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International Law has granted Rights and Duties to the States, in which they can exercise power and control. However, Rights and Duties should work in tandem. Right of one State is a duty of another. State needs to be just while exercising their rights. If a State fails to comply by the duties as stated by Draft Articles of International Law Commission, then it is to be held responsible. And this law applies to all states big or small, irrespective of whether they are old or new. The extension of State Duties and Rights has given rise to State Responsibilities.
To put things in perspective, there are certain judgments by Permanent Court of International Justice that highlights the nature of State Responsibilities. In a judgment of Chorzow Factory case the Court explicitly stated that “breach of engagement involves an obligation” which means if there is a breach of law by a State then it should be dealt by holding it accountable against the State it has erred and it needs to make repairs if any, which might have affected the state in particular.
In a similar case involving Albania and UK which is known to be as Corfu Channel case, the Court held Albania responsible for mine laying in the territorial waters. Infact Albania had to compensate for the loss of human lives and even had to pay money to United Kingdom.
So, to address the question whether or not International Rules on State Responsibility are complete and justified, one needs to have a deep look at broader aspects of State Responsibilities and see how and when it finally came in the form we know today.
II. History of State Responsibility
For the first time in 1928, it was decided to formally write down the State Responsibilities but unfortunately it could not be done due to time constraints in Conference for Codification of International Law. No progress on this front was made until 1949. International Law Commission while preparing a tentative list of 14 topics in 1949 considered it proper to classify propositions which it found suitable for codification of the principles of State Responsibility. Subsequently, the UN General Assembly in 1953 requested the Commission to complete the work of codifying the principles of State Responsibility and the laws governing them. It was not until 1995 that many amendments and rectifications were made in the Draft. After several changes to improve the existing draft in the subsequent years the ‘Responsibility of States for Internationally Wrongful Acts (draft articles) was finally adopted by the Commission in 2001. On December 12, 2001, the General Assembly highlighted the articles in the draft law and brought the same to the attention of the governments for its adherence where it was rendered fit for adoption. Draft articles are even cited by the International Court of Justice hence are very important.
III. State Responsibility Classification
It is not always the Government of a State that is responsible for breach of International Law but the individuals of a State can also be held responsible. Apparently, there is no fundamental difference between these two classifications but on the ground their consequences are different. Based on whether the government is responsible or any other element of the state, responsibilities can broadly be classified in two categories
a) Original Responsibility
b) Vicarious Responsibility
State is originally held responsible when any breach of code is committed by the Government of that particular state or by any person who is authorized by the Government. In this classification Government is directly involved in breach of International Law. However, there is another category in which the elements external to the Government are involved in wrongful acts, like people living in the territory or unauthorized agents. This classification and responsibility associated with it is termed as ‘vicarious’ responsibility.
There are more specific classifications regarding the State Responsibilities in which government’s role is assessed as direct and indirect. In direct State Responsibility the Acts of Government are directly involved in breach of international Law whereas in Indirect State Responsibility, the actions of the Government are not directly in the line of fire.
III.(a) Direct State Responsibility
The State is an abstract entity therefore act of state must be dealt with more precision. Since State acts through different agencies and organizations, therefore to attribute Direct State Responsibility it was specified that State would be held responsible directly if any wrongful act or breach of International Law is done by any of its agency or organ. To add to this, the conduct of government officials is also under the ambit of Direct State Responsibility. Hence persons who act under the control of government in various positions and do wrongful acts fall in the category of Direct State Responsibility. Such organs and entities include the following: –
(i) Executive and Administrative Organs
If a Head of a State or a person who is by the command of the Head of the State commits a crime or a breach of International Law, then the actions of individual are attributed to the State. These acts are international delinquency. International delinquency does not differentiate between high end personnel or low-end personnel. For example, aggression or violence by police personnel and inability to act against the personnel will constitute a State Responsibility
There is a significant difference between International Delinquency and International Crime. An International Delinquency is called an International Crime if the breach of code was carried out for the greater good of the community at large. To put things in order, at times it become essential to use force and harsh actions to curb violence or genocide for safeguarding human lives. This specific act, which may be considered as a breach of international law ,is considered to be essential for maintaining peace and security .Similar cases such as prohibiting slavery and fighting against apartheid are also to be treated as instances of international crime. However, any internationally wrongful act which an international crime is not constitutes an international delict.
