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State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea

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State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea Chapter 6 State Responsibility and the Duty of the Shipmaster to Render Assistance at Sea 6.1 Introduction This chapter examines the extent to which, if any, violations of international obligations committed by the shipmaster in rescue operations attract interna- tional State responsibility. The first part of the chapter reviews the doctrine of State responsibility. This is followed by an analysis of the principles governing the attribution of State responsibility, with a focus on the doctrine of due dili- gence as a legal mechanism applied to gauge State responsibility. The results of this analysis are applied to acts or omissions of the shipmaster in rescue operations. 6.2 Doctrine of State Responsibility under International Law unclos does not provide any specific rules on the issue of the shipmaster engaging State responsibility in rescue operations. It is therefore necessary to examine the rules of general international law, which are reflected in the ilc’s Articles on the Responsibility of States for Internationally Wrongful Acts.1 Although the arsiwa does not constitute a legally binding instru- ment, it is considered an authoritative statement on the law of international responsibility,2 as recognised in international judgments.3 Under the arsiwa , 1 ilc, ‘Articles on Responsibility of States for Internationally Wrongful Acts’, UN Doc.A/56/10, Ch iv.E.1. (arsiwa). 2 Berglind Halldórsdóttir Birkland, ‘Reining in Non-State Actors: State Responsibility and At- tribution in Cases of Genocide’ (2009) 84 NYULRev 1623, 1627; Fernando Lusa Bordin, ‘Reflec- tions of Customary Law: The Authority of Codification Conventions and ilc Draft Articles in International Law’ (2014) 63 iclq 535, 536, 538. See generally Alain Pellet, ‘The ilc’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts’ in James Craw- ford and others (eds), The Law of International Responsibility (oup 2010) 75–92. 3 See eg M/V “Saiga” (No. 2), paras 93, 113, and 171; see further Report of the Secretary-General, ‘Responsibility of States for Internationally Wrongfully Acts, Compilation of Decisions of In- ternational Courts, Tribunals and other Bodies’ (21 April 2016) UN Doc A/71/80. © koninklijke brill nv, leiden, ���0 | doi:10.1163/9789004438�55_008 <UN> State Responsibility and the Duty of the Shipmaster �49 every internationally wrongful act of a State4 entails the responsibility of that State.5 However, not all acts of a State may fulfil the requirements of wrong- fulness. For State responsibility to arise, the State must engage in conduct that combines two elements: (i) it is attributable to the State under interna- tional law,6 and (ii) it must constitute a breach of an international legal obli- gation in force for that State at the time.7 In relation to attributability, the State, as an abstract entity, acts through its organs.8 When a person acts on behalf of a State, those acts may be attributed to the State and may lead to State responsibility under international law.9 Gen- erally, the act of a private person, such as the shipmaster, is not attributable to the State unless his act is accompanied by some act or omission10 on the part of the State for which it bears responsibility, or the shipmaster’s conduct is be- ing directed or controlled by the State.11 With respect to the second element, such a breach may arise when the conduct of the State is not inconformity with what is required of it by that international obligation,12 whether it emerg- es from treaty or customary international law. 6.3 Attribution of State Responsibility under International Law 6.3.1 General Principles to Gauge Attribution To engage State responsibility, the conduct in question must be attributable to the State under international law.13 The doctrine of attribution therefore 4 According to Art 3 of the arsiwa, the characterisation of an internationally wrongful act is governed by international law. Such characterisation is not affected by the characterisa- tion of the same act as lawful by internal law. 5 arsiwa, Art 1. 6 Ibid Art 2(a). 7 Ibid Art 2(b). 8 arsiwa, Art 12; see generally Gordon A Christenson, ‘Attributing Acts of Omission to the State’ (1991) 12 MichJIntlL 312. 9 arsiwa, Arts 4–11. 10 Franck Latty, ‘Actions and Omissions’ in James Crawford and others (eds), The Law of In- ternational Responsibility (oup 2010) 355–363; see also the Tehran Case, discussed further below, where the icj found that Iran was responsible for the failure of the Iranian authori- ties to take appropriate measures to protect the US Embassy and its staff from violent protesters. 11 Ch 6, ss 6.4.1 and 6.4.2. 12 arsiwa, Art 12. 13 Ch 6, s 6.2. See generally Robert Kolb, The International Law of State Responsibility (EE Elgar 2017) 70–108; see further Luigi Condorelli and Claus Kress, ‘The Rules of Attribution: General Considerations’ in James Crawford and others (eds), The Law of International <UN>.
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