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TOPIC 6 State Responsibility TTOPICOPIC 66 State Responsibility Contents Objectives.............................................................................. 6.1 1. Introduction and the nature of State responsibility ................................................................. 6.2 2. Attribution...................................................................... 6.2 3. Enforcement................................................................... 6.7 4. Defences........................................................................ 6.12 5. Treatment of aliens........................................................ 6.12 6. Nationalisation/expropriation of non-nationals’ property ......................................................................... 6.13 8. Summary ....................................................................... 6.20 9. Further reading .............................................................. 6.23 10. Revision questions......................................................... 6.23 11. Problem question and feedback ..................................... 6.29 Objectives At the completion of this topic you should be able to: • Identify that issues of state responsibility arise whenever there is an allegation of a breach of an international obligation • Describe and explain the various rules of attribution of the actions or inaction of individuals or the state in relation to state responsibility • Indicate the key rules in relation to bringing a claim for state responsibility, and illustrate these rules by means of case examples • Recognise the circumstances when a state may have a valid defence to a claim of state responsibility • Review the various arguments that may be utilised in order to support one type of interpretation or another of state responsibility in respect of injuries to aliens - 6.1 - LAW00521 INTERNATIONAL LAW • Demonstrate an awareness of the political and social context of instances where a state nationalises or expropriates property belonging to a non-national, and explain the rules of state responsibility in such situations • Calculate the amount of compensation where there is state responsibility for nationalisation or expropriation. 1. Introduction and the nature of State responsibility Reading CB, pp 403-409 A corollary of binding legal obligations is legal responsibility for a breach of those obligations. This topic is concerned with the general rules of international law which determine whether a state is in breach of its international obligations. The point of departure for any discussion of state responsibility is the Articles on Responsibility of States for Internationally Wrongful Acts by the International Law Commission (ILC). Activity 6.1 Explain why articles 40 and 41 ‘remain controversial’. 2. Attribution International law is concerned with the responsibility of international persons and, in the main, that will mean states. Because, ultimately, a state can act only through individuals, and individuals may act for reasons of their own distinct from the intentions of their state, it becomes necessary to know which actions of which persons may be attributed, or imputed, to the state. A state will only be liable for acts which can be attributed or imputed to it. This section examines whether the acts of the state’s officials, private individuals, officials of both successful and unsuccessful revolutionary movements can be imputed to the state. A. Officials Reading CB, pp 409-413 - 6.2 - TOPIC 6 – STATE RESPONSIBILITY A state is liable for the actions of its agents and servants whatever their particular status. Thus, when, in July 1985, French secret agents sank the Greenpeace ship, Rainbow Warrior, France became internationally liable and the tribunal was not concerned with the issue of whether this act of state terrorism was ordered at a high or low level within the French government (Rainbow Warrior Arbitration (1987)). Note that Article 5 extends responsibility to quasi-governmental organisations, ie. those organs which, although not part of the formal structure of government, exercise elements of governmental authority when they act in a governmental capacity. 1. What were the facts of the Caire Claim, and what did the French- Activity 6.2 Mexican Claims Commission decide? 2. What were the facts of the Corfu Channel Case, and what did the ICJ decide? 3. Does the responsibility of states for unlawful acts or omissions require an element of fault (subjective responsibility), or is liability strict (objective responsibility)? What do the above cases say about this issue? 4. What might be the main point of the Southern Pacific Properties (Middle East) Ltd v Arab Republic of Egypt case? 1. Caire was a French national who was asked to obtain a large sum Feedback of money by a major in the Mexican army. He was unable to obtain the money and was subsequently arrested, tortured and killed by the major and a number of soldiers. France successfully pursued a claim against the Mexican government that was heard by the French-Mexican Claims Commission. The principal question for the Commission was whether Mexico could be responsible for the actions of individual military personnel who were acting without orders and against the wishes of the commanding officer and independently of the needs and aims of the revolution. The French-Mexican Claims Commission said that Mexico was liable. 2. The case arose following the sinking by a mine of a British warship in Albanian territorial waters. The UK brought a claim against Albania arguing firstly that Albania itself had laid the mines. However, it adduced little evidence on this point and its main argument was that the mines could not have been laid without the knowledge or connivance of the Albanian authorities. The ICJ found that the laying of mines could not have been achieved without the knowledge of the Albanian government. This - 6.3 - LAW00521 INTERNATIONAL LAW being so, Albania’s failure to warn British naval vessels of the risk of mines gave rise to international responsibility. 3. The ILC Draft Article provides no assistance in the matter and there are a number conflicting authorities. One writer, Brownlie, has argued that the nature of liability will depend on the precise nature of the particular obligation in issue and suggests that the discussions of the ILC tend to support this view. The view that seems to attract majority support is that the objective test (ie. strict liability) should be applied to the actions of states. Provided that the acts complained of can be attributed to the state then it will be liable if those acts constitute a breach international law regardless of any question of fault or intention. There are certain defences available but the burden of establishing them will be placed upon the defence once the fact of the breach of an obligation is established. The most cited example of the objective test is to be found in the judgment of Verzijl in the Caire Claim. On the other hand, a number of writers, notably Hersch Lauterpacht, have argued that the responsibility of states depended on some element of fault. Such fault is often expressed in terms of intention to harm (doles) or negligence (culpa). One case that has been cited in support of subjective responsibility is the Corfu Channel Case. Lauterpacht subsequently remarked that the Corfu Channel case ... provided a good illustration of the affirmation of the principle that there is no liability without fault. However it is worth noting that the Soviet judge in the case understood the decision to be an application of the objective responsibility doctrine and dissented from it on that ground. He argued that responsibility could only arise on the basis of culpa, a more exacting test than mere fault since it requires a wilful and malicious act or a culpably negligent act, ie. guilt rather than mere inadvertence or carelessness. Brownlie has stated that liability in the case arose out of the particular legal obligation of Albania identified by the court not to allow knowingly its territory to be used for acts contrary to the rights of other states. 4. An act may be attributed to a state even where it is beyond the legal capacity of the official involved, providing, as Verzijl noted in the Caire claim, that the officials ‘have acted at least to all appearances as competent officials or organs or ... have used powers or methods appropriate to their official capacity’. In the words of the Commentary to the ILC Draft Articles: ‘The state cannot take refuge behind the notion that, according to the provisions of its legal system, those actions or omissions ought not to have occurred or ought to have taken a different form’.’ - 6.4 - TOPIC 6 – STATE RESPONSIBILITY In relation to question 3 above, it is submitted that much of the confusion arising from questions of the nature of responsibility stems from the tendency to equate objective responsibility with the municipal law doctrine of strict liability, and to regard strict liability as an absolute liability from which no exculpation is possible. It has already been indicated that objective responsibility does admit the possibility of defences. Discussion about the nature of responsibility highlights the dangers of discussing the topic in isolation from the substantive rules of international law. It is for this reason that writers such as Philip Allott have criticised the whole concept of a separate category of ‘state responsibility’ (see the extract from his article, CB pp 407-408). B. Private persons You should re-read articles
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