Public International Law: Chapter XI - State Responsibility

State Responsibility
  • In traditional international law, individuals are generally considered “objects” and not “subjects” of international law. 
    • They possess neither international legal rights which they could assert on their own. 
    • Whatever wrongs may be committed against them can be redressed only by states or organizations with international personality. 
  • Individuals, therefore, can be objects of state vs. state litigation. 
    • Out of this situation there have arisen doctrines regarding the protection of individuals and the responsibility of states for injuries inflicted on individuals. 
  • State responsibility for the ill-treatment of aliens is a common form of responsibility that arises in international law. 
    • This chapter will deal with the doctrine on the protection of aliens and on the still evolving subject of state responsibility.
Protection of Aliens
  • No state is obliged to admit aliens into its territory unless there is a treaty requiring it. 
    • This principle is an aspect of sovereignty. 
    • Realistically, however, it is difficult to deny admission to all. 
    • Thus, what states generally do is to impose legal standards for admission. 
    • Once admitted, at least under democratic regimes, aliens may not be expelled without due process. 
  • From the perspective of the state of their nationality, aliens are “nationals abroad.” 
    • They, therefore remain important for the state of their nationality. 
    • Hence, states do have a common interest in the protection of aliens. 
    • The practice of the proper treatment of aliens is based on this commonality of interest. 
    • States protect aliens within their jurisdiction in the expectation that their own nationals will be properly treated when residing or sojourning abroad. 
    • In fact, mistreatment of aliens is a common cause of international responsibility.
  • Ill-treatment of foreign nationals can come in various forms, e.g.,:
    • mistreatment by judicial or police authorities
    • unlawful expropriation of property
    • failure to prosecute those who attack foreign nationals, or what is called “denial of justice” or denial of due process of law.
  • There is a well-developed customary law for the protection of aliens. The instrument used for the protection of aliens is “diplomatic protection.” 
    • This is still based on the traditional notion that the individual is an inappropriate subject of international law and hence must have recourse to his or her state of nationality for protection. 
    • The theory underlying the system is that injury to a national abroad is injury to the individual’s state of nationality. The interest of the state is in the redress of the injury to itself and not of the injury to the individual. 
    • Individuals, therefore, are at the mercy of their own state. 
    • States enjoy discretion whether or not to espouse claims raised by individuals in their own behalf. 
    • States might see their own sovereign interests as overriding whatever private interests their nationals might have. 
    • Moreover, as indicated in the Nottebohm case in Chapter 8, in the case of persons holding dual nationality, an “effective national link” with the person must exist for a state’s interest in an individual to be recognized by other states.
Corporations and Shareholders
  • The doctrine of “effective link” as applied to corporations received treatment in the Barcelona Traction Case.
    • The claim, which was brought before the Court on 19 June 1962, arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. The claim’s object was to seek reparation for damage alleged by Belgium to have been sustained by Belgian nationals, shareholders in the company, as a result of acts said to be contrary to international law committed towards the company by organs of the Spanish State. 
    • The Court found that Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. It observed that when a State admits into its territory foreign investments or foreign nationals it is bound to extend to them the protection of the law and to assume obligations concerning the treatment to be afforded them. But such obligations are not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so. 
