State Responsibility in International Law

State Responsibility

1KDR/IIT KGP/RGSOIPL/-2008

State responsibility The law of responsibility is concerned with

the incidence and consequences of illegal acts, and particularly the payment of compensation for loss caused – Ian Brownlie

KDR/IIT KGP/RGSOIPL/-2008 2

Spanish Zone of Morocco claims, 1923J. Huber: ‘Responsibility is the necessary corollary of a

right. All rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met.’


Chorzow Factory, PCIJ, 1927‘it is a principle of international law that the

breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.’


Chorzow Factory, 1928It is a principle of international law, and even

a general conception of law, that any breach of an engagement involves an obligation to make reparation.’


State responsibility State responsibility for internationally

wrongful acts.State acts in breach of international law.State cannot evade international obligation

under municipal law.International criminal responsibility.Crime of apartheidRacial discriminationState responsibility in nuclear experiments


Component stateResponsibility of component state is imputed

or attributed to the federal state, in the same way as the conduct of its federal organs,

Federal state is vicariously liable for the conduct of a component state.


1974 ILC ReportThe principle that the state is responsible for

acts and omissions of organs of territorial governmental entities, such as municipalities, provinces and regions, has long been unequivocally recognised in international judicial decisions and the practice of States.


Defense to state responsibilityCoercion by another state to commit a

wrongful act.Consent by the affected state.Countermeasures recognised by international

law.Force majeure contributing to the unlawful

act.


Breach of treatyIf any treaty provision is broken

responsibility follows.PCIJ in Chorzow Factory (Indemnity), (1928)

PCIJ Ser A, No.17, p.29.‘any breach of an engagement involves an

obligation to make reparation.’The compensation or punishment may be in

accordance with the illegality and seriousness of the act committed.

Rainbow Warrior case - KDR/IIT KGP/RGSOIPL/-2008 10

Rainbow WarriorOn 10 July 1985 an undercover operation

conducted by the French military security service (DGSE) sank the British-registered Greenpeace ship Rainbow Warrior berthed in Auckland Harbour.

The Greenpeace ship was planning to disrupt French Nuclear tests on the islands of French Polynesia. New Zealand subsequently caught and convicted several members of the French secret forces.


http://en.wikipedia.org/wiki/Auckland_Harbour

Rainbow warrior France initially offered an official apology

and acknowledgement of breach of international law.

Additionally, the UN secretary-general awarded New Zealand 7 million USD. This is in addition to compensation which France paid to the family of the only victim of the mission and to Greenpeace (settled privately).


Contracts Excluded from international law purviewSpecifically provides international law as the

governing law?


Liability for expropriationsConcessions regarding mining,

manufacturing, transportation, utilities and communications.

Anglo Iranian Oil Co Case ICJ 1952. (UKThe Anglo Iranian Oil company case.docx v. Iran)

The UN Resolution on Permanent Sovereignty over Natural Resources, 1962.


General Assembly resolution 1803 (XVII) of 14 December 1962,"Permanent sovereignty over natural resources" Nationalization, expropriation or requisitioning shall be

based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign.

In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law.

In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted.

However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication. KDR/IIT KGP/RGSOIPL/-2008 15

Expropriation of foreign private property1. be for a public purpose in accordance with a

declared national policy.2. Not discriminate between aliens and

citizens, or between different foreign nationalities.

3. Not involve the commission of an unjustified irregularity.

4. Be accompanied by the payment of appropriate compensation.


Standard of reparation Restitutio in integrum – monetary equivalent.Damnum emergens – market value of assetsLucrum cessans – loss of expected profits


Calvo clauseArgentinian jurist CalvoLegal disputes arising out of the contract

shall be referred to the municipal courts of the state granting the concession or grants.

Oust the jurisdiction of the international arbitral tribunals.

North American Dredging Co Case


Hull FormulaA number of developed countries endorsed the “Hull

formula”, first articulated by the United States Secretary of State Cordell Hull in response to Mexico’s nationalisation of American petroleum companies in 1936.

Hull claimed that international law requires “prompt, adequate and effective” compensation for the expropriation of foreign investments. Developing countries supported the Calvo

doctrine during the 1960s and 1970s as reflected in major United Nations General Assembly resolutions. In 1962, the General Assembly adopted its Resolution on Permanent Sovereignty over Natural resources which affirmed the right to nationalise foreign owned property and required only “appropriate compensation”.


Debts Lord Palmerston’s theory – 1848 – intervene

diplomatically and even resort to military intervention against defaulting debtor state.

The Drago doctrine – Argentinian Minister – 1902 – non use of military force

Included in the Hague Convention of 1907 – Employment of Force for the Recovery of Contract Debts – non use of force.


Person or property Immutability 1. conduct of the state organ or official in

breach of an obligation defined in a rule of international law.

2. That breach would be attributed to the state.


Conditions for state responsibility1. state organ r official is guilty of the

relevant act with state authority.2. state responsible at international law – if

the person exceeds authority – impute liability on the state.

Youman’s case – Mexican troops exceeded orders and killed Americans.

3. Under municipal law there is no authority – imputation will fail.


Protection of citizens abroadDenial of justiceChattin Claim (1927) – US-MexicoExhaustion of local remedies is a condition

precedent.


Fault theoryOne state is not responsible to another state

for unlawful acts committed by its agents unless such acts are committed willfully and maliciously or with culpable negligence.

Jessie – British American Claims Arbitral Tribunal in 1921.

‘any government is responsible to other governments for errors in judgment of its officials purporting to act within the scope of their duties and vested with power to enforce their demands.’


Claims Presence of malice or culpable negligence is

not a condition precedent of state responsibility.

A state can bring claims if one of its subjects has sustained unlawful injury for which another state is responsible.

Mavrommatis Palestine Concessions Case, 1924, PCIJ – ‘once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is the sole claimant.’


Corporations Nationality of claims canon – nationality of

the company.Barcelona Traction (Belgium v. Spain)Only the national of the company (Canada)

can initiate any claim.Belgium claim on behalf of its citizens fail.Real and effective nationality is the criteria –

Cf Florence Strunsky Merge Case (1955). Artificial personality in corporations - only

nationality is criteria. KDR/IIT KGP/RGSOIPL/-2008 26

Damages Material damage or pecuniary loss.Nicaragua Case


Thank you


RGSOIPL, IIT Kharagpur

State Responsibility in International Law

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