International Liability of States: Principles and Consequences
1. International Liability: Role and Nature
Any violation of an international undertaking involves an obligation to compensate. The Hague Tribunal highlights the essentially reparative function of international responsibility. It is true that at present, trends are towards expanding the role of international responsibility in cases of serious violations of fundamental principles of international order. In such cases, the aim is not only to repair the damage but also to impose further sanctions.
Regarding the nature of international responsibility, it is a relationship between states. This statement is obvious and needs no explanation or clarification in cases where the wrongful act of a State causes direct damage to another State.
In the case of diplomatic protection of nationals, the State asserts a personal right. This has important consequences, such as the discretionary nature of the exercise of diplomatic protection (it must be exercised when a person suffers damage compared to another state) and the availability of reparation to the state.
2. Codification and Progressive Development of the International Liability Regime
There are numerous cases of violations of international law that bring into play the international responsibility of a State and the consequent obligation to repair.
Numerous encoding efforts have been made, such as that conducted by the Codification Conference held in 1930. The effort was limited to the codification of the international liability regime for damage caused to aliens. Although the relevant committee approved some articles on the basis of liability, significant differences between delegations on other issues prevented it from submitting conclusions to the Conference in this field.
Another encoding attempt was made by the UN in 1953. The General Assembly asked the International Law Commission to begin work on the principles of international law governing responsibility between States. In 1996, it adopted a draft of full articles. In 2001, the Commission presented a new project, which was a modification of the 1996 version.
It must be said, therefore, that the work of the International Law Commission is not limited to codification in the strict sense but also pursues the progressive development of international law.
Since 1978, the Commission has been studying international liability for injurious consequences arising out of acts not prohibited by international law. But if they are not prohibited, how can accountability be demanded? This refers, for example, to space expeditions, which are not prohibited. However, they carry a high risk (called ultra-hazardous activities) and therefore carry responsibility for the state.
3. International Liability for Wrongful Acts of States
Article 1 of the Draft Articles of the International Law Commission states that “every internationally wrongful act of a State entails its international responsibility.” The analysis of this type of responsibility is divided into two parts: the objective and subjective elements.
3.1. The Internationally Wrongful Act: Objective and Subjective Elements
A wrongful act is behavior that constitutes a violation of an international obligation. Only international law can qualify an act as illegal, and domestic law is irrelevant: a state cannot invoke the provisions of its internal law as justification for failing to comply with treaties.
The source of the international obligation (treaty, custom, strictly unilateral act, estoppel, etc.) is irrelevant to the existence of a wrongful act.
Also worth noting is the highly contested case of whether the wrongful act is considered a breach of an obligation arising under a “general principle of law.”
Regarding the time element, it must be taken into account when there is a violation of an international obligation: if a treaty has been concluded or entered into force, it creates responsibility.
On the other hand, in cases of wrongful acts resulting from the violation of international obligations relating to the treatment to be accorded to aliens, whether natural or legal persons, there are two requirements for the admissibility of claims: a) those relating to nationality (only the state of their nationality could act in their defense against another State) and b) the exhaustion of effective and available domestic remedies.
3.2. International Crimes
In cases where the obligation breached is “so essential for safeguarding the fundamental interests of the international community that its violation is recognized as a crime by that community as a whole,” it is known as an international crime.
The distinction between a crime and an international crime in the context of responsibility is that crimes are strict rules based on existing international law, while an international crime violates an obligation.
International crime – Obligations erga omnes – norms of jus cogens
(Affecting the international community)
It is conceivable that the international responsibility for the commission of an international crime should have at least two characteristic consequences. The first is that the liability may be enforced by any State member of the international community since it is a violation of a fundamental obligation to safeguard their fundamental interests and obligations erga omnes. The second consequence is that the responsibility would produce not only the obligation to repair the damage but also the imposition of sanctions.
