State Responsibility
State responsibility is one of the fundamental principles of International Law. It arises out of the international legal system and the principles of State sovereignty and equality of States. It implies that if a State commits an internationally wrongful (unlawful) act against another State, it will be internationally responsible for reparation.[2]
The subject of State responsibility has been the most difficult question of the codification work of the International Law Commission (ILC).[3] The ILC has been working extensively on this subject. In 1975, the ILC initiated its work on the draft articles concerning State responsibility. The Articles on the State Responsibility was finally adopted by the ILC on August 9, 2001.[4] The General Assembly adopted the resolution 83/56 of December 12, 2001, taking note of “the International Law Commission’s Articles on the State Responsibility” and recommending it to the member States of the United Nations. The ILC Articles, in addition to the State practice and the decisions of international tribunals (the case law) on the subject, constitute the international law of State responsibility.
The law of State responsibility is concerned with the nature of the State responsibility, the legal consequences resulted from, and the implementation of such responsibility.

Section 1: The Basis and Nature of State Responsibility
State responsibility is founded on three basic elements.[5] The first element is the existence of an international legal obligation in force between the concerned States. The second is the occurrence of a wrongful act or the omission of an act in violation of such an obligation, which is imputable to the State. The third is that loss or damage has resulted from such wrongful act or omission. These three elements are the requirements of establishing the responsibility of the State, which have been made in a number of leading international legal cases and reiterated by the ILC “Articles”.[6] The “Articles” provides that every internationally wrongful act (a delict) of a State entails responsibility.[7] It defines internationally wrongful act as a conduct consisting of an action or omission attributable to the State under International Law and constitutes a breach of an international obligation of the State.[8] A breach of an international obligation is defined as an act which is not in conformity with what is required of the State by that obligation, regardless of its origin or character.[9]
Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility.
International Law does not distinguish between contractual (conventional) and tortious responsibility. International responsibility relates both to breaches of treaty and to other breaches of legal duty.[10] Any violation by a State of any obligation of whatever origin or character gives rise to State responsibility and consequently to the duty of reparation. Reparation therefore is the indispensable complement of a failure of a State to apply any of its obligations.
State responsibility only arises when the act or omission which constitutes a breach of legal obligation is imputable (attributable) to a State.[11] It may be founded on “fault” or “no fault” concept.
Notably, it is important to mention here that a State is responsible for wrongful acts which constitute international delicts, not international crimes. Because of the controversy concerning State responsibility for international crimes, the ILC Articles does not mention international crimes. However, the ILC Draft
Articles made a distinction between international crimes and international delicts. The Draft Articles provided that an international wrongful act resulting from the breach of an international obligation which was essential for the protection of fundamental interests of the international community and which was recognized as a crime by that community constituted an international crime; examples of such international crimes were aggression, colonial domination, slavery, genocide, apartheid and massive pollution of the atmosphere. [12] All other international wrongful acts constituted international delicts.
While it is apparent that a State is responsible for international delicts, it is not clear that it is responsible for international crimes. The question of State criminal responsibility has been highly controversial.[13] Some have argued that the concept is of no legal value and cannot be justified.[14] Others have argued that since 1945 the attitude towards certain crimes committed by State has altered so as to bring them within the scope of International Law. They have pointed to three specific changes that have occurred since 1945 to justify States responsibility for international crimes.[15] The first change has been the development of the concept of peremptory norms of International Law (jus cogens) as a set of principles from which no derogation is allowed. The second change is the establishment of individual criminal responsibility directly under International Law. Finally, the Charter of the United Nations and its provisions concerning the enforcement action which may be taken against a State in case of committing a threat to or breaches of the peace or act of aggression. In the light of these changes, the ILC, in its Draft Articles, adopted the approach of including international crimes by States within the scope of International Law. However, because of the controversy concerning this question, the ILC omitted any mention of international crimes of States in its Articles as finally approved. The “Articles” provides that States are under a duty to co-operate to bring an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm of International law and not to recognize as lawful any such situation.[16]

