PIL.

1. Public International Law (2020)
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STATE RESPONSIBITLITY
Key Point Explanation
State responsibility
Keywords:
o Definition.
o Factor to which liability
arises.
o Main reference for state
responsibilities.
• State responsibility is liability of a state under international law.
➢ The liability arises from breach of international obligation, that can be one of customary international
law or a treaty obligation.
➢ State responsibilities can be mainly referred to in International Law Commission’s Articles on
Responsibility of States for Internationally Wrongful Acts 2001.
Elements of state responsibility
Keywords:
• Overview of the three
elements.
• The elements of state responsibility can be inferred through Art. 1 and 2 of ILC, summarized to
four key elements:
a) The existence of an international legal obligation, which has to be in force between the concerned
states;
b) The omission of an act or occurrence of a wrongful act in violation of the existing legal obligation;
i. Attributable conduct; and
ii. Breach of international obligation.
c) Loss or damage must result from such a wrongful act or omission.
d) Absence of any defences.
Element (b)(i) - Attributable
conduct
Keywords:
• Conduct that is
considered attributable
together with
illustrations - places
liability on state.
• Conduct that is
considered non-
attributable - does not
place liability on state.
• Conduct attributable to the state can consist of actions or omissions.
• The following are conduct that is attributable to state:
➢ Conduct of state organ that acts on behalf of the state where the person acts in an apparent official
capacity [Art. 4(1) and 2].
 Mellen case
• Mexican consul had been beaten by an American police officer.
• For the first attack, the evidence indicated an act of private individual who happened to be an
official.
• On the second attack, the American police officer showed his badge to assert his official
capacity, struct Mallen with his revolver and took him at gun point to county jail.
• It was held that the US was responsible for the second assault.

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➢ Conduct of persons who are not state organ but are empowered to exercise authority, including ultra
vires acts [Art. 4, 5 and 7].
 Caire claim case
• Two military officers of Mexico attempted to extort money from Caire, a French national. Upon
failure, they brought him to the military barracks and shot him.
• It was held that the officers in question, even if they acted outside their competence, even if
their superior officers issued a counter-order, have involved the responsibility of the state
since they acted in their capacity as military officers and used the means placed at their
disposal by virtue of that capacity.
➢ Conduct of persons directed by the state [Art. 8].
 Nicaragua case
• In order to prove, the test of effective control must be established.
 Prosecutor v Tadic
• The test is whether they are under ‘overall control’ of state, without necessarily state issuing
instructions for specific action.
 Art. 8 adopts the strict test of Nicaragua case.
➢ Conduct of an insurrectional or other movement [Art. 10(1)].
 Short v Iran
• It was held that where a revolution leads to the establishment of a new government, the state
is responsible for the acts of the overthrown government in so far as the latter maintained
control of the situation.
➢ Conduct which the state acknowledges and adopts as its own [Art 11].
 US Diplomatic and Consular Staff in Tehran
• Iranian Government was supposed to end illegal occupation but instead approved and
endorsed the occupation of student-demonstrators holding the embassy staff as hostages.
• The approval continuing occupation of the embassy and detention of the hostages translated
into acts of that State.
• Iran was held internationally responsible.
➢ Conduct of private individuals that are accompanied by some act or omission by state.
 Example of omission:

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• Failure to take reasonable care to prevent private individuals from committing wrongful acts
against foreign nationals.
• Failure to punish responsible individuals, to provide injured foreigner with opportunity to
obtain reparation from the wrongdoers in the local courts (denial of justice).
• Failure to exercise due diligence.
 Janes claim
• Janes, an American citizen was murdered in Mexico.
• There is evidence that a Mexican magistrate was informed of the shooting within five minutes
after it took place.
• However, even after 8 years, the murdered has not been apprehended or punished by
Mexican authorities.
• The Commission found Mexico responsible for denial of justice and awarded damages
accordingly.
• The following are conduct that is non-attributable to the state:
➢ Conduct of unsuccessful or on-going insurrectional movement, unless state is guilty of breach of
good faith, or negligent in suppressing insurgency.
 Sambaggio case
• Revolution presumes that persons have gone beyond the power of authorities and unless the
government has failed to use prompt and appropriate force to constitute its authority, it cannot
be said that state should be responsible for the condition created without its choice.
Element (b)(ii) - Breach of
international obligation
Note:
• This also answers
element (a).
• Breach of international obligation happens when state does not act in conformity with what is required by
the obligation, regardless its origin or character [Art 12].
➢ Rainbow Warrior Arbitration case
 ‘Regardless of its origin’ refers to all possible sources of international obligations, which ay
include customary rule of international law, by a treaty, by a judgment given by ICJ or any other
international tribunal. In international law, there is no distinction between contractual, tortious,
civil and criminal responsibility.
Element (d) - Absence of any
defences.
Keyword:
What are the defences?
• Defences are available in Art. 20 until 26.
1. Consent.
2. Self-defence.
3. Countermeasures.
4. Force majeure.

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 Occurrence of irresistible force of an unforeseeable event, beyond control of state, making it
impossible for state to perform the obligation [Art 23(1)].
5. Distress.
 Doer of wrongful act has no other reasonable way in a situation of distress, of saving the doer’s
life or the lives of other persons entrusted to the doer’s care [Art 24(1)].
6. Necessity.
 An act which is the way for state to safeguard interest against grave and imminent peril and does
not seriously impair essential interest of international community towards the obligation [Art
25(1)].
Legal consequences of an
international wrongful act
Keyword:
• Remedy.
• Reparation - Forms of reparation can be used either singly or in combination [Art. 34]:
➢ Restitution
 Re-establish situation which existed before wrongful act was committed provided that it is not
materially impossible and does not involve a burden out of all proportion [Art 35].
 Temple of Preah Vihear case
• World Court ordered Thailand to return Cambodia religious objects it had taken illegally from
a temple in Cambodia.
➢ Compensation
 Compensate for damage caused, unless restitution is adequate [Art 36].
➢ Satisfaction [Art 37].
 State must give satisfaction if the injury caused cannot be restituted or compensated.
 Satisfaction consists of acknowledgement of breach, expression of regret, formal apology or any
other appropriate remedy.
 Borchgrave case
• Belgian national was found dead on the roadside of Madrid.
• Belgium Government demanded as reparation; an expression of Spanish Government’s
excuses and regrets, transfer of the corpse to the port of embarkation with military honours
and just punishment of the guilty.