International delinquency may or may not involve the breach of treaty. To explain International delinquency involving treaty, let’s take the example of Chorzow Factory Case again, in which International Court of Justice acknowledged that “breach of engagement involves obligation to take reparation”. However this does not mean that delinquency always will involve breach of treaty. In-fact a State can be affected by wrong doings such as intervention or through attack on its persons abroad. It is to be noted that damage is not a pre-condition of State Responsibility which is also reiterated by International Law Commission.
In the nineteenth century properties belonging to foreigners were confiscated in the name of nationalization of property in various nations. It was clearly a breach of law because this practice of land consolidation was biased and targeted. However, in contemporary world same practice when applied in accordance with declared policy and without discrimination is not illegal to say the least. Having said that however in case if confiscation is unlawful, the State is obliged to pay damages for any loss that may have occurred to the injured party.
Wrongful acts committed by a state in self-defense is not considered International delinquency although it may have caused severe damages
(ii) Acts of Diplomatic Envoys
The State is responsible for the injurious actions of its diplomatic envoys in another state. It is believed that the Diplomatic personnel’s’ injurious action is performed at the command or in consultation with the Home State. Therefore, the diplomatic envoys are not directly responsible, but the State is held responsible for such malicious actions.
It is noteworthy that all breach of international code by the envoys of a State are directly attributed to the home state.
(iii) Armed Forces Actions
State is always held responsible for the actions of its armed forces which are authorized by the Government. However, for every other wrong doing which is not authorized by the State, the State is not held responsible. A reckless or mistake or a casual conduct by the armed force officer which results in violation of international coded law is a Direct State Responsibility whether or not it was authorized by the State. A Korean Commercial aircraft was shot down in 1983 due to a mistake, otherwise to be treated as culpable action, is an example of direct responsibility.
(iv) Judicial Actions
Any judgment by any court which breaches International Law results in State Responsibility. All other merits of case become irrelevant. For instance, if a court issues an order that denies the immunity cover to ambassador of other state, then such a judgment is a breach of International Law and the State is directly held responsible. Irrespective of the fact that Government and Judiciary work independently in most federal systems. Another relevant example of this case that if an extradition treaty is overlooked by the judiciary dealing with an offender, in such a case too, the State is to be held responsible for the action of the Judiciary. Further that if a Court is unable to comprehend or interpret a treaty or commits error with regards to a treaty, then for such a judgment rendered by court the State is responsible directly.
(v) Territorial and sub Units of Federal State
There is always a debate whether or not the wrongful doings of territorial units of Federal State be attributed to State. However, in International Law it is generally the case. Whether or not a federal state can exercise control over territorial units, it is accepted that it is the responsibility of State. International Law Commission has explicitly stated in its report of 1974 that the State is responsible for acts and omissions of organs of territorial governmental entities
In some cases, it is not evidently clear which agency or organ of the state has breached international law. However, the State is still held responsible if the act is committed in its territory. Corfu Channel case is a perfect example for illustrating this point. In Corfu Channel case, Albania was held responsible for the consequences of mine-laying in its territorial waters owing to the reason that Albanian authorities knew of the presence of the mines. In fact, no evidence was found to prove which agency or organization was responsible and it cannot be ruled out that a third state may have been present.Similarly armed expeditions may be carried out by a neutral state using its territory against another State.
