The law of state responsibility

I. THE CONCEPT OF STATE RESPONSIBILITY

1. Definition

At its first session, in 1949, the International Law Commission selected state responsibility among the topics which it considered suitable for codification. In response to General Assembly resolution 799 (VIII) of 1953 requesting the Commission to undertake, as soon as it considered it advisable, the codification of the principles of international law concerning State responsibility, the Commission, at its seventh session in 1955, decided to begin the study of State responsibility.

The Commission at its thirty-second session, in 1980, provisionally adopted a first reading Part One of the draft articles, concerning .the origin of international responsibility.

In 1996, the Commission completed the first reading of the draft articles of Parts Two and Three on state responsibility. More recently in 2001 changes have been made in the texts of the article but as the Special Raporteur James Crawford affirmed the changes were only “cosmetic” ones. General Assembly resolution 56/83 of 12 December 2001 took note of the adopted articles and commended them to governments.

1.1 Legal definition

Article 1 of the ILC Draft entitled “Responsibility of a State for its internationally wrongful acts” gives a short definition of international responsibility providing that: “Every internationally wrongful act of a State entails the international responsibility of that State.”

Article 2 of the Draft states that:” There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.”

Thus the term international responsibility in article 1 covers the relations which arise under international law from the internationally wrongful act of a State, whether such relations are limited to the wrongdoing State and one injured State or whether they extend also to other States or indeed to other subjects of international law, and whether they are centered on obligations of restitution or compensation or also give the injured State the possibility of responding by way of countermeasures .

1.2 Doctrinal definition

Responsibility enters the scene when we start to think about situations in which one person [in our case a state] invades the rights of another .

Another definition of responsibility states that: it is the liability of a person to be punished, forced to compensate, or otherwise subjected to a sanction by the law .

The term “international responsibility” covers the new legal relations which arise under international law by reason of the internationally wrongful act of a State .

The law of state responsibility regulates the consequences of the violation of an international obligation by a state, and establishes the reactions permitted to such a breach .

State responsibility is a fundamental principle of international law, arising out of the nature of the international legal system and the doctrines of state sovereignty and equality of states. It provides that whenever one state commits an internationally unlawful act against another state, international responsibility is established between the two. A breach of an international obligation gives rise to a requirement for reparation. Accordingly, the focus is upon principles concerned with second-order issues, in other words the procedural and other consequences flowing from a breach of a substantive rule of international law .

Anzilotti’s conception regarding state responsibility consists in the exclusion of sanctions and of mere interests from the field of state responsibility. According to Anzilotti, the violation of a rule of international law gives rise to a claim of reparation as the primary content of state responsibility, which is sharply distinguished from the right to take reprisals or from permissible grounds of intervention . In addition, only the violation by a state of a true subjective right of another state can give rise to state responsibility and not the mere violation of general or more specific interests . And, finally, only acts by states can give rise to responsibility under international law, not acts by individual persons .

Karl Strupp conceded that it was theoretically possible to conceive the violation of any treaty as a violation of the basic norm of pacta sunt servanda which in turn would imply ‘a violation of all members of the community of states’ . Strupp reasoned, positive international law still provided only the immediately injured state with a right to invoke the responsibility of the injuring state .