    • The breach, if any, was committed in this case against the company. Only the company, which was endowed with legal personality, could take action in respect of matters that were of a corporate character. It may be true that a wrong done to the company frequently causes prejudice to its shareholders; but this does not imply that both are entitled to claim compensation. Whenever a shareholder’s interests are harmed by an act done to the company, it is to the latter that he has to look to institute appropriate action. An act infringing only the company’s rights do not involve responsibility towards the shareholders, even if their interests are affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such, which was not the case here.
  • As to who should have the right to protect the corporation, Barcelona Traction says that it is the state of nationality of the corporation, in this case Canada, which has the right, and not Belgium.
Standard for the Protection of Aliens
  • What is the international standard for the protection of aliens? 
  • International law has gone a long way from ancient times when aliens were treated as “outlaws” not deserving protection. 
  • Roman law progressed from this under the concept of jus gentium, which was applicable to both citizens and aliens, as distinct from jus civile which was applicable only to Roman citizens. 
  • The advent of Christianity further improved the condition of aliens. 
  • The rights of aliens expanded further with the growth of international commerce in modern times leading to development of the concept of “denial of justice” as an international concern. 
  • Two standards have emerged in modern times to compete for recognition as the acceptable standard. 
  1. The first is what is called the doctrine of “national treatment” or “equality of treatment.”
    •  Aliens are treated in the same manner as nationals of the state where they reside. 
    • Bright side: Aliens would enjoy the same benefits as local nationals. 
    • Dark side: State is tyrannical and its municipal laws are harsh and violative of human rights even of its own citizens, then aliens would likewise be subject to such harsh laws.
  2. The other standard is called the “minimum international standard.”
    • However harsh the municipal laws might be against a state’s own citizens, aliens should be protected by certain minimum standards of humane protection. 
    • This is now the widely accepted standard.
    • The “minimum standard” is obviously abstract and it is not easy to determine what its contents are. 
    • An elaboration of this abstract standard may be seen in a quotation from the resolution of the Neer Claim.
      • Mr. Neer was a US national working in Mexico. He was stopped by armed men and shot to death. It was claimed that the Mexican government had been negligent in their investigation of the murder. This was rejected by the Joint Claims Commission saying: 
      • [w]ithout attempting to announce a precise formula, it is in the opinion of the Commission possible to hold (first) that the propriety of the government acts should be put to the tests of international standards, and (second) that the treatment of an alien, in order to constitute an international delinquency should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial.
    • The Harvard Draft Convention on the Responsibility of States for Damages puts it in terms of the more limited concept of “denial of justice.” 
      • Article 9. Denial of justice exists when there is a denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not denial of justice.
        • Denial of justice:
          • unwarranted delay or obstruction of access to courts
          • gross deficiency in the administration of judicial or remedial process
          • failure to provide those guarantees which are generally considered indispensable to the proper administration of justice
          • manifestly unjust judgment
Enforcement Regimes 
  • The International Court of Justice, when its jurisdiction is appealed to by states in conflict, can resolve issues of violations of the rights of aliens. 
  • However, claims may also be settled by ad hoc tribunals established for the purpose. 
  • Examples are:
    1. The US-Iran Claims Tribunal established by the US and Iran to deal with claims of either party arising from the Islamic Revolution; 
    2. The UN Compensation Commission established by the Security Council in 1991 to deal with claims arising from Iraq’s invasion of Kuwait. 
    3. States may also enter into lump sum settlements such as the US-Cambodia (1994) and US-Vietnam (1995) Claims Settlement Agreements.

