FLB 307: PUBLIC

INTERNATIONAL LAW
1

LESSON 5: RESPONSIBILITY OF
STATES
 INTRODUCTION
2

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…
3

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
4

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
5

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
6
[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)
7

 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
8

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
9

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
10

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
11

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
12

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
13

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)
14

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
15

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
16

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
17

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
18

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
19

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
 20

ISSUE:
Was the U.S.
responsible for the acts
of the Contras?
 21

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
22

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
23
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
24

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
25

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
26

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
27

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
28

(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
29

Article 34: Precludes wrongfulness if

the act is a valid self defense measure
according to the Charter of the UN
 Case law
30

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.
 31

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
 32

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.
 FLB 307: LESSON 6
33

RESPONSIBILITY OF STATES:
DEFINING THE INJURED STATE
 INJURED STATE
34

WHO MAY SUFFER INJURY?

State may suffer injury directly, indirectly
and generally
ILC Draft Article on SR
Article 40: Meaning of Injured State
1. Any state which has its rights infringed by
another state if the perpetrator has
committed an internationally wrongful act.
 INJURED STATE
35

2. “Injured State” means-

a) right infringed arises from a bilateral treaty
b) right arising from an international tribunal
decision
c) if the right arises from a decision of an
international organ
d) a 3rd party state who had rights arising from
a treaty to which it was not party
 36

e) if the right arises by way of customary law or

multilateral treaty, if the state is bound by the
rule or treaty is liable for breaches if:
 the right was created or established in its favour

 the breach of obligation affects other states

rights or obligations bound by treaty or custom
 the right was established for the protection of
human rights
 37

f) if the right arises by multilateral

treaty, any state party to the treaty if it
is established that the right is
stipulated in the treaty for the collective
interest of all parties.
g) For criminal matters all states
 Injured state: other basic principles
38

no necessity to go before domestic courts

injury may be indirect like injury to
nationals in which case there are rules for
espousal of claims (will deal later in this
lesson)
injury can be of a general nature—injury to
the int’l community as a whole erga omnes
—aggression, human rights, prohibition on
genocide
 TREATMENT OF ALIENS
39

GENERAL PRINCIPLES
If an individual suffers injury in
another state, redress may only be
sought through the individual’s state of
nationality;
It is the State’s discretion in taking up
the claim.
 Treatment of aliens
40

Once taken up, the control over the handling

and presentation of a claim and the claim
itself becomes one between the two states.
In Mavromatis Palestinian Concession
Case:
“…once a State has taken up a case on behalf
of one of its subjects before an international
tribunal in the eyes of the latter the State is
the sole claimant.”
 Responsibility for Injury to Aliens
41

Standard of Treatment
Two standards: National treatment and
International minimum standard
1. National Treatment
General principle: A state is required to treat
aliens as it treats its nationals. However it is
not a defence to say that even nationals are
subjected to inhuman treatment.
 National treatment standard
42

if a Kenyan goes to state A and is

arrested and tortured or brutalized, the
person’s human rights have been
violated, it is no defence that state A
treats its citizens in a similarly brutal
fashion
 2. International minimum standard
43

General principle: a state is not forced

to accept foreign citizens on its
territory, if it does it must meet
international standards of treatment—
this might also help to improve
standards of treatment for nationals
 National treatment
44

In Neer Claim (US v. Mexico) (1926); a US

national was killed by unknown assailants.
The US government claimed that the
Mexican authorities did not do enough
investigation.
Held: Propriety of governmental acts should
be tested against international standards of
treatment.
 Neer Claim (US v. Mexico) (1926);
45

In order to constitute a delinquency the

treatment of an alien must amount to an
outrage, bad faith, wilful neglect of duty
or insufficiency of governmental actions
which fall far short of international standards
that every reasonable state would recognize the
insufficiency. It is immaterial whether the
insufficiency resulted from failure to enforce a
good law or by a lack of authority to enforce.
 Further comments on treatment of aliens
46

states have often attempted to use non-

discrimination as a defence but
international tribunals have held that if
the standard of treatment of nationals
is lower than international standards,
states are not afforded a defence of
non-discrimination
 Further comments
47

if an individual is a permanent resident,

they are deemed to have accepted the
jurisdiction of the state and non-
discrimination will suffice—eg: if
property of both resident aliens and
nationals is expropriated and only partial
compensation is paid to nationals,
foreigners cannot expect more
 Expropriation Property of Aliens
48

