International Wrongful Acts and the Legal Reaction

State responsibility refers to the legal consequences of the international wrongful act of a State (the obligations of the State that committed the wrongful act and the rights of the State affected by the wrong).

Traditional Law

Primarily consisted of customary rules, which were rudimentary in that they did not specify the elements (negligence or wilful acts etc.) of international wrongs, nor did they specify the consequences of such wrongdoing (not clear what kind of reparation was preferred etc.). Rules on reparation provided for compensation, satisfaction, and restitution in kind, but did not specify when each applies. Enforcement measures were also up to each state.

State responsibility triggered a bilateral relation between the injured State and the delinquent state; lack of a dispute settlement mechanism, unless parties agreed to one.

Most international rules provided only for collective responsibility. Individuals were internationally liable only in very limited circumstances: piracy, and since the 19th century, war crimes (but liability applied only to soldiers and lower officers and excluded higher officers and commanders)

The customary rules on legal consequences of wrongful acts were normally stuck together with the substantive rules on State responsibility for the treatment of foreigners, and this was because the latter crystallized as a result of disputes regarding the treatment by non-industrialized states of the nationals of industrialized states.

The Current Regulation of State Responsibility

Law on state responsibility has been separated from law on the treatment of foreigners. Today, there is a distinction between :

primary rules of international law: those custom and treaty rules that lay down the substantive obligations of states ( State immunity, diplomatic and consular immunities, respect for territorial sovereignty); and

secondary rules: rules establishing the conditions necessary for there to be a breach of a primary rule and the consequences of such breach (constitute the law on State responsibility)

today’s rules on State responsibility are clearer and more precise as to the standard for fault, the nature of the damage required, the circumstances precluding wrongfulness

distinction between ordinary responsibility (for ordinary breaches of international law) and aggravated responsibility for violations of fundamental rules that enshrine essential values (peace, human rights, self-determination)

States no longer have freedom as to the means they use to settle their dispute with the responsible State. Art. 33 of the UN Charter requires states to settle their disputes through peaceful means before they are allowed to resort to possible countermeasures. First, States shall seek reparation, if that request fails, they must attempt to settle their dispute peacefully, and if all fails, the aggrieved (injured) states (and in cases of aggravated responsibility any other state) will be allowed to take peaceful countermeasures.

Individual criminal liability has expanded – individuals are now accountable for serious breaches of international law, and, in addition to lower officers, commanders and higher officer can be held accountable

Ordinary State Responsibility

A precondition for State responsibility is the commission of a wrongful act.

I. For there to be State responsibility the wrongful act must satisfy certain subjective and objective elements

A. Subjective Elements

1. imputability to a State of conduct (act or omission) that is contrary to international law

States act on the international level through individuals. For a State to be internationally liable, the act of the individual must be one that can be imputed to the State. It must therefore be established that the act is committed by:

an individual that has the status of a State official under the national system of a particular state and acting in his official capacity (not in his private capacity as an individual) in order for his act to be imputed to the State. A wrongful act by a State official is imputed to the State even if the official acted outside of his competence or contrary to his instructions, as long as he acted using the powers pertaining to his public function. See Caire. This objective responsibility requires however that the officials have acted, at least, apparently, as competent officials or organs, or that in acting, they should have used powers or measures proper to their official character. See also Youman – the act of Mexican soldiers who murdered some US nationals were imputed to Mexico even though such acts were committed by the soldiers in contravention of instructions.

A State will also incur liability for acts by individuals, who although they are not State officials, exercise authority and power over senior State officials.

State is also liable for the acts of its de facto State organs – individuals who do not have the formal status of State officials, act on behalf of the State. This occurs when these individuals act as per the instructions of the State, or are under the overall control of the State, or in fact behave as State officials. (A French Court of Appeals ruled that Qaddafi’s conduct shall be imputed to Libya because he was the de facto head of State of Libya, despite the fact that he was not so officially under the Libyan constitution, because he is seen as such by the entire international community and he is the one representing Libya at international summits).

