Chapter 8 (State Responsibility) Notes of Public International Law

Chapter 8

aConcept and Nature of State Responsibility

1. Introduction

State responsibility refers to the legal consequences when a state commits an internationally wrongful act. This includes breaches of treaties, customary international law, or failure to fulfill obligations.

Definition of State Responsibility

Ian Brownlie: "Responsibility is concerned with the incidence and consequences of illegal acts and the payment of compensation for loss caused."
L. Oppenheim: "Any injury to another state, committed by the head of state or government, in violation of international legal duty."
JG Starke: "Any wrongful act committed by a state, breaching the international obligation which was created from the contract."

Historical Background

Pre-20th Century: Initially, state responsibility focused on protecting foreign nationals.
The Chorzów Factory Case (1928, PCIJ): Established that violations of international obligations must be remedied.
Codification by the ILC (1949-2001): Resulted in Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA, 2001).

2. FOUNDATIONS OF STATE RESPONSIBILITY

Primary vs. Secondary Rules

Roberto Ago (ILC Special Rapporteur) classified international rules into:

Primary Rules: Define rights and obligations (e.g., treaties, customs).
Secondary Rules: Define consequences of violations (e.g., reparations, sanctions).

Key Legal Instruments

Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA, 2001) – Defines legal consequences of wrongful acts.
UN Charter (Article 2(4)) – Prohibits force except in self-defense or UN-authorized cases.
Vienna Convention on the Law of Treaties (1969) – Governs treaty violations and remedies.

3. WHEN DOES STATE RESPONSIBILITY ARISE?

A state is held responsible when two key conditions are met:

1. Attributable Conduct (Acts of the State)

State responsibility applies when:

State Organs (executive, legislative, judiciary) act wrongfully (Article 4, ARSIWA).
Persons/Entities under State Control commit violations (Article 8, ARSIWA).
The State Accepts Responsibility for Private Acts (Article 11, ARSIWA).

Case Law: Tehran Hostages Case (United States v. Iran, ICJ 1980)

Facts: In 1979, Iranian militants seized the U.S. embassy in Tehran and took 52 American diplomats hostage. The Iranian government did not prevent the attack and later endorsed the militants' actions.
Issue: Was Iran responsible for failing to protect the embassy and hostages?
Decision: The ICJ held Iran responsible because it had a duty under international law (Vienna Convention on Diplomatic Relations) to protect foreign diplomats.
Relevance: Even though non-state actors (militants) committed the act, Iran became responsible because it failed to act and later supported the wrongful act.

2. Breach of an International Obligation

A state is responsible if it fails to uphold obligations from:

Treaties (e.g., Human Rights Conventions).
Customary International Law (e.g., Prohibition of Torture, Genocide).
General Principles of Law (e.g., Good Faith in Diplomacy).

Case Law: Nicaragua v. United States (ICJ, 1986)

Facts: The U.S. provided financial and military support to the Contras (a rebel group) to overthrow the Nicaraguan government. The Contras committed acts of violence, including attacks on civilians.
Issue: Was the U.S. responsible for the actions of the Contras?
Decision: The ICJ ruled that the U.S. violated international law by intervening in Nicaragua’s internal affairs. However, the court found that U.S. support did not meet the "effective control" test required to make it responsible for every act of the Contras.
Relevance: A state can be responsible for indirect actions (supporting rebels) but must have "effective control" over them to be fully liable.

4. CATEGORIES OF STATE RESPONSIBILITY

A. State Responsibility for Breach of an International Obligation

1. Breach of a Treaty

Example: If a state signs a nuclear disarmament treaty but continues developing nuclear weapons.

Case Law: LaGrand Case (Germany v. USA, ICJ 2001)

Facts: Two German nationals were convicted of murder in the U.S. and sentenced to death. The U.S. did not inform them of their right to contact the German consulate.
Issue: Did the U.S. violate its treaty obligations under the Vienna Convention on Consular Relations?
Decision: The ICJ ruled that the U.S. had violated Germany’s rights under the treaty and should have stopped the execution.
Relevance: This case emphasizes that treaty breaches trigger state responsibility.

2. Failure to Prevent Harm to Another State

Example: Allowing terrorist groups to operate across borders.

