The ILC did not attempt to codify the primary rules,
the breach of which leads to international
STATE
RESPONSIBILITY
WHAT IS AN INTERNATIONAL WRONGF UL
ACT?
- When a state violates a customary
international law, or obligation of a treaty.
- It is a breach of international obligation
- There is a wrongful act for which the state is
to be held responsible
WHAT IS LIABILITY?
- The obligation to pay compensation
- May also refer to obligations of states arising
from harmful consequences.
WORK OF INTERNATIONAL COMMISSION
Most difficult topic of the codification work of the ILC
The current approach by ILC has become abstract and
complicated.
“State responsibility embraces the other side of the
medal, the totality of legal rules and consequences
linked to the breach of any international obligation of
the state.”
WHAT ARE THE WORKS O F ILC?
FIRST SPECIAL RAPPOR TEUR, F.V GARCIA
A total of six reports submitted between 1956-1961
State responsibility for the injury to the person or
property of aliens
ILC decided not to restrict its study of the topic to a
particular subject, in order to include also the rules on
state responsibility for the breach of fundamental
principles of international law.
responsibility, by reason that it is impracticable. It
rather focus on the “secondary” rules of state
responsibility as an abstract area of its own.
THE GENERAL PLAN OF ILC (1975):
1. Origin of International Responsibility
2. Content, form and degrees of State
responsibility
3. Implementation of Responsibility and the
settlement of disputes.
LIABILITY OF INJURIOUS CONSEQUEN CES
ARISING OUT OF ACTS NOT PROHIBITED BY
INTERNATIONAL LAW.
- Due to transboundary environmental
protection problems
- It is treated separately from responsibility
for International wrongful acts.
- The work has not made very much progress.
- The work in unclear and the commentators
have quite questioned the feasibility of
distinguishing the whole area from the other
project on responsibility of wrongful acts.
STATE RESPONSIBILITY FOR INTERNATIONAL
WRONGFUL ACTS
Basis: 8 reports in 1969 presented by Special
Rapporteur, Robert Ago
1980: adopted in first reading; a 35 draft articles
dealing with the origin of state responsibility.
PART 1: GROUNDS AND CIRCUMSTANCES
WHICH A STATE MAY COMMIT AN
INTERNATIONAL WRONGFUL ACT.
Chapter 1: General Principles. Consist of 2 elements
(International Act):
- Subjective element
- Objective element
Article 3. there is an international wrongful act
when:
 - Conduct consisting of an action or omission
is attributable to the state under
international law
- Conduct constitutes a breach of
international obligation of the state
Chapter II: Act of state under international law
- Addresses the subjective element
- Determines the conditions, in which a
conduct is consider an act of state.
Chapter III: Breach of international Obligation
- Deals with the objective element
Chapter IV: Implication of a state in the international
Wrongful act of Another State
- When a state takes part to the international
wrongful act of another state.
- When a responsibility is borne by a state
other than the state committing the act
Chapter V: Circumstances Precluding Wrongfulness
- List of circumstances: which may preclude
the wrongfulness of state which the does not
conform to an international obligation.
Includes:
o Legitimate counter measures
against a wrongful act.
o Force majeure
o Fortuitous event, distress, necessity
and self-defence
1980: ILC concentrated on Part 2: content, form and
degrees of state responsibility.
- Reports by Special Rapporteur: Willem
Riphagen, succeeded by Gaetana Arangio-
Ruiz. 1995: finish much of initial work.
STATE RESPONSIBILITY AND THE
TREATMENT OF ALIENS
The rules concerning Human Rights are of recent
origin. But, for 200 years’ International law had laid
down minimum standards in the treatment of aliens.
Although states are not obliged to admit aliens, but
must treat them in a civilized manner.
State is guilty of breach of international law, if it
inflicts injury at a time when they are outside its
territory
- Example: Utopia orders utopian servicemen,
station in Ruritana, to attach Ruritanian
residents.
- A state may not perform a governmental act
in the territory of another, without the
latter’s consent. (principle of sovereignty.
Belong to the category of primary rules. Failure to
comply engages international responsibility, and the
State of the injured alien may exercise the right of
diplomatic protection. It may be through:
- Negotiation, or if both agrees:
- Dealt with arbitration or judicial Settlement.
The duties of defendant state is owed to the Alien’s
national state.
- Theory: the claimant state itself suffers a loss
when one of tis nationals is injured.
Claimant state:
- may make a claim or to abandon it.
- No duty to pay its national
- May agree to settle in a fraction of its true
value.
Diplomatic protection: Barcelona traction case:
- State may exercise diplomatic protection in
whatever means and extent it thinks fit, as a
matter of right.
- The natural or legal persons considers their
right not adequately protected, they have no
remedy under international law. But they
may resort to Municipal law, if available.
- It is a discretionary power, the exercise of
which is political or other nature.
- State enjoys complete freedom of action.
Reason: the claim is not identical with that of
the individual or corporate person.
T/N: International law does not entirely disregard the
