State Responsibility
La Responsabilità dello Stato
Dr Rachael Lorna Johnstone
Università d’Akureyri
Islanda
Who is the State?
For whose behaviour can the State be held
accountable in international law?
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International Law Commission’s Articles on the Responsibility of States
for Internationally Wrongful Acts. 2nd reading 2001 (ILC Articles)
Commissione del diritto internazionale (CDI): La codificazione della
responsabilità degli Stati alla prova dei fatti, seconda lettura, 2001
International Court of Justice, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro)
Judgement of 26 February 2007 (Genocide Convention Case)
La Corte internazionale di giustizia: genocidio in Bosnia-Erzegovina,
2007
United Nations Security Council (UNSC) Counter-Terrorism Resolutions,
principally, Res. 1368, 1373 and 1540
Consiglio di sicurezza: contro-terrorismo
United Nations Human Rights Treaty Bodies (UNHRTBs) on Human
Rights
Comitati dei diritti umani
Primary and Secondary Rules
•Norme primarie e norme secondarie
It is one thing to define a rule and the content of the
obligation it imposes and another to determine whether
that obligation has been violated and what should be the
consequences of the violation. Only the second aspect
comes within the sphere of responsibility proper. Roberto
Ago, 1970 Yearbook, p178, para. 7
Commissione del diritto internazionale (CDI): La
codificazione della responsabilità degli Stati alla prova dei
fatti, seconda lettura, 2001
Article 1
Responsibility of a State for its internationally
wrongful acts
Every internationally wrongful act of a State
entails the international responsibility of that
State
? What acts are internationally wrongful?
? What acts are acts of a State?
Commissione del diritto internazionale (CDI): La
codificazione della responsabilità degli Stati alla prova dei
fatti, seconda lettura, 2001
Article 4
Conduct of Organs of a State
• 1. The conduct of any State organ shall be considered an
act of that State under international law, whether the
organ exercises legislative, executive, judicial or any
other functions, whatever position it holds in the
organization of the State, and whatever its character as
an organ of the central government or of a territorial unit
of the state.
• 2. An organ includes any person or entity which has that
status in accordance with the internal law of the State.
Commissione del diritto internazionale (CDI): La
codificazione della responsabilità degli Stati alla prova dei
fatti, seconda lettura, 2001
Article 4, commentary para 11
Where the law of a State characterizes an entity as
an organ, no difficulty will arise. On the other hand,
it is not sufficient to refer to the internal law for the
status of State organs…. a State cannot avoid
responsibility for the conduct of a body which does
in truth act as one of its organs merely by denying it
that status under its own law.
Commissione del diritto internazionale (CDI): La
codificazione della responsabilità degli Stati alla prova dei
fatti, seconda lettura, 2001
Article 8
Conduct Directed or Controlled by a State
The conduct of a person or group of persons shall
be considered an act of a State under
international law if the person or group of
persons is in fact acting on the instructions of, or
under the direction and control of, that State in
carrying out the conduct.
Commissione del diritto internazionale (CDI): La
codificazione della responsabilità degli Stati alla prova dei
fatti, seconda lettura, 2001
Article 8, commentary
As a general principle, the conduct of private persons or entities is
not attributable to the State under international law. Circumstances
may arise, however, where such conduct is nevertheless attributable to
the State because their exists a specific factual relationship between
the person or entity engaging in the conduct and the State.
a real link between the person or group performing the act and the
State machinery. Para 1
such conduct will be attributable to the State only if it directed or
controlled the specific operation and the conduct complained of was
an integral part of that operation. The principle does not extend to
conduct which was only incidentally or peripherally associated with
an operation and which escaped from the State’s direction or control
para 3
Commissione del diritto internazionale (CDI): La
codificazione della responsabilità degli Stati alla prova dei
fatti, seconda lettura, 2001
Article 12
Existence of a breach of an
international obligation
There is a breach of an international obligation
by a State when an act of that State is not in
conformity with what is required of it by that
obligation, regardless of its origin or character.
Genocide Convention Case ICJ, Feb. 2007
La Corte internazionale di giustizia: genocidio in
Bosnia-Erzegovina, 2007
(a) what rules can help us determine whether an entity is an organ
of the State even when it is not so considered under the State’s
internal law? (Article 4)
(b) in the absence of explicit instructions, what degree of “control”
is necessary for an entity to be considered an agent of the State?
(Article 8)
Effective control (controllo effetivo): Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v United States of
America) 1986 I.C.J. 14.
Overall control (controllo globale): Prosecutor v Tadić, ICTY
(Tribunale penale internazionale per la ex-Iugosvalia) Appeals
Chamber Judgment (camera d’appello) 15 July 1999.
Genocide Convention Case
to equate persons or entities with State organs when they do
not have that status under internal law must be exceptional,
for it requires proof of a particularly great degree of State
control over them, a relationship which the Court’s Judgment
quoted above [Nicaragua] expressly described as “complete
dependence”. It remains to be determined in the present case
whether, at the time in question, the persons or entities that
committed the acts of genocide at Srebrenica had such ties
with the FRY [Serbia] that they can be deemed to have been
completely dependent on it. Para 393
“complete dependence”  “lacking any real autonomy” Para
394
Genocide Convention Case
It must however be shown that this “effective control” was
exercised, or that the State’s instructions were given in
respect of each operation in which the alleged violations
occurred, not generally in respect of the overall actions
taken by the persons or groups of persons having committed
the violations. Para 400
Genocide Convention Case
Who is the State? (negative obligations)
• Organs de iure under the internal law of the State
• Organs de facto under a strict test of “complete
dependence.”
