Public International Law
Question
When is the conduct of an individual imputable to a State under the law of state responsibility? Critically discuss, with examples.
Introduction
This question is asking me to determine the state responsibility, the subject of Imputability per the Public International Law (PIL) on the conduct of an individual that that be attributed to a given state per the law of state responsibility.
The Law of State Responsibility
State responsibility[1] is among the critical principles of the International Law as it originates from the ILS (International legal system), and the equity and rules of State’s sovereignty. It suggests that if a country makes an internationally unlawful(wrongful) act towards another, it shall be internationally liable for reparation[2]. The matter of state responsibility has proved to be the most sophisticated question of the work of codification of the ILC(International Law Commission).[3] The International Law Commission has been dwelling majorly on this topic, in the year 1975 it commenced its work on drafting Articles on the responsibility of the State[4]. The Articles were eventually adopted by the International Law Commission on 9th August 2001.[5] This law is concerned with the responsibility of the State, legal consequences resulting from it, and the enforcement of such liability[6].
The law of State responsibility is derived from three critical elements. The 1st one is the presence of an International Constitutional Obligation in force among the states concerned. The 2nd element is the omission or occurrence of an unlawful act in breach of such rule, which is attributable(Imputable) to a given State. The 3rd one is the damage or loss, which has originated from such omission or unlawful act. The three elements are the basics for the establishment of the law of state responsibility that has been developed in a considerable number of international law cases and enforced by the international law commission “Articles.”It identifies an internationally unlawful act as behavior or conduct entailing an omission or an action imputable to the State per international law. It compounds an omission of an international rule of the State. Hence such omissions can be referred to as an act that does not conform with the requirements of the State or what is needed of a country by the very obligation despite her character or origin.[7]
Imputability
A country is only liable for her omissions or acts. A state can also be identified with her “government” that involves the legislative, the executive, or the judiciary as well as the central and the local authorities.[8] The case law establishes that a country is responsible for the conduct of any of her entities or organs. This rule is upheld by the International Law Commission “Articles” which State that the behaviour of any country organ (such as an individual or entity) with status per the international law of that particular State whether or not it belongs to the legislative, constituent, judicial, executive or other arms of government, whether its roles are of an internal or an international character, whether it bears a dominant or subordinate position in the State’s organization shall be viewed as an act by that particular State per international law provided the individual or entity was acting in the capacity of the case underdetermination.[9]
The conduct of an entity of a territorial government within a country will also be treated as an omission of that State per international law.[10] The behaviour of an entity that is not part and parcel of the formal territorial government structure or State but is supported by the internal law of that particular State to practice elements of governmental sovereignties will also be treated as an unlawful act by the State per the International Law in the case where the organ was acting in the capacity of the matter is determined.[11]
The law also states that a country is responsible for the acts or omissions of her officials if they are attributable or imputable to that State. The rule is based on the relation between the individual or persons committing the unlawful act and the State. However, the country as a legal unit in practice acts by authorized officials, and it is not responsible per international law for all the acts of her officials being attributed to her. Therefore, Imputability is a constitutional notion that assimilates the omissions or actions of the country officials to the country herself, and that renders the country responsible for damages to properties or persons generating from such omissions.[12]
However, the notion of Imputability generates issues when officials disobey or exceed their instructions since evading such cases by a state would be unjust. The law states that a country is responsible for the omissions of her officials even if they disobey or exceed their instructions provided they are acting under the apparent authority or abusing facilities or powers given to them by the State.[13] The international law commission further states that the conduct of an organ of a country that has acted under the capacity will be treated as an omission of that State per international law even if it disobeyed its competence or instructions by its authority or international law[14].
Moreover, the actions of rebels causing damage or loss to another state or her nationals, the overall rule has it that, that country is not responsible for such omissions if it has she has acted in without negligence and in good faith—however, the country has to display due diligence. Besides, when the rebellions succeed in forming the new government of a given state or a new one within the territory of the already existing State, it shall be liable for its actions before it assumes office. The international law commission Articles enforce the rule.[15]
The obligation of the State shall only emerge when an omission or act amounts to a violation of the constitutional role that is imputable to the State. This act may be realized on “no-fault” or “fault” concept. But it is significant to acknowledge the country is only liable to unlawful acts that are international delicts, not crimes. Due to the controversy bedeviling the status of the law of the state responsibility for global crimes, the International Law Commission Articles cover not or mention such kind of crimes. However, they make a difference between international crimes and international derelicts. The Articles state that an internationally unlawful act is one resulting from the violation of international law that is crucial in the protection of significant interests of the global community. For instance, such crimes as enshrined in Art. 19. of the ILC include colonial domination, genocide, slavery, apartheid, aggression, and extreme air pollution[16].