Doctrine of State Responsibility
  • The customary law doctrine on the protection of aliens should be seen in relation to the doctrine on “state responsibility.” 
  • When an injury has been inflicted, there is need to determine whether the state can be held responsible for it. 
  • One of the principles most strongly held by states is that if a state violates a customary rule of international law or a treaty obligation, it commits an “internationally wrongful act.” 
  • The International Law Commission for some years now has been working on the codification of the law on the subject. 
    • At its fifty-third session (2001), the International Law Commission adopted on second reading a complete text of the Articles on Responsibility of States for Internationally Wrongful Acts. 
    • The Articles have been referred to the General Assembly for consideration. 
    • Although its work has not yet been finalized, much of what it has done so far consists of principles which are widely accepted. 
    • What need to be understood are: 
      1. the elements of an internationally wrongful act; 
      2. the attributability of the wrongful act to the state; and 
      3. the enforcement of the obligation that arises from the wrongful act. 
    • Excerpts from the 2001 Draft of the International Law Commission will be used as handy guide.

Internationally wrongful act.

Article 1. Responsibility of a State for its internationally wrongful acts 
  • Every internationally wrongful act of a State entails the international responsibility of that State.
  • States derive immense benefits from the international legal system. Accordingly, when a state consents to be a part of that system, it also accepts corresponding legal obligations. Primarily, it must accept responsibility for actions which have an effect on other international legal persons. This is basically what Article 1 says. No state can escape this responsibility when once it has committed an act which satisfies the requirements of an “internationally wrongful act.”
Article 2. Elements of an internationally wrongful act of a State 
  • There is an internationally wrongful act of a State when conduct consisting of an action or omission:
  1. Is attributable to the State under international law; and 
  2. Constitutes a breach of an international obligation of the State.
Article 3. Characterization of an act of a State as internationally wrongful 
  • The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.
Article 12. Breach of an international obligation 
  • There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

  • Article 2 says that that the elements of an internationally wrongful act consist of a subjective and an objective element. 
    1. The subjective element is that the act must be attributable not to the persons or agencies who performed it but to the state itself.
    2. The objective element is a violation of an international obligation.
      • It may consist of something either:
        • active (action) or 
        • passive (an omission.) 
  • Articles 3 and 12 say that what determines the wrongful character of the act is international law and not internal law. The international law violated can be customary or conventional.

Attribution to the State. 
  • The acts which can be attributed to the state may be:
    • acts of state organs 
    • the acts of other persons, or 
    • the acts of revolutionaries. 
Acts of state organs

Article 4. Attribution to the State of the conduct of its organs 
  1. For the purposes of the present articles, the conduct of any State organ acting in that capacity shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. 
  2. For the purposes of paragraph 1, an organ includes any person or body which has that status in accordance with the internal law of the State. 

Article 5. Attribution to the State of the conduct of entities exercising elements of the governmental authority. 
  • The conduct of an entity which is not an organ of the State under Article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the entity was acting in that capacity in the case in question. 

Article 6. Attribution to the State of conduct in fact carried out on its instructions or under its direction or control. 
  • The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons was in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. 
Article 7. Attribution to the State of certain conduct carried out in the absence of the official authorities 
  • The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons was in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. 
Article 8. Attribution to the State of the conduct of organs placed at its disposal by another State 
  • The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ was acting in the exercise of elements of the governmental authority of the State at whose disposal it had been placed. 
Article 9. Attribution to the State of the conduct of organs acting outside their authority or contrary to instructions. 
  • The conduct of an organ of a State or of an entity empowered to exercise elements of the governmental authority, such organ or entity having acted in that capacity, shall be considered an act of the State under international law even if, in the particular case, the organ or entity exceeded its authority or contravened instructions concerning its exercise.

Fact: 

  • Caire, a French national, was killed by Mexican soldiers in Mexico after they demanded money from him.
  • Whether the Mexico has responsibility for actions of individual military personnel, acting without orders or against the wishes of their commanding officers and independently of the needs and aims of the revolution. YES
  • The doctrine of the “objective responsibility” of the States:
    • the responsibility for the acts of the officials or organs of a State, which may devolve upon it even in the absence of any “fault” of its own. 
    • Acts committed by the officials and agent of a State entail the international responsibility of that State, even if the perpetrator did not have specific authorization.
  • But in order to be able to admit this so-called objective responsibility of the State for acts committed by its officials or organs outside their competence, they must have acted at least to all appearances as competent officials or organs, or they must have used powers or methods appropriate to their official capacity.
  • If the principles stated above are applied to the present case, and if it is taken into account that the perpetrators of the murder of MJ.B. Caire were military personnel occupying the ranks of “mayor” and “capitan primero” aided by a few privates, it is found that the conditions of responsibility formulated above are completely fulfilled.
  • The events of 11 December 1914, which led to the death of M J.-B. Caire, fall within the category of acts for which international responsibility devolves upon the State to which the perpetrators of the injury are amenable.

Corfu Channel Case 
  • In 1946, two British destroyers struck mines in Albanian waters (Corfu Strait) and suffered damage, including serious loss of life.
  • Whether Albania is responsible for the explosions, and whether there is a duty to pay compensation.  YES
  • The Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility.

Nicaragua v. US (1986):
  • The Court takes the view that the contras remain responsible for their acts, in parcticular the alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed.


Acts of Other Persons

Article 7. 
  • The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons was in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. 
Article 8. 
  • The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ was acting in the exercise of elements of the governmental authority of the State at whose disposal it had been placed.

