Understanding State Responsibility in International Law:

Under international law, States have obligations either arising from treaties, or customary law, among others.

State responsibility is the idea that a state is responsible or liable for breaches of international obligations and law. Put simply, state responsibility is the responsibility of states for an internationally wrongful act.

Per Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, herein draft articles, “every internationally wrongful act of a State entails the international responsibility of that State.”

How is it Determined that a State has Committed a Wrongful Act?

In Article 2 of the draft articles,

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

Commentary on Article 2(a):

Per article 2(a) of the draft articles, a state is responsible for a wrongful act if an action is attributable to the state. Articles 4 to 10 of the draft articles specify various actors whose acts or omissions as far as the breach of international obligations is concerned, can be attributable to a state.

1. Acts or omissions by organs of a State: Per article 4 of the draft articles, any breach of an international obligation by the legislature, executive, and judicial arms of government, is attributable to the state.

2. Acts or omissions by persons or entities exercising elements of governmental authority: Per Article 5 of the draft the exercise of governmental authority by a person or entity empowered to do so shall be considered an act of the state. Sometimes, state corporations are privatised yet still perform public functions. When such corporations act in ways that breach an international obligation, such breach may still be attributed to the state.

3. Conduct of organs placed at the disposal of a State by another State (Article 6): When state x places its organs under the disposal of state y, acts or omissions by the organs under the disposal of state y that breach an obligation are attributable to state x.

4. Excess of authority or contravention of instructions (Article 7): Thus, even if an agent or organ of the state acts ultra vires, the act would be attributable to the state. See the Caire claim below.

5. Conduct directed or controlled by a State (Article 8): Per article 8 of the draft articles, the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is, in fact, acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. There are often disagreements about the degree of control a state must exert over an entity for the acts or omissions of the entity to be attributable to the state. In the case of Nicaragua v United States, Nicaragua contended that the actions of the contras were attributable to the United States. The court held that for the actions of the contras to be attributable to the United States, there ought to be effective control of the contras, and that general control of the contras was not sufficient grounds for attributing the actions of the contras to the United States. To fulfil the effective control test, Nicaragua had to prove that there were instructions, commands, or state control of the contras by the U.S. Summarily, mere financing and support of the contras by the U.S was not considered as amounting to effective control of the contras.

6. Conduct carried out in the absence or default of the official authorities (Article 9): Per article 9 of the draft articles, “the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is, in fact, exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.”

7. Conduct of insurrectional or other movement (Article 10): Post a coup, the conduct of the new government is attributable to the state. In a secession, however, the conduct of the new government established by the seceding state is attributable to the seceding state.

Some of the above provisions were upheld in the Chorzow factory case. For instance, it was upheld that a state is responsible for acts of governmental organs or officials.

How is a Breach of International Obligation Determined?

Per article 2(b) of the draft articles, a wrongful act occurs when there is a breach of an international obligation by a state. Per article 12 of the draft articles, a state is in breach of international obligation if its acts are not in conformity with what is required of it by that obligation, regardless of its origin or character.

The determination of such a breach, or whether or not a state violates its obligation, is based on international law, and not on domestic law or domestic characterizations of an act. Thus, a state may contend that its actions are not wrongful per its domestic laws or its evaluation of the situation, but international law may hold otherwise.

In the case of New Zeeland v France (the Rainbow warrior case), an arbitration tribunal stated that a state cannot rely on its domestic laws to justify its failure to comply with its international obligations.

New Zealand and France had agreed that two French agents, Major Malfart and Captain Prieur, would be transferred to an island as punishment for their destruction of the Rainbow warrior (a vessel). Without the consent of New Zealand, as required by the agreement, France repatriated Major Malfart on medical grounds and repatriated Captain Prieur because her father was dying of cancer and also for medical reasons.

New Zealand claimed there was a wrongful act or a breach of an international obligation by France. France, however, argued that its actions were not wrongful because international law recognized notions of force majeure and distress.

Whilst France found its actions justified on grounds of distress and force majeure, an international tribunal held that force majeure applied only when where circumstances made the performance of an international obligation impossible, not when circumstances made fulfilment of an international obligation burdensome or more difficult. In the case of New Zealand v France, force majeure was not deemed applicable.

On the defence of distress, the tribunal established that for distress to apply, the following three conditions must be met:

1. There ought to be an exceptional medical or other circumstance of extreme urgency.

2. That the removed agents ought to be returned to the island after the disappearance of the emergency.

3. There should have been good faith to seek the consent of New Zealand before the evacuation.

Following the above conditions, the arbitrators held that France breached its obligations by failing to return the Major Mafart to the island after treatment, failing to secure the consent of New Zealand for the repatriation of Captain Prieur, removing Prieur from the island, and failing to return her to the island inter alia.

Components or Elements of State Responsibility:

The following are must exist for state responsibility to arise in international law:

1. There must be an international obligation. For instance, France had an obligation to inform New Zealand before the evacuation of any of the agents.

2. There is an act or omission that violates the international obligation. For instance, France’s repatriation of the agents without the consent of New Zealand violated its obligations under the agreement with New Zealand.

3. Imputability: The act or omission that violates the international obligation must be attributable to a state, or can be imputed to the state. The repatriation of the two French agents was done by the French government, and not non-state actors. If persons not acting under the direction of the government of France, not representing any of the arms of the government of France inter alia, had taken the agents out of the Island, France cannot be said to have breached its international obligation since the actor responsible for the breach is not in any way associated with the French state.

