC INTERNATIONAL LAW

Revolutions Which is the government responsible for the government acts

? Depends on success of the revolution. If they succeed they become the
state and responsible under international law. If they fail they are subject
to municipal law
Successful Revolutionaries are responsible in Equity for their own acts and
acts of the old government.
If they are Unsuccessful Revolutionaries who have caused damage to
foreign nationals the state has international minimum standards of
diligentia quam in suis ie the same degree of Diligence that the state can
and does provide for its own affairs regarding
1) Prevention,
2) Suppression, &
3) Repression.
The acts may amount to crimes against foreign nationals, but are they
otherwise internationally tortious? Whilst they are the indirect
responsibility or secondary responsibility of the state this is subsequent to
the act of a private individual e.g where there is a riot by Private
individuals and the state has notice that it is directed against foreign
individuals then if the authorities take no action at all or negligently arrive
too late and fail to suppress or later punish perpetrators the State may be
liable for the inaction - but the state is not responsible for the Riot itself.
James Case 1926 Indirect responsibility for the murder of a foreign
individual The actual murder of James was the responsibility of the
murderer under Domestic law but the secondary failure to redress was the
responsibility of the state.
Reparations
Chorzow (1929) Factory Case An Essential principle contained in the
notion of an illegal act is that Reparations must as soon as possible wipe
out consequences of the illegal act and place it in position
Restitutio in Integrum that it would have been in if it had not occurred.
But this implies more than status quo ante requiring Restoration and
Compensation.
Restitution in kind is the first line of action but where this is not possible
there can be Monetary compensation corresponding to the value of loss
plus damages for the loss sustained. Restitution may be Restitution
simplicitor or equitable restitution.
Alternatively the remedy may be Satisfaction : covering any non monetary
form of reparation and is often used where the breach has not incurred
material damage or where money is not appropriate e.g. Corfu Channel
Case findings against Albania & U.K. Declaration violation of Romanian
sovereignty. The Declaration itself was appropriate satisfaction and the
equivalent of nominal damages. Semble the award in respect of Israels
kidnapping of Eichman.
Distinguish international and personal acts / claims . Measure of damages
may be set on the level of the loss of an individual e.g. where State As
vessels is denied access to state B. Even if an individual vessel is excluded,
damages are payable to State A for the value of loss to the vessel but there

7
C.H..Spurin & Bryan Garraghty 2006
 LECTURE ELEVEN
is no obligation on State A to actually pay the vessels owner the money.
It is possible to have mixed Damages. see Im Alone Case 1939 U.S. gave
satisfaction to Canada - Non material damage - breach of freedom of the
seas $25,000 : + damage for the crews loss of $25,000 each.
FURTHER READING
Cheng : General Principles of Law Applied by
International Courts and Tribunals 1953
Schwarzenberger & Brown Manual Ch 6 :
Sch
war
zenb
erge
r
Vol
1
Ch3
1-33
Harr
is
Ch 8
Chorzow Factory Case
PCIJ 1928 Green 607 Harris
375 & 395 North American
Derdging Claim 1926
Green 639
Panevezys-Saldutiskis Railway Harris 440 & 468
The Ambatielos Claim Green 657, Harris 464 -45-

8
C.H..Spurin & & Bryan Garraghty 2006