State Responsibility
Meaning: It is one
of the fundamental principles of international law. It implies that if a state
commits an internationally wrongful act against another state, it will be
responsible for reparation. This is called State Responsibility in
International Law.
When arises: State responsibility only arises when the act or omission which constitutes a breach
of legal obligation is imputable (attributable) to a State. It may be founded
on “fault” or “Risk” concept.
Risk Theory: The “risk” theory is based upon the principle
of objective responsibility which maintains that the liability of the State is
strict. Once a wrongful act causing
damage has been committed by a State official or organ, that State will be
responsible under International Law to the injured State irrespective of its
intention.
C: R: Neer
Claim Case (USA vs. Mexico, 1996)
Fault Theory: “Fault” theory is based upon the principle of
subjective responsibility which requires the establishment of an element of
intention, fault or negligence on the part of the State official or organ
before rendering the State liable for any damage.
C: R: Home
missionary society case (USA vs. UK, 1920)
► Kinds of State
Responsibility: State
responsibility is two types:
Original Responsibility
and Vicarious Responsibility these
may be civil or criminal in nature.
► Stare Responsibility in different aspect:
International
Delinquency: If any state official
or authorize person violates any international law or non contractual
obligation, it is called International
Delinquency.
Responsibility: Following
conditions to be fulfilled for imposition of state responsibility on ground of
Delinquency:
- Conduct
of state official or organ must be defined in international law.
- That
conduct must be imposed by international law on the state.
- Authority
of state official or organ under municipal law is there or not. If has
state would be responsible
- Beyond
Authority or Ultra Vires.
Exception: If any act has been done by a private individual
damaging other states with the help of his own state, helping state would be
responsible under International Delinquency.
In Injury of Alien or
Foreigner:
*For the act of Private individual: State has vicarious liability I this
regard. State has to ensure justice to the alien or foreigner according to
Municipal Law. If the state fails to redress alien’s state may give diplomatic
protection to its citizen.
* Mob Violence: State
would be liable if it failed to take proper initiative to stop the mob
violence. Due Diligence of stopping mob violence by the State is a question of
Fact.
*Act of Insurgents: If an alien suffers injury at the time Civil
war or insurgency, State would not be liable for the injury according to Calvo
Doctrine.
►What is meant by Calvo
Claus?
*Calvo Claus: A
provision in an agreement between a private individual and a foreign state that
says, in effect, that "aliens are not entitled to rights and privileges
not accorded to nationals, and that; therefore, they may seek redress for
grievances only before local authorities."
But if alien suffers any injustice by the foreign state,
he is entitled to get diplomatic protection from his own state.
► State responsibility in breach of treaty or a
contractual obligation:
- Consequence
of violation of treaty would be mentioned in the treaty.
- Injured
state would be entitled to get compensation from the violating state in
case of violation or injury.
- If
any individual suffers along with its state, he would also be entitled to
get compensation in proportionate way.
CR: I’m Alone case.
► State Responsibility for Expiration of foreign
property : Following are the defenses in favour of Expiration of foreign
property;
·
Public
Interest.
·
Indiscrimination
·
Legal or due
process is observed
By following these three
conditions, Expiration of foreign property may be done by giving proper
compensation of that property.
But if the three conditions are
not fulfilled, State would be responsible with compensation.
► State Responsibility in
Multi National Corporation (MNC):
If any MNC
violates any obligation of its own, its mother state will be responsible
anymore. Because MNC itself is absolutely liable for own conduct.
CR:
Bhopal plant
disaster case
► State Responsibility in
Denial of Justice: State is responsible if an injury to an alien result
a denial of justice. Foreign citizen are entitled to full access to the court.
If denial of justice commits
other state may interfere in the following situations:
- Inadequate
remedy in municipal law.
- Inadequate
remedy in municipal court
- Rule
against biased is there
- Where
there is a treaty regarding that particular matter.