A. The Question of “Immutability”
A State is responsible (liable) only for its own acts or omissions. A State is identified with its “government” which includes the executive, the legislature and the judiciary, and includes central authorities as well as local authorities.[17]
It is established by the case law that a State is liable for the conducts of any of its organs. This established rule is reiterated by the ILC “Articles”. The ILC “Articles” provides that the conduct of any State organ (including any person or entity) having that status under the internal law of that State, whether that organ belongs to the constituent, legislative, executive, judicial or other authority, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State, shall be considered as an act of the State concerned under International Law, provided that organ was acting in that capacity in the case in question.[18] The conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under International law, provided that organ was acting in that capacity in the case in question.[19] The conduct of an organ of an entity which is not part of the formal structure of the State or the territorial governmental entity, but which is empowered by the internal law of that state to exercise elements of governmental authorities, shall also be considered as an act of the State under International Law, provided that organ was acting in that capacity in the case in question.[20]
It is also established that a State is liable for the acts of its officials if those acts are imputable (attributable) to the State. This rule depends on the link that exists between the State and the person or persons committing the wrongful act or omission. The State as a moral legal entity, in reality acts through authorized officials. It is not liable under International Law for all acts of its officials; it is liable only for acts of its officials that are imputable to it. Imputability is a legal notion which assimilates the acts or
omissions of the State officials to the State itself and which renders the State liable for damages to persons or properties resulting from such acts.[21]
The question of “immutability”, however, creates problems when officials exceed or disobey their instructions. Because the evading of liability by a State in such a case will be unjust, it is established that a State is liable for the acts of its officials, even when they exceed or disobey their instructions, if those officials are acting with “apparent authority” or if they are abusing “powers” or “facilities” placed at their disposal by the State.[22] The ILC “Articles” reiterates such a rule by providing that the conduct of any organ of a State, having acted in that capacity, shall be considered as an act of the State under International Law even if such organ exceeded its competence according to internal law or disobeyed instructions concerning its authority. With regard of wrongful acts committed by private persons, in principle, a State is not responsible for such acts. However, it is established by case law and reaffirmed by the ILC Articles that a State is responsible for acts of private persons if those persons are acting on behalf of that state, on its instructions, under its control, or exercising elements of governmental authority in the absence of governmental officials and under circumstances which justify them in assuming such authority.[24] It is also responsible for acts of private persons if such acts are accompanied by some act or omission on part of the State, for which it is liable. Such act or omission by the State may take one of the following forms: encouraging the person to perform such act, failing to take reasonable care to prevent the person from performing such act, failure to punish the person, obtaining some benefit from the act of the person, or express ratification of the person’s act.[25]
With regard of actions of rioters or rebels causing loss or damage to a foreign State or its nationals, the general principle is that the State is not liable for such actions if it has acted in good faith and without negligence.[26] However, in such a case, the State is under a duty to show due diligence. Nevertheless, when the rebellion movement succeeds in establishing the new government of a State or a new State in part of the territory of the pre-existing State, it will be held responsible for its activities prior to its assumption of authority; this rule is reaffirmed by the ILC Articles.[27]

B. The Question of “Fault”
There are two theories used as foundations for State responsibility: the “risk” theory and the “fault” theory.[28] The “risk” theory is based upon the principle of objective responsibility which maintains that the liability of the State is strict. Once a wrongful act causing damage has been committed by a State official or organ, that State will be responsible under International Law to the injured State irrespective of its intention. In contrast, the “fault” theory is based upon the principle of subjective responsibility which requires the establishment of an element of intention, fault or negligence on the part of the State official or organ before rendering the State liable for any damage.
There is no agreement in the International Law on the question of the basis of State responsibility. The relevant cases and the opinions of legal scholars are divided on this question. However, the majority of cases and opinions tend towards the “risk” theory of responsibility.[29]
Section 2: Legal Consequences of State Responsibility
A State is responsible for its international wrongful act. This responsibility entails certain legal consequences on that State. The first consequence is the cessation of the wrongful act, and the second is the reparation.

A. Cessation of the Wrongful Act
The first legal consequence of State responsibility under International law is that the wrongdoing State is obliged to cease the wrongful act, if it is continuing, and to offer appropriate assurances and guarantees on non- repetition.[30]

B. Reparation
The second legal consequence resulting from State responsibility for international wrongful act is that the wrongdoing state is under a duty to remedy its acts. The injured State is entitled for full reparation in form of restitution in kind, compensation and satisfaction, either singly or in combination.[31] The wrongdoing State cannot employ its internal law to avoid providing full reparation.
Restitution in kind means that the wrongdoing State has to re-establish the situation that existed before the committing of the wrongful act. It can be provided if it is not materially impossible, not involving breach of an obligation arising from a peremptory norm of general International Law, not involving a burden out of all proportion to the benefit which the injured State would gain from obtaining restitution in kind instead of compensation, or not seriously jeopardize the political independence or economic stability of the wrongdoing state.
If restitution in kind is not available, compensation for the damage caused must be paid. Monetary compensation covers any financially assessable damage suffered by the injured state, and may include interest, and may include, in certain circumstances, loss of profits. It may be paid for both material and non-material (moral) damage. Satisfaction is the third form of reparation. It is a remedy which is appropriate in cases of moral damage and non-monetary compensation. It may take the forms of an official apology, a nominal damage, the punishment of the guilty officials or the acknowledgement of the wrongful character of an act.