Expropriation is the compulsory taking private

property by the State. It is a violation of int’l law—if
a country lets a foreigner operate in their territory;
Expropriation must be based on grounds of public
utility, security or national interest that override
the individual interests, standard of appropriate
compensation in accordance with the domestic
rules and international law - UN Resolution on
Permanent Sovereignty over Natural Resources
(1962)
 Public purpose
49

Recognised in German Interests in

Upper Silesia (PCIJ) and Amoco
International Financial Corp v. Iran
case (ICJ).
However the concept of “public
purpose” remains undefined and
consequently states enjoy considerable
discretion in applying it.
 Compensation
50

What is the standard for compensation?

“appropriate compensation” – Res 1803
Texaco v. Libya (1977)
ISSUE: Is it governed by international law
which means that it is full, prompt or is it
governed by the domestic laws of the
expropriating state?
 Standard of compensation
51

What is the customary rule of international law on

this?
Res. 1803 uses the word “appropriate” instead of
“prompt, adequate and full”—this creates an
ambiguity
Western world favours - “appropriate” to mean
adequate and adequate means full;
Developing world: “appropriate” depends on the
facts of the case—ie: certain third world countries
may not be able to pay right away
 Enforcement of Claims: Espousal and
Nationality of Claims
52

How does one acquire nationality?

Nottebohm case he did not have the proper
link w/ Lichtenstein—a state espousing a
claim must have a genuine link
Most common ways of attaining nationality
are: jus sanguinis (by descent from parents)
and jus soli (naturalisation)
Terms and conditions may differ from state
to state
 Dual nationality
53

1930 Hague Convention—Article 4 (a) state may

not afford protection to one of its nationals against
another state to which the person has nationality
Article 5-respondent state only has to recognize
the ability to espouse of the state that has the
closest genuine link to the person
in the Iran-US tribunal, it stated that under its
terms of jurisdiction (ie: hearing individual
claimants), the rules of state espousal and the dual
nationality issue were not applicable
 Dual nationality
54

In Merge Claim 22 I.C.R 443 it was suggested

that only the state with the closest connection
could espouse a claim on his behalf.
However in Salem Case (Egypt v. USA) it was
suggested that both states could do so.
With respect to a stateless person, the state
which inflicts injury cannot be held
internationally responsible as no state is
competent to intervene on such a person’s
behalf.
 Corporations
55

A company is held traditionally to have

nationality of “…the State under whose laws
it is incorporated and in whose territory it
has its registered office.”
- Barcelona Traction Case
 Waiver and Exhaustion of Local Remedies
56

Ambatielos Arbitration (Greece v. UK)

(1956)
FACTS: Greece sought to espouse the
claim of one of its nationals in a
contract dispute with UK.
ISSUE: Is there a duty to exhaust local
remedies before bring a claim?
 Local remedies (Ambatielos Case)
57

HELD: Where there is a direct injury to the state

or organs, there is no need to exhaust local
remedies (eg: Iran hostage case) BUT in all other
circumstances, especially where there is a
corporation concerned, there is an onus on the
party to exhaust local remedies unless exhausting
local remedies is going to be futile because the
Supreme Court of X has already ruled on the
issue (municipal law), or the remedies available
are in some way not enforceable or insufficient.
 Exhaustion of local remedies
58

this doctrine applies not only to state civil

responsibility but also to human rights issues—
under the European Convention on Human
Rights—the local remedies must still be
exhausted before going to an international
tribunal
Waiver-if someone waives (without undue
influence) state espousal, and to utilize the
domestic system then such a waiver will be
upheld.
 To read:
59