Test for determining if an individual is a de facto State organ

In Nicaragua the I.C.J. came up with a test to determine when the acts of individuals can be imputed to the State to which they are nationals, which test was substantially adopted by ILC, Art. 8. The question is whether they 1) act under the instructions from a State or 2) act under the direction or control of a State, in carrying out the conduct.

However, in Tadic the ICTY departed from Nicaragua in that in broadened State responsibility by stating three alternative (meeting one of these is enough) tests for establishing whether an individual acts as a de facto State organ:

1) whether the individual acts under specific instructions or subsequent public approval by the State;

2) in the case of armed groups, whether the individuals are under the overall control of a State (no need for specific instructions);

3) whether individuals behave as State officials within the structure of a State.

The Tadic approach seems to be more in keeping with international law and was adopted by several other courts subsequently.

For individuals that do not act as de facto State organs, a State can still be liable for their conduct, but only if the State failed to exercise due diligence, i.e. taking steps to prevent attacks, failing to search for and duly punish the authors of such act, as well as pay compensation to the victim. See US Diplomatic and Consular Staff in Teheran, I.C.J., 1980.

2. Fault

Fault refers to the subjective attitude of the wrongdoer, which can consist in:

– an intention to cause the even that resulted from the conduct; or

– recklessness – awareness of the risk but acting in total disregard of the consequences

Generally speaking, international law does not look into the subjective attitude of the wrongdoer.

B. Objective Elements

prohibition of conduct under international law

For State responsibility to arise, it is necessary that the conduct is contrary to an international obligation in force, at the time of the breach. The conduct may be an action or omission. The acts may be instantaneous or continuing wrongs.

damage to another international subject

ILC has adopted the view that legal injury is sufficient and such injury is inherent in the breach of an international obligation, with the moral or material damage being relevant only in determining the modality and the amount of the reparation. However, this view seems to be valid only in the area of aggravated responsibility which pertains to violation of obligations erga omnes (e.g. violation by a contracting state of ILO conventions does not bring about a material or moral damage to non-contracting parties, but they are still allowed to bring a claim). State practice shows that States undertake legal demarches against another State only if that State’s act has affected their economic, commercial, political or diplomatic interests. Therefore, we may conclude that ordinary State responsibility requires the objective element of material or moral damage.

absence of circumstances precluding wrongfulness

consent of the injured State to carry out activities that are otherwise prohibited under international law renders such activities lawful (e.g. a State consenting to the request of another State to send agents to arrest suspects on its soil). Consent must be valid (it is not valid if contrary to jus cogens)

self-defence and countermeasures

force majeure – occurrence of an irresistible and unforeseen event that is beyond the control of the State, making it materially impossible for that State to comply with its obligations. Mere hardship is not enough to excuse the breach of an international obligation. Force majeure does not apply if the situation can be attributed in whole or in part, to the conduct of the State, or if the State has assumed the risk of the situation occurring.

Distress – the wrongdoer had no other reasonable way, in a situation of distress, of saving his life (not just physical integrity, according to ILC, but see Rainbow Warrier) or that of other persons in his care. Distress cannot be invoked if it is the result of State conduct or if the action taken under duress creates a greater peril. Examples of duress: unauthorized used of foreign airspace to save the life of passengers.

Necessity – involves a situation of danger, but not to the life of a State official and those in his care, but rather, danger to the whole State or its population. Necessity exists when performing the act is the only means for the State to safeguard an essential interest against a grave and imminent peril AND the act does not seriously impair an essential interest of the Sate or States towards which the obligation exists, or of the international community as a whole. Necessity cannot be invoked if the rule that is breached precludes the invocation of necessity as an excuse to liability or if the State in breach has contributed to create the situation of necessity. See Neptune, Torrey Canyon and the Case Concerning the Gabcikovo-Nagymaros Project.

Circumstances precluding wrongfulness do not operate when the violation is one of jus cogens. ILC Draft Articles, Art. 26.

ILC Draft Art. 27(b) provides that the invocation of circumstances precluding wrongfulness is without prejudice (i.e. has not impact) to the question of compensation for any material loss by the act in question.

