Detailed Context: State Responsibility | Public International Law - CLAT PG PDF Download

Introduction

The law of State responsibility deals with situations where a State breaches its international obligations. In international law, responsibility is tied to obligation; any breach by a subject of international law leads to its international responsibility. This law outlines when an international obligation is considered breached and the consequences that follow, including which States can respond and how they can do so.

• Unlike national laws, which may have different rules based on the source of the obligation (like contract law, tort law, or criminal law), international law applies the same rules regardless of whether the obligation comes from a treaty, customary international law, a unilateral declaration, or a court judgment.
• In August 2001, the International Law Commission finalized its Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project that took over forty years to complete. The purpose of these articles is to codify the broadly applicable rules of State responsibility.
• The ARSIWA establish general rules that apply unless there are more specific rules for the obligation in question. In some cases, special rules may apply, such as requiring fault or damage for a breach, or expanding the category of States entitled to react. This principle, known as lex specialis, means that special rules take precedence over the general rules in the ARSIWA when they are applicable and inconsistent.

The Elements of State Responsibility

• The starting point of the articles is that "every internationally wrongful act of a State entails the international responsibility of that State."  The act or omission of a State will qualify as an "internationally wrongful act" if two conditions are met.
• First, the act or omission must constitute a breach of an international obligation, or, as the articles put it, must be "not in conformity with what is required" by the international obligation. This implies that the obligation in question must be binding on the State at the time of the conduct, which is said to constitute a breach.
• Second, the act or omission must be "attributable" to the State.
• The general rule is that a State is not responsible for the acts of private individuals. The State is, of course, an abstract entity, unable to accomplish any physical act itself. Just as in domestic law corporations act through their officers and agents, so in international law the State normally acts through its organs and officials.
• The first, and clearest, case of attribution is that of the organs of the State (e.g., police officers, the army) whose acts are attributable to the State even in instances where they contravene their instructions, or exceed their authority as a matter of national law. No distinction is made based on the level of the particular organ in the organizational hierarchy of the State; State responsibility can arise from the actions of a local policeman, just as it can from the actions of the highest officials, for instance, a head of state or a foreign minister.
• Second, the rules of attribution cover situations in which individuals, not otherwise State organs, are exercising "elements of governmental authority" at the time that they act.
• Third, acts of private individuals are attributable to the State if those individuals are acting on the instructions of the State, or under its effective direction or control.
• Fourth, in exceptional circumstances in which there is an absence or default of governmental authority, the acts of private individuals may be attributable to the State if those individuals, in effect, step into the breach and perform necessary governmental functions.
• With regard to certain obligations, a State may incur responsibility even though actions have been carried out by private individuals, because the essence of the obligation was to ensure that a given result occurred. For instance, if a foreign embassy is overrun by a mob, or harm is done to diplomatic staff by private individuals, as occurred with the U.S. embassy in Tehran during the Iranian revolution of 1979 to 1980, a State may incur responsibility, even if those individuals act on their own initiative.
• Equally, under Article V of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the obligation of a State to punish those responsible for genocide earlier on related to genocide may be breached in instances in which a State fails to punish any person responsible for the genocide, "whether they are constitutionally responsible rulers, public officials, or private individuals." There is probably a similar rule in general international law in relation to crimes against humanity. In both cases, the basis of responsibility here is not the attribution to the State of the acts of the individuals; it is the failure by the State as an entity to comply with the obligations of prevention and prosecution incumbent on it.
• A somewhat anomalous instance of attribution is that covered by Article 10. As was noted above, in the normal course of events, a State is not responsible for the acts of private individuals; a fortiori, it is not responsible for the acts of insurrectional movements, because, by definition, an insurrectional group acts in opposition to the established state structures and its organization is distinct from the government of the State to which it is opposed.
• However, Article 10(1) provides that "the conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law." Article 10(2) provides for a similar rule with respect to an insurrectional movement that succeeds in establishing a new State within the territory of a pre-existing State. The effect of the rule is to attribute retrospectively the conduct of the movement in question to the State.
• In the case of a successful insurrectional movement, the acts of the movement are attributed to the State as if the movement had been the government at the time of its acts, even though, if the insurrection had failed, no attribution would be possible. In the case of the establishment of a new State, the effect is even more drastic because acts are attributed to the State retrospectively to a time when it did not yet definitively exist.
• Except in this case, there is no established machinery for attributing collective responsibility (e.g., for war crimes, genocide, or crimes against humanity) to an armed opposition group. In such circumstances individual responsibility is the only possibility at the international level of ensuring a degree of responsibility for criminal acts.
• Certain circumstances may serve to preclude the wrongfulness of a breach of international law by a State, in much the same way that defenses and excuses work in national criminal law. In international law these are termed circumstances precluding wrongfulness.
• For instance, the consent of the state to which the obligation was owed will prevent the breach from being wrongful, as will, under certain restrictively defined conditions, force majeure, distress, and necessity. Finally, a State taking countermeasures (defined as the nonperformance of an obligation in response to a prior wrongful act of another State, in order to induce that State to comply with its obligations) may mean that what would otherwise be a breach of an international obligation is not in fact wrongful.
• However, quite apart from the strict procedural conditions with which the taking of countermeasures is hedged, it should be noted that certain obligations may not be the object of countermeasures. Among these are the obligation to refrain from the threat or use of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals under peremptory norms of general international law (jus cogens).
• This last limitation in fact applies generally to circumstances precluding wrongfulness: it is never possible to plead that a breach of a peremptory norm was justified.

