This Article is written by Aman Srivastava & this article discuss the concept of State Responsibility Under International Public Law
- Introduction
- Laws of State Responsibility
- Theories on responsibility of states
- Act of State
- Rules of attribution
- Forms of restitution for the Breach of an International Obligation
Introduction
State responsibility is a fundamental principle of transnational law, arising out of the nature of the transnational legal system and the doctrines of state sovereignty and equivalency of countries. It provides that whenever one state commits an internationally unlawful act against another state, transnational responsibility is established between the two.
• A breach of a transnational obligation gives rise to a demand for restitution.
• Put simply, state responsibility arises when the ensuing conditions have been met
1. the actuality of a transnational legal obligation in force as between two particular countries;
2. that there has passed an act or elision which violates that obligation and which is imputable to the state responsible;
3. that loss or damage has redounded from the unlawful act or elision.
Laws on State Responsibility
- Article 1 of the International Law Commission’s papers on State Responsibility reiterates the general rule, extensively supported by practice, that every internationally unlawful act of a state entails responsibility.
- Article 2 provides that there’s an internationally unlawful act of a state when conduct conforming to an action or elision is attributable to the state under transnational law and constitutes a breach of an transnational obligation of the state. It’s transnational law that determines what constitutes an internationally unlawful act, irrespective of any vittles of external law.
- Article 12 stipulates that there’s a breach of an transnational obligation when an act of that state isn’t in conformity with what’s needed of it by that obligation, anyhow of its origin or character.
Theories on the Responsibility of States
Damage Theory
A certain conduct is interdicted because it’s likely to beget damage to other subjects; still, state A only becomes responsible towards state B if as a result of interdicted acts of State A, state B suffers damage. Therefore the failure to fulfill a transnational obligation is a necessary, but not a sufficient element in the case of transnational delicts. In order to produce the automatic link of responsibility between the amusement and the claiming state, the fulfillment of a fresh condition videlicet, damage suffered by the claiming state is needed.
Risk and Fault Theory
• There are contending propositions as to whether responsibility of the state for unlawful acts or deletions is strict or whether it’s necessary to show some fault or intention on the part of the officers concerned. The principle of Objective responsibility( the so-called threat proposition) maintains that the liability of the state is strict. Once an unlawful act has taken place, which has caused injury and which has been committed by the agent of the state, that state will be responsible in transnational law to the state suffering the damage irrespective of good or bad faith.
• To be varied with this approach is the private responsibility conception( the fault proposition) which emphasizes that an element of intentional ( dolus) or negligent ( culpa) conduct on the part of the person so concerned is necessary before his state can be rendered liable for any injury caused. Under transnational law, the act of state doctrine and the rules of criterion are two affiliated generalities that govern the legal consequences of the acts of countries in the transnational arena. These principles help determine when the conduct of a state are considered list and attributable to that state under transnational law.
Act of State
The act of state doctrine is a principle that emphasizes the sovereignty and autonomy of countries in the transnational legal system. It holds that the judicial branch of one state shouldn’t intrude with the sanctioned acts of another state within its own home. ” According to this doctrine, the validity and legitimacy of an act performed by a state within its own governance are determined simply by its domestic law.
The act of state doctrine has several counter accusations . It means that a court in one state won’t assess the legality of acts performed by a foreign state within its own home.
• Accordingly, it may refuse to hear cases that involve challenges to the conduct of foreign countries. Still, it’s important to note that the act of state doctrine isn’t absolute and can be subject to exceptions, particularly when it conflicts with other principles of transnational law or with the domestic legal system of the forum state.
Rules of Attribution
The primary rules of attribution are:
1. Conduct of organs
The acts of a state’s government or its superintendent, legislative, or judicial organs are considered acts of the state itself. These acts are attributable to the state anyhow of whether they’re performed domestically or internationally.
2. Conduct of officers or representatives
The acts of state officers or representatives, acting in a sanctioned capacity or exercising governmental authority, are generally attributable to the state. This includes conduct taken in political or transnational accommodations.
3. Conduct of non-state actors Under certain circumstances
the acts of non-state realities, similar as private companies or fortified groups, can be attributed to a state. This occurs when the state exercises effective control over the conduct of these realities or when the realities act on behalf of or under the direction or control of the state.
4. Conduct of transnational associations Acts of transnational associations may also be attributed to their member countries if they act within the compass of their authority or under the control of their member countries.
Forms of restitution for the Breach of an International Obligation
• These forms of restitution are honored under transnational law and can be sought through political accommodations, arbitration, or adjudication before transnational courts.
There are some common forms of restitution
1. Restitution
It aims to restore the situation to what it was before the breach passed. It involves the return of property or home, reinstatement of rights, or the reversal of conduct taken in violation of transnational law. The violating state may be needed to undo the unlawful act or return any property or benefits acquired as a result of the breach.
2. Compensation/Indemnity
Compensation involves the payment of financial damages to the injured state or party. The purpose is to give fiscal requital for the detriment suffered as a result of the breach. Compensation is generally calculated based on the factual loss or damage incurred, including both material and non-material losses similar to profitable detriment, property damage, or particular injury.
3. Satisfaction
It refers to non-monetary measures aimed at admitting the wrongdoing and furnishing a form of emblematic requital. This can include formal justifications, sanctioned statements, or public recognition of the breach and its consequences. The purpose is to restore the quality, honor, or character of the injured state or party.
4. Guarantees of Non-Repetition
Guarantees of non-repetition are measures aimed at precluding the rush of the breach in the future. The violating state may be needed to take specific conduct or legislate legislative or executive measures to insure compliance with transnational scores and help analogous violations in the future.
Conclusion
In conclusion, state responsibility in transnational law hinges on the violation of international obligations, triggering a demand for restitution. Guided by the International Law Commission’s principles, theories such as Damage and Risk/Fault offer perspectives on the conditions for holding states accountable. The Act of State Doctrine underscores sovereignty, yet exceptions exist. Rules of attribution link state responsibility to government organs, officials, non-state actors, and transnational associations. Remedies for breaches encompass restitution, compensation, satisfaction, and guarantees of non-repetition. This intricate framework aims to restore equilibrium, emphasizing the delicate balance between the autonomy of states and the imperative of a just and orderly international legal system.
Reference
Sompong Sucharitkul, “State Responsibility And International Liability Under International Law” (Golden Gate University School of Law), 1996
<https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1225&context=pubs> accessed on January 19, 2024
United Nations, “Responsibility of States for Internationally Wrongful Acts”, 2001
<https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf> accessed on January 19, 2024