Section 3: The Implementation of State Responsibility
A State is entitled to invoke the responsibility of another State if the obligation breached is owed to it individually or to a group of States, including it, or to the international community as a whole. A State other than an injured State may invoke the responsibility of another State if either the obligation is owned to a group of States including it, and is established for the protection of a collective interest of the group, or the obligation breached is owed to the international community as a whole. In such cases, a State may demand the cessation of the wrongful act, assurances and guarantees of non-repetition, satisfaction, as well as reparation. These doctrines are reaffirmed in the ILC Articles.
Where several States are injured by the same wrongful act, each State may separately invoke responsibility. Where several states are responsible, the responsibility of each may be invoked.
However, responsibility can not be invoked if the injured State has validly waived the claim, or it has caused, by reason of its conducts, in the lapse of the claim. Any waiver needs to be explicit and clear.
An injured State may seek to settle its claim peacefully through any of the peaceful means, or it may take countermeasures against the wrongdoing State. In a case of an injury affecting its national, the State may provide him with diplomatic protection.
A State may present an international claim against the wrongdoing State before an international tribunal. However, a State has to establish its qualifications for bringing the claim and the validity of the claim itself before the merits of the claim can be addressed. Where a claim is brought before an international tribunal, objections may be raised against its admissibility. The first is an objection to the jurisdiction of the tribunal; if successful, it will stop all proceedings in the case. Other objections are the nationality of the claimant, the non-exhaustion of local remedies, and the undue delay in presenting the claim.

A. Diplomatic Protection and Nationality of Claims
The doctrine of state responsibility with regard to injuries to nationals is based upon the attribution to one State of the wrongful act or the omission and the capacity of the other State to adopt the claim of its injured national. Nationality is the link between the individual and his State as regards particular benefits and obligations. It is also the link between the individual and the benefits of International law. Although International Law is now tending to grant certain rights to individuals apart of the intervention of the State, the basic rule remains that in a State-oriented world, it is only through the State the individual may obtain the full range of benefits available under International Law, and nationality is the key.
Although a State is under a duty to protect its nationals, it is not under a duty to provide them with diplomatic protection. A State may provide diplomatic protection to its nationals. Diplomatic protection consists of resorting to diplomatic action or other means of peaceful settlement by a State adopting in its own rights the cause of its nationals in respect of an injury to any of its national arising from an internationally wrongful act of another State. Such diplomatic protection is not a right of the national concerned, but a right of the State which may or may not choose to exercise.
The diplomatic protection is the result of the historical reluctance to permit individuals the right in International Law to bring claims against foreign States, for reasons related to the principles of state sovereignty and non-intervention in domestic affairs of a State. The exercise of diplomatic protection is not regarded as intervention contrary to International Law. A State may take up the claim of its national against another state before an international tribunal. Once a State does this, the claim then becomes that of the state, not of the injured individuals. Thus, the State may waive its claim, but the individual cannot.
In International law, the normal and important function of nationality is to establish the legal interest of a State when its national suffers injury or loss caused by another State. The subject matter of the claim is the individual and his property, and the claim is that of the State. If the plaintiff State cannot establish the nationality of the claim, the claim will be inadmissible because of the absence of the legal interest of the claimant. The “nationality of the claim” principle is well established in customary International Law. However, there are certain exceptions to the principle of the nationality of the claim. Examples of such exceptions are the right of protection of an alien seaman on a ship flying the flag of the protecting State, an alien in the service of the armed forces of a claimant State, and stateless person or refuge who at the dates of the injury and presentation of the claim is lawfully and habitually resident in that state.
The nationality must exist at the date of the injury, and should continue until at least the date of the formal presentation of the claim. Where an individual possesses dual or multiple nationalities, any State of which he is a national may adopt his claim against a third State. Where a case involves more than one State of nationality, the State with which he has the more effective connection may adopt his claim
against the other State. As far as a moral legal person (such as a corporation) is concerned, there must be some tangible link between it and the State adopting its claim.