The Content of International Responsibility

• First, that State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
• Reparation may take one of three forms: restitution, compensation, or satisfaction (or some combination of them). Traditionally, restitution has played the primary role, although in instances in which restitution is materially impossible, the injured State may have to content itself with compensation or satisfaction.
• Second, the responsible State is under an obligation to conclude the internationally wrongful act if it is continuing, and in an appropriate case, may be required to make assurances and guarantees of non-repetition.
• The Articles mark a decisive step away from the traditional bilateralism of international law and toward what has been called "community interest" in the provisions dealing with the States that are entitled to react to the breach of an internationally wrongful act.

Traditionally, only the State that was directly injured, or in some way "targeted," by the breach of an international obligation could demand reparation. In addition, although any state could take unfriendly measures that did not constitute the breach of an international obligation owed to the State at which they were directed, the taking of countermeasures was commonly understood as being limited to these "injured States."
The first major move away from the strict bilateralism of international law was the judgment of the International Court of Justice in the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) case.
In that case, the court stated:

Essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-å-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.

Nationality

• Nationality is a crucial concept in international law as it determines the rights, obligations, and protections afforded to individuals by their states.
• The lack of a coherent definition of nationality in international law leads to varying interpretations and applications across different countries.
• Nationality grants individuals rights such as obtaining a passport, voting, and receiving state protection, as well as obligations like conscription.

Types of Nationality

• Jus soli Nationality by birth within the territory of a state. Example: United States, United Kingdom.
• Jus sanguinis Nationality by descent from a national parent, regardless of birthplace. Example: Germany, Japan.

Modes of Acquisition and Loss of Nationality

• By Birth: Nationality is conferred based on birthplace (jus soli). Example: United States, U.K.
• By Descent: Nationality is acquired through parents (jus sanguinis). Example: Children born to Indian citizens abroad.
• By Registration: Nationality is granted through official registration. Example: Certain categories of people in India can acquire citizenship through registration.
• By Naturalization: Nationality is acquired through a legal process, often involving residency and other criteria. Example: Foreigners living in India for a certain period may apply for citizenship.
• By Cession: Nationality is acquired when a territory is ceded to a new state. Example: People from a territory ceded to India become Indian citizens.
• By Subjugation: Nationality is acquired by individuals from territories that become part of a state due to conquest or annexation. Example: Citizens from annexed territories become citizens of the annexing state.
• By Resumption: Nationality is regained after fulfilling certain conditions. Example: Individuals who lost Indian citizenship can apply for restoration under specific criteria.

Modes of Loss of Nationality

• By Release: Some States allow citizens to lose nationality by submitting an application for release.
• Deprivation: Certain States deprive nationality for breaches of municipal laws, such as serving in foreign armed forces.
• Expiration: Citizenship may expire due to long stays abroad, as in the case of naturalized American citizens.
• Renunciation: A person may renounce nationality, especially when acquiring multiple nationalities.
• Substitution: Some States allow substitution of nationality, where a person loses one nationality and acquires another.