Case Law: Bosnia and Herzegovina v. Serbia (ICJ, 2007)

Facts: During the Bosnian War (1992-1995), Serbian-backed forces committed genocide in Srebrenica, killing over 8,000 Bosniaks.
Issue: Was Serbia responsible for the genocide?
Decision: The ICJ found Serbia guilty of failing to prevent the genocide but did not hold it directly responsible for committing genocide.
Relevance: A state can be liable not only for direct actions but also for failing to prevent wrongful acts.

3. Environmental Damage

Example: An oil spill affecting neighboring countries.

Case Law: Trail Smelter Arbitration (Canada v. USA, 1941)

Facts: A Canadian smelter polluted the Columbia River, causing environmental damage in the U.S.
Issue: Was Canada responsible for transboundary pollution?
Decision: The arbitration tribunal held Canada liable for the environmental damage and ordered compensation.
Relevance: States have a duty to prevent harm beyond their borders.

5. CONSEQUENCES OF STATE RESPONSIBILITY

1. Duty to Cease the Wrongful Act (Article 30, ARSIWA)

The state must stop the violation immediately.

2. Reparations (Article 31, ARSIWA)

Forms of reparation:

Restitution – Restore the situation (Chorzów Factory Case, PCIJ 1928).
Compensation – Pay for damages.
Satisfaction – Issue an apology (e.g., Germany apologizing for WWII war crimes).

6. DEFENSES AGAINST STATE RESPONSIBILITY

1. Self-Defense (Article 21, ARSIWA)

A state is not responsible if it acts in self-defense under Article 51 of the UN Charter.

Case Law: Oil Platforms Case (Iran v. USA, ICJ 2003)

Facts: The U.S. attacked Iranian oil platforms, claiming self-defense.
Issue: Was the U.S. justified in its actions?
Decision: The ICJ rejected the U.S. self-defense argument because there was no armed attack from Iran.
Relevance: Self-defense must meet strict conditions under international law.

State responsibility ensures compliance with international law. The ARSIWA framework provides rules for addressing violations and enforcing reparations.

b. Treatment of Aliens and Diplomatic Protection

Diplomatic Protection as a State Responsibility

1. Historical Background

Early Use of Diplomatic Protection:

· Diplomatic protection in its early form was like a blunt instrument, where states often relied on military force to protect their nationals abroad. Imagine states as powerful kingdoms using their armies or fleets to defend citizens when they were wronged by other countries.

In the 18th and 19th centuries, this type of protection was more about showing strength and force rather than law when a citizen was harmed by another country.
States often resorted to violent means, like sending ships to demand reparations for injuries to nationals. The use of force was as common as a diplomatic approach.

Transition to Legal Diplomacy:

· As international relations and laws evolved, the role of diplomatic protection changed from one focused on physical defense to legal diplomacy.

Legal diplomacy replaced military intervention, meaning that instead of sending troops, states began negotiating and settling matters through international treaties and legal frameworks.
This shift represents a transition from might to right, where diplomacy became more about negotiation and legal resolution than physical might.

· Modern Diplomatic Protection now relies on legal principles and international law, with states protecting their citizens via treaties, conventions, and international courts instead of military force.

2. Concept of Diplomatic Protection:

Diplomatic Protection as a Shield:

Diplomatic protection acts as a shield, offering a nation’s protection to its citizens when they face wrongful acts by another state. It reflects the idea that "if you harm my citizen, you harm me as a state."

Scholarly Definitions:

Ian Brownlie (2008): A state’s effort to secure protection and obtain reparation for its citizens harmed abroad due to violations of international law.
Malcolm Shaw (2017): Diplomatic protection allows a state to take up the claim of its national if harmed by another state’s wrongful conduct, once local remedies are exhausted.
James Crawford (2019): The state intervenes on behalf of its nationals when they suffer harm due to violations of international law.
Hersch Lauterpacht (1933): Diplomatic protection asserts that harm to a citizen is harm to the state itself, urging the state to demand redress.
R.Y. Jennings (1956): A state defends the legal rights of its citizens when violated by another state.
John Dugard (2011): The state steps in to safeguard its citizens when they face violations of their rights in a foreign state.
Mavrommatis Palestine Concessions Case (1924): A state has the right to protect its nationals if harmed by another state's wrongful acts.

