A) INTRODUCTION
State responsibility in international law refers to liability for the non - observance / breach of an International Obligation. For example breach of a treaty obligation or for injury to the defendant state nationals[1] In the Spanish Zone Morocco Claims[2], the facts of the case were that Great Britain put forward a series of claims on behalf of British subjects who suffered loss /injuries in the Spanish zone of Morocco between 1931 and 1921. Before dealing with the individual claims the Rap pouter, whose functions approximated to that of an arbitrator laid down certain general principles in regard to State responsibility at pg. 639 - 650 with reference to the conflicting interests of the territorial state and the state seeking to protest its nationals he declared for international responsibility to arise
“it is necessary that there is either a violation of a clause prescribing special treatment of state, or manifest and serious violation of the rules applicable to nationals in the same way as to strangers”
Foreign intervention could only be exercised by way of an exception to the fundamental principle of respect for territorial sovereignty. Nevertheless, up to a certain point the interest of the State in being able to protect its nationals must carry more weight than the considerations of territorial sovereignty. It was also stated
“This right of intervention is claimed by all States: only its limits can be discussed. By denying it, we would arrive to inappropriate consequences indismissible: we would disarm international law vis-à-vis against injustices amounting to the denial of human personality and this would amount to a denial of justice”
In the of Case concerning the Factory at Chorzow (Claim for Indemnity) (Jurisdiction) (1927) Germany v. Poland[3] , This is a case about violation of international agreement between Germany and Poland wherein Poland can be made liable for the violations under the Geneva Convention . The question before the court was whether Poland can be made liable for such violation of an international agreement.
After the First World War due to a bipartite agreement between Germany and Poland; Germany agreed to transfer the control of Upper Silesia area to Poland. On an agreement that Poland would not forfeit any property of Germany located in the area , but thereafter Poland forfeited two of German Companies situated at that area.
Issue Arissing
1. Whether the court has its jurisdiction over the matter or not?
2. Whether there was any violation of the agreement between Germany and Poland or not?
3. Whether there was any international obligation on Poland due to the breach of the bipartite agreement between Germany and Poland?
It was held The Permanent Court of International Justice has its jurisdiction to try the case.Poland had violated the international agreement between Germany and Poland.Poland would be liable to repair any loss suffered by Germany due to the forfeit of that two company as they violated that international agreement.
The Court declared that it was : " .. . a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him " (p. 31) . The rule of Permanent Court of International Justice was very appropriate, which was given in favour of Germany as the attitude of Polish Government towards two German companies was not in conformity with the articles of Convention concerning Upper Silesia, concluded at Geneva on May 15th, 1922 (hereinafter referred as Geneva Convention), thus violating the international agreement by unlawful expropriation of the said companies and that infers the state responsibility on Poland for reparation for such violation. It is a general principle of International law that every violation of an engagement involves an obligation to make reparation[4] adopted from municipal law, which is applied in this case along with the principle of state responsibility as a state is considered as an individual entity when comes to an international dispute and it was accepted by all, repetition of which confirms that the decision is conform to existing law.
A recent initiative of the International Law Commission at its fifty-third session, in 2001 gave the state responsibility a more precise scope for the application of the principle of state responsibility[5]The United Nations codified these principles in the International Law Commisions Responsibility of states for internationally wrongful acts 2001. In determining whether a state is laible for violation of an International obligation regard is placed on the Primary and Secondary sources. Primary rules stem from treaty agreements. Secondary rules specify the consequences of a breach in the primary rules
BREACH OF AN INTERNATIONAL OBLIGATION
A breach in simple terms means an act of breaking or failing to observe a law, agreement or code of conduct. Black's law dictionary 9th edition describes it as any violation or omission of a moral or legal duty[6].
Every state has an obligation under international law, this obligation creates rights and duties on each state, and when a state fails to comply with these obligations a breach arises .
Article 1 of the International Law Commission's Articles on State responsibility for international wrongful acts provides that every internationally wrongful act of a state entails state responsibility.Article 2 provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is is attributable to a state under international law and constitutes a breach of an international organization. This means that breach includes an international wrongful act or omission that is it can be an act or a failure to act in regards to a state's duties.
Breach is mainly provided for under Article 12[7] which stipulates that there is breach of an international obligation when an act of that state is not in conformity with what is required of it by that obligation, regardless of it's origin or character.