The draft articles by the International Law Commission in 1996 accepted the idea of actio popularis. According to Article 40, any State is an injured State by an international crime, and that state has the right to restitution or reparation.
The international community as a whole, while ready for the international criminal punishment of international crimes committed by individuals, is not yet ripe for accepting all the consequences of the notion of an international crime of State.
Although the 2001 Project has done away with the expression “international crime,” it attempts to save as much as possible of the figure and some of its consequences. To this end, the document refers to the notion of jus cogens norms. Thus, in Chapter III, the Commission addresses “serious breaches of obligations under peremptory norms of general international law” to attach additional and, of course, aggravated consequences to such violations: the obligation incumbent on all states to cooperate to end by all lawful means to the breach, etc.
It can be seen, therefore, that in the latter case, the Project retains the essence of the concept of actio popularis. We must remember that the Vienna Convention does not contain any substantive criteria for identifying peremptory international norms, which considerably lowers the degree of certainty in the matter.
3.3. Circumstances Precluding Wrongfulness
We refer here to the circumstances that preclude the wrongfulness of an act of the State. Without these circumstances, there would be a violation of an international obligation.
Regarding consent as a circumstance precluding the wrongfulness of an act, Article 20 of the Commission’s Project states:
Valid consent by a State to the commission by another State of an act precludes the wrongfulness of that act in relation to the first State to the extent that the act remains within the limits of that consent.
For example, a State can only exercise sovereignty over its territory and can only exercise its police power within its borders. When a person is arrested in France for terrorism, the Spanish Guardia Civil cannot operate in France without the consent of that country. This consent precludes wrongfulness.
With regard to countermeasures (Art. 22), also called reprisals, the most important aspect is self-help, i.e., the conduct of a State aggrieved by the conduct of another State, tending to obtain justice and reparation for itself as it deems appropriate.
Countermeasures are actions taken by an injured State. This behavior is contrary to international law. However, it becomes legitimate because it is a legitimate reaction to the wrongful act of another state.
It should be noted that the lawfulness of reprisals depends on a number of conditions:
- The first is the relationship of proportionality between the violation and the subsequent reaction, meaning that a perfect match between the wrongful act and the reaction is required.
- Another limitation is that retaliation is not allowed in response to the violation of peremptory norms of international law, including those prohibiting the use or threat of force.
- Finally, retaliation is permissible only if all means conducive to the peaceful settlement of the dispute have been exhausted, although this requirement must be interpreted in light of all circumstances: i.e., in a flexible rather than rigid way.
Retaliation also refers to self-protection measures taken by a State against the acts of another State, whether lawful or unlawful, that have caused injury. However, unlike reprisals, they do not themselves constitute a violation of international law. In short, they are not contrary to international law and do not preclude the wrongfulness of the original act.
Another circumstance is force majeure (Art. 23), which occurs when a violation of international law is due to an unforeseen event. It is not necessarily a situation where life is in danger.
The fourth circumstance mentioned in the Commission’s Project is distress (Art. 24), which occurs when a violation of international law is necessary to save the life or lives of people dependent on that state.
The next circumstance referred to in the Commission’s draft is a state of necessity (Art. 25), which occurs when the very existence of the state is in danger.
Finally, Article 21 of the Project addresses self-defense. The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations. This applies when a State acting in self-defense violates international law.
3.4. Conditions of Attribution of Wrongfulness: Subjective Element
For a wrongful act of a State to exist, not only is the objective element (the violation of an international obligation) required, but also the subjective element, that the conduct is attributable, according to international law, to the State concerned.
Since the State is a legal person that acts through its organs, whether individual or collective, the conduct of any State organ exercising legislative, executive, judicial, or other functions should be considered an act of the State, according to international law.
- a) But are the actions of individuals or separate legal entities empowered to exercise elements of governmental authority attributable to the State? The answer is that no matter the power that person has, the state is always responsible.
