Unit 4

STATE RESPONSIBILITY

1 THE CURRENT REGULATION OF STATE RESPONSIBILITY: AN OVERVIEW

The salient traits of the new law may be summarized as follows.

First, the law of State responsibility has been unfastened from the set of substantive rules on the treatment of foreigners, with which it had been previously bound up. It is now generally acknowledged that a distinction can be made between 'primary rules' of international law, that is, those customary or treaty rules laying down substantive obligations for States (on State immunities, treatment of foreigners, diplomatic and consular immunities, respect for territorial sovereignty, etc.), and 'secondary rules, that is, rules establishing (i) on what conditions a breach of a 'primary rule' may be held to have occurred and (ii) the legal consequences of this breach. The latter body of international rules encompasses a separate and relatively autonomous body of international law, the law of State responsibility.

Second, current rules on State responsibility have clarified and given precision to a number of previously controversial rules: for instance', the question of whether fault is necessary, the nature of the damage required for a State to be considered 'injured' by the wrongful act of another State, the circumstances precluding wrongfulness, etc.

Third, agreement has now crystallized on the need to distinguish between two forms or categories of State accountability, responsibility for 'ordinary' breaches of international law, and a class of 'aggravated responsibility' for violations of some fundamental general rules that enshrine essential values. The first class embraces responsibility for breaches of bilateral or multilateral treaties, or general rules, laying down ‘synallagmatic’ obligations, that is, rules protecting reciprocal interests of States (economic and commercial relations, the reciprocal treatment of nationals and of consuls or diplomats, etc.). The consequences of any breach of any such rule creates a 'bilateral relation' between the delinquent State and the wronged State. Hence the whole relation remains a ‘ private' matter between the two States. 'Aggravated responsibility' has markedly distinct features from 'ordinary responsibility'. It arises when a State violates a general rule laying down a 'community obligation', that is a customary obligation erga omnes protecting fundamental, values (chiefly: peace, human rights, self-determination of peoples) or an, obligation erga omnes contractantes laid down in a multilateral treaty safeguarding those fundamental values, and entitling respectively any State, or any other party to the multilateral treaty, to demand cessation of any serious violation.

Fourth, as pointed out above, previously in cases of international wrongdoing the injured State could decide whether immediately to take forcible action, so as to 'punish' the delinquent State or instead to first request reparation. Furthermore, if no reparation was made, that State could again decide on its own whether to try to settle the dispute peacefully by resorting to the various procedures and mechanisms available, including arbitration, or rather enforce its right to reparation by using military or economic force. In contrast, this is no longer permitted now. A general obligation evolved following the expansion of the scope of Article 33 of the UN Charter. The requirement to endeavour to settle disputes by peaceful means before resorting to possible countermeasures currently obliges States to take a set of successive steps. They must first request reparation; then, if no reparation is made or reparation is considered unsatisfactory, they must endeavour to settle the dispute peacefully, by having recourse to negotiations, conciliation, arbitration, or other means of settling disputes (on this obligation, denied in Air Service Agreement ( at §81). Only if such recourse proves to be of no avail, can the injured State (as well as, in the case of 'aggravated responsibility', the other States entitled to claim compliance with the obligation breached) take peaceful countermeasures (the only exception being individual or collective self-defence under Article 51 of the UN Charter.

Fifth, individual criminal liability, as opposed to State responsibility, has enor­mously expanded. Individuals, be they State officials or private persons, are now accountable for serious breaches of international law (war crimes, crimes against humanity, genocide, terrorism, etc.) both in time of peace (except of course for war crimes) and in time of war. In addition, not only simple soldiers and junior officers, as in the past, but also military leaders as well as senior politicians, members of cabinet, industralists, etc. may be held accountable for any international crime. National and international prosecution and punishment of these crimes ensure that the international rules of human rights law and international humanitarian law are respected and enforced. This body of international criminal law has developed as a separate branch from the international law on State responsibility, although overlaps may come about (particularly in the case of genocide and aggression) between individual criminal liability and State responsibility.

Finally, current needs have resulted in the possibility for States to be held accountable for lawful actions. This is provided for in rules that of course no longer pertain to State responsibility proper.