III.(b) Indirect State Responsibility
In indirect State Responsibility, it is obligatory on the part of the state to check control and prevent its subjects and foreign nationals who live within the territory of the state from doing any such act which may result in causing injury to other states. If any criminal activity is committed by any one individual or group, the state will have to own the responsibility. This kind of responsibility by the state is known as “indirect” responsibility. The state is responsible for any criminal activity committed by its organs and for the wrongful acts of its individuals. The state is blamed for not having control and not being able to prevent the unlawful activity of its organs. According to Oppenheim “if a state has not exercised due to diligence it can be made responsible and held liable to pay damages”
The responsibility falls on the state when its organs fail to prevent the damage and give redressal to the foreign state which is injured by it. Failure on the part of the state to prevent wrongful activity amounts to breach of international obligation. There are certain activities committed by the individuals, for example, wrongful activity against foreign diplomats or ambassadors, disrespectful to the flag of the foreign nation, injury propaganda against a foreign state or to head or damage to property or person of foreign nationals.
The state is also held responsible for mob violence causing damage to public and private property of foreign nationals. It is the duty of the state to provide safety and security to the life and property of foreigners. If the state fails to do so and it is proved that proper care and due diligence is not taken to prevent violence- aggressive and criminal activity, it will be held responsible. The state will also be held responsible if it is proved that the state and its organs had connivance in spreading or supporting the violence.
In case of attack by armed militants to the foreign public property the state will be held responsible for not providing enough security or for not being able to prevent it e.g. in case of militant attack to the embassy of USA in Tehran. The state was held responsible by the International Court of Justice. The international court of justice nailed out that the state was under obligation to protect the U.S. embassy if it failed in its duty. The militants became the agents of the state as the Iranian authority had approval for the act. The court gave the decision that Iran is under obligation to make reparation to the government of USA for the injury caused by the militants
In case of violence in insurrection and civil wars the state will be responsible if injury is caused to foreign nationals. Here again due diligence is required by the state to prevent riots and revolutionary activity by the state for otherwise the state will be held responsible for the damage and injury caused to the foreign subjects.
In general, however, broad formulae on State Responsibility are unhelpful and may not be analogous to municipal law. To Brownlie, responsibility only arises when the act or omission complain is imputable to a state.”
In the same argument one can refer to the Youman’s case in which the mayor of the town in Mexico ordered the lieutenant of the town to curb the riot like situation and to prevent the attack against certain American citizens. The troops on the contrary attacked the house where the Americans had taken shelter for their safety.
One American citizen was killed, two more citizens were killed by rioters. In the firing incident the Mexican troop had disobeyed the orders of the Mayor and the Mexican State was held liable for the wrongful act controlled by the troops.
(i) State Responsibility for the acts of corporation
Corporations are attributed as a nationality. They are treated as nationals. Responsibility may be put on states for any wrongful activity committed by the corporation according to their nationality
A Canadian company which started Smelting lead and Zinc at Trail on the Colombian river near the border of Canada and USA within the Canadian territory. During 1920s to 1930s the company emitted (daily) over 300 tons of Sulphur containing Sulphur dioxide. The fumes resulted in impacting adversary in the Colombian river valley and caused damage to land and environment in the state of Washington. After negotiation between the two countries the case was referred to International Joint Commission, a body having jurisdiction over water boundaries. The commission assessed the damage to the tune of $350,000, Canada agreed to pay the amount, but the Smelter at Trail continued to operate. The issue as leading from compensation to dispute was subsequently referred to arbitration. The tribunal as per prevalent law and law of United States observed that no state has the right to use its territory in such a way so as to cause injury or damage to another territory. The tribunal gave the decision against Canada and held it responsible for the conduct of Trail Smelter.
(ii) State Responsibility in case of injury suffered by UN personnel
It is responsibility of the state to protect the persons serving under International organizations. The international court of Justice in case of the Court Bernadottee or in case of Reparations for Injuries suffered in service of the UN declared that international organization is a subject of international law and is entitled to claim reparation. In this case, Court Bernadottee and a French observer were appointed by UNSC to act as mediator for the peace talks between Arabs and Jews in Palestine. Both were murdered in Jerusalem which was under the occupation of Israel. The UN Secretary General claimed compensation from the Government of Israel for the death of the Count and French observer. Although, the govt. of Israel paid the money in the form of compensation but refused to accept any obligation under law in this regard. Similarly subjects of international law can also move against the state, if they feel not properly treated by the state. A state is liable for the citizens and other states whose rights are denied.