Cases on State Liability on the Conducts of an Individual
There exist two critical theories that lay the foundation for the law of state responsibility, including the subjective theory and objective theory. The objective approach is founded on promises that a country must be responsible once a wrongful act that breaches an international rule, notwithstanding any fault or intention of the concerned official. For instance, in the case of France vs Mexico (1929) 5 RIAA 516 Caire in which a French was murdered in Mexico by her soldiers after they were demanding money from him that Caire was incapable of providing[17]. The soldiers then subsequently tortured and killed Caire.
The French government, on his behalf, petitioned a case against the Mexican government before the commission of Franco-Mexican Claims. The commission then found the government of Mexican responsible for the unlawful actions of her military despite the fact the soldiers were acting with no orders and contrary to the wishes of their commander in chief. To pass a verdict, the President of the commission applied the doctrine of the theory of objective responsibility elaborating its meaning further as follows:
“…the principle of the theory of objective responsibility of the state, that is the liability for the conducts of the officials or entities of a state …may act under it even in the absence of a “fault” of its own…the country is also responsible for the unlawful acts committed by her organs or officials per the international law…” (France v Mexico (1929) 5 RIAA 516 Caire[18]
On the other hand, the theory of individual responsibility of the State mainly derives from a Grotian point of view that states that culpa or dolus malus offers solid ground for state liability in every case.[19] The term Culpa elaborates on the kind of blameworthiness depending on the fault resulting from any sort of reckless conduct or negligence. The argument about the culpa as a mandatory element for the state liability was upheld in the case the USA vs Great Britain (1920) 6 RIAA 42,Home Missionary Society. In this case, the collection of a new tax imposed by the government of Britain on the indigenous populations of the Protectorate of Sierra Leone in 1898 resulted in mega revolt in which missions were either destroyed or attacked and some missionaries killed. The court dismissed the case of United States against the government of the U.K. as below:
“It is properly constituted in the international law that no government can be liable for the acts of rioters or rebellious bodies of people determined to disobey its authority where the government itself is not guilty of the violation with no negligence and of good faith in suppressing insurrections.”[20]
Until then, the theory of state liability was not properly constituted. Still, the position has now shifted with the introduction of draft Articles on the roles of the States for ILC unlawful acts in 2001, August. The Articles combines the progressive development and codification. They have been cited by the ICJ (International Court of Justice or Tribunal)[21].
The efforts to constitute and establish the law of state responsibility have been progressively laid in the entire circle of the U.N[22]. This process took over forty-five years and over 30 reports and extensive research by five major special Rapporteurs to agree with the International Law Commission a reality on the refined texts of the Drafts as a whole.[23]
The subject of state liability was the very 1st fourteen areas provisionally documented for the international law commission’s attention in the year 1949[24] when the commission listed the matterfor implementation in the year 1953. After that, “the state liability or imputability was differentiated from a distinct topic on the consideration of aliens or newcomers,” thus reflecting the widespread view that the state liability includes violation of an international rule.[25]
The theory of state responsibility, according to Roberto Ago, makes a difference between secondary rules and primary rules as well as establishing the essential organizational structure of what the ICL Articles would look like[26]. From his point of view, this field only dwells on secondary rules[27], and from the start, he maintains that the distinction can only be seen arising from the performance of constitutional acts.[28]
Conclusion
In summary, this paper identifies the constitution of a distinct regime of the responsibility subjected to numerous circumspection, scepticism, and criticisms. It, therefore, needs a thorough examination of how far it is permissible for nations to include non-prohibited acts to pursue responsibility. Besides, the analysis of the extent of the unorthodox consideration of the International Law on state responsibility is necessary as a foundation for the active international community. Additionally, the impacts of harm, such as reparation and prevention, can be well adapted with the law of state responsibility. Lastly, from the overall discussion, it is evident that nations have not paid attention to the notion of state liability. The unresolved challenges on state liability are left in the present event. The law is still evolving and has opportunities for advancement to the levels in which nations or states, and individuals are also assigned the responsibility for violations.