For example, if a State contracts private security firms to provide security in an area, the state is still responsible for their actions, even if they are not formally considered police officers. If they commit a wrongful act, the state is the one that is responsible.
- b) It may be that certain people not formally invested as State organs are acting in fact on its behalf.
For example, if Spain undertakes a volunteer humanitarian action in a country with an epidemic and one of these doctors (volunteers) performs an act against international law, the responsible party will be Spain.
- c) It can also happen that the conduct violating an international obligation comes from a body that is placed at the disposal of one State by another State.
For example, the actions of a police detachment that one State makes available to another to help cope with internal strife.
Another example: Japan asks for help in reconstruction. Spain sends its army to rebuild the infrastructure. The responsibility in this case lies with the beneficiary (Japan).
- d) Another issue is the conduct of State organs acting ultra vires or in violation of instructions.
For example, ambassadors have guidelines and should not overstep their authority. If they do, Spain is internationally responsible.
- e) Another case involves individuals who may perform acts that prejudice the rights of another State or involve injury to the person or property of aliens. Although such behaviors are inconsistent with an international obligation of the territorial state, they do not per se trigger the international responsibility of that State. But this does not mean the absence of any kind of international obligations by the territorial State concerning the conduct of individuals. The territorial State must ensure the security of other States and their national representatives and protect them against any behavior that may come from individuals. It is also obliged to punish or extradite the offender.
The State is not liable for damages caused by individuals.
- f) In addition, another phenomenon is the acts of organs of another State, i.e., behaviors of a State organ acting as such in the territory of another State.
For example, the French president visits Spain. While in Spain, he acts against international law. The responsible party will be the president of France.
- g) Another similar case is the action in the territory of a State of an organ of an international organization. While these actions are somewhat exceptional, international organizations do not always operate in their own territory and may operate in foreign territory. They usually do not commit illegal acts from the point of view of international law, but there have been cases in which acts of some international organizations have had an impact on international responsibility.
For example, the actions of the United Nations Force in the Congo. Logically, these acts have not been attributed to the territorial State.
- h) Another case is that of revolutionary movements. These are not attributable to the State unless, possibly, the organs of state have failed to fulfill their obligations for monitoring, prevention, or suppression, in which case they may be held responsible.
It can also happen that the insurrectionary movement succeeds in replacing the structures of government or that these structures are upgraded to become those of a newly independent State.
For example, if the insurgents from Libya violate international law…
4. The Fundamental Consequence of International Responsibility: The Obligation to Repair and its Conditions
International responsibility is configured as an essentially reparative institution. Any violation of an undertaking involves the obligation to repair. By failing to fulfill an international standard, damage occurs.
As seen above, every internationally wrongful act has two components: one objective (the violation of an international obligation) and one subjective (the attribution of the act to a State).
The damage is linked to the objective element, and any violation of an international obligation is an injury. Damage is something “necessarily inherent in any violation of an international subjective right.”
Damage is always suffered by the State, but it may have incurred losses due to individuals.
Reparation takes different forms, taking into account the nature of the damage:
- Restitution, or the replacement of things to their original condition, acts as if nothing had happened. If this is not possible, the equivalent compensation in money or another form of compensation is used. When the damage is more moral, reparation takes the form of satisfaction.
Restitution is the ideal way to fulfill the obligation to repair, but it is not the usual method in practice and case law. It sometimes happens that restitution has not taken place due to the opposition of the respondent State or the disinterest of the injured State, which prefers compensation.
- If reparation cannot be made in kind, it must be made in cash or in an equivalent form of compensation, as we said before.
- To the extent that the harm resulting from the wrongful act is not susceptible to pecuniary valuation, for example, in the event that the honor or dignity of the State is harmed, the appropriate form of reparation is satisfaction, adopting procedures such as the official apology for the act or recognition of the illegality of the act by an international court. This occurs when the damage is more moral in nature.
For example, if France has to give New Zealand €1, this is not compensation but an acknowledgment of wrongdoing on the part of France.