individual. Usually compensation is calculated by
reference to the loss by the individual, but not always.
- Example: I’m Alone Case( 1935). US sank a
british shop smuggling liquor to US.
Arbitrators held that sinking was illegal, but
no damages awarded, because it was owned
by US citizens and used for smuggling.
Although payment of 25,000 and apology to
UK by reason as an insult to british flag.
IMPUTABILITY
State is liable only for its own acts and commissions;
state is defined in this context with its governmental
apparatus, which includes Legislature, Judiciary and
Executive.
ILC draft articles
1. Conduct of any state organ having that
status under internal law shall be considered
as an act of state, provided that organ was
acting in that capacity in question
2. Whether the organ belongs to the
constituent, legislative, executive, judicial or
other power, whether it functions in
international or an internal character, and
whether it holds a superior or a subordinate
position.
3. Conduct of an organ of a territorial
government entity within the state shall also
be considered as an act of state, provided
that organ was acting in capacity in the case
in question
4. An organ not part of the formal structure,
but which is empowered by internal law to
exercise elements of governmental
authority, shall be considered as an act of
state under international law, provided that
organ was acting in capacity in the case in
question.
State is only liable of to its officials only if those acts
are imputable or attributable. The question of
whether it is attributable must be distinguished
whether some form of fault on the part of state needs
to be established to engage its international
responsibility.
States is also liable for the acts of its officials, even
when they exceed or disobey instructions, provided:
that they are acting with apparent authority or
abusing powers or facilities placed at their disposal.
YOUMAN’S CLAIM
- Mexico sent troops to protects Americans
from a mob; but, instead of protecting the
americans, the troops, led by a lieutenant,
open fire on them
- Held: Mexico was liable.
- Reason: Because the troops had been acting
as an organized military unit, under the
command of an officer.
- On the other hand, if the troop had been off
duty, their acts would probably have been
regarded merely as acts of private
individuals.
- As provided in Art. 10 of ILC draft: “Shall be
considered as an act of state under
international law even if, in the particular
case, the organ exceeded its competence or
contravened instructions”
There are instances that State may be liable on acts of
the individuals:
1. Encouraging individuals to attack foreigners
2. Failing to take reasonable care “Due
diligence to prevent individuals. Reasonable
care will depend on circumstances. Note:
Special care must be taken to prevent injury
to diplomats.
3. Obvious failure to punish individuals
4. Denial of Justice- Failure to provide an
opportunity to obtain compensation to an
injured foreigner in local courts
5. Obtaining benefit from the individual’s act
6. Express ratification of the individual’s act.
TEHRAN HOSTAGES
Facts: Following the overthrow of Shah Reza Pahlevi,
an ally of US, and the establishment of Islamic
Republic of Iran, Demonstrators attacked the US
embassy in Tehran. Security officers did not
intervene. There were hostage-takings which were
kept for 14 months, archives were ransacked. The
matter was later on settled by an agreement (the
Algiers accords), mediated by Algerian Government.
Which led to a Iran-US claims tribunal, having 4,000
outstanding claims between 2 nations.
Issue: The view taken by ICJ to which US had taken
resort with regards to State responsibility. (Iran did
not participate in the proceedings.
First phase: Militants are considered as individuals, no
indication that they had any direct responsibility of
the Iranian government. No direct responsibility on
the part of Iran.
Second phase: In view of the statements of Ayatollah
Khomeini condoning Hostage taking, the decision of
the Iranian government to maintain the situation
from which it sought to benefit and not to take steps
against the militants, the ICJ concluded that the Iran
is directly responsible.
Iran’s Argument: Seizure of the embassy was a
reaction due to the criminal interference of US in the
affairs of iran.
ICJ: Dismissed the argument. Even if that were true, it
did not justify their conduct.
- Reason: Diplomatic law itself provided the
necessary means of defense against illegal
activities of members of Foreign diplomatic
and consular Missions. (i.e declaring them
persona non-grata)
T/N: There are special rules concerning the
attribution of conduct of:
1. International Organs
2. State acting on the territory of another state.
MINIMUM INTERNATIONAL STANDARD
GR: When someone resided in a foreign country, he is
deemed to accept the laws and customs of the
country. Therefore, the state cannot claim based on
the fact that such individual would have better
treatment in his home country.
EXC: When they fall below the minimum international
standard. (not all states but majority of the states).
Usually, minimum international standard is applied
International Standard
- Would simultaneously give the alien too
much and too little.
- If carried to its logical Extreme: Aliens may
be granted rights which states are not
obliged to grant to aliens. Conversely, state