For example Article 2(4) of the United Nations Charter[8] prohibits threat or use of force by states, so every country has an obligation which arises a duty to states not to use force , and when a state uses force against another state,it amounts to breach.In the case of Nicaragua V USA8 , court was of the view that USA by certain attacks on Nicaragua for example the Corinto attack on 10th October 1983, breached it's international obligation under the UN Charter not to use force against another state.
An obligation can be like not to interfere on the affairs of another state. Also the Nicaragua case decided that USA by training,arming, equipping, financing and supplying the contract forces otherwise encouraging and aiding military and paramilitary activities against Nicaragua, acted against the Republic of Nicaragua in breach of it's obligation under customary international law not to intervene in the affairs of another state.
Another example of breach is also in the Nicaragua case, USA laying mines in the internal Waters of Nicaragua during the first months of 1984 breached international customary law not to violate the state's sovereignty and not to interrupt peaceful maritime commerce ,this breached USA's obligations under Article 19 of of the Treaty of Friendship,Commerce and Navigation between the USA and Nicaragua signed at Monagua on 21st January 1956.
Breach of an international obligation by an act that itself doesn't have a "continuing character" occurs at the moment the act is performed , even if it's effects continue as seen is Article 14(1)[9]of the ILC Articles on State Responsibility for Internationally Wrongful Acts. An example of this is like unlawful attack of a territory, though the effects of the occupation may continue,the wrongful act is deemed to have happened at the real time of the attack.
Article 14(2)[10] provides that a breach that is of a continuing nature extends over the entire period during which the act continues and remains not in conformity with the international obligation in question.
A breach that constitutes of a composite act will also extent over the entire period which the act or omission continues and remains not in conformity with the international obligation.( This includes a series of acts or omissions that result into a wrongful act when taken in aggregate ,but when taken singly do not amount to wrongful act according to article 15[11]) forexample colonial genocide is a composite act. It is composed of the cumulative effect of many discrete actions, such as dispossession from land, neglect of and starvation of Indigenous populations, and kidnapping of children.
Article 13[12] provides that an act of a state doesn't contribute to a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs , this means that at the time the act of breach was done, the state must have been bound by that obligation in question, a state cannot be obligated to a law that was not in existence at the time of6 the breach of the act. It is a general rule of international law that an act must be judged according to the applicable international law at the time, not the law when a dispute about it arises,which could be many years later as was seen in The Island of Palmas Case (Hague Reports,decided on 4th April 1928)[13]
ATTRIBUTION/ IMPUTABILITY
Attribution is the legal friction which assimilates the actions or omissions of state officials to the state itself and which renders the state liable for damages resulting to the property of an alien.[14]All international claims are based on attribution.[15]
Article 4[16] of the ILC Articles provides that the conduct of any state organ shall be considered as an act of the state concerned under international law where the organ exercises legislative, executive, judicial or any other function, whatever position it holds in the organization of the state and whatever its character as an organ of the central government or of a territorial unit of the state. ‘According to a well-established rule of international law, the conduct of any organ of a state must be regarded as an act of that state.’18 The International Court in Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro)[17] regarded it as ‘one of the cornerstones of the law of state responsibility, that the conduct of any state organ is to be considered an act of the state under international law, and therefore gives rise to the responsibility of the state if it constitutes a breach of an obligation of the state’. It was a rule of customary international law20.
Article 5, in reaction to the proliferation of government agencies and parastatal entities, notes that the conduct of a person or of an entity not an organ of the state under article 4, but which is empowered by the law of that state to exercise elements of governmental authority, shall be considered an act of the state under international law, provided the person or entity is acting in that capacity in the particular instance. This provision is intended inter alia to cover the situation of privatized corporations which retain certain public or regulatory functions.
In Nicaragua v The United States of America, two tests were laid down to establish attribution of a state to an internationally wrongful act; the strict control test or agency test and the effective control test [18]
1. The strict control test or agency test.
This was developed by the ICJ to equate a group of individuals with an organ of a State requires a relationship of dependence and control to the degree that it can be qualified as “complete dependence” on the State. Dependence and control can be considered two correlative elements: the group is dependent on the extent to which it is controlled by the State, and that dependence and control must be “complete”. The ICJ analyzes the elements of control the State has and that control requirement has to be proved at two levels: the potential for control and the actual exercise of control. Moreover, that actual exercise of control must extent to “all fields” of the group’s activity
2. The effective control case
The ICJ, in Nicaragua v USA asserted the general principle that; the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-àvis Nicaragua, including conduct related to the acts of the contras.[19] The ICJ applied the effective control test, which involves holding a State responsible only for the acts of a group over which the State had effective control.