C. Consequences of the Wrongful Act

An injured State is any State that has suffered a breach of its right, as well as moral or material damages, due to the violation by another State of its obligations.

ILC, although it has rejected the requirement for damage, it has upheld the notion of injured State as a State: 1) when breach is based on reciprocial obligation, it is the State holder of the right corresponding to the obligation breached; 2) when there is breach of a community obligation, the injured State is any state that has been affected by the wrongful act; 3) in case of breach of integral obligations (obligations that normally derive from treaties and are dependent on the performance of the other parties.

1. Obligations of the responsible State:

– cease the wrongdoing

– offer appropriate assurances and guarantees of non-repetition, if circumstances so require

– make full reparation for injuries suffered

If the responsible State refuses to make reparation, it must make a bone fide attempt to peacefully settle the dispute with the aggrieved State.

Today, there is a hierarchy between the modes of reparation:

1) For material damage, the responsible State must provide restitution in kind (re-establish the situation as it existed before the wrongful act, provided such restitution is not materially impossible and does not involve a burden out of proportion to the benefit from restitution instead of compensation.

2) If restitution is not possible, the responsible State must pay compensation.

3) A wrong that has caused moral damage can be redressed only by satisfaction (acknowledgment of the breach, an expression of regret, a formal apology etc.).

2. Rights, powers and obligations of the injured State

– right to claim cessation of the wrongful act

– right to ask for assurances and guarantees of non-repetition

– right to full reparation

The injured State must follow the following steps: give notice of its claim and specify what conduct the responsible State should take to cease the wrongdoing and what form reparation should take. If the responsible State does not take action, the injured State must seek a peaceful settlement of the dispute. If negotiations fail, only then is the injured State allowed to resort to countermeasures. But see Case Concerning the Air Services Agreement of 27 March 1946.

Aggravated State Responsibility

General Notes on Aggravated Responsibility:

Most States agree that the protection of some fundamental values laid down in legal obligations requires that the legal reaction to possible breaches of such obligations be different that that for ordinary breaches.

Such reaction should be first decided by and agreed upon within international bodies, such as the SC or GA, NATO, or international human rights bodies because collective action is preferable for political, ideological and economical reasons.

In some instances, States react in their individual capacity in seeking compliance with community obligations. It can be said that in such cases, their national interests coincide with community interests as a whole.

The new system of aggravated responsibility (which, allegedly, is customary in nature) evolved from treaties, so is it binding on States that are not parties to such treaties.

Main Characteristics of Aggravated Responsibility

Aggravated responsibility arises from the breach of a community obligation (that is either a customary obligation erga omnes protecting such fundamental values as peace, human rights, self-determination) or an obligation erga omnes contractantes (resulting from a multilateral treaty safeguarding those fundamental values).

The material or moral damage is not an element of responsibility; the breach is an infringement of the State’s right to compliance by another State. Following such a breach, a public relation comes into being between the delinquent State and the other States. The public nature of the relation lies in that any other state (regarless of whether it has been damaged) can invoke responsibility of the wrongdoer and, in doing so, that State is not pursing a personal or individual interest, but rather a community interest. By contrast, in cases of ordinary responsibility, it can be said that the relation remains bilateral in nature and a private matter between the wrongdoer and the aggrieved States.

International practice shows that States prefer to react to serious violations of international fundamental values through institutional bodies. States have not fully utilized the enormous legal potential provided by the concept of aggravated responsibility in matters of no direct interest or concern to them.

Aggravated Responsibility and Human Rights

States have set up a number of special bodies and institutions charged with insuring compliance with human rights. E.g UN Human Rights Commission. There are also some judicial or quasi-judicial bodies like the ECHR, the Inter-American Commission and Court of Human Rights, UN Human Rights Committee, the UN Committee Against Torture. These treaties provide that the collective response to human rights violations does not cover only gross and large scale violations or systematic breaches, but any contravention of the treaty. E.g. UN Human Rights Committee – any State party to the CCPR can invoke violation by any other State of the provision of the Covenant.