IV. Calvo clause
The Calvo principle ,also associated with the Argentine publicist Calvo who pronounced the doctrine in 1868. According to him, “States were not to be embarrassed by international claims based on vicarious responsibility for acts of their officials, riots and insurrections which had resulted in damage to property belonging to aliens provided that the damage or the failure to repair it was not due to measures of a discriminatory character”. Thus, according to him a State may not be held responsible for the damages suffered by foreigners as the result of civil strife, or during conflicts, since that would amount to injustice with regard to its own citizens suffering losses in the similar situations.
The Calvo principle is in practice in certain Latin American countries since the last quarter of nineteenth century. The Calvo clause is part of the constitution of Mexico and the provision is specifically included under Article 27 of the Constitution.
V. Consequences of the State Responsibility
If there is a breach of an international obligation, then two types of legal consequences arise-
1. Duty of cessation
2. Duty of full reparation
In International law, responsibility is discharged through reparation. As cited in the Chorzow Factory Case, Permanent Court of International Justice held that if there is a breach of an engagement then the principle of International Law says that after the breach of engagement reparation has to be done in an adequate form. It was also held by the court that this principle is established by international practice and decisions of arbitral tribunal must wipe out all the illegal acts and try to establish the situation which should have existed if not have been committed.
The term reparation is a wide term and includes all the measures which a State should take to do away which such a responsibility. Whether it may be restitution, indemnity or satisfaction.
In restitution, one can perform the obligation which the State was supposed to discharge. Or it can be done through revocating the unlawful act, or by abstaining from the further wrongful act. It depends from case to case that what types of duties the State will perform.
Indemnity occurs when restitution is not possible. In the Chorzow Factory case it was held by the Permanent Court of International Justice that it is a principle of International Law that the reparation of a wrong may consist of an indemnity. This is the most usual form of reparation. How much indemnity should be done it depends from case to case. In the case of Military and Paramilitary activities in and against Nicaragua, The government of Nicaragua demanded an amount to the tune of $370,200,000 from the court as the minimum value for direct damages done. The Court however, held that the amount of reparation will be settled by the Court itself on merit.
Responsibility for the Destruction of Pan Am Airliner
In Lockerbie, in 1988 there was an explosion on a Pan Am Flight causing the death of 270 civilians.Libyans were held responsible for this destruction. But, Libya didn’t cooperate in giving punishments to its nationals for this act. However, it agreed to send two of its suspected nationals for the trial by the Scottish judges in the Netherlands. In 2001 for the same case the court convicted one of the people i.e., Abdel Basset Ali al-Meghrahi. In 2003 the Libyan government accepted its responsibility and agreed to pay the compensation to the bereaved families. Reacting over the incidence the than Libyan Foreign Minister Mr. Abdelrehmane Chalgham stated, “We have taken the responsibility for the case on the basis of the International Law which states that the State takes on responsibility for what its employees do”. The Libyan government had to pay $2.70 billion in compensation to the families of all the 270 people who died in the explosion of the plane.
Any measure which the author of a breach of duty is bound to take under the International Law or in an agreement between parties in dispute which is different from restitution or compensation is known as satisfaction. Satisfaction as a part of reparation is considered in those cases where a harm has been caused to the dignity and personality of a State. In these types of cases material damage is not given but the State does such activities which satisfies the injured State.
The State Responsibilities are complete and justified and under its legal obligation states are solely responsible for its own conduct or for the actions of its officials under its authority and command. One however needs to understand, that responsibility of the state for internationally wrongful acts are formulated by way of codification and progressive development and therefore also constitute as an inseparable part of the State Responsibilities.
