Public International Law

                                

            

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.

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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