4. There should be a loss or damage arising from the breach of the international obligation.

Precluding State Responsibility for Wrongfulness:

Whilst state responsibility usually arises following a wrongful act, there are certain instances where the breach of international obligations (wrongful act) of a state does not give rise to state responsibility. Articles 20 to 26 of the draft articles deal with the circumstances under which the wrongfulness of a state can be precluded. These articles are summarised below:

1. Consent (article 20): if the other state agrees that a state can breach its obligations, the breaching state is precluded from responsibility provided the breach is within the limits of consent.

2. Self-defence (article 21): “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations”

3. Countermeasures in respect of an internationally wrongful act (article 22): “The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three.”

4. Force majeure (article 23): if a state does not act in conformity with its international obligation, it may be precluded from wrongfulness if the act is due to force majeure, defined as “an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation”. However, paragraph 2(a) and 2(b) of Article 23 provides that the preclusion of wrongfulness on grounds of force majeure does not apply if the “situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it” and if “the State has assumed the risk of that situation occurring”.

5. Distress (article 24): “ The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care”. Per paragraph 2(a) and 2(b) of Article 24, provides that distress would not preclude wrongfulness if “The situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it” and if “the act in question is likely to create a comparable or greater peril.”

6. Necessity (article 25): if a state breaches an international obligation, it may be precluded from obligation if it is the only way for the state to safeguard an essential interest against a grave and imminent peril. Further, the breach must not seriously impair an essential interest of the state to whom the obligation is due or the interests of the international community as a whole. Essentially, paragraph 2(a) and 2(b) of Article 25 provides that necessity cannot preclude wrongfulness if the obligation excludes the use of necessity as a basis for precluding wrong and if the state seeking to rely on necessity contributed to the situation of necessity.

7. Despite the above articles precluding wrongfulness, article 26 of the draft articles states that there is no preclusion for a breach of obligations arising under a peremptory norm (jus cogens).

Theories of State Responsibility:

There are two main theories of state responsibility: the fault theory (or subjective test) and the strict liability theory (or objective test).

Fault Theory or Subjective Theory of State Responsibility:

When a state breaches its international obligations, the fault theory takes into account the intention of the state in assessing the liability of the state in respect of the breach.

Strict Liability Theory or Objective Theory of State Responsibility or Risk Theory:

Unlike the fault theory, the risk theory maintains that a state is liable for its wrongful acts irrespective of its intention, whether or not it acted in good or bad faith. Thus, once a wrongful act has been committed by the state and results in injury or damage, the state is held responsible for the wrongful act.

Strict liability was applied in the Caire claim. Caire, a French national was requested to supply 5,000 Mexican dollars by Mexican soldiers. When he failed to do as requested, he was arrested, tortured, and eventually killed by the Mexican soldiers. Upon a claim against the Mexican government by the French authorities, the French-Mexican Claims Commission held that Mexico could be responsible for the actions of the soldiers even though those soldiers acted without direct orders from the Mexican government and against the wishes of the commanding officer. Mexico was held liable. Thus, even though the actions were not intended by Mexican authorities, they were still held responsible for the wrongful act.

How do you invoke state responsibility?

Articles 42 to 48 of the draft articles provide for how states can invoke state responsibility. In article 42, a state injured by the breach of another state can invoke the state responsibility of that state. A state invoking the state responsibility of another state, per article 43, ought to notify that other state about the breach, how to cease the wrongful act, and possible reparations for the wrongful act. When there are local remedies for the wrongful act, however, and those local remedies have not been exhausted, article 44 provides the responsibility of the breaching state may not be invoked. Further, and per article 45, a state may not invoke the state responsibility of another state if it waives the right to invoke state responsibility. This can be understood together with the provision on consent as a precluding factor of state responsibility (article 20). Beyond injured states, article 48 allows non-injured states to invoke state responsibility if, the obligation breached is in the interest of the non-injured state or owed to the international community as a whole.

Consequences of State Responsibility:

When a state has committed a wrongful act, there are remedies for the injured party. These include cessation and reparation.

1. Cessation of the wrongful act: For instance, a state that enters the territory of another state, may be asked to withdraw its troops from that territory. Currently, there are calls for Russia to withdraw its troops from Ukraine. This is essentially a call for Russia to cease its wrongful invasion of Ukraine. In the Rainbow warrior case, and after France had violated their agreement with New Zeeland by removing the two agents from the island, New Zealand’s request that the two agents be returned to the island constituted a demand for the cessation of France’s wrongful act.

2. Reparation: In the Chorzow factor case, the Permanent Court of International Justice declared that “it is a general conception of law that every violation of an engagement involves an obligation to make reparation”. Per article 34 of the draft articles, “full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.”

i. Restitution involves re-establishing the situation or state of affairs that existed before the wrongful act (Article 35 of draft articles). In the Rainbow warrior case, restitution would involve returning the two agents to the island.

ii. Compensation involves covering any financially assessable damage (article 36 of draft articles)

iii. Satisfaction: When restitution and compensation cannot be used as reparation for the wrongful act, reparation may take the form of acceptance of wrongfulness, expressing regret for the wrongful act, or apologising for the wrongful act (article 37).

Case on reparation:

In the case of Argentina v Ghana (the Ara Libertad case), Argentina brought an action against Ghana following Ghana’s detention of the Ara Libertad, an Argentinian warship. The detention followed a High Court grant of an application for an injunction by a creditor of Argentina, NML Capital. Argentina commenced proceedings against Ghana on grounds that Article 32 of the United Nations Convention on the Law of the Sea provides immunity to warships inter alia.

As provisional measures, the International Tribunal for the Law of the Sea (ITLOS) ordered the unconditional release of the warship on grounds of the sovereign immunity of warships. The provisional measure can be seen as restitutive, as it sought to re-establish the state of affairs before the detention of the warship. It can also be seen as a call for the cessation of a wrongful act.