According to Marko Milanovic, “It is one thing to define a rule and the content of the obligation it imposes, and another to determine whether that obligation has been violated and what should be the obligation of the violation”  The Articles drafted under state responsibilities emphasize on secondary rules of State Responsibilities and give little or no weightage to the primary rules of International Law. Neither these articles touch on the content of obligation, nor do they have any scope for their interpretation.
Therefore, it is for primary international law to decide upon whether a state is involved in a treaty, whether or not the treaty is in place and how the treaty needs to be interpreted in the given circumstances. The Secondary Law or what we call as Articles on State Responsibility can decide the framework for determining the legal obligations that the state at fault needs to fulfill.
Another aspect which is not clearly elaborated in the State Responsibility articles is the fact that it does not give the provision to injured State to abandon or suspend the treaty. It may happen that a state is unjust to another state for a binding period of a treaty or for that matter, a treaty itself is unjust to a particular state. The State Responsibility Articles do not consider this clause, although this clause is a part of Article 60 of Vienna Convention. One may suggest, therefore that there should be a provision in Customary Secondary International Law regarding opting out of treaty if the Treaty or Obligation is unjust, the details of such a provision can be worked out by inviting the opinions of all States.
The Articles also do not cover the consequences that may arise as response of various International Organizations for the wrongful conduct. Thus, a stand needs to be taken against a breach of code by an international organization. However, this clause is not covered by the Articles of State Responsibilities. The breach of Conduct that may occur and its legal consequences are also not covered under State Responsibilities Articles.
It may be concluded that the term ‘internationally wrong’ is not well defined in the afore mentioned articles. There could be cases as wherein State has to compensate for behavior or conduct which is not prohibited by any means in international law let’s say for example compensating for land or property which is taken in for the wellbeing of people. Thus for some cases international responsibility will act contrary to International Law.
As the name suggests- the Articles on Responsibility of States for Internationally Wrongful Acts cover the wrongful acts committed by the State and does not have its jurisdiction or draft articles for wrongful acts committed by the International Organizations and the Non-State Actors which may potentially injure a state and the injured state has no scope within these articles to seek compensation.
But the fact, one may appreciate about the State Responsibilities Articles is that; they cover an entire gamut of issues involving states and do not necessarily get restricted to bilateral treaties. The articles not only cover single state or group of States but the international community as a whole. Even though it was mentioned earlier that the Articles are quite general in nature and do not give any interpretation of treaties, it may mean that States have the freedom to engage in treaties and obligations with their choice and will and can decide upon the nuances of the obligation. 
To conclude the argument whether or not Articles on State Responsibility are complete and satisfactory, one may say that they cover most aspects of internationally wrongful acts committed by State/States against other States. However, some amendments can be made in aspects such as dealing with primary international law. It would mean that primary and secondary international law can complement each other. This could be accomplished by inviting suggestions from the international community and forming committees that can deliberate on this issue so as how to make customary State Responsibilities more relevant and stronger.
To sum up the argument, one may refer to one of the judgments that was made by International Arbitral Tribunal in a case regarding Archer Daniels and others v. the United Mexican States. In the given case the court observed and penned its assessment on the Articles of the State Responsibilities. It acknowledged that ILC articles are a result of over five decades of work and represent to a large extent a restatement of customary international law regarding secondary principles of State Responsibility.
It is however submitted that conclusions as drawn are limited and on the basis of facts and literature consulted for conducting the present study.
- Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26)
- (United Kingdom v. Albania) 1948 I.C.J. Rep. 15; 1949 I.C.J. Rep. 4.
- Crawford, James.State Responsibility: The General Part. Cambridge, UK: Cambridge University Press, 2013
- Oppenheim, International Law, Vol. 1, Ninth Edition
- Article 5.Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
- Article 8.Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
- Margaret Roper (U.S.A.) v. United Mexican States. 4 April 1927. IV R.I.A.A
- Article 2.Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
- Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A)
- Responsibility for injury to aliens? <https://www.lawteacher.net/free-law-essays/international-law/codification-international-law-state-responsibility-injury-aliens-international-law-essay.php>
- Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A)
- Oppenheim, International Law, Vol. 1, Ninth Edition p542
- Oppenheim, International Law, Vol. 1, Ninth Edition p545
- Report of International Law commission, 1974 pp. 3-4.