Principles of Diplomatic Protection:

State Sovereignty: The state decides when and how to act on behalf of its citizens, giving it a discretionary right over diplomatic protection.
International Responsibility: When a state harms another’s citizens, the host state is responsible for repairing the damage.
Effective Nationality: Nationality is a living connection, not just a passport. The state’s protection is linked to genuine and ongoing ties with the individual.
Exhaustion of Local Remedies: Before the state intervenes, the harmed individual must attempt every possible local legal avenue to resolve the issue.

3. Two Main Areas of Diplomatic Protection:

a) Consular Access:

· Consular Access as a Lifeline: Consular access acts as a lifeline, allowing citizens to communicate with their consulate when in trouble abroad, like sending a rope to someone trapped in a foreign legal system.

Vienna Convention on Consular Relations (1963):

Article 36(1): Nationals have the right to contact consular officers.
Article 36(1)(b): Authorities must inform detained individuals of their right to consular communication.
Article 36(2): Consular officers can protect nationals' rights while detained.

b) Nationality of Claims:

· Nationality of Claims as an Identity Badge: Nationality is more than a document; it’s the link between the citizen and the state. The state uses this connection to offer diplomatic protection.

To establish nationality of claims before the International Court of Justice (ICJ), three elements must be proven:

Wrongfulness: There must be a violation of international law.
Nationality: The individual must have a meaningful and continuous tie to the state.
Exhaustion of Local Remedies: Local legal avenues must be explored before the state can step in.

4. Key Rules:

a) Draft Articles on Diplomatic Protection (2006):

Article 1: Diplomatic protection is a formal procedure by the state for the protection of nationals.
Article 4: The state has the right to protect its nationals.
Article 5: The nationality of the injured person must be continuous.
Article 7: Deals with complex nationality claims where both states may claim the individual.

b) Vienna Convention on Consular Relations (1963):

Article 36(1): Nationals have the right to consular communication.
Article 36(1)(b): Authorities must inform detained nationals about consular rights.
Article 36(2): Consular officers protect their nationals’ legal rights.

5. Key Cases:

a) Barcelona Traction, ICJ, 1970:

Corporate Protection: States have the right to protect not just individuals but also corporations, asserting their right when their business interests are harmed.

b) Nottebohm Case, ICJ, 1955:

Genuine Link: Nationality isn’t just a technicality; it’s about the meaningful and genuine connection between a person and their state.

c) Ahmadou Sadio Diallo Case, ICJ, 2010:

Business Protection: Diplomatic protection extends to businesspeople abroad, ensuring that legal violations don’t harm their business interests.

d) Kulbhushan Yadav Case, ICJ, 2019:

Consular Access: Reinforced the importance of consular access rights and the duty of the host state to uphold them.

e) LaGrand Case, ICJ, 2001:

Enforceability of Consular Rights: Established that consular access rights are fundamental and non-negotiable under international law.

f) ELSI Case, ICJ, 1989:

Corporate Diplomatic Protection: Highlighted the importance of protecting corporate rights, especially in cases of wrongful expropriation by another state.

6. Counterpoints:

· Discretion vs Obligation: While diplomatic protection is a discretionary right of the state, it’s not always a guarantee. States may exercise discretion based on political and diplomatic reasons, leading to concerns about access to justice for the injured individual.

Criticism: Diplomatic protection is often seen as more of a political tool than a reliable legal remedy for individuals. Critics argue that state interests usually outweigh those of the harmed individuals.

· State-Centric Nature: The current framework is often considered state-centric, leaving the individual with limited recourse if their state decides not to act on their behalf. This raises questions about the effectiveness of diplomatic protection for individual rights, which might be better protected through international human rights mechanisms.

7. Clarifying the Role of the State in Diplomatic Protection:

The state's role in diplomatic protection isn't absolute and is influenced by political interests and international relations. While states have the discretion to act, this raises concerns over whether it is really about individual justice or more about a state’s broader diplomatic and political needs. International human rights law continues to challenge the state-centered nature of diplomatic protection, urging more direct and effective protection for individuals.

Diplomatic protection remains a critical tool for states to protect their nationals abroad. While it is a vital right of states, the discretionary nature of the mechanism raises questions about its accessibility to individuals. As human rights law continues to evolve, it may challenge the state-centric nature of diplomatic protection, seeking to provide more direct remedies for the harmed individual.

