September 17, 2021

State Responsibility under International law

Introduction

This is one of the most complex concept of international law, it is complex because when i say responsibility, it is difficult to define elements of the state and how the state must be held responsible, for the actions of so many people or organs or so many actions which is attributed to the state and it is not easy, to make a very clear analysis of this complex area

When we say a state is responsible it is responsible in relation to whom and in respect to What, state is a creation of law. i.e. state is not something separate from the people live in the state, it is not something completely separate, so when we talk of the state and its responsibility, we actually talk of the individual, or subjects of the state or the nations of the state, who hold offices in the state.

The control of the state must be exercised in such manner, over its subject national , or territory, its official in a manner these organs of the state do not violate any  agreement of the state , or if there is a allegation against a individual or a group of people, or organs of a state then the state become responsible for that violation, then the legal consequences of responsibility follow to the extent of the state.[1]

So the state responsibility in one sense, is an assumption that a state control its  territories its nationals and  its officials and other infrastructure which is associated with this state, if the state does not  control them efficiently or fails to control them, those people commits any actions within or outside the state which violate the international law, those individuals may be liable in the individual capacity but the state have a capacity to answer foreign national, foreign company etc.

Nationality cannot be the basis of responsibility and own, the mere fact that you are the national of a certain state will not make the state responsible for your act, and it is wrongly generally assumed in a summary fashion people can assume this, that if you are a national you are found in a situation, where you have violated international law, then your state is responsible, this  is absolute an incorrect presumptions in terms of law of state responsibility.

The concept of state is very much central to international law, It means it deals with the state and state is a primarily a most active subject of international law, state responsibility is come when an state commit international wrongful act against another state internationally, it is stated that every state is under a legal obligation, not to threaten to use force against other.

The concept of responsibility are similar to concept of liability means, responsibility liability, and liability arise when violation of any right or violation of public duty take place then wrong will committed, and because of that act responsibility will arise of a wrong doer. If we are talking about right and duties they both are correlative to each other, i.e. if some act is right for any of person, same act will duty for other person.

Now, if we are talking about state or we are talking about international level, we never involve any individual for example if some act is a right for one state it can automatically become a duty for other state because both are correlative in nature, so if there is a wrong doer state which constitute an wrong act and because of that wrong act, the wrong doer state shall be responsible or liable to the aggrieved state whose right has been violated

In international law rights and duties are given due to any convention or treaty (agreement) .

There is a greater responsibility in the officials of the government that whatever they say, whatever they do, must be in accordance with the principle of international law, otherwise if they think they act in a manner which in inconsistent the actually make whole state responsible for that if they are not aware of the consequences of their act, if they are not aware of the prospective in which their action are being viewed and visualised and examined internationally, they are actually embarrassing the government or the state itself all officials will be responsible of their acts.

Where do we find a law on state responsibility

We can finds it in various precedents, in state practice, in customs,  but you don’t find it directly as such in a treaty, but there is one instrument where we find the principles of state responsibility, that instrument is the draft articles on state responsibility, which is drafted by the international law commission.

International law commission is the most respected value of international lawyers, it is a value which continues to consider the areas where international law has to develop, and they produce the draft of some formulation which makes it convenient, for the analyst for the practitioner, for the state to apply and understand law in that area.[2]

Definition

State responsibility is defined as the circumstances in which and principle were by, the injured state becomes entitled to redress for the damage suffered

Kinds of state responsibility

There are two kinds of state responsibility:-

  1. Direct responsibility:- Responsibility of a organs of a state, Responsibility of a administrative departments of  the state, responsibility of a agencies of a state i.e. all those persons who regularised functions of state.
  2. Executive/administrative departments:- Who are responsible to do day to day work of a state, for example- Head of department, Head of government, Head of state, authorised person if these type of persons violates any rights or any obligation which are ratify by state in international level, in these cases state is directly responsible for the aggrieved state.
  3. Acts of judiciary:- When courts are passing judgements, if any court pass such order which violates any convention or treaty(agreement) international obligation, in these situations because of these acts of judiciary, state is directly responsible
  4. Acts of armed forces:-Armed forces of any country, who is at authorised position, In official capacity, under the comm[3]and of the state violate any convention or treaty(agreement) in these type of cases, state is directly responsible of his behalf for the violation of any international law.
  5. Diplomatic representative:-If any diplomatic representative (ambassador) commit any act on command of sending state, in this situation the diplomatic representative have immunity but the sending state, on whose command diplomatic representative done any act is directly responsible.
  • Indirect responsibility:- In other words it is called as vicarious liability, it means if any individual of the state, who are not authorised person For Example- citizen of state, foreigner, alliance etc who are existing in the state, if they are violating any obligation of the state the state may indirectly responsible.
  • Acts of mob:- It means when a group of people merge and done any act which is violating international laws, in this case also state may indirectly responsible, for violation of international laws.
  • Insurgents.[4]