would also be entitled to torture foreigners-
conclusion repugnant to common sense and
justice.
Minimum International Standards (MIS) Applied:
- They treat nationals better, not for them to
treat the aliens worse.
- The human rights movement may be seen as
an attempt to extend the minimum
international standards not only to aliens but
also nationals.
Critics on MIS: Not on the principle but to its content.
Some of the rules in the MIS are more widely
accepted than others. Example:
- unlawful killing, imprisonment or physically
ill-treated would engage international
Responsibility,
o Except if there are justifiable
circumstances, yet excessive
severity in maintain law and order
will also fall below the MIS.
- There are also instances that
maladministration of justice would engage a
state responsibility.
DEPORTATION
United Kingdom
- Recognizes states can deport without stating
reasons
 - Although it should not be abused by
proceeding arbitrarily. (A vague restriction)
Iran-United States Claims Tribunal
- Facts: Hundreds of American Citizens files
compensation for damages against iIran,
alleging that they had to leave iran due to
the acts of the government supported,
tolerated or initiated.
- Tribunal required proof of each American
that they are required to leave that would be
attributed to state, and the general anti-
americanism is insufficient.
- It accepted the responsibility of the
Revolutionary government even previous
acts. Basis: Continuity existing between the
new organization of the state and the
organization of the revolutionary
government.
- The tribunal was unable to determine
whether an American bas been forced to
leave the country by an agent of the
revolutionary government.
- Iran, a successor government, was not
responsible of its supporters, just as no
liability of existing government to tis
supporters.
- There was also state responsibility for acts of
persons acting de facto on behalf of the
government.
PRELIMINARY OBJECTIONS
It is a term of judicial procedure, the rules giving rise
to preliminary objections are so well established that
they tend to be observed in diplomatic negotiations
as well as in proceedings before international
tribunals.
In cases of treatment of aliens, it may be lost at this
stage.
Factors give rise to Preliminary Objections:
- Non-Compliance with the rules
- Concerning nationality of Claims
- Failure to exhaust local remedies
- Waiver
- Unreasonable Delay
- Improper Behavior of the injured alien
NATIIONALITY OF CLAIMS
It must be proved that the injured individual is a
national of a claimant state, in respect of damage
against another state.
“Itn absence of a special agreement, it is the bond of
nationality between the state and the individual
which alone confers upon the state the right of
diplomatic protection”
Nationality- The stats of belonging to a state for
certain purposes in international law.
GR: State has own discretion to define nationals
EXC: May be limited by treaties or even customary
international law; such as imposing nationality to
inhabitants of other state.
Different modes in acquiring Nationality:
1. By Birth. Jus Soli- born in the territory and Jus
Sanguinis -Born of parents who are nationals
or either way
2. By Marriage
3. By adoption or legitimation
4. By naturalization
5. As a result of transfer of Territorry from one
state to another
There are also instances that nationality may be lost:
1. Dual citizens may renounce one of its
nationality upon attaining the age of
majority
2. There are cases when acquisition of a new
nationality. Traditionally: the old nationality
is lost. Modern: They are now given the
option
3. Deprivation
4. As a result of transfer of territory to another
state.
An individual maybe:
 1. One Nationality company and the state whose nationality it
2. Dual nationality possessed.
3. Multiple Nationality - GR: A state may not claim of its nationals
4. Stateless who suffered loss as a result of injuries
inflicted on foreign companies in which they
Traditional Position concerning Stateless person: No own shares.
state may claim on their behalf, however this rule is - EXC: when a company has gone into
abandoned due to humanitarian grounds. liquidation.

In cases of dual nationality who may claim? Exhaustion of Local Remedies

1. Against 3rd states, both state may claim When the conduct
2. One national state against the other it is:
a. Claims are inadmissible (orthodox
view)
b. Master nationality (the state which
has closer ties)

Nottebohm Case the ruling of the court: The right of

protection arises only when there is a genuine link
between the claimant state and its national.

Dilemma by the ruling: Is it possible to acquire the

nationality of a country by being virtue of being born
there, without having any genuine link?

Answer: Maybe it would be better to think in terms

not of genuine link but to what is acceptable under
customary law.

In Iran-US claims: the Dominant and effective

nationality was used. Wherein if claim against Iran the
effective nationality must be that of American based
on Factual basis.

In cases of Companies?

- Claimant state may claim on behalf of the

companies possessing the nationality of
claimant state.
- Its nationality is based upon the laws which
it is incorporated and in whose territory it is
registered.
- And the mere fact that a company operated
abroad and was controlled by foreign
shareholders did not, by itself, prevent the
existence of a genuine link between the