STATE RESPONSIBILITY IN INTERNATIONAL LAW

This article has been authored by Harshitha Ulphas, a law student at Christ (Deemed) University.

Introduction

All states have certain obligations under international law. The law relating to state responsibility deals with concerns pertaining to the breach of any obligation by a particular state in international law. Obligation is the consequence of responsibility. Each breach by any of the subjects of international law attracts an international responsibility by that particular subject. The Law of State Responsibility deals with the scenarios in which the obligation/ duty may be said to have been breached by the subject, it primary deals with what might account for a breach of an obligation/ duty, the result of the same, and it also lays down how other subjects/ States may react to the breach of obligation.

In international law, with respect to principle, the source of the obligation/ duty breached or not complied with isn’t important to determine the consequence it attracts unlike that in national law, e.g. Criminal law, Tort Law, etc. where different rules apply on the basis of the source of obligation that has been breached.

In August 2001 the Commission for International Law finished drafting its Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project on which had been ongoing for more than about 40 years. The aim of the articles is to ensure that the generally applicable rules of State responsibility were codified. The ARSIWA laid down general rules that are applicable at all times, that is applicable at all times, even in absence of certain special rules.

Kinds of State Responsibility

There are two kinds of State Responsibility- Direct State Responsibility and Indirect State Responsibility.

1. Direct State Responsibility

It is the state’s responsibility for its own actions. It is also known as original responsibility. A state is a legal person and it ensures that its functions are performed through different organs and Agencies, and if any wrong act is done, the state becomes responsible directly on their behalf. The agencies and organs include- Executive Organs, Acts of Judiciary, Acts of Armed forces, etc.

2. Indirect State Responsibility

In this case, the State has vicarious responsibility for the acts. It is also an obligation that the state has to prevent its own subjects and also foreign subjects living in its territory to from committing an act that may cause injury to the other states. If a subject as an individual or as a group causes an injury, then the state as a whole has to take responsibility for the same. In fact, the State becomes vicariously liable. The responsibility of State arises only when one of the organs of the State fails to or does not comply or carry out its functions carefully and in the manner it is supposed to.

Elements of State Responsibility

There are two elements of State Responsibility. They are:

1. Act or omission must constitute a breach of an international obligation.

2. Act or omission must be “attributable” to the State.

In principle, generally, the State is not responsible for the acts or omission of the individuals. Though the State is abstract, and cannot do anything on its own, but can only have the functions performed by its organs and/ or its agencies, which are run by individuals, then in such cases the State is not responsible for the acts of the individuals that are committed by the individuals in their personal capacity. It is important to note, that State Responsibility is under a duty to make reparation for the injury sustained, a duty incumbent upon the state which violated or did not comply with an international obligation.

The first case of attribution is that of the Organs of the State. Their duties are attributed even in case of them exceeding their authority in the matter of national law. No distinction on the level of a particular organ in the hierarchy of the State is made as such, and the same has also not been made for the separation of powers. The State’s responsibility can arise from the acts of junior officials to Ministers, or by their fault in carrying out their responsibilities. Secondly, rules of attribution cover situations in which individuals, not otherwise State organs, are exercising “elements of governmental authority” at the time that they act. The acts of private individuals are attributes of State if those individuals are acting in accordance with the instructions of the State.

Content of International Responsibility

On the commission of an internationally wrongful act, a set of new legal obligations came into existence, which were imposed on the state that committed the international wrong. The legal obligations are as follows:

1. The state is responsible for the complete reparation of the damage done for the injury caused by the State.

2. In cases where the wrongful act is continuing, the wrongdoer State has the duty to bring an end to the commission of the continuing act.

The reparation of the damage can be in the form of restitution or compensation or both. In case the act is continuing the State must issue a guarantee that the same would be concluded.

Initially, only the State that was directly injured was in a position to demand reparation, but with the changing international scenario, the same has been changed. In the case of International Court of Justice in the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) the court held that a distinction must be made in State’s duty towards the international community at large and its responsibility towards other states. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. The court also went on to say, “such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

The State Responsibility now, not only focuses on the affected state but also looks very closely on the community interest at large.

Relationship between State Responsibility and Individual Responsibility

The relationship between State Responsibility and Individual Responsibility which has been a neglected area for the longest time, is now being talked about due to the development of international individual criminal responsibility.

In the case Croatia v. Yugoslavia the court held “The reference in Article IX to “the responsibility of a State for genocide or for any of the other acts enumerated in Article III,” does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’.”

As a result of this, the Article 15 of ARSIWA provides as follows:

1. The breach of an international obligation by a State, through a series of actions or omissions defined in aggregate as wrongful, occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.

2. In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.

Therefore, the International Court of Justice has established special guidelines with respect to genocide to ensure the safeguarding of the international community’s interest as a whole.

Theories as to basis of State Responsibility

The two basic theories at the heart of State Responsibility and associated laws are the Risk Theory and the Fault Theory.

Fault Theory- it is also known as the Subjective Theory of State Responsibility. It was propounded by Hugo Grotius.[i]He stated that, “if anyone be bound to make reparation for what his minister or servant does without fault, it is not according to the Law of Nation but according to Civil Law, and even that rule of Civil Law is not general.” He also tried to explain the same through the responsibility of private individuals for their own acts in their own community, and how the State is not bound by the Acts of an individual. This theory lost its relevance because of the difficulty that was faced in proving the fault on the part of the States.

Risk Theory- this is also known as the Objective Theory of State Responsibility. It was propounded by Dionisio Anzilotti[ii] as a rejection of fault theory. According to this theory, the State is responsible for the harm caused not because of the direct or indirect damage and also not because of the malicious intent of the individual, but because of the unfulfilled obligation imposed on the State by the international law. Therefore, it is the fact that is contrary to international law that makes the State liable and not the fault according to this theory. Therefore, the theory only demands a wrongful act, which is violation of an international law only to hold the State responsible, irrespective of presence of a ‘fault’. Therefore, a mere breach of an obligation attracts responsibility of the State.

Conclusion

In international law, it is the State’s responsibility which commits a wrongful act against another state to ensure reparation of the damage done, either by restitution or compensation, or both. Any wrongful act committed by an organ or an agency of the State leads to breach of an obligation which leads to the State’s responsibility regarding the same. The scope of the same has broadened, as the International Court of Justice gives priority to the interest of the community at large now more than ever.

[i] Dutch humanist, diplomat, lawyer. [ii] Italian jurist and judge of the Permanent Court of International Justice.