Law273-Week11/State

Responsibility
Dr. N. Sinan Odabaşı
Altınbaş University 2021
 Terminology matters
• Responsibility is the term used by
international lawyers to denote the idea that
some entity can be blamed for undesirable
behaviour.
• Liability usually denotes the existence of a
financial obligation; someone is liable to pay
compensation.
– If someone is responsible for an act, then he/she
may also be held liable.
 State Responsibility
• State responsibility refers to the liability of
States for internationally wrongful acts, that is,
breaches or violations of international
obligations.
• It was confirmed by the PCIJ in the 1920s, in
the Chorzów Factory case, that the possibility
of being held responsible was the price to pay
for being able to participate in international
law.
 Codification of Customary Rules
• The rules of state responsibility have customary law
characteristics.
• After WWII, there was a general sentiment to codify these rules.
• The International Law Commission (ILC), an organ established by
the General Assembly in 1947, was given to task to prepare a
draft text for a possible treaty in the future.
• However, it turned out that the law on state responsibility was a
matter complicated by a host of political, conceptual and
philosophical issues.
• The work of the ILC went on for four decades and finally, a draft
version was produced.
 Codification of Customary Rules
• The ILC adopted its draft Articles on Responsibility of States
for Internationally Wrongful Acts (Articles on State
Responsibility) in 2001.
• But this draft was not transformed into a treaty. It had been
feared that states would change it in an undesired way.
• Instead, Articles on State responsibility were submitted to the
General Assembly.
• The General Assembly officially endorsed this text under a
resolution.
• The articles are thought to reflect customary international
law to a large extent and are considered highly authoritative.
 Two fundamental principles of State
Responsibility
• Attribution: States can be held responsible for
acts that are attributable(atfolunabilir, isnat
olunabilir) to them.
• Internationality: States can be held
responsible only for internationally wrongful
acts. These are acts that are somehow
committed in violation of an international
obligation incumbent on the state.
 Two fundamental principles of State
Responsibility/Attribution
• Attribution: As a matter of principle, states are not
responsible for the activities of private parties.
– If a foreigner in Spain is killed by a murderer, Spain will
not be held responsible, unless the action is related to the
state somehow.
• Attribution: States are responsible for the acts of their agents
and organs.
– In addition, states are responsible of the actions of its
agents and organs, even those who act outside their
proper competences. Such acts of officials are designated
as ultra vires (yetki aşımı).
 Two fundamental principles of State
Responsibility/Attribution: Ultra Vires
• The underlying theory is that the state must
control its officials and organs, since because
no one else can.
– For example, an act of torture committed by a
rogue police officer in contravention of domestic
law, will none the less engage the responsibility of
that state.
 Internationally Wrongful Act
• Under the articles on state responsibility, states can only
be held responsible for acts that violate their
international legal obligations.
– In the case of a treaty violation, if the state is not a party to it,
the state cannot be held responsible. This means that states
cannot be held responsible for violating a treaty that it is not a
party to, even if the act violating the treaty is harmful.
– For example, if a state executes a foreigner based on a lawful
death penalty and if it is not a party to a treaty that outlaws
death penalties, it wouldn’t be held responsible for this
execution.
 Responsibility and private acts
• States cannot be held responsible for the purely private acts
of their citizens. But situations may occur where a state may
incur what may be termed “indirect” responsibility.
• This may happen when a state acknowledges and adopts
illegal private acts or fails to prevent them in violation of an
international legal obligation.
• Also, the level of control exercised by the state on non-state
actors is a point of interest. There are two tests applied by
international courts and tribunals for the determination of a
state’s responsibility for the acts of non-state actors.
 Tehran Hostages Case
• In 1979, groups of radical students took part in the Iranian revolution
and occupied the US embassy in Tehran, as well as US consulates in
Tabriz and Shiraz, and held their staff hostage for more than a year.
• Since those students were private persons, the state of Iran did not incur
direct responsibility for the seizing of the embassy, but it did incur
responsibility for a number of related circumstances.
