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June 27, 2004 

State Responsibility
Wrongful acts under international law

Barrister Hassan Faruk Al Imran

It is a rule that if any one breaches law then he will be prosecuted, as well as in international law if a state does any wrongful act then that state would be liable for that act. At present the details of State Responsibility and the consequence of internationally wrongful act is laid down in 'Draft Article on Responsibility of State for Internationally Wrongful Act', which was adopted by the International Law Commission (ILC) at it's fifty-third session (2001) together with accompanying commentaries. The completion of the draft article and its submission to the General Assembly is one of the most significant milestones done by Commission. In addition to these Draft Articles, the law of state responsibility has been developed through case law. However, the articles do not seek to set forth a state's primary obligations under international law but focus on the secondary responsibility resulting from a state's breach of an obligation.

The draft articles are divided into four parts. Part one of the draft articles defines the general conditions of an international wrongful act of the state; Part 2 deals with legal consequences of the responsibility; Part 3 deals with the implementation of the state responsibility, and Part 4 containing a number of general provisions. The present draft articles cover the whole field of state responsibility; therefore, they are not limited to the breaches of obligations of bilateral character.

Article - 1 states that a State would be responsible for breach of any international wrongful act. An internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Whether there has been an internationally wrongful act depends, first, on the requirements of the obligation which is said to have been breached and, secondly, on the framework conditions for such act, which are set out in Part one. The principle of Article 1 was applied in many cases by International Criminal Court (ICC), e.g. - the Corfu Channel Case, the Gabcikovo-Nagymars case. In the Rainbow Warrior case the Arbitral Tribunal held that " any violation of a state of any obligation, of what ever origin, gives rise to state responsibility." Interestingly, in Reparation for Injuries Case the International Court of Justice (ICJ) held that United Nations (UN) is also a subject of international law.

Article 2 provides two conditions of international wrongful act. Firstly, the conduct in question must be attributable under international law and secondly, that conduct constitutes a breach of an international obligation of State. However, whether the responsibility is 'objective or subjective' depends on the circumstances. The 'objective' or 'risk' theory of responsibility means that once a breach of obligation is established, the state will bear all the risk irrespective of any fault. The 'subjective' or 'fault theory' defines that responsibility arises even if there is conduct in violation of a binding obligation, unless the state is in someway subjectively to blame. However, there is no general rule in this regard. It is essential that the act or omission, which arises from responsibility, causes a breach of an international obligation is binding on the state at the time of the act or omission.

Article 3 deals with two characteristics of internationally wrongful act. Firstly, international wrongful act will be governed by international law; secondly, a State cannot escape from that by internal law. Therefore, international responsibility cannot be avoided by pleading that the disputed act is lawful in national law.

Article 4 provides that a State will also liable by the conduct of its organ also. By Article 4 'State organ' covers all individual or collective entities, who acts on behalf of the State, e.g. legislative, executive, judicial or any other function, whatever position it holds in the organisation of the state and whatever its character as an organ of the central government or of a territorial unit of the state. Therefore, if any organ of the State supports any terrorist organisation then state will be responsible for that act.

Article 5 deals with the attribution to the state of conduct of bodies, which are not covered by Article 4. This article includes, e.g., public corporation, public company, which exercise elements of governmental authority in place of state organs. So, it is clear that if any of these bodies does any internationally wrongful act then the state would be responsible. One of the important points is mentioned in Article 8. It provides that a state would be responsible if the person or group of persons is in fact acting on the instruction of, or under the direction of, or control of the state. Article 8 deals with two situations, Firstly, state would be liable if private person or group acting under 'instruction of state'. Secondly, the state would also be liable when private person or group acting under 'direction or control' of the state. The word 'control' and 'degree of control' is widely interpreted here. These include, for example, individuals or group of private individuals who though not specifically commissioned by the State, and not forming part of its police or armed forces, are employed as auxiliaries or are sent as "volunteers" to carry out particular missions aboard. Thus in the Iran case, ICJ held that the initial attack on the US Embassy by militias would not be imputable by Iran as they were not agent or organ of the state, however, later Ayatollah Khomeini's ordered an organ of Iran to attack the Embassy was regarded as a state action and as a result the state was internationally responsible.

Article 9 states that if a conduct carried out by a person or group of person in the absence or default of official authorities then the state will be internationally responsible for their act. However, this article applies to exceptional situation, such as armed conflict or during revolution, where the regular authorities are dissolved (e.g. the Yeager case).

Art 10 provides that where an insurrectional movement is successful then the act of such movements, which becomes the new government of the State, shall be considered as acts of that State (e.g. Short v The Islamic Republic of Iran). Article 11 provides: 'Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that State acknowledges and adopts the conduct in question as its own'. Therefore, if a State 'subsequently' acknowledges or adopts any conduct that is done by any other party then the state responsibility question arises. Article 12 provides that there is a breach of an international obligation 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.

Another important situation is considered in Art- 16. It says that where a State aids or assists another State in commission of an internationally wrongful act, then the State would be responsible. For example, by knowingly provides financial support, or shielding them or giving them permission to use their land. Therefore, if a State requests another state to assist them by using that State's soil as they want to attack against third State then there is also violation of international law under state responsibility.

However, as an exception, Article 21 provides: the wrongfulness of an act of a state is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. In its Commentary, it notes, "the existence of general principle admitting self defence as an exception to the prohibitions against the use of force in international relations is undisputed", since Article 51 of United Nations Charter preserves a State's 'inherent rights' of self-defence in the face of an armed attacked or threat. The title of chapter III of part II of the draft Article is 'serious breach of obligations under peremptory norms of general international law'. Art 40 provides for what kinds of breach a State would be liable under international law. This article has two criteria. First criteria relate to 'obligation' breached, i.e. breach must arise under a peremptory norm of general international law. The concept of peremptory norms is general practice. It is accepted that prohibition of 'aggression' and 'genocide' is regarded as peremptory. In this article the second criteria is 'serious breach'. Serious breach involves a 'gross' or 'systematic' failure by the responsible state to fulfil the obligation. However, Article 40 does not give any procedural guidelines for serious breach and aggression; therefore, it is the General Assembly and the Security Council's duty to give specific guidelines.

What are the consequences of internationally wrongful acts? First, cessation; the state responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if circumstances so require. Second, reparation; In the Chorzow Factory case the ICJ held that, "the essential principle contained in the actual nation of an illegal act 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." Third, state's internationally wrongful acts breaches the preparatory norms of international law ( jos cogens), which is considered international crime by international community is. Examples of such international crimes are- aggression, the establishment or maintenance by force of colonial domination, slavery, genocide and massive pollution on the atmosphere or sea.

Finally, the Draft Articles on State Responsibility for Internationally Wrongful Acts make a significant change to international law. It is clear that there is no difference between a terrorist organisation and the state, both are same, who shields or control, aids or support them (either- directly or indirectly). Now, force had been used against a State for aiding, abetting or supporting international terrorist organisation, example of state responsibility is recent Afghanistan attack, who supported the international terrorist group Al-Qaeda.

Barrister Hassan Faruk Al Imran LLB is an LLM student (International Law) University of the West of England, Bristol, UK.