II. Treatment of Aliens

1. Concept and Legal Framework

While states have sovereignty over the treatment of aliens within their territories, a concept known as "domaine réservé", this sovereignty is not absolute. International law imposes certain obligations on states to ensure the protection of aliens, particularly concerning fundamental human rights and the prohibition of arbitrary treatment.

2. Reserved Domain (Domaine Réservé)

The reserved domain (or domaine réservé) refers to areas where a state exercises exclusive sovereign authority, free from external interference. Traditionally, the treatment of alien foreign nationals within a state's territory has been considered part of this reserved domain. However, international law imposes certain obligations and standards that limit this sovereignty to ensure the protection of aliens' rights.

2.1. Sovereign Rights within the Reserved Domain:

· Admission and Entry: States have the sovereign right to control the entry of aliens into their territory. This includes setting criteria for admission, such as visa requirements and entry permits. While the International Covenant on Civil and Political Rights (ICCPR) does not grant aliens an inherent right to enter a state, it acknowledges that decisions on entry fall within the state's discretion. However, considerations such as non-discrimination, prohibition of inhuman treatment, and respect for family life may influence this discretion.

· Residence and Employment: Once admitted, states regulate the conditions under which aliens may reside and work. This includes issuing residence permits, work authorizations, and imposing conditions related to movement and employment. States may also impose general conditions upon aliens in transit.

· Expulsion: States possess the authority to expel aliens from their territory. However, such actions must comply with international legal standards, ensuring that expulsions are not arbitrary and respect due process rights. The International Law Commission (ILC) has elaborated on the expulsion of aliens, emphasizing the need for adherence to international norms.

2.2. International Limitations on the Reserved Domain:

While states maintain significant control over the treatment of aliens, international law imposes limitations to protect fundamental human rights:

· Non-Refoulement: Under international refugee law, particularly the 1951 Refugee Convention, states are prohibited from returning individuals to territories where they may face persecution based on race, religion, nationality, membership in a particular social group, or political opinion. This principle is a cornerstone of international protection for refugees.

· Prohibition of Arbitrary Detention: The ICCPR ensures that aliens have the full right to liberty and security of the person. If lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person.

· Right to Fair Treatment: International human rights instruments, such as the ICCPR, guarantee aliens the right to fair and public hearings by competent, independent, and impartial tribunals. They are entitled to due process and protection from arbitrary interference in their privacy, family, home, or correspondence.

2.3. Balancing Sovereignty and International Obligations:

The concept of the reserved domain underscores the balance between a state's sovereign rights and its international obligations:

· Sovereign Discretion: States retain the discretion to regulate the entry, residence, and expulsion of aliens, reflecting their sovereign authority.

· International Standards: This discretion is tempered by international standards that protect the fundamental rights of aliens, ensuring that state actions do not violate internationally recognized human rights.

In summary, while the treatment of aliens falls within a state's reserved domain, international law delineates clear boundaries to safeguard human rights, ensuring that sovereign actions align with global standards of justice and humanity.

3. International Standards and Obligations

Several international instruments and principles establish minimum standards for the treatment of aliens:

· Principle of Non-Refoulement: This principle prohibits states from returning an individual to a country where they may face persecution, torture, or inhuman treatment. It is enshrined in Article 33 of the 1951 Refugee Convention and Article 3 of the Convention Against Torture.

· International Covenant on Civil and Political Rights (ICCPR): Article 13 provides that aliens lawfully in the territory of a state may be expelled only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit reasons against their expulsion.

· International Labour Organization (ILO) Conventions: ILO Convention No. 97 (Migration for Employment) and Convention No. 143 (Migrant Workers) protect migrant workers' rights, ensuring equality in workplace conditions, wages, and benefits, and focus on preventing discrimination and exploitation.

· International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990): This convention guarantees fundamental rights to migrant workers, including the right to due process, access to justice, and the protection of family unity.

4. Treatment of Aliens During War

International humanitarian law provides protection for aliens during war:

· Neutral Nationals: Individuals from states not involved in a conflict must be treated with respect by belligerent states and often enjoy rights similar to aliens in peacetime.