► When Citizen has Dual
Citizenship: Where citizen has dual citizenship, state which has locus
standi will raise the claim of that citizen. This is called Multiplicity of
claim. “Doctrine of Genuine link” shall determine the locus standi of the
state.
C:R: Nottebohm
case
► Modes of reparation or compensation:
There are following modes available of Reparation:
·
Restitution: the
restoration of something lost to the sufferer state.
- Monetary Compensation: By giving proper
compensation.
- Satisfaction of Apology.
► Defenses available
against state responsibility: Following are the defenses available
against state responsibility according to Draft Articles on Responsibility of
States for Internationally Wrongful Acts of
International Law Commission:
- Consent : I.e., Prior permission of the
state according to Art.29
- Counter Measure: That means act was done as Counter
Measure of another state according to Art.30.
- Force Measure: Under Art 31, Wrongful Act is
justifiable on ground of unavoidable event.
- Distress: To safe the life and property of the citizen from extreme
redress under Art 32.
- Necessity: To protect a fundamental interest a wrongful act is justifiable
under Art.33.
- Self Defense: wrongful act maybe justifiable under Art.34 on ground of self
defense.
.
State Recognition
Meaning: The recognition of a state under international law is a declaration of
intent by one state to acknowledge another power as a
"state" within the meaning of international law.
Nature of State Recognition: There are two the
- Constitutive Theory: Without recognition state can
not be constituted. Along with other four elements, recognition is
essentially important.
Criticism:
- Sovereign
state has no obligatory duty to recognize a new state.
- It is
not practically acceptable for a new state.
- There
is no standard ratio of recognition to be a state.
- Declaratory Theory: By ensuring four basic
elements state can be formed, Recognition is a mere formality. Recognition
is a formal expression of acknowledgement only. It is not an important
factor in formation of a new state.
Criticism:
- Without
recognition state has no legal existence in global perspective.
- It is
not a mere formality because no legal obligation is established upon a
state without recognition.
- Recognition
is Declaratory as well as constitutive in real sense.
: ► Kinds or Modes of
Recognition: State recognition may be two kinds:
De jure recognition: Formal
expression of recognition which is final and irrevocable.
De facto recognition. This
recognition is temporary in nature.
Implied Recognition: Recognition
given by conduct.
Ground of Recognition:
·
Reasonable
assurance of existence
·
Legal Government
is there
·
Ability and
willingness should be there.
► Differences between De
facto and De jure Recognition
De facto
|
De jure
|
* Temporary in nature
|
* Permanent in nature
|
* Withdrawal is possible
|
* Withdrawal is not
possible
|
* International relation
does not establish
|
* International relation
does establish
|
* Privileges of
diplomats are not strict.
|
* Privileges of
diplomats are not strict.
|
* Suit in Municipal
court is not permissible.
|
* Suit in Municipal
court is not permissible.
|
* Succession form
previous state is not possible.
|
* Succession form
previous state is possible.
|
* Property of state can
not be claimed.
|
*Property of state can
not be claimed.
|
Recognition of Insurgent: Normally
insurgent can not get recognition but in some exceptional situations
recognition may be given where;
- Control
over a considerable part of territory.
- Considerable
proportion of support of the citizen of that state
- They
should have capacity and willingness to fulfill the obligation of the
international law
Effect of Recognition of Insurgent:
·
Subject of
International law
·
Relationship
between state and citizens would be determined by international law.
·
International law
of war would be applicable.
Recognition of
Belligerency: Any state may
recognize any belligerent group in the following situations:
·
Arms conflict of
general character
·
Must occupy a
certain portion of national territory
·
Chain of command
must be there
·
Must fulfill the
rules of international war.
Effect of Recognition of Belligerent:
·
Relationship with
other state must govern by International law.
·
International law
of war will be applicable.
·
Relationship
between state and belligerent would be determined by international law.
Recognition of Government:
Question of recognition of
Government arises in the following situations;
·
If government
changed by an unconstitutional way
·
If government
changed by Revolution.