  • In its Judgment in the case concerning United States Diplomatic and Consular Staff in Tehran, the Court decided:

    1. that Iran has violated and is skill violating obligations owed by it to the United States; 
    2. that these violations engage Iran’s responsibility; 
    3. that the Government of Iran must immediately release the United States nationals held as hostages and place the premises of the Embassy in the hands of the protecting power; 
    4. that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness; 
    5. that Iran is under an obligation to make reparation for the injury caused to the United States, and that the form and amount of such reparation, failing agreement between the parties, shall be settled by the Court.


Acts of Revolutionaries 

Article 10. Conduct of an insurrectional or other movement 
  1. The conduct of an insurrectional movement, which becomes the new government of a State, shall be considered an act of that State under international law.
  2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law. 
  3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.
Home Missionary Claims
  • In 1898, the collection of a tax newly imposed by Great Britain on the natives of the Protectorate of Sierra Leone and known as the “hut tax” was the signal for a serious and widespread revolt in the Ronietta district.  The revolt broke out and lasted for several days. In the course of the rebellion all the claimant’s missions were attacked, and either destroyed or damaged, and some of the missionaries were murdered.
  • Whether  the loss of life and damage to property was the result of this neglect and failure of duty of the British Government and therefore that it is liable to pay compensation. NO.
  • It is well-established principle of international law that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing insurrection.
  • The good faith of the British Government cannot be questioned, and as to the conditions prevailing in the Protectorate there is no evidence to support the contention that it failed in its duty to afford to adequate protection for life and property. 
  • The claimant, an American national, was employed by Lockheed, an American company, in Iran. 
  • On February 8, 1979, three days before the Islamic Revolutionary Government took office, the  claimant was evacuated from Iran on company orders because of the deteriorating situation.
  • Whether the claimant is entitled to compensation for salary and other losses resulting from his alleged expulsion contrary to international law NO.
  • Where a revolution leads to the establishment of a new government the State is held responsible for the acts of the overthrown government insofar as the latter maintained control of the situation. The successor government is also held responsible for the acts imputable to the revolutionary movement which established it, even if those acts occurred prior to its establishment, as a consequence of the continuity existing between the new organization of the State and the organization of the revolutionary movement.
  • The Claimant relies on acts committed by revolutionaries. ... He is unable, however, to identify any agent of the revolutionary movement, the actions of which compelled him to leave Iran. The acts of supporters of a revolution [as opposed to its agents] cannot be attributed to the government following the success of the revolution just as the acts of supporters of an existing government are not attributable to the government.
  • The Claimant.... [relies] on the declarations made by the leader of the Revolution, Ayatollah Khomeini... While these statements are of anti-foreign and in particular anti-American sentiments, the Tribunal notes that these pronouncements were of a general nature and did not specify that Americans should be expelled en masse. On this issue also, it is worthwhile to quote the International Court of Justice, in the judgment [para. 59] just referred to [above, p. 359], ... Similarly, it cannot be said that the declarations referred to by the Claimant amounted to an authorization to revolutionaries to act in such a way that the Claimant should be forced to leave Iran forthwith. Nor is there any evidence that any action prompted by such statements was the caused of the Claimant’s decision to leave Iran. In these circumstances, the Tribunal is of the view that the Claimant has failed to prove that his departure from Iran can be imputed to the wrongful conduct of Iran.

Preliminary Objections.
  • When brought before an international tribunal, the claim of denial of justice may be lost due to failure to answer some preliminary objections. 
    • One objection already seen is the lack of nationality link. 
    • Another is the failure to exhaust national remedies. 
  • The obvious purpose of this rule is to protect international courts from being swamped with cases which are better handled locally. 
  • However, this rule applies only to cases founded on diplomatic protection or on injury to aliens. 
    • Where the case is one involving a treaty that touches on state rights which should be resolved on the international plain. 
    • Similarly, where a case involves a treaty which establishes a Claims Commission, it immediately goes to the Commission.

Reparation.