- Brownlie Ian, Principles of Public International Law 7thEd p. 447
- Brownlie Ian, Principles of Public International Law 7thEd p. 447-48
- Oppenheim, International Law, Vol. 1, Ninth Edition
- United States of America v. Iran, Order, 12 V 81, International Court of Justice (ICJ), 12 May 1981
- Brownlie, Ian, Principles of Public International Law 7th Ed
- Kapoor, S.K., International Law and Human Rights, 1998
- Trail smelter case (United States v. Canada), 3 UNRIAA, 1941
- Calvo, Carlos, International Law of Europe and American in Theory and Practice (1868).
- ‘Legal Consequences on Construction of wall in the occupied Palestinian territory’ https://www.icj-cij.org/en/case/131
- Nicaragua v. United States of America, Merits, International Court of Justice (ICJ), 27 June 1986
- Johnson, David, Lockerbie, the real story. Bloomsbury Publishing Ltd, 1989
- Brownlie, Ian Principles of Public International Law 7th Ed
- Milanović, Marko, State Responsibility for Genocide, European Journal of International Law, Volume 17, Issue 3, 1 June 2006
- Corten, Oliverand Klein, Pierre, The Vienna Conventions on the Law of Treaties: A Commentary, Oxford University Press,2011
- Article 57-58, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
- Article 55, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
- Archer Daniels and others v. the United Mexican State, Case No. ARB(AF)/04/05, 21 Nov 2007
 Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26)
 (United Kingdom v. Albania) 1948 I.C.J. Rep. 15; 1949 I.C.J. Rep. 4.
 James Crawford,State Responsibility: The General Part. Cambridge, UK: Cambridge University Press, 2013.
 Oppenheim, International Law, Vol. 1, Ninth Edition
 Article 5.Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
 Article 8.Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
 Margaret Roper (U.S.A.) v. United Mexican States. 4 April 1927. IV R.I.A.A.
 Article 2.Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
 Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A)
 Responsibility for injury to aliens? <https://www.lawteacher.net/free-law-essays/international-law/codification-international-law-state-responsibility-injury-aliens-international-law-essay.php>
 Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A)
 Oppenheim, International Law, Vol. 1, Ninth Edition p542
 Oppenheim, International Law, Vol. 1, Ninth Edition p545
 Report of International Law commission, 1974 pp. 3-4.
 Ian Brownlie, Principles of Public International Law 7thEd p. 447.
 Ian Brownlie, Principles of Public International Law 7thEd p. 447-48
 Oppenheim, International Law, Vol. 1, Ninth Edition
 United States of America v. Iran, Order, 12 V 81, International Court of Justice (ICJ), 12 May 1981
 Ian Brownlie, Principles of Public International Law 7th Ed
 SK Kapoor, International Law and Human Rights, 1998
 Trail smelter case (United States v. Canada), 3 UNRIAA, 1941
 Carlos Calvo, International Law of Europe and American in Theory and Practice (1868).
 ‘Legal Consequences on Construction of wall in the occupied Palestinian territory’ <https://www.icj-cij.org/en/case/131>
 Nicaragua v. United States of America, Merits, International Court of Justice (ICJ), 27 June 1986
 David Johnson, Lockerbie, the real story. Bloomsbury Publishing Ltd, 1989
 Ian Brownlie, Principles of Public International Law 7th Ed
Olivier Cortenand Pierre Klein, The Vienna Conventions on the Law of Treaties: A Commentary Oxford University Press,2011
 Article 57-58, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
 Article 55, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles“) by the International Law Commission (ILC)
 Archer Daniels and others v. the United Mexican State, Case No. ARB(AF)/04/05, 21 Nov 2007
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