Statelessness

• Stateless Person: According to Article I of the 1954 Convention Relating to the Status of Stateless Persons, a stateless person is defined as someone who is not recognized as a national by any state under its laws. This definition, while concise, is limited and legalistic, focusing on de jure stateless individuals and not accounting for de facto stateless persons who have a nationality but lack government protection.
• De Facto Statelessness: In 1949, the UN expanded the definition of statelessness to include de facto stateless individuals. These are people who, after leaving their country of nationality, no longer receive protection and assistance from their national authorities. This can occur if the authorities refuse to provide assistance or if the individual renounces such assistance.
• Original vs. Relative Statelessness: When examining the causes of statelessness, it's essential to differentiate between original (absolute) and relative (subsequent) statelessness. Original statelessness can arise from administrative errors, failure to register births, or conflicts in nationality laws between countries.
• Jus Sanguinis vs. Jus Soli: States have the exclusive authority to establish nationality laws. Strict adherence to jus sanguinis (nationality by descent) can lead to inherited statelessness, while conflicts between jus sanguinis and jus soli (nationality by place of birth) can create stateless individuals.
• Individual Statelessness: Individual statelessness often results from a lack of coordination in national legislation regarding nationality acquisition and loss, as well as marriage laws. For instance, if one state's nationality law causes loss of nationality upon marriage to a foreigner without automatic acquisition of the foreigner's nationality, statelessness may occur.
• Voluntary Statelessness: Statelessness can also be voluntary, such as when a state allows unilateral renunciation of nationality or releases an individual from nationality without considering future nationality. This leads to relative or subsequent statelessness.
• Mass Statelessness: Mass statelessness can occur due to territorial changes, state actions, or conflicts between states. Historical instances include mass denationalization decrees and nationality deprivation laws targeting specific groups.
• War and Statelessness: War can lead to forced displacement and loss of nationality for large groups, often based on racial, ethnic, or religious criteria. This form of statelessness is particularly egregious as it violates basic human rights without justification.
• Legal and Social Implications: Some cases of statelessness arise from legal oversights, while others result from discrimination and human rights violations. Addressing statelessness requires balancing state sovereignty with the protection of human rights.
• International Norms and Statelessness: Debates continue regarding whether nationality issues fall solely within state jurisdiction or can be regulated by international standards. Historical cases of statelessness, dual nationality, and refugees stemmed from the principle of state sovereignty in determining nationality.
• Contemporary Developments: In contemporary contexts, state powers in conferring and regulating nationality are not absolute and must align with human rights obligations. Statelessness is a transnational issue that necessitates international cooperation and standards.

Extradition

• According to Starke, extradition involves one state surrendering a person accused or convicted of a crime to another state, usually based on a treaty or reciprocity.
• According to Grotius, states have a duty to punish criminals or return them to the states where the crime was committed.

Purpose of Extradition

• Extradition aims to prevent and punish criminals who have fled to another country.
• It facilitates the prosecution of offenders in the country where the crime was committed, making it easier to gather evidence.
• Extradition is crucial for international crime prevention and punishment, reflecting the interest of all countries in maintaining law and order.
• While bilateral treaties often govern extradition, requests can be made even without an agreement, emphasizing the importance of international cooperation.
• The rise in international crimes has heightened the relevance of extradition, with its principles increasingly included in international treaties.
• The recognition of human rights has further underscored the significance of extradition in global legal frameworks.

Kinds of Asylum

• Territorial Asylum is granted by a State within its own Territory. The right to grant asylum by a State to a person on its own territory is based on the principle of territorial sovereignty.
• The decision to grant Territorial Asylum is at the discretion of the State, which is not legally obligated to do so. There are no precise rules governing the grant of Territorial Asylum.
• In 1959, the General Assembly urged the International Law Commission to codify the principles and rules of international law concerning the right of asylum.
• On December 14, 1967, the General Assembly adopted the Declaration of Territorial Asylum through a resolution. This Declaration consists of a Preamble and four Articles addressing the principles related to the grant or refusal of asylum.
• The Declaration stipulates that the right to seek and enjoy asylum cannot be invoked by individuals suspected of committing serious crimes such as crimes against peace, war crimes, or crimes against humanity.
• Article 4 of the Declaration states that the State granting asylum must not allow individuals who have received asylum to engage in activities contrary to the purposes and principles of the United Nations.
• The provisions of the Declaration indicate that a State does not have an absolute right to grant asylum, particularly in cases involving international crimes, including genocides.
• Territorial Asylum is thus a discretionary power of the State, subject to certain limitations and principles outlined in international law.

(B) Extra-territorial Asylum

• Extra-territorial Asylum is granted by a State outside its own territory, usually in cases where a State refuses to surrender a person demanded by another State. This can occur on public ships, diplomatic premises, or other locations not belonging to the granting State.
• Diplomatic Asylum, also known as Asylum in Legation, involves granting extra-territorial Asylum in the premises of a diplomatic legation. International law typically does not recognize the right to grant asylum in legation premises, but exceptions exist such as:
• When an individual is in physical danger from violence.
• Established local customs that bind the territorial State.
• Special treaties between the territorial State and the State of Legation.
• Similar principles apply to the grant of asylum in consular premises.
• Asylum in the premises of international institutions is not explicitly recognized by International Law, but temporary asylum may be granted in cases of imminent danger.
• Asylum on warships is debated, but it is argued that political offenders may receive asylum on humanitarian grounds in extreme danger.
• Merchant vessels do not have the authority to grant asylum to local offenders due to lack of immunity from local jurisdiction. However, States may grant asylum under specific treaties.
• Asylum in the premises of international institutions is uncertain due to lack of rules and practice, but temporary refuge in extreme danger cases cannot be ruled out.
• In Extra-territorial or diplomatic Asylum, the grant of asylum is exceptional and requires a legal basis for each case.