PUBLIC INTERNATIONAL LAW I - Chapter 6 Summary

Hello everyone. Welcome to the Public International Law course. In this program, we will continue our course with chapter six, which is about state responsibility. In this chapter, we will talk about the scope of international responsibility of a state, elements of state responsibility, legal excuses for breaches of international law, consequences of international wrongful acts, treatment of aliens and diplomatic protection. Let's start with the scope of international responsibility of a state. Intrusion of the rights of a legal person by another person or the failure of a person to observe the obligations imposed by a law creates liability in various forms under any legal system. This liability is known as state responsibility. Besides states, other international persons, such as international organizations, are also responsible for their wrongful acts. In 2001, the UN General Assembly adopted the draft articles on responsibility of states for internationally wrongful acts prepared by the International Law Commission. The draft articles laid down the basic rules on state responsibility by way of both codification and progressive development. The articles are concerned with the general conditions under international law for the state to be considered responsible for wrongful actions. Historically, states have been the primary subjects of international law. However, there can be legal persons other than states who can also be responsible under international law. The draft articles deal only with the responsibility of states. Therefore, the position of individuals, corporations, and other groups is not as clear as that of states. However, since the end of the Second World War, international responsibility of individuals in the criminal field has witnessed remarkable development. As for the criminal responsibility of states under international law, it has not been clearly established or accepted even though the act is criminal in nature, such as genocide or war crimes. In such cases, individuals are made criminally liable even if they may be acting in their official capacity and on the perceived interests of the state. Let's move on to the elements of state responsibility. The international responsibility of a state results from an omission or commission of an international wrongful act. An internationally wrongful act of a state presupposes that there is a conduct consisting of an action or omission which is attributable to the state under international law and constitutes a breach of an international obligation of the state. In principle, the presence of these two elements will entail the international responsibility of a state. This has been affirmed by the court in a number of cases. However, the respondent state may justify its action by claiming self-defense or force majeure for its non-performance. There are three important elements regarding state responsibility, attribution, breach, and the absence of any valid justification or legal excuse. Conduct attributable to the state may consist of actions or omissions. For a particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the state to create its responsibility either generally or specifically in certain circumstances. The general rule is that the only conduct attributed to the state at the international level is that of its organs or of others who have acted under the direction, instigation, or control of those organs as agents of the state. The scope of state responsibility for official acts is broad, and the definition of organ for this purpose is comprehensive and inclusive. Now, let's have a look at legal excuses for breaches of international law. International law recognizes certain grounds justifying or excusing noncompliance by a state with its international obligations. These defenses preclude the responsibility of a state for its wrongful conduct. The draft articles in chapter five of part one enlist these defenses under the heading of circumstances precluding wrongfulness, though they are not exclusive. It sets out six circumstances, consent, self-defense, countermeasures, force majeure, distress, and necessity. Despite the fact that the wrongfulness of an act may be precluded in certain circumstances, it is subject to two conditions. Firstly, the wrongfulness of the conduct will be precluded so as long as the circumstance precluding wrongfulness exists. Secondly, the preclusive effect may be relative rather than general and may not be justified towards all. In certain circumstances, the state having committed the act might have to provide some form of compensation for any material loss caused by the acts in question. Another topic which we should talk about is the consequences of internationally wrongful acts. The core legal consequences for the responsible state on the commission of an internationally wrongful act are twofold, to seize the wrongful conduct and to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a state. These consequences are aimed at the restoration of the legal relationship that has been threatened or impaired by the breach. The obligation continues to bind the responsible state. Therefore, the state remains obliged to perform the obligation in question. Where the internationally wrongful act constitutes a serious breach of an obligation arising under a peremptory norm of general international law, the breach may entail further consequences both for the responsible state and for other states. Our final topic for today is the treatment of aliens and diplomatic protection. The treatment of aliens has been a controversial subject under international law. There are two principle approaches in this respect, international minimum standard of treatment, which must be accorded to aliens by all states, irrespective of how they treat their own nationals and national treatment, that is treatment equal to that given by the concerned state to its own nationals must be accorded to aliens. Whereas the first approach is backed by developed nations, developing countries favor the second approach. Regardless of these approaches, international law does not control the treatment of aliens by states. However, if an alien is ill-treated, contrary to the law of state responsibility, this will be treated as an injury to his or her national state. The national state may, under its right of diplomatic protection, espouse the cause of its citizen at the international level against the delinquent state, if its citizen fails to get any relief from the state in breach of its responsibility. It is for this reason that under international law, only states in general have procedural capacity to bring an action before an international tribunal. The non-state actors, individuals or corporations do not enjoy this capacity. Nationality is critical in the context of state responsibility. When injury is suffered by its national, it is only the state of victim's nationality that has the right to bring a claim against a delinquent state. The responsibility of a state may not be invoked if the claim is not brought in accordance with any applicable rule related to the nationality of claims. So, this is the end of our program for chapter six of the Public International Law course. Goodbye, and don't forget to watch our next program, chapter seven.