2 'ORDINARY' STATE RESPONSIBILITY

2.1. PRECONDITIONS OF STATE RESPONSIBILITY

The basic precondition of State responsibility is the commission of a wrongful act by a State. For a wrongful act to occur, some subjective and objective elements are necessary. The subjective elements are: (i) the imputability to a State of conduct (action or omission) of an individual contrary to an international obligation; (ii) in some limited instances, the fault (culpa) of the State official performing the wrongful act. The objective elements are: (i) the inconsistency of particular conduct with an international obligation; (ii) a material or moral damage to another inter­national subject; (iii) the absence of any of the various circumstances precluding wrongfulness.

2.2 CONSEQUENCES OF THE WRONGFUL ACT

(i) The notion of injured State. Consistently with what has been stated above about the damage as an essential requirement of State responsibility, it must be held that by 'injured State' is meant any State that, in consequence of another State's violation of an international obligation, faces the breach of its own corresponding right as well as a material or moral damage. It is therefore the injured State that is entitled to invoke the consequences of the wrongful act vis-a-vis the responsible State.

(ii) Obligations of the responsible State. The delinquent State is under several obligations, owed to the victim State and to it alone. First, it must cease the wrong­doing, if it is continuing. Second, it must 'offer appropriate assurances and guarantees of non-repetition, if circumstances so require' (Article 30(b) of ILC Draft). Third, it must 'make full reparation for the injury caused' (Article 31.1 of the same ILC Draft). Fourth, if it refuses to make reparation or to pay compensation to the extent required by the injured State, pursuant to Article 2.3 of the UN Charter the responsible State must accede bona fide to any attempt peacefully to settle the dispute made by the injured State.

As far as reparation is concerned, it is now clear that modern international law establishes a hierarchy between the various modes of making reparation. In case of material damage, the responsible State must provide restitution in kind, to the extent possible. Pursuant to Article 35 of ILC Draft, restitution means 'to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation'.

(iii) Rights, powers, and obligations of the injured State: in particular, the right to resort to countermeasures. In correlation to the obligations incumbent upon the responsible State, rights and powers accrue to the injured State (in particular, the right to claim cessation of the wrongful act, assurances and guarantees of non-repetition, and full reparation for the material or moral damage caused), together with some obligations.

The injured State, if it decides to invoke the responsibility of another State, must take the following steps.

(1) It must 'give notice of its claim to that State' and specify in particular '(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing; (b) what form reparation should take' (Article 43 of ILC Draft).

(2) If the responsible State does not comply with its request, the injured State must endeavour to settle the dispute by peaceful means and in particular embark upon, or at least propose, negotiations, or mediation, conciliation, or arbitration (Article 52(1)(b) of ILC Draft only requires that the injured State must 'offer to negotiate' with the responsible State).

(3) Only if the responsible State refuses to make reparation or to enter into negoti­ations, conciliation, or arbitration, or manifestly does not act bona fide in responding to the offer for negotiations or dispute settlement, is the injured State entitled to resort to countermeasures (according to Article 52(1) of ILC Draft, countermeasures may be taken after the failure of the parties concerned to negotiate with a view to settling the matter). As staged above (3.5 and 13.3), the need to go through this process before initiating countermeasures follows from the general obligation to endeavour, in good faith, to settle disputes peacefully.