– The Iranian authorities had been under an obligation under diplomatic law, to
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provide protection to the embassy, but were nowhere to be found when the
incident happened. They neither took measures to bring the situation to a quick
end.
– Also, the Iranian leader Humeyni applauded hostage-taking as a useful way of
exercising pressure on the USA.
– Relying on these points, the ICJ ruled that the acts of private citizens were
transformed into acts of the state.
 Two different tests: 1.Effective Control
• IL jurisdiction provided two different answers to this question.
• The ICJ applied the “effective control” standard in rendering Nicaragua v. USA
(1986) judgement.
• It held that in order to attribute responsibility for the actions of armed
Contras to the USA, the USA’s “effective control” over these groups should be
proved.
• The Court eventually said that the control of the USA over Contras did not
amount to the degree of “effective control”.
• But the Court nevertheless did rule that, by arming, training, equipping,
financing, and supplying the contra forces, the US violated its obligations
under customary international law, not to intervene in affairs of other states.
• The Court also upheld this effective control standard in the case of Armed
Activities between Uganda and Congo.
Two different standards: 2. Overall Control
• By contrast, in the Tadic case, International Criminal Tribunal for the former
Yugoslavia tribunal (the ICTY) posited that “effective control” was too strict a
test, and that the looser test of “overall control” would be more appropriate.
• States should be held responsible for groups acting on behalf of and with the
connivance(müdahale etmeme, göz yumma) of a state, even if they are not
acting upon a direct order.
• The ICTY was in the view that applying the standard of overall control would be
in conformity with the law of state responsibility, as these rules hold states
responsible even for ultra vires (yetki aşımı) acts of their officials and organs.
• Later on, the ICJ put the overall control standard to test in another judgement
and found that it is too flexible. According to the ICJ, overall control standard
almost breaks the connection which must exist between the conduct of a
State's organs and its international responsibility.
Circumstances precluding wrongfulness
• Just like in domestic law, there may be circumstances
which help justify behaviour that would otherwise be
illegal in international law as well.
• These are assembled under the general heading
“circumstances precluding wrongfulness”, and listed
in the articles on state responsibility.
• Such circumstances only preclude wrongfulness
through justification, but they do not make the
original obligation go away.
 Circumstances precluding wrongfulness/1. The
consent of the state affected by the wrongful act
• Under Article 20, a State may give its consent
for another State to commit an act on its
territory that would ordinarily be unlawful
without that consent.
• Consent, under such circumstances, may be
express or implied.
 Circumstances precluding wrongfulness/2.
Self-defence
• If an internationally unlawful act occurs while a
State is defending itself in accordance with the
right recognized under Article 51 of the UN
Charter, then the State’s responsibility for the
internationally unlawful act is precluded.
• Since the UN Charter recognizes both
individual and collective self-defence, other
states that are involved in this collective effort
would avoid responsibility.
 Circumstances precluding wrongfulness/3.
Force Majeure
• Force majeure (mücbir sebep) is the occurrence
of an irresistible force or of an unforeseen
event beyond the control of the State, making
it materially impossible in the circumstances to
perform an obligation.
• Thus important elements of force majeure are
– Irresistibility
– to be beyond control
– unforseeable character of the force or event
Circumstances precluding wrongfulness/3. Force
Majeure: Example
• A lighthouse owned by a French company,
which was taken over by the Greek government
in 1915, was subsequently destroyed by enemy
action. The arbitral tribunal rejected the French
claim for restoration of the lighthouse on
grounds of force majeure.
• Therefore, we understand that military attacks
may provide enough justification to avoid
responsibility as force majeure.
Circumstances precluding wrongfulness/3. Force
Majeure: Example
• On the other hand, economic difficulties may not
prove enough ground for the force majeure defence.
– Greece and Belgium entered into a contract under which
the Belgian company would finance the building of some
railway facilities in Greece.
– Greece failed to repay the loans, saying that it was
“materially impossible for the Greek Government to
execute the awards as formulated” due to the precarious
financial situation of the country.
– But the Court had rejected the force majeure plea of
Greece (Belgium v. Greece ,1939, PCIJ).