Effect of Recognition of
Government:
· Acknowledgement of legal status of government.
·
Continuance of
previous relation
·
Paying respect
to the new government duly as a government.
When recognition becomes
implied:
·
If any state
willing to establish diplomatic relationship
·
If any state
provide immunity to the representatives of the new state.
·
If they sign any
bilateral treaty.
·
If new state is
permitted to participate in any international conference.
·
If new state gets
any opportunity to be a member of any international organization by
multilateral treaty.
Retrospective effect of
Recognition:
·
Retrospective
effect may be given by the will of the recognizing state.
·
By fulfilling all
the eligibility of formation of state, retrospective effect may be granted.
·
Retrospective
effect always remains in de jure recognition but no retrospective effective is
in de facto recognition.
CR: Luther v Sagor case
State Succession
State succession: Succession of states is a theory
and practice in international relations regarding the recognition and
acceptance of a newly created sovereign state by other states,
based on a perceived historical relationship the new state has with a
prior state.
Kinds:
- Universal Succession:
It means comprehensive succession of previous state.
(a) When the territory of a state is forcibly annexed by
other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are
formed.
- Partial Succession:
When as a result of civil war or war of liberation, a part of state breaks
off and takes up an independent position. Partial succession takes place
under the following circumstances
(a) When a part of the state revolts and after achieving freedom becomes a
separate international person.
(b) When a part of state is ceded to another state.
(c) When a state accepts the suzerainty or becomes a protectorate of another
state.
Justifications of State
Succession:
· Theory of Continuity: Succession is essential for continuation of other elements.
·
Theory of
Universal Succession: Formation of a
new state is mere an external change of the previous state.
* Theory
of Popular Continuity: Change of sovereignty is fictitious.
·
Theory of
Organic Substitution: Formation of a
new state is a mere substitution of old state.
·
Theory of self
abnegation: This is optional for new state to continue the
activities of old state.
Rights and Duties
arising out of State succession:
When a state takes the place of another state following rights and
duties arise.
(1) Political Rights and Duties: No Succession takes place in respect of
political duties and rights. The succession state is not bound by the
treaties of peace or neutrality entered into by the extinct state.
(2) Local rights and duties: In respect of land, rivers, roads, railways
etc., therefore the succeeding state succeeds the rights and duties of the
former state.
(3) Debts: It depends on the discretion of succeeding state whether to
pay or not to pay the public debts of the former state.
(4) Nationality: The nationals of the former state lose their
nationality at the extinction of the state and become the nationals of new
state.
(5) Laws: As far as the law of the former states is concerned, civil law
continues until it is changed by the succeeding state.
(6) Public funds and public property: The successor state takes over the
public funds and public property of the predecessor state.
State Jurisdiction
Meaning: State
jurisdiction is the capacity of a State under International Law to prescribe
and enforce the rules of law. It is derived from the State sovereignty and
constitutes its vital and central feature.
Kinds:
- Protective Jurisdiction Principle:
In this situation, the crime was committed abroad and neither the person
who committed the crime, nor the victims, were nationals of that State. In
this case, jurisdiction is asserted on the basis that the security or the
interests of the State is affected by an act committed abroad.
Attorney General of Gov of
Israel
vs. Eichmann
In Eichmann’s case, the Israeli Court based
its jurisdiction on the protective principle and said that the crimes committed
by Eichmann against the Jewish people affected the ‘vital interests’ of Israel.
* Universal Jurisdiction: In this case, the
crime was committed abroad, neither the person who committed the crime, nor the
victims, was nationals of that State. Universal jurisdiction enables a person
to be tried before a national court even when there is no link to the State. Under
this principle, jurisdiction is exercised on the basis that the crime committed
is so serious and of universal concern that each State has an interest to
prosecute. In other words, these crimes are punishable by any State..
to prescribe and enforce the
rules of la