Bibliography
Books
- Brownlie, I. (1963). International Law and the Use of Force by States. Oxford.
- Clyde Eagleton, The Responsibility of States in International Law,( The New York University
- Crawford, J. (2002). The International Law Commission’s Articles on StateResponsibility.Cambridge: Oxford.
- Gray, C. (1987). Judicial Remedies on International Law. Oxford.
- Shaw, M. N. (1997). International Law. Cambridge University Press.
- The 1949 Year Book of International Law Commission, 46, 49-50, UN DOC/ CN.4/SER;A/1949
- Year Book of International Law Commission, 1956, Vol 2, 174, p. 180
- Yearbook of the ILC, Volume II, Part 2, (1989)
Journals
- See generally Brownlie, part VIII; J. Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge (2002); C. Gray, Judicial Remedies in International Law, Oxford (1987); Malanczuk, chapter 17; and Shaw, chapter 14.
- Third Report Ago in 1971, Year Book of International Law Commission, 1971, Vol-11, p. 200
- Second Report of Ago in 1970, Year Book of International Law Commission,1970, Vol 2, p. 17
- Report to the General Assembly, 1949. Year Book of the International Law Commission 277, p. 281
- Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILCon the Work of its Fifty-Third Session, UNGARO, 56th Session, p.43, UN DOC A/56/10 (2001)
Treaties
France v Mexico (1929) 5 RIAA 516 Caire
ILC Articles on State Responsibility art.1.
See ILC Commentary 2001, U.N. Doc. A/56/10 (2001).
See Malanczuk, p. 257.
See Malanczuk, p. 258; also Brownlie, pp. 434-6; and Shaw, pp. 702-4.
See Malanczuk, pp. 254-6.
See Shaw, p. 701.
Shaw, p. 694, Id, pp.696-7.
The ILC Articles art. 10.
The ILC Articles art. 19.
The ILC Articles art. 4.
The ILC Articles art. 7.
[1] See generally Brownlie, part VIII; J. Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge (2002) ; C. Gray, Judicial Remedies in International Law, Oxford (1987); Malanczuk, chapter 17; and Shaw, chapter 14.
[2]Shaw, p. 694.
[3] See Malanczuk, pp. 254-6.
[4]Shaw, M. N. (1997). International Law, Cambridge University Press
[5] See ILC Commentary 2001, U.N. Doc. A/56/10 (2001)
[7] ILC Articles on the State Responsibility art.1.
[8] See Malanczuk, p. 257.
[9] The ILC Articles art. 4.
[10] Id art. 4.
[11] Id. art. 5.
[12] See Shaw, p. 701.
[13] See Malanczuk, p. 258; also Brownlie, pp. 434-6; and Shaw, pp. 702-4.
[14] The ILC Articles art. 7.
[15]The ILC Articles art. 10.
[16] The ILC Articles art. 19.
[17] France v Mexico (1929) 5 RIAA 516 Caire
[18]France v Mexico (1929) 5 RIAA 516 Caire
[19] Gray, C. (1987). Judicial Remedies on International Law. Oxford.
[20]Id.
[21]Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILCon the Work of its Fifty Third Session, UNGAOR, 56th Session, p.43, UN DOC A/56/10 (2001)
[22]Clyde Eagleton, The Responsibility of States in International Law,( The New York University
[23]International and Comparative Law, 2005 Oct. Vol .54, Issue 4, p. 960
[24]Report to the General Assembly, 1949. Year Book of the International Law Commission 277, p. 281
[25]1949 Year Book of International Law Commission, 46, 49-50, UN DOCA/ CN.4/SER;A/1949
[26]Second Report of Ago in 1970, Year Book of International Law Commission ,1970, Vol 2, p. 17
[27] Third Report Ago in 1971, Year Book of International Law Commission, 1971, Vol-11, p. 200
[28]Id Third Report Ago in 1971