Crawford provides us with an accurate description of the rationale behind state responsibility:
"State
responsibility results from the general legal personality of States
under international law and the fact that States are principal bearers
of international obligations".
As Crawford continues,
"What amounts to a breach of international law by a State depends on the
actual content of that State's obligations , and this varies from one
State to the next". Of importance is the remark that "..the underlying
concepts of State responsibility- attribution, breach, excuses and
consequences- are general in character". Would you like to read this
full article, a copy is available from the Max Planck Institute/ Oxford
PIL.
Two of the mentioned underlying concepts or basic
principles of state responsibility are that states can be held
responsible for acts that are attributable to them and that states can
be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According
to Art. 2 of the Articles on the Resonsibility of States for
Internationally Wrongful Acts (ILC, some prefer to use the abbreviation
ASR or A on RS), there is an internationally wrongful act of a State
when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There
is a breach of an international obligation by a State, when an act of
that State is not in conformity with what is required of it by that
obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The
conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative,
executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The
conduct of a person or entity, not being 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, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A
State can be held responsible for excess of authority or contravention
of instructions by organs of the State or persons/ entities empowered to
exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If
a person or group of persons is in fact acting on the instructions of,
or under the direction or control of that State in carrying out the
conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The
conduct of an inssurectional movement which becomes the new government
of a State, shall be considered an act of that State. Shall the
insurractional movement succeed in establishing a new State in part of
the territory, the conduct of that movement shall be considered an act
of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct
which is not attributable to a State under the preceding articles,
shall nevertheless be considered an act of that State, if and to the
extent that the State acknowledges and adopts the conduct in question as
its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The
Court made it clear that the detention of internationally protected
persons cannot be considered as something "secondary" or "marginal",
having regard to the principles involved (para 36).
The
facts, set out earlier in the judgment, have to be looked at by the
Court from two points of view. First, it must determine how far,
legally, the acts in question may be regarded as imputable to the State.
Secondly, it must consider their compatibility or incompatibility with
the obligations under treaties in force, or any other rules of
international law that may be applicable. The events fall into two
phases (para 56).
With regards to the first phase, no
suggestion had been made that the militants, when they executed their
attack, had any form of official status as recognized "agents" or organs
of the State. Their conduct cannot, therefore, be regarded as imputable
to the State on that basis. The information does not suffice to
establish the existence at that time, of such a link between the
militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in
another context shortly to be considered, do not alter the initially
independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be
considered as in itself imputable to the State, does not mean that the
State is in fact free of any responsibility, for its own conduct was in
conflict with its international obligations- by a number of provisions
under the Vienna Convention of 1961 and 1963, the State was placed under
the most categorical obligations as a receiving State, to take
appropriate steps to ensure protection (para 61).
Thus, after
solemny proclaiming the inviolability of the premises of a diplomatic
mission, Art. 22 of the 1962 Convention continues: "The receiving State
is under a special duty to take all appropriate steps to protect [..] ".
In the view of the Court, the obligations here in question are not
merely contractual obligations, but also obligations under general
international law (para 62).
This inaction by itself
constituted clear and serious violation of the obligations under a
number of provisions (para 66, 67). The Court is therefore led to
conclude, in regard to the first phase, that the authorities:
a.
were fully aware of their obligations; b. were fully aware of the urgent
need for action on their part; c. had the means at their disposal to
perform their obligations; d. completely failed to comply with these
obligations (para 68).
The second phase of the events
comprises the whole series of facts with followed during the completion.
The action required of the Government by the Vienna Convention and by
general international law, was manifest. Its plain duty was at once to
make every effort [...] (para 69).
The seal of official
government approval was finally set by a decree (para 73). The result of
that policy was fundamentally to transform the legal nature of the
situation. The approval given by organs of the State and the decision to
perpetuate the mentioned facts, translated the acts into acts of that
State. The authors of the invasion had now become agents of the State,
for whose acts the State itself was internationally responsible (para
74).
What is more to say (M.B.): in the present case, the
Government did not break off diplomatic relations. At no time before the
events had the Government declared or indicated any intention to
declare, any member of the diplomatic staff persona non grata. The
Government did not, therefore, employ the remedies placed at its
disposal. The receiving State may at any time and without having to
explain its decision, notify the sending State that any particular
member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The
difference in outcome between the Nicaragua and Tadić is best explained
as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law,
is the result of uncoordinated and functional development of regimes in
international law, meaning that different regimes have developed from a
focus on "problem-solving" within the scope of a certain regime- a good
example is environmental law. Functional necessity, therefore,
undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies,
with the diversification of international law underlying the
establishment of numberous and different courts, not only for specific
topics, but also regional. The "overall control" test, developed by the
ICTY, is not in conformity with the previous "effective control" test,
applied by the ICJ. To address this divergence, it is the proliferation
of the ICJ and ICTY that leads to further fragmentation in the
interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered,
the responsible State was obliged to give a combination of compensation
and satisfaction. In the Gabcikovo case, both parties could be held
responsible for the injuries caused and therefore, both States could
claim compensation. In the Chorzów factory case, both restitution and
compensation are expressly mentioned as classic forms of reparation for
injuries. One form of reparation doesn't set the other possible form
aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when
conduct consisting of an action or omission (2) is attributable to a
State and (3) constitutes a breach of an obligation of that State, that
State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution,
compensation or satisfaction, or a combination of forms of reparation
for injuries.