Circumstances precluding wrongfulness/3. Force
Majeure: Example
• The Rainbow Warrior Arbitration, New Zealand v.
France, 1986.
– Facts: Two French agents who planted explosives on the
Rainbow Warrior, a vessel belonging to New Zealand,
were sentenced to ten years in prison by the New Zealand
authorities.
– Then, France and New Zealand agreed that France will
keep these agents in prison in Hao (French Polynesia) for
three years, without moving them to another place.
– France, however, broke the agreement and moved one of
these agents to France.
Circumstances precluding wrongfulness/3. Force
Majeure: Example
…The Rainbow Warrior Arbitration, New Zealand v.
France, 1986
– France claimed that the accused person was in need of
urgent medical attention and that this constituted force
majeure. The medical grounds used to repatriate the
agents was unforeseen and beyond its control, thus the
treaty's obligation for detention would be impossible.
– The Arbitration Panel rejected the defence of force
majeure, because it didn’t see the performance of
France's obligations under the treaty impossible.
 Circumstances precluding wrongfulness/3.
Force Majeure
• In cases of arbitration and/or adjudication
involving a force majeure defence, we see that
arbitrators or courts tend to apply a strict test
before determining the existence of force
majeure.
• States may have decent excuses for not
fulfilling legal obligations, but in order to apply
force majeure defence, these excuses should
amount to a very high level.
 Circumstances precluding wrongfulness/4.
Distress
• If a State can show that it had no choice, to save lives, other
than to take the course of action resulting in a breach of its
international obligation, it can avoid the consequences of the
breach of obligation.
• The state in such a case,
– must not have contributed to the stressful event
– the measure that it takes does not create a comparable or greater
peril than that which it seeks to avoid.
• The defence of distress is most commonly pleaded in relation to
aircraft or ships entering other states’ airspace and territorial
waters, without prior permission, in order to avert disaster.
 Circumstances precluding wrongfulness/4.
Necessity
• In order to plead necessity as a circumstance
precluding a wrongful act, a State must
– demonstrate that the offending act was the only way
in which it could prevent a grave and imminent peril
(risk, tehlike hali) to an essential interest of the State.
– not have contributed to the act;
• States invoke necessity as an excuse for not fulfilling an
obligation. If the international obligation in question
excludes the possibility of invoking necessity, the
necessity defense will be in vain.
Peremptory Norms and State Responsibility

• There can be no excuse of precluding

circumstances for breaching peremptory
norms of international law.
• There can be no derogation from the
obligation to comply with peremptory rules.
We understand this from Art.53 of the VCLT,
which states that treaties that are in violation
of peremptory norms are void.
 Consequences of Responsibility
• When a state causes an injury to another state, the responsible state is liable
to make full reparation to the injured state.
• Reparation(telafi): The function of reparation is not to punish, but to repair,
and this is based on the idea that it is somehow inappropriate to punish the
sovereign.
• Traditionally, international law provides three possible forms of reparation for
injury.
– 1. Restitution (eski hale getirme) or restoration (restorasyon): The state in the wrong
will provide restitution and restore the situation as it would have existed without the
wrongful act. This might be difficult since it includes “guesswork”. Restoration is very
similar to restitution, in a way, the easier version of it.
– 2. Compensation (tazminat): If reparation is not possible through
restitution/restoration, then compensation payments may be applied
– 3. Satisfaction (without payment): State that had wrongfully acted acknowledges its
breach and expresses regret or apology.
 The Chorzow Factory Germany v. Poland,
PCIJ, 1927
• Facts brief: After WWI, a bipartite agreement was entered in
which the control of the Upper Silesia region was transferred by
Germany to Poland, on the condition that Poland would not forfeit
any property of Germany. However, Poland in breach of the
agreement sold two German factories located in that area.
• The judgement of the PCIJ on the matter is considered to be
authoritative in defining the consequences of state responsibility,
arising from internationally wrongful acts.
– “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.”
 The Chorzow Factory Germany v. Poland,
PCIJ, 1927
• The Court had explained restitution in kind: “Reparation must, as far
as possible, wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if
that act had not been committed”.