• Agents acting under instruction or “effective
control”
UN Security Council
Consiglio di sicurezza
Resolution 1368 12 September 2001
Recognizing the inherent right of individual or collective selfdefence in accordance with the Charter. Preamble para 3
…Regards such acts, like any act of international terrorism,
as a threat to international peace and security.” Op para 1
Calls on all States to work together urgently to bring to
justice the perpetrators, organizers and sponsors of these
terrorist attacks and stresses that those responsible for
aiding, supporting, or harbouring the perpetrators,
organizers and sponsors of these acts will be held
accountable. Op para 3
Expresses its readiness to take all necessary steps to respond
to the terrorist attacks. Op para 5
UN Security Council
Resolution 1373 28 September 2001
• 1. Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the willful provision or collection…. [of
funds directed to terrorism];
(c) Freeze without delay funds and other financial assets
or economic resources of persons….[involved in
terrorism];
(d) Prohibit their nationals and any persons and entities
within their territories from making any
funds…available… [to terrorists];
UN Security Council
Resolution 1373 28 September 2001
2. Decides also that all State shall:
(a) Refrain from providing any form of support, active or passive [to
terrorists]… including by suppressing recruitment… and eliminating the
supply of weapons;
(b) Take the necessary steps to prevent the commission of terrorist acts
[including by warning other States];
(c) Deny safe haven [to terrorists and financiers];
(d) Prevent [use of territory by terrorists];
(e) Ensure [terrorists] brought to justice [and adequate criminal law];
(f) [assist one another];
(g) Prevent the movement of terrorists or terrorist groups by effective
border controls.
UN Security Council
Resolution 1540 28 April 2004
1. Decides that all State shall refrain from providing any form of
support to non-State actors that attempt to develop, acquire,
manufacture, posses, transport, transfer or use nuclear, chemical
or biological weapons and their means of delivery;
2. Decides also that all States… shall adopt and enforce appropriate
effective laws [to prohibit the above];
3. Decides also that all States shall take and enforce effective
measures to establish domestic controls to prevent proliferation.
Another committee is established to monitor implementation.
(i) States must not commit or support acts of terrorism (i.e.
they must respect the sovereignty of one another). (Negative
Obligation) They are responsible for their actions per
Nicaragua.
All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of
any state, or in any other manner inconstant with the Purposes of the
United Nations. UN Charter Art 2(4)
General Assembly Declaration No. 2625 (XXV) Declaration on
Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the
United nations (A/8082), 24 October 1970.
Every State has the duty to refrain from organizing, instigating, assisting
or participating in acts of civil strife or terrorist acts in another State or
acquiescing in organized activities within its territory directed towards the
commission of such acts, when the acts referred to in the present
paragraph involve a threat or use of force. (Para 1)
(ii) States must exercise due diligence to prevent terrorism to
protect other States. (Positive Obligation) They are
responsible for failing to fulfil their (positive) obligations.
Corfu Channel (U.K. v Albania), Merits, 1949 ICJ REP. 4
Every State’s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other States. (para
22)
(iii) States must exercise due diligence to prevent terrorism
and protect other States. (Positive obligation) They are
responsible for terrorist actions of non-State actors which
result.
State Responsibility for
Terrorism
(i) Responsibility for State organs and agents (per
Nicaragua) who engage in or offer support to
terrorist activities;
(ii) Responsibility for failures to exercise due
diligence (at a high standard) to prevent non-State
terrorist activities;
BUT NOT:
(iii) Responsibility for the terrorist activities of nonState actors which they have failed to prevent.
UN Human Rights Treaty
Bodies
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Human Rights Committee: monitoring the International Covenant on Civil and
Political Rights (ICCPR)
The Committee on Economic, Social and Cultural Rights: monitoring the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
The Committee on the Elimination of Racial Discrimination: monitoring the
Convention for the Elimination of Racial Discrimination (CERD)
The Committee on the Elimination of Discrimination of Discrimination
Against Women: monitoring the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW)
The Committee Against Torture: monitoring the Convention Against Torture
(CAT)
The Committee on the Rights of the Child: monitoring the Convention on the
Rights of the Child (CRC); and
The Committee on Migrant Workers: monitoring the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their
Families.
Human Rights Treaty
Obligations
• To respect (negative: refrain from action)
• To protect (positive: protect from non-State
actors)
• To fulfil (positive: provide basic minimums)
To respect human rights
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Police brutality
Treatment of detainees
Prison conditions
De iure discrimination
Deportation where risk of torture
Legal minimum wage
Privatisation of State companies
To protect human rights
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domestic violence,
slavery and trafficking,
hate speech and racism
violent crime against minorities and
gender discrimination in private
employment
• gender stereotypes
To fulfil human rights
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Living conditions of street children & Roma
De facto racial inequality
Poverty
Unemployment
Malnutrition
Consumption of illegal drugs
HIV & AIDS
Housing
Education
Human Rights Treaty
Obligations
• To respect (negative: refrain from action): State
per Nicaragua
• To protect (positive: protect from non-State
actors): no need to identify organ or agent “at
fault” (separate delict)
• To fulfil (positive: provide basic minimums): no
need to organ or agent “at fault” (separate delict)
Who is the State?
(negative obligations)
Article 4:
• Organs under internal law of the State
• Organs de facto by virtue of “complete
dependence
Article 8
• Agents acting on instruction or under
“effective control”
Who is the State?
(positive obligations)
Not necessary to identify State actor;
because State apparatus as a whole has
failed to act.
State responsibility for the separate delict
(inaction or inadequacy of action)
State Responsibility
La Responsabilità dello Stato
Dr Rachael Lorna Johnstone
Università d’Akureyri
Islanda