B. The Exhaustion of Local Remedies.
It is established in the customary International Law that before international proceedings are instituted or claims or representations made, the remedies provided by the local State should have been exhausted. This rule implies that an injured individual must exhaust remedies in the courts of the defendant State before an international claim can be brought on his behalf. It is a rule which is justified by political and practical considerations, not by any logical necessity deriving from the International Law. Among the political and practical considerations suggested to justify such rule are the avoidance of resorting to diplomatic protection in small and insignificant claims, and the greater suitability and convenience of local courts as forums for claims of individuals. This rule is reaffirmed in the ILC Articles which provides that the responsibility of a State may not be invoked if the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.
The exhaustion of local remedies rule does not apply where one State has been guilty of a direct breach of International Law causing direct injury to another State. It applies to cases of diplomatic protection where a State claims injury to its nationals, and when effective remedies are available in the wrongdoing State. A claim will not be admissible in the International Law unless the natural or legal foreign person concerned has exhausted the legal effective remedies available to him locally in the defendant State.

C. Unreasonable Delay and Improper Activities of the Injured National
A claim by a State against another State will not be admissible if it is presented after an unreasonable delay by the claimant State. It may be inadmissible if the injured national has suffered injury as a result of his improper activities. However, in such a case, the injury suffered by the national must be roughly proportional to his improper activities.

D. Resorting to Countermeasures
An injured State may seek to settle its claim peacefully through any of the peaceful means, or it may take countermeasures against the wrongdoing State. Countermeasures are acts of retaliation which are traditionally known as “reprisal”. They may be in a form non-compliance of the injured State with its legal obligations towards the wrongdoing State, or unilateral coercive actions taken by the injured State against the wrongdoing State. Such measures are a type of self help utilized in order to induce the wrongdoing State to discontinue its wrongful act and to provide reparation.
Today, there are certain legal limits to countermeasures. The most important limit is the prohibition of the armed retaliations because of the general prohibition of the use of force provided in Article 2(4) of the Charter of the United Nations. Countermeasures have to be proportional to the wrongful act. They must not violate basic human rights or the peremptory norms of International Law.


References:
[1] See generally Brownlie, part VIII; J. Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge (2002) ; C. Gray, Judicial Remedies in International Law, Oxford (1987); Malanczuk, chapter 17; and Shaw, chapter 14.
[2] Shaw, p. 694.
[3] See Malanczuk, pp. 254-6.
[4] See ILC Commentary 2001, U.N. Doc. A/56/10 (2001).
[5] See Shaw, p. 696.
[6] Id, pp.696-7.
[7] ILC Articles on the State Responsibility art.1.
[8] Id. art. 2.
[9] Id. art.12.
[10] See Brownlie, p. 421.
[11] See Brownlie, p. 422.
[12] See the ILC Draft Articles on the State Responsibility art. 19.
[13] See e.g. Oppenheim, vol. 1, pp. 533-5.
[14] See e.g. I. Brownlie, International Law and the Use of Force by States, 150-4, Oxford (1963).
[15] See the Commentary of the Rapporteur to draft article 19, 1970 Yearbook of the ILC, vol. II, pp.102-5.
[16] The ILC Articles art. 41.
[17] See Malanczuk, p. 257.
[18] The ILC Articles art. 4.
[19] Id. art. 4.
[20] Id. art. 5.
[21] See Shaw, p. 701.
[22] See Malanczuk, p. 258; also Brownlie, pp. 434-6; and Shaw, pp. 702-4.
[23] The ILC Articles art. 7.
[24] Id. art. 8. See also 704-5.
[25] See Malanczuk, p. 259.
[26] See Shaw, 705-6; also Brownlie, pp. 436-8.
[27] The ILC Articles art. 10.
[28] See Shaw, p. 698.
[29] See generally Shaw, pp. 698-700.
[30] Id. p. 714; see also the ILC Articles art. 30.
[31] The ILC Articles art. 34.
[32] See Shaw 716; also the ILC Articles art. 35.
[33] See the ILC Articles art. 36(1).
[34] Id. art. 36(1).
[35] Id. art. 31(2).
[36] See Shaw, pp. 719-20; also the ILC Articles art. 37.
[37] The ILC Articles art. 42.
[38] Id. art. 48.
[39] Id. art. 46.
[40] Id. art. 47.
[41] Id. art. 45.
[42] See Shaw, pp. 721-2.
[43] Id. p. 722.
[44] Id.
[45] Id. p. 723.
[46] Id. pp. 722-3.
[47] Id. p. 726.
[48] Id. p. 727.
[49] See generally Brownlie, pp. 772-81; and Shaw, pp. 730-2.
[50] Shaw, p. 730; see also the ILC Articles art. 44.
[51] See Brownlie, p. 473.
[52] Id.
[53] The ILC Articles art. 44.
[54] Shaw, p. 731.
[55] See Malanczuk, p. 269.
[56] Id.
[57] See the ILC Articles art. 49.