Article 31. Reparation 
  1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 
  2.  Injury consists of any damage, whether material or moral, arising in consequence of the internationally wrongful act of a State.
Article 32. Irrelevance of internal law 
  • The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this Part.
  • The action of Poland which the Court has judged to be contrary to the Geneva Convention is not an expropriation — to render which lawful only the payment of fair compensation would have been wanting; it is a seizure of property, rights and interests which could not be expropriated even against compensation, save under the exceptional conditions fixed by Article 7 of the said Convention....
  • If follows that the compensation due to the German Government is not necessarily limited to the value of the undertaking at the moment of dispossession, plus interest to the day of payment. 
  • The essential principle contained in the actual notion of an illegal act — a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals — is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it — such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. This conclusion particularly applies as regards the Geneva Convention, the object of which it to provide for the maintenance of economic life in Upper Silesia on the basis of respect for the status quo.

Calvo Clause Rejected. 
  • In the past, there were attempts to limit the ability of a state to give diplomatic protection to its nationals. 
  • An example of this is the “Calvo clause, ” a provision in a contract to the effect that “under no condition shall the intervention of foreign diplomatic agents in any matter related to the contract” be resorted to. 
  •  This was rejected in North American Dredging Company Claim (1926) by the Mexico-United States General Claims Commission. 
  • The right to seek redress is a:
    • ✅ sovereign prerogative of a state
    • ❌ a private individual has no right to waive the state’s right

Expropriation of Alien Property. 
  • Expropriation is the taking of property by the state. 
    • The property can be tangible or intangible as in the case of valuable contractual rights. 
  • Expropriation can be an international wrong if it is done contrary to the principles of international law. 
  • What are these principles? 
  • The principles may be drawn from a 1962 UN General Assembly Resolution on the Sovereignty over Natural Resources which states, among others, that the expropriation “shall be based on grounds or reasons of public utility, security or the national inters which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation in accordance with the rules in force in the state taking such measures in the exercise of its sovereignty and in accordance with international law.
  • The rule thus recognizes the power of eminent domain as an inherent power of sovereignty. 
  • The rule conforms with the constitutional principles of public use and just compensation. 
  • But international case law on the subject, generally between developed and developing countries, is not without disputations. 

Comments

Post a Comment

Popular posts from this blog

Equality and Human Rights: The United Nations and Human Rights System (September 16, 2023)

Sovereign Equality of States/Principle of sovereign equality UN Charter of 1945 All states are equal before international law no matter the size of their territory, population, economy or military. All states have equal rights and duties under international law, and that no state has the right to interfere in the internal affairs of another state. Positive Consequences: All states have a voice in international affairs .   All states have the opportunity to participate in international organizations and to negotiate and conclude treaties. This helps to ensure that the interests of all states are represented in the development of international law and policy. No state has the right to interfere in the internal affairs of another state.  This helps to protect the sovereignty of all states and to prevent the use of force or coercion to achieve political objectives. States have the right to develop their own political, economic, and social systems without interference from othe...
Read more

Commercial Laws 1: R.A. No. 11057 — Personal Property Security Act

  Commercial Law TITLE XVI Personal Property Security Act Micro, Small and Medium Enterprises are sources of growth and innovation. They contribute to and benefit from future growth. Their increased participation in global trade "can have significant impact in reducing poverty through employment creation, productivity improvements and economies of scale." Congress passed the Personal Property Security Act in order to provide Micro, Small and Medium Enterprises (MSMEs) more access to "credit at the least cost through the establishment of a unified and modern legal framework for securing obligations with personal property ." It was explained:  According to the 2015 Philippine Statistics Authority data, there are 896,839 micro-small and medium enterprises (MSMEs) that established in the Philippines.  These MSMEs generated a total of 4,784,870 jobs in 2015 versus 2,181,819 for the large enterprises.  This indicates that the MSMEs contributed almost 61 % o...
Read more

Land Title and Deeds: Chapter 1 — What Lands are Capable of Being Registered

Chapter I What Lands are Capable of Being Registered All lands in the Philippines are presumed to be lands of the public domain, and therefore, owned by the State. This rule finds support in Section 2, Article XII of the 1987 Constitution:  Section 2 . All lands of the public domain , waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State . With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens. Such agreements may be fo...
Read more