It is important to note that the effective control test differs from the strict control test in two regards: now there is no need to show that the group who committed the wrongful acts was in a relation of “complete dependence” to the State but that it acted under its instructions or its effective control, which must be exercised in relation to the specific acts at stake and “not generally in respect of the overall actions taken.[20]
Rationale for attribution
It is important to note that the purpose of attribution is to establish that the act considered as internationally wrongful emanates from a certain State for the purposes of responsibility. That a certain conduct is attributable to the State says nothing, as such, about the legality or otherwise of that conduct.[21]
ULTRA VIRES ACTS
An unlawful act may be imputed to the state even where it was beyond the legal capacity of the official involved, providing, as Verzijl noted in the case of Caire (France) v United Mexican States[22], that the officials ‘have acted at least to all appearances as competent officials or organs or they must have used powers or methods appropriate to their official capacity.[23]
Notably according to Article 7 of the Statute of the International Law Commission - The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ, person, or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. This article appears to lay down an absolute rule of liability, one not limited by reference to the apparent exercise of authority and, in the context of the general acceptance of the objective theory of responsibility, is probably the correct approach. This was emphasized in the Mossé case27, where it was noted that:
“Even if it were admitted that officials had acted outside the statutory limits of the competence of their service, it should not be deduced, without further ado, that the claim is not well founded. It would still be necessary to consider a question of law namely whether in the international order the state should be acknowledged as responsible for acts performed by officials within the apparent limits of their functions, in accordance with a line of conduct that was not entirely contrary to the instructions received.”
Therefore, responsibility is incurred by a State if the damage is sustained by a foreigner as a result of unauthorized acts of its officials performed under cover of their official character, if the acts contravene the international obligations of the State.” This position is now firmly established in this sense and recognized internationally in contemporary jurisprudence. It is confirmed, for example, in Article 91 of the 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, which provides that: “A Party to the conflict shall be responsible for all acts committed by persons forming part of its armed forces;” this clearly covers acts committed contrary to orders or instructions and this is illustrated subsequently.
In the case of Youman (USA) v United Mexican States[24], the militia ordered to protect threatened American citizens in a Mexican town instead joined the riot, during which the Americans were killed. These unlawful acts by the militia were imputed to the state of Mexico, which was found responsible by the General Claims Commission.
Significantly, the key is that the action was within the general scope of duty of the official. In the Sandline International Inc. vs. the Independent state of Papua. Guinea case[25], the tribunal emphasized: ‘It is a clearly established principle of international law that acts of a state will be regarded as such even if they are ultra vires or unlawful under the internal law of the state their [institutions, officials or employees of the state] acts or omissions when they purport to act in their capacity as organs of the state are regarded internationally as those of the state even though they contravene the internal law of the state.
DAMAGES
Black's Law Dictionary defines damages as money claimed by, or ordered to be paid to, a person as compensation for loss or injury.[26]The damages in the nature of state responsibility can take various forms, including:
Material damages:
These are tangible or physical losses suffered by the injured party, such as damage to property, loss of income, or personal injury. In the case of Corfu channel (UK v Albania)[27], court held that Albania was responsible under International law for the explosions which occurred and the damage and loss of human life which resulted from them and that there is a duty to pay compensation to the UK.
Moral damages:
These are non-material damages that cannot be quantified in monetary terms, such as pain and suffering, emotional distress, or reputational harm. Compensation of moral damages arises from the obligation under customary international law of full reparation of an injury (whether material or moral) caused by an internationally wrongful act, as codified in the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Recoverability of moral damages is widely accepted in most legal systems and arbitral practice. For instance, it has been recognized in France, for both natural persons and legal persons, in the United-Kingdom, in Russia, in Chile, in Libya, in Egypt, in Lebanon, in Yemen, in the Philippines, in Azerbaidjan and in Malta. The Desert Line v. Yemen tribunal[28] introduced the “exceptional circumstances” requirement of the moral damages claim. Subsequent tribunals have readily accepted this requirement. The element has also been referred to as a “gravity” requirement. The threshold of gravity and substantiality has not been met in several cases.
