#14980 - State Responsibility - Public International Law

ARSIWA is a codification of customary international law (eg Art 23 Necessity) and progressive development (eg Art 41 Peremptory Norms) -> THEY ARE NOT BINDING

Applicable to ALL obligations (customary, treaty etc) – Art 12 ARSIWA

State responsibility provides that a breach of an international obligation gives rise to a requirement for reparation.

In theory every breach of international law, whether treaty or customary international law, involves state responsibility. The arbitral tribunal in Rainbow Warrior (New Zealand v France) noted that international law did not distinguish between contractual and tortious responsibility, so that any violation by a state of any obligation gives rise to state responsibility and consequently to the duty of reparation. This is also reflected in Art 12 ARSIWA.

There are contending theories as to whether responsibility of the state for unlawful acts or omissions is strict or whether it is necessary to show some fault or intention on the part of the officials concerned.

The principle of objective responsibility maintains that the liability of the state is strict and based on the premise of creating a risk. Once an unlawful act has taken place, which has caused injury and which has been committed by an agent of the state, that state will be responsible in international law to the state suffering the damage irrespective of whether or not negligence, recklessness, intent or bad faith were involved.

• In the Caire Claim (France v Mexico), the French-Mexican Claims Commission held that Mexico was responsible for the injury caused to France by the shooting of a French citizen by Mexican soldiers in accordance with the objective responsibility doctrine. Responsibility for the acts of the officials or organs may devolve upon the State even in the absence of any intentional or negligent conduct on the part of its agents.

The principle of subjective responsibility emphasises that an element of intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused.

• In the Home Missionary Society Claim (US v Britain), the imposition of a ‘hut tax’ in the protectorate of Sierra Leone triggered a local uprising in which Society property was damaged and missionaries killed. The tribunal dismissed the claim of the Society (presented by the US) and noted that it was established in international law that no government was responsible for the acts of rebels where its agents were not guilty of breaches of good faith or negligence.

The Commentary to the ILC Articles emphasised that the Articles did not take a definitive position on this controversy, but noted that standards as to objective or subjective approaches, fault, negligence or want of due diligence would vary from one context to another depending upon the terms of the primary obligation in question.

In recent decades the doctrinal debate has lost much of its practical importance, considering that in view of the expansion and growing complexity of state organs and activities, the application of the subjective fault principle has become more difficult and less practical. Unless a state intentionally directs and controls a wrongful act of another state or coerces it to commit such act, international tribunals do not inquire whether a state’s agent acted with intent to perform an internationally wrongful act. Intent or fault is not regarded as a discrete element of state responsibility but is taken into account in the assessment of compensation or within the context of circumstances precluding wrongfulness.

Every breach of duty on the part of states must arise by reason of the act or omission of one or more organs or agents, as the state as an abstract legal entity cannot, in reality, ‘act’ for itself.

The state is not responsible under international law for ALL acts performed by its nationals, it is responsible only for acts of its servants that are imputable or attributable to it. Attribution is the legal fiction which assimilates the actions or omissions of state officials to the state itself and which renders the state liable for damage resulting to the property or person of an alien.

The status of the individual actor is only one factor in establishing attribution – in effect, a causal connection between the corporate entity of the state and the harm done.

This approach reflects customary law. Early arbitrations established the principle that governmental action or omission by the executive gives rise to international responsibility. This was most visible in the failure by states to provide security to foreigners and their property. In Massey (US v Mexico), the US recovered damages by reason of the failure of the Mexican authorities to take adequate measures to punish the killer of a US citizen working in Mexico.

LaGrand (Germany v USA) is an example of the responsibility of federal states for acts of authorities of units of the federations. Two German nationals in the US had been condemned to capital punishment in Arizona without regard for their consular rights under the Vienna...