• If this is not possible, then a payment should be made
“corresponding to the value which a restitution in kind would bear”.
• In this case, The PCIJ also stipulated the principles for the
determination of the amount of compensation. It should include:
– The Award (the sum determined by the court or the arbitrator of the case)
– If necessary, damages and losses that cannot be covered by the restitution
or compensation
 Types of reparation:
1.Restitution/Restoration
• Restitution involves the restoration of a situation that
existed before the wrongful act was committed, provided
that this is possible and does not impose a greater burden
on the responsible State than compensation.
• In its purest form, status ante, restitution can be difficult
to achieve. In such cases, restoration may be applied.
• In a border conflict between France and Switzerland, the
PCIJ ordered France to withdraw its customs cordon in
order to restore Switzerland to its original position. (The
Free Zones of Upper Savoy and the District of Gex Case)
 Types of reparation: 2.Compensation
• Compensation is available where the
internationally unlawful act actually results in
losses.
• Consequently, compensation should also cover
losses of profits, if and where appropriate.
• But Compensation is not designed to punish or
to serve as a deterrent, therefore, courts and
tribunals usually don’t decide on punitive
amounts of money.
 U.S. v. Germany, 1927, The Lusitania
Arbitration
• On 7 May 1915, a German submarine torpedoed a
British ocean liner, RMS Lusitania, off the coast of
Ireland, resulting in the loss of 128 American lives.
• At the time, the USA was not a party to this armed
conflict, WWI.
• In the subsequent arbitration, Germany accepted
to pay compensation. The arbitrator (umpire) said:
– “The compensation must be adequate and balance as
near as may be the injury suffered”
Types of Reparation: 3.Satisfaction
• A State that causes injury to another may undertake
satisfaction—that is, acknowledgement of the breach, an
expression of regret, and an offer of apology.
• Satisfaction is often used as reparation for non-material
injury.
• It is mostly considered useful in connection with moral
damage that cannot be quantified and thus cannot give rise
to compensation in a meaningful way.
• Just like compensation, the idea of punishment is
abandoned, and Articles on State responsibility prescribes
that satisfaction shall not be humiliating.
Types of Reparation: 3.Satisfaction
• Satisfaction may also take the form of
declarations by a court that an act was illegal
or unlawful.
– In the Corfu Channel Case (UK v. Albania), the ICJ
declared that the mine-sweeping of the Albanian
waters by the British Navy, without Albania’s
authority, was a violation of Albanian sovereignty
and illegal. Here, this declaration formed
satisfaction.
 Responsibility towards whom?
• In the system of international law, characterized as it is by the
coexistence of sovereign equals, obligations are typically
conceptualized as being owed towards another state or a group
of other states.
• The law of state responsibility also thinks primarily in terms of
bilateral obligations.
• Even in most multilateral treaties, states would be responsible
of their wrongful acts only towards the states that are affected.
– For example, if Germany breaches its Sea Law(UNCLOS) obligation
towards Brazil and brings about damage on Brazil, it would only be
responsible towards Brazil in making reparation. Germany would not
be responsible towards other state parties to UNCLOS.
 Responsibility towards whom?/Common
interest of international community
• But this logic does not apply to some other treaty
regimes, that particularly promotes the common good
of international community, such as treaties on human
rights and the protection of the environment.
– The torture of a Colombian prisoner by Colombian
authorities will harm the prisoner, rather than the other
parties to a human rights convention.
– But in such a case, another state party to a human rights
treaty may file an inter-state complaint about Colombia.
Because Colombia would have violated the paramount
moral purpose of the treaty.
 Responsibility towards whom?/Common
interest of international community
• Where the common interest of the international community is
at stake, or where a collective interest is at stake, article 48 of
the Articles on State Responsibility also allows others to invoke
the responsibility of the wrongdoing state.
• Violating peremptory norms of international law, also makes a
state responsible towards all other states, due to the erga
omnes (herkesi bağlayıcı) nature of these rules.
• According to the ICJ, such erga omnes obligations are
– not to hold people in slavery
– not to engage in racial discrimination,
– not to commit aggression
– not to commit genocide