Aggravated Responsibility and Humanitarian Law

In Nicaragua, the ICJ concluded that Art. 1 (which obliges all parties to respect and ensure respect for the Conventions in all circumstances) common to the 4 Geneva Conventions had become part of the general principles of humanitarian law. It follows that any State may require another State to comply with the obligations under the Conventions, with the resulting right to demand cessation of the wrongful conduct in violation of the Conventions or the general principles of humanitarian law. This regime has not been consistently used, however, with very few states making public individual demarches vis-à-vis States responsible for violations. In most cases, Art.1 has been invoked privately, in confidential demarches.

Aggravated Responsibility and International Criminal Law

Statute establishing the ICTY. Art. 29

In Blaskic the ICTY held that the Statue of the ICTY imposed on all States the obligation to comply with orders and decision of the Tribunal, laid down obligations erga omnes partes and posited a community interest in its observance. In other words, every UN State has a legal interest in the fulfillment of the obligations of Art. 29. The court then stated that in addition to unilateral action, a collective measure may be envisaged as a response to the violation of Art. 29. Few States have used the legal regime envisaged by the ICTY.

The Argument that Aggravated Responsibility Has Acquired Customary Character

some treaty rules have clearly evolved into customary rules as well ( art. 2.4 UNC, Art. 1 of the 4 Geneva Conventions

some provisions dealing with the protection of human rights (e.g. genocide, torture, serious racial discrimination, crimes against humanity)

there are instances, where States not affected by the violation have taken steps to protest such breaches

State practice shows belief that there exist some universal values of concern to all members of the international community and that the serious breach of these values affects any member of the community regardless of individual damage, and any member of the community is authorized to take steps to demand cessation of the breach.

The Legal Regulation of Aggravated Responsibility

The differences with ordinary responsibility lie in the nature and gravity of the international obligations breached, the damage, and the fault.

Obligation Breached: To give rise to aggravated responsibility, the obligation breached must be a community obligation. A community obligation is one that:

concerns a fundamental value

owed to other members of the international community

corresponding to a community right (i.e. a right belonging to any other State)

this right may be exercised by any other State, whether it has suffered damage or not

the right is exercised on behalf of the international community as a whole and not in the interest of the claimant state

Note: The breach of the community obligation must be gross or systematic; it must be serious or large scale.

Damage: In cases of aggravated responsibility, damages are not an element like they are in ordinary responsibility. Here a State is responsible simply for breaching an international obligation. Aggravated responsibility can be based on the legal injury to the right of every other State.

Fault: The gravity of the breach and the fact that the obligation violated is of fundamental importance for the community as a whole entails aggravated responsibility. Intent is always inherent in this type of responsibility and need not be proved by the claimant State (exception: genocide, and maybe aggression)

Consequences of the wrongful act in cases of aggravated responsibility

In cases of aggravated responsibility, under customary law, the offending State has obligations towards all other States, so all other States have rights vis-à-vis the delinquent State.

Obligations incumbent upon the delinquent State – the obligations are owed not only to the damaged State, but to all members of the international community. There is a community relation between the wrongdoer and all the other States.

Sometimes, restitution, compensation and satisfaction prove inadequate to repair damage caused (e.g. in case of torture).

Rights, powers and obligations of other States – States are under the obligations 1) not to recognize as lawful a situation that results from the breach; 2) not to render any aid or assistance to the responsible State in maintaining the situation so created; 3) to cooperate to bring an end to the breach. States can 1) invoke the aggravated responsibility; 2) to demand cessation; 3) to claim reparation; 4) if the responsible State has not taken action to terminate the wrongdoing or has not complied with the request for reparation, other States can bring the matter to the attention of the competent international bodies (this collective action results from the very nature of this class of responsibility which arises of an attack of community or public values). If those bodies take no action or their action does not bring results, 5) all States are entitled to bring peaceful countermeasures on an individual basis, and 6) in cases of armed aggression, States may resort to collective self-defense (subject to the consent of the victim State).

All of the above measures do not prejudice (do not preclude) the possible operation of the UN security system.