3 'AGGRAVATED' STATE RESPONSIBILITY

3.1 MAIN FEATURES

Hitherto we have seen that responsibility for 'ordinary' breaches of international law embraces accountability for violations of bilateral treaties or of multilateral conven­tions or general rules laying down 'synallagmatic' obligations, that is, rules protecting reciprocal interests of States (economic and commercial relations, the reciprocal treatment of nationals and of consuls or diplomats, etc.). The consequences of the breach of any such rule creates a 'bilateral relation' between the responsible and the wronged State. Hence the whole relation remains a 'private' matter between the two States. 'Aggravated responsibility has markedly distinct features. It arises when a State violates a rule laying down a 'community obligation', that is either a customary obligation erga omnes protecting such fundamental values as peace, human rights, or self-determination of peoples or an obligation erga omnes contractantes laid down in a multilateral treaty safeguarding those fundamental values. In the case of this 'aggravated responsibility' the material or moral damage, if any, is not an indispensable element of State responsibility. What matters is that the breach results in the infringement of a State's right to compliance by any other State (or contracting State) with the obligation. Following such a breach of one of the aforementioned rules, a 'public relation' comes into being between the delinquent State and all other States or, as the case may be, all the other contracting States. The 'public' nature of the relation lies in that any other State, regardless of whether or not it has been materially or morally damaged by the breach, can invoke the responsibility of the wrongdoer (this invocation may also be made by a competent international body, either on its own initiative, or at the request of a State). In other words, the States that take action to invoke this class of responsibility do not pursue a personal or individual interest; they pursue a community interest, for they act on behalf of the whole world community or of the plurality of States parties to the multilateral treaty. In addition, all the States entitled to demand compliance with the obligation that has been infringed may take a host of remedial actions designed to impel the delinquent State to cease its wrongdoing or to make reparation.

3.2 THE LEGAL REGULATION OF AGGRAVATED RESPONSIBILITY

(a) Subjective and objective elements of the wrongful act

Let us now enlarge on the main traits of this class of responsibility that differentiate it from 'ordinary responsibility'.

Both categories share the legal regulation of the subjective and objective elements of responsibility, except for the questions of (i) the nature and gravity of the inter­national obligation breached, (ii) damage, and (iii) fault.

The obligation the breach of which may give rise to 'aggravated responsibility' must be a 'community obligation, that is, an obligation (i) concerning a fundamental value (peace, human rights, self-determination of peoples, protection of the environment), (ii) owed to all the other members of the international community;

(iii) having as its correlative position a 'community right, that is, a right belonging to any other State; (iv) this right may be exercised by any other State, whether or not damaged by the breach; and (v) the right is exercised on behalf of the international community and not in the interest of the claimant State.

Furthermore, the breach of this obligation must be gross or systematic; in other words, it may not be a sporadic or isolated or minor contravention of a community obligation (for instance, the infringement of the right of an individual to fair trial). It must be serious or large scale (for instance, aggression, genocide, or grave atrocities against one's own nationals or all persons belonging to an ethnic group

Let us now consider the question of damage. As we saw above, material or moral damage is an indispensable element of the wrongful act that may trigger the 'ordinary responsibility'. Things are different in the case of 'aggravated responsibility'. Here a State is responsible towards all other States simply for breaching an international obligation, regardless of whether or not a particular State has been materially or morally damaged. If a State grossly violates human rights of its own nationals, no material or moral damage is caused to any other State, but only a legal injury is brought about to the right of every other State.

Finally, let us consider the subjective element of responsibility. The gravity of the breach and the fact that the obligation violated is of fundamental importance for the community as a whole entails that in cases of 'aggravated responsibility', intent is always inherent in this class of responsibility and need not be proved by the claimant State (however, in the case of genocide, this State must prove that the officials and agents of the delinquent State,,agents who engaged in such conduct acted with a special intent, to destroy, in whole or in part, a national, ethnic, racial or religious group; similarly, in the case of aggression, it would seem that a claimant State should prove that the State's officials that planned and unleashed aggression had the animus agressionis, that is, they intended to invade and conquer foreign territory, or destroy the foreign State apparatus, and so on).

(b) Consequences of the wrongful act

(i) General. The most notable differences between the two classes of responsibility may be found not only in the preliminary conditions for the existence of responsibility, but also in the consequences of the wrongful act, in particular: (i) the obligations incumbent upon the delinquent State; (ii) the States entitled to invoke the aggravated responsibility.

In the case of 'aggravated' responsibility, under customary law the offending State has obligations towards all other States; correspondingly, all other States have rights, powers, and obligations consequent upon the wrongful act, vis-a-vis the delinquent State.