· Enemy Nationals: Citizens of a state engaged in conflict with another can be subject to more stringent controls. However, the Geneva Conventions require that they be treated humanely. Civilians, including enemy nationals, are protected against inhumane mistreatment during conflict. They retain basic rights such as protection from torture and cruelt,y and arbitrary detention.

c. Expropriation of Foreign Property and Related Issues

1. Concept of Expropriation

Expropriation refers to the act by which a state seizes private property, including assets owned by foreign investors, usually for public purposes. It is an exercise of state sovereignty but must conform to international legal standards, especially regarding fair treatment and compensation.

Definitions by Scholars and Legal Instruments:

According to M. Sornarajah, "Expropriation is the taking of private property by the state, which must be justified by a public purpose and subject to compensation." (Sornarajah, The International Law on Foreign Investment, 2010).
The Hull Formula, articulated by U.S. Secretary of State Cordell Hull, states that expropriation must be accompanied by "prompt, adequate, and effective compensation."
Under Article 31 of the Draft Articles on State Responsibility, expropriation without compensation may be considered an internationally wrongful act.
The 1962 UN Resolution on Permanent Sovereignty over Natural Resources recognizes the right of states to expropriate foreign investments but requires compensation.

2. Types of Expropriation

2.1. Direct Expropriation

This occurs when the state formally transfers ownership of an investor’s property to itself or another entity.

Sub-Types of Direct Expropriation:

Nationalization – Large-scale expropriation of an entire industry or sector.

Example: The nationalization of the Iranian oil industry in 1951 by Prime Minister Mohammad Mossadegh, which led to the Anglo-Iranian Oil Co. Case.

Confiscation Without Compensation – Expropriation where compensation is either denied or grossly inadequate.

Example: The Cuban nationalization of U.S. assets after the Cuban Revolution of 1959.

Indeterminate Holding of Assets – When a state takes control of assets indefinitely without clear ownership transfer.

Example: Libya’s expropriation of foreign oil company assets in the 1970s.

2.2. Indirect Expropriation

Occurs when a state does not formally take property but enacts measures that effectively deprive an investor of their economic benefits.

Regulatory Expropriation – Government measures significantly reduce the value of foreign investments.

Example: Argentina's 2001 financial crisis, where economic policies diminished the value of foreign utilities.

Revocation of Licenses – Governments revoke permits necessary for foreign investment.

Example: Indonesia's revocation of mining permits as part of environmental reforms.

3. International Law and Expropriation

To mitigate expropriation risks, countries enter into Bilateral Investment Treaties (BITs) and Multilateral Investment Treaties (MITs). These treaties impose conditions such as:

Public Purpose – Expropriation must serve a legitimate public interest (infrastructure, security, etc.).
Non-Discrimination – Foreign investors must receive the same treatment as nationals.
Due Process – Investors must have access to legal proceedings.
Compensation – Compensation must be "prompt, adequate, and effective" (Hull Formula).

Key Cases on Compensation and International Law:

1. Factory at Chorzów Case (Germany v. Poland, 1928, PCIJ)

Poland expropriated a German-owned factory, leading the PCIJ to establish the principle that "reparation must, as far as possible, wipe out all the consequences of the illegal act."

2. Texaco v. Libya (1977, ICC Arbitration)

Libya nationalized Texaco’s oil operations without compensation; the tribunal ruled in favor of Texaco based on the compensation standards in international law.

3. ADC v. Hungary (2006, ICSID)

Hungary terminated an airport project agreement with a foreign investor. ICSID ruled that compensation must reflect fair market value at the time of expropriation.

4. Dispute Settlement Mechanisms

Investors can challenge expropriation through Investor-State Dispute Settlement (ISDS) mechanisms:

International Centre for Settlement of Investment Disputes (ICSID) – Handles BIT and MIT disputes.

Example: Venezuela's expropriation of ConocoPhillips, which led to ICSID arbitration.

State-to-State Adjudication (ICJ) – Countries may intervene diplomatically.

Example: Nottebohm Case (1955, ICJ), where Guatemala expropriated property, claiming Nottebohm was an enemy national.

Expropriation remains a significant challenge in international investment law, balancing state sovereignty with investor protection. While international law recognizes a state’s right to expropriate, it imposes strict conditions to prevent abuse. BITs, MITs, and dispute resolution mechanisms help ensure fairness, but challenges remain in ensuring adequate compensation and protection against politically motivated expropriation.