Punitive damages:
These are damages that go beyond compensating the injured party for their losses and are intended to punish the responsible state for its wrongful conduct. Punitive damages are relatively rare in international law. In the context of state responsibility in international law, punitive damages are generally not awarded. This is because the primary purpose of international law is to maintain peaceful relations between states and promote cooperation, rather than to punish individual states for their actions. In addition, the principles of sovereign immunity and noninterference in the internal affairs of other states limit the ability of international courts to award damages against states.
However, in certain exceptional cases, such as where a state's conduct is particularly egregious and harmful to other states or their citizens, punitive damages may be awarded. For example, in the case of the United States v. Iran [29], the International Court of Justice awarded punitive damages to the United States for Iran's role in sponsoring terrorist activities that caused harm to American citizens.
In summary, while punitive damages are not typically awarded in state responsibility cases in international law, there may be exceptional circumstances where such damages may be considered appropriate
In Conclusion , the above essay clearly disscuses the nature of the doctrine of state responsibility
Written and Compiled by BYARUHANGA JOSHUA MORRIS
A 3rd year law student at Uganda Christian University - Mukono Main campus
Gmail- joshmorris728@gmail.com
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[1] International Law 4th Edition by Profesuer Rebbeca Wallace [2] Spanish Zone of Morocco Claims (1925) Spain, United Kingdom Rapporteur: Huber (Switzerland) Reports of International Arbitral Awards, Vol. II,p. 615 [3]Case Concerning The Factory at Chorzow. 1927. E.c. Docket XI (PCIJ, july 26). [4] Shaw, Malcolm. International Law. 8th ed. Cambridge: Cambridge University Press, 2008, 100 [5] Yearbook of the International Law Commission, 2001, vol. II, Part Two [6] Bryan Ganner Black's law dictionary 9th Edition [7] International Law Commision Draft Articles on Resposibility of States for Internationally Wrongful Acts 8 United Nations Charter [8] Military and Paramilitary Activities in and Agaisnt Nicaragua ( Nicaragua v. United States ) I.C.J ,1986 ICJ 14 [9] International Law Commision Draft Articles on Resposibility of States for Internationally Wrongful Acts [10] International Law Commision Draft Articles on Resposibility of States for Internationally Wrongful Acts [11] International Law Commision Draft Articles on Resposibility of States for Internationally Wrongful Acts [12] International Law Commision Draft Articles on Resposibility of States for Internationally Wrongful Acts [13] The Island of Palmas Case (Hague Reports,decided on 4th April 1928). [14] Article 2 of the ILC articles notes that the attribution of conduct to the state is based on criteria determined by international law and not on mere recognition of a link of factual casualty. [15] Compañía de Aguas del Aconquija S.A (formerly Aguas del Aconquija) and Vivendi Universal S.A (formerly Compagnie Generale des Eaux) v Argentine Republic (l). ICSID Case No. ARB/97/3. [16] International Law Commision Draft Articles on Resposibility of States for Internationally Wrongful Acts 18ICJ Reports, 1999, Pg. 62, 87. [17] Application of the Convention on the prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports (2007) p. 43 20ICJ Reports, 2007, pp 43, 202. [18] Military and paramilitary Activities in and against Nicaragua, Nicaragua v United States, [1984] ICJ Rep 392. [19] (TALMON (2009) p. 503) considers that “while the burden of proof for the –effective control– test is lower than that for the “strict control” test, in practice it will be extremely difficult to establish”. [20] Application of the Convention on the prevention and Punishment of Crimes of Genocide.(Bosnia and Herzegovina v. Serbia and Montenegro)[2007] ICJ 2 [21] Robert McCorquodale, impact on State Responsibility, Pg. 235-254. [22] Caire 5 RIAA, pp. 516, 530 (1929); [23] Malcolm Shaw, International Law (9th Ed. Cambridge Publishers, 2021) p. 1783, 1784 27 Mossé, 13 RIAA, p. 494 (1953); [24] Youman, 4 RIAA, p. 110 (1926); [25] Sandline, 117 ILR, pp. 552, 561., [26] Black's Law Dictionary 4th Edition pg416 [27] [1949]ICJ Rep 4 [28] IIC 319 (2008) [29] [2003]ICJ 4
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