Articles which are drafted on state responsibility for wrongful act which violate international law

  1. Attribution of act or omission is essential.
  2. Violation of obligation of duty is essential.

International delinquencies is a wrongful act that is committed by state in violation of international obligation

However international crimes is an extension of international delinquencies which is created in a way that, crime to termed as international crime has to be a performance or series in most of the state, in  protection of a fundamental rights so essential then they have to take the root of committing the crime themselves and then they are treated as international crimes, the damage is not a pre  condition here, any international responsibility could arise after internationally wrongful act, and wrongful act is essence itself is enough to held state responsible for the acts, it means the injured state could not require to proof  that the injured state is not required to state that it require any particular harm, before it can  fix, so the violation obligation in itself in enough  responsible  for the unlawful act committed.[5]

Also an act of self defence would not constitute an international delinquencies, the self defence, there has to be an immanent thread for claiming self defence, if your  action to the self defence cause harm, or injury to the territories, it is again your responsibility to established, self defence in come into picture when  there is presumptions of thread  again in depends of the circumstances, in a general conception it is not treated as an international delinquencies, further a state for such act would not be responsible however injuries may actually be to another states. Responsibility of the state does not cease even if it does not concerned as performed an act, [6]

Acts of diplomatic envoys

We all know that diplomatic envoys, definitely injured diplomatic immunity and a state is also responsible in for that matters for injurios matters that are followed by them, at the command or with the etherisation with his home state or authorisation from the state it is  a national of then yes definitely it is acting in the capacity however when the acts are committed on the command of the state however when the diplomatic says without any instruction and knowledge when a diplomat commits an act,  it again depend for the circumstances  that whether or not it could be held liable but definitely, if it is a direct command or from the state then yes it is considered to be the responsibility of the state itself.

Basic of state responsibility

There are basically three factors that determine state responsibility

  1. All states are under legal duty, that no wrongful act has been committed by them
  2. The act must commit injury to other entity either loss or either damage
  3. It is must that an act shall be committed by state

If all the facture are satisfied state is responsible for that act.

Fault

State responsibility has attributed two theories [7]

  1. Risk theory:-it says that state is strictly, responsible if any of the organ of the state commit any wrongful act, state may be directly or indirectly responsible for the act.
  2. Fault theory:-in this theory it state that the state shall responsible, if any intention or negligence will be shown.

There are number of debates regarding applicability of theory in international law, most of the jurist have chosen risk theory of state responsibility.

Reparation

The party who done the wrongful act, shall be responsible to make reparation to injured parties,

The accused party is liable materially the original back tpo the same status before commencement of wrongful act, If restitution is not possible, the accused party is liable for compensation like monitory reparation reverting the injured party prior to the occurring of the act.

Another form of reparation is basically satisfaction. More appropriate remedy than compensation, in moral damage cases, it include any demand of responsible act, the punishment  of guilty officials. Nominal damage etc.

Conclusion

The conclusion of the state responsibility is that, state has a direct of indirect responsibility towards the violation and any act by the state officials or by the individual persons, International law commission is the most respected value of international lawyers, it is a value which continues to consider the areas where international law has to develop, and they produce the draft of some formulation which makes it convenient, for the analyst for the practitioner, for the state to apply and understand law in that area, This is one of the most complex concept of international law, it is complex because when i say responsibility, it is difficult to define elements of the state and how the state must be held responsible, for the actions of so many people or organs or so many actions which is attributed to the state and it is not easy, to make a very clear analysis of this complex area.


[1] https://blog.ipleaders.in/need-know-state-responsibility-international-law/#:~:text=State%20responsibility%20is%20incurred%20when,to%20use%20force%20against%20others.

[2] https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1225&context=pubs

[3] https://youtu.be/Dlr0q1fOpnU

[4] https://youtu.be/RlBuncTePKc

[5] http;//state-responsibitymo867423

[6] https://youtu.be/vKwcyAqo5h4

[7] https://youtu.be/MSy2IC07quY

Author- Sparsh Bagga (Amity law school noida)

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