Remedies: Articles 41 – 50 ILC Draft

Articles
State Responsibility for Environmental
Harm – F X Njenga’s book.
 60

Lesson 6

Next Lesson (Lesson 7) : State

Immunity
FLB 307: PIL
61

LESSON 7:
STATE IMMUNITY
 State immunity
62

state immunity means that a state or its

officials can not be sued in domestic courts
Basis: “par in parem non habet imperium”
one cannot exercise authority over an equal.
It refers to the immunity of the state and the
head of state as the embodiment of the state.
State immunity has the obvious effect of
staying the charge and leaving the plaintiff
without a remedy against the state actor
 Schooner Exchange v. McFadden (U.S)
(1812)
63

FACTS: Two Americans claimed that the

“Schooner Exchange” was their ship and
that it had been wrongly taken by French
forces. The U.S. Attorney argued on behalf
of France that the ship was French property
that had been driven into Philadelphia by
bad weather.
ISSUE: Can a plaintiff sue the French gov’t
in U.S. courts?
 “Schooner Exchange”
64

US Supreme Court Chief Justice Marshall

declared that the jurisdiction of a State
within its territory was exclusive and
absolute, but did not encompass foreign
sovereigns.
 Scope of Immunity
65

state immunity is extended beyond the state

itself to:
a)government and governmental organs
b)leader of the government, foreign minister and
other ministers, officials and agents of the state
with respect to their official acts
c)public corporations independently created but
operating in effect as governmental organs, and
d)state owned property
 Scope
66

diplomats and other representatives abroad

are not on the list because their behaviour is
governed by multilateral treaty
immunity is granted through all phases of
the judicial process so that even if a state
submits to jurisdiction on the merits it may
not submit to execution of judgement
 Modification of the doctrine of immunity
67

States (mostly western) sought to limit

immunity only to govt acts.
In Dralle v Republic of Czechoslovakia the
Supreme Court of Arizona in 1950
concluded that the increased activities of
states in the commercial field had made the
classic doctrine of “absolute immunity” to
lose its meaning and was no longer a rule of
int’l law.
 Doctrine of Restrictive Immunity
68

Where a state decides to enter into the

market place and engage in commercial acts
it no longer has immunity.
main issue is the delineation of commercial
acts (jure gestionis) from sovereign acts
(jure imperii)
Congo v. Venne a case before the Supreme
Court of Canada
 Congo v. Venne
69

a Quebec architect built a pavillion for the

Congolese gov’t and was not compensated—he
sued the Congo and they claimed state
immunity
Majority decision by Justice Richie: even if the
int’l law rule has moved to restrictive immunity
there is still immunity in this case b/c the
contract entered into by Congo w/ Venne was a
public act of the Congo and not a transaction
 Congo v. Venne
70

Dissent by Justice Laskin: states trade

either directly through their gov’t or through
a closely connected entity and it is time to
recognize this change
 Diplomatic Immunity
71

the need for diplomatic relations led to the

development of principles of customary
international law that were then codified
first in the English Diplomatic Privilege Act,
1708 and then in the 1961 Vienna
Convention on Diplomatic Relations
 Diplomatic immunity
72

two policy justifications for diplomatic

immunity:
1. functional theory—diplomats must be free
to serve their nation fully
2. diplomats owe no allegiance to foreign
states and are not subject to their laws
 Waiver
73

Who can waive immunity?—In R. v. Madan it was

said that waiver must be undertaken by the
representative of the head of state with full
knowledge of his rights. It cannot be waived by the
person holding it unless he does so on behalf of the
head of state.
immunity is the privilege of the state and not the
individual—waiver must be undertaken by the head
of the diplomatic mission—although Madan says
that the head of the diplomatic mission may waive
liability, that is not yet clear
 Consular and Other Immunities
74

Vienna Convention on Consular Relations, 1963—consent

to diplomatic relations implies consent to consular
relations
consular relations are more administrative—involve issuing
visas, assisting nationals and furthering commercial,
economic, cultural and scientific relations with host states
immunity for consuls is more restricted—archives and
documents are inviolable, consuls must be treated with
respect and are not liable for arrest or detention except for
grave crimes
civil and criminal liability is restricted to official acts
 To read:
75

Yerodia Case (Congo v. Belgium)

Article 27 Rome Statute
Judgement of Ombija, J re: Arrest Warrant
for Al Bashir
76