(ii) Obligations incumbent upon the delinquent State. The wrongdoer is under all the obligations incumbent upon any author of an international delinquency, and dis­cussed above with regard to 'ordinary responsibility'. However, now these obligations are owed not only to the damaged State, if any, but also to all the other members of the international community. In other words, the legal consequences of the wrongful act no longer consist merely of a 'bilateral relation' (between the responsible State and the State victim of the wrongful act), but of a 'community relation' between the wrongdoer and all other States.

Restitution, compensation, or satisfaction in some instances may prove relevant when the wrongful act has caused a material or moral damage to a particular State.

(iii) Rights, powers, and obligations of other States. It is more important to establish the legal position of other States (namely, any member State of the international com­munity, whether or not damaged by the wrong, provided it has the legal entitlement or right corresponding to the obligation breached by the responsible State).

The first set of consequences of breaches of community obligations has been rightly set out by the ILC in Article 42 of its Draft Articles and relates to obligations of all States other than the delinquent one. These States are under the obligations: (a) not to recognize as lawful the situation created by the breach; (b) not to render aid or assistance to the responsible State in maintaining the situation so created; (c) to co-operate as far as possible to bring the breach to an end.

In addition all States other than the wrongdoer have the following powers, rights or claims:

(1) To invoke the aggravated responsibility of the delinquent State, by bringing their claim to the notice of that State.

(2) To demand cessation of the wrong, if it is continuing, and to request assurances and guarantees of non-repetition.

(3) To claim reparation in a form consistent with the nature of the wrong (if a State has been materially or morally damaged, as in the case of aggression, the victim State may claim reparation as may other States to the benefit of the victim State, or, as in the case of gross violations of human rights, to the benefit of the individuals that have suffered from the wrongful act).

(4) If the responsible State has not taken immediate action to discontinue the wrongful act or has not complied with the form of reparation sought by the claiming States, the right to bring the matter to the attention of the competent international bodies. Thus, third States can request the competent body of a universal organization (such as the UN) or a regional organization (such as the OAS, the AU, or the Council of Europe), or of intra-regional organizations, publicly to discuss the wrong done by the delinquent State with a view to attaining public exposure of that wrongdoing, or to adopting collective sanctions, etc. The need for States first to take steps within international organizations or other appropriate collective bodies seems to be warranted and indeed dictated by the inherent nature of this class of responsibility. This responsibility arises out of a gross attack on community or 'public' values. The response to the wrongdoing must therefore be as much as possible public and collective. It would be incongruous and contradictory to contemplate on the one hand a form о States' aggravated accountability for gross breaches of fundamental values of concern to all members of the world community, and then to envisage, on the other hand, response left to the 'private' initiative of each individual member of such community.

(5) If those bodies take no action, or their action has not brought about cessation of the wrong or adequate reparation (if only in the form of strict assurances not repeat the same or similar wrongs in the future), all States are empowered to take peaceful countermeasures on an individual basis. When States opt for individual countermeasures, these must be subject to the conditions enumerated above with regard to 'ordinary responsibility'.In particular, before taking countermeasures, the claimant States must (a) offer to nego­tiate with the responsible State as well as propose other means of peacefully settling the dispute such as mediation and conciliation, if appropriate, or arbitral or judicial settlement; (b) duly notify the responsible State of their intention to resort to coun­termeasures. Plainly, in this case a problem of co-ordination among States resorting to countermeasures may arise.

(6) In case of armed aggression, States are entitled to resort to collective self-defence (subject to the request or consent of the victim of aggression).

A caveat must however be entered. The above measures do not affect or prejudice the possible operation of the UN Security system. If the UN SC considers that a gross violation of community obligations amounts to a threat to the peace, a breach of the peace, or an act of aggression, it may recommend or decide what measures not involving the use of force States are entitled or obliged to take under Article 41 of the UN Charter, or may authorize States to take forcible measures against the wrongdoer. In other words, faced with an international wrongful act that it deems covered by Article 39 of the UN Charter, the SC takes over, and individual States may only take action to the extent allowed by the UN Charter (individual or collective self-defence), or recommended, authorized, or decided upon by the SC.

A final point also proves necessary. As has been stressed above, violations of com­munity obligations may well cause material or moral damage to a particular State.