State Responsibility

CASES & MATERIALS ON

INTERNATIONAL LAW “4^th Edition”

(MARTIN DIXON & ROBERT McCORQUODALE)

Oxford University Press Inc, New York

11 (State Responsibility)

Introductory note

            The International legal systems offers considerable benefits to a State, from conferring recognition of its sovereignty to protecting its territorial integrity. Accordingly, as part of a State’s consent to the operation of that system, It must accept corresponding legal obligations. Primarily, it must accept responsibility for its actions that have an effect on other international legal persons and the international community. As stated by Judge Huber in the Spanish Zone of Marocco Claims Case (1925) 2 RIAA 615: ‘responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility.

            State responsibility arises from the violation by a State (or other competent international legal person) of an international obligation. That obligation can be one of customary international law or a treaty obligation. The violation must be due to conduct attributatble to a State. The enforcement of this responsibility is generally undertaken by a State either on its own behalf or on behalf of its injured nationals. However, as each State (or other legal person) may decide for itself whether to enforce an apperent violation of an international obligation by another State, it is possible that no legal action will be taken against a State that has clearly violated international law. Additionally, as States themselves largely determine the scope of customary international law, they can allow certain exceptions to international obligations, and so determine for themselves when State responsibility exist.

            The law of State Responsibility can be devided conveniently into two parts, although it must be emphasised that this is for the purposes of exposition only. First, issues of general concern, comprising the nature of State responsibility, attribution (inputability) of internationally unlawful acts to the State, the mechanics of enforcement (including nationality of claims, exhaustion of local remedies), and defences to responsibility. Such matters are relevant irrespective of the type of international obligation said to have been violated and apply as much to analegged violation of a treaty as to alleged mistreatment of a national abroad contrary to customary international law. Second, there is a subset of substantive rules concerning international responsibility for the mistreatment of aliens (i.e. non nationals). These rules indicate both when a State will be responsible for such mistreatment and the consequences of such responsibility.