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Relationship between State and Individual Responsibility Info: 5167 words (21 pages) Essay Published: 26th Aug 2021 Reference this Jurisdiction / Tag(s): International Law The paper seeks to throw light on the concept of state responsibility under public international law. It deals with the elements of state responsibility, the elements of international responsibility and the relationship between the state and individual responsibility under international law. It also explains the distinction between the commission and the failure to prevent or punish. Introduction The law of State responsibility is the chapter of international law that concerns the breach by a State of one or more of its international obligations. In international law, responsibility is the corollary of obligation; every breach by a subject of international law of its international obligations entails its international responsibility. The law of State responsibility defines when an international obligation is to be held to have been breached, as well as the consequences of that breach, including which States are entitled to react, and the permissible means of that reaction. Unlike national laws, wherein different rules often apply according to the source of the obligation breached (e.g., contract law, tort law, criminal law), international law does not concern itself with the source of the obligation that is breached; in principle (and unless otherwise specifically provided) the same rules apply to the breach of an obligation whether the source of the obligation is a treaty, customary international law, a unilateral declaration, or the judgment of an international court. In August 2001 the International Law Commission [1] completed its Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project on which it had been working for more than forty years. The aim of the articles is to codify the generally applicable rules of State responsibility. It should be noted that the ARSIWA are envisaged as laying down general rules that apply in default of any more specific rule applicable to the obligation in question. In some cases, special rules may apply to an obligation (either as a result of the formulation of the rule itself, or because the obligation in question forms part of a special regime); for instance, it is possible that a particular obligation may be subject to a special rule requiring fault or damage before there is held to be a breach, or it may be that the category of States entitled to react is wider than the default position under the ARSIWA. This is the principle of lex specialis (to the extent that special rules are applicable and inconsistent with the rules contained in the ARSIWA, the special rules will prevail and displace the more general rules). The Elements of State Responsibility The starting point of the articles is that “every internationally wrongful act of a State entails the international responsibility of that State” [2] . The act or omission of a State will qualify as an “internationally wrongful act” if two conditions are met. First, the act or omission must constitute a breach of an international obligation, or, as the articles put it, must be “not in conformity with what is required” by the international obligation [3] . This implies that the obligation in question must be binding on the State at the time of the conduct, which is said to constitute a breach. Second, the act or omission must be “attributable” to the State. The general rule is that a State is not responsible for the acts of private individuals. The State is of course an abstract entity, unable to accomplish any physical act itself. Just as in domestic law corporations act through their officers and agents, so in international law the State normally acts through its organs and officials. The first, and clearest, case of attribution is that of the organs of the State (e.g., police officers, the army) whose acts are attributable to the State even in instances where they contravene their instructions, or exceed their authority as a matter of national law [4] . No distinction is made based on the level of the particular organ in the organizational hierarchy of the State; State responsibility can arise from the actions of a local policeman, just as it can from the actions of the highest officials, for instance a head of state or a foreign minister. Nor is any distinction made upon the basis of the separation of powers; State responsibility may arise from acts or omissions of the legislature and the judiciary, although by the nature of things it is more common that an internationally wrongful act is the consequence of an act or acts of the executive. Second, the rules of attribution cover situations in which individuals, not otherwise State organs, are exercising “elements of governmental authority” at the time that they act [5] . Third, acts of private individuals are attributable to the State if those individuals are acting on the instructions of the State, or under its effective direction or control [6] . Fourth, in exceptional circumstances in which there is an absence or default of governmental authority, the acts of private individuals may be attributable to the State if those individuals, in effect, step into the breach and perform necessary governmental functions [7] . With regard to certain obligations, a State may incur responsibility even though actions have been carried out by private individuals, because the essence of the obligation was to ensure that a given result occurred. For instance, if a foreign embassy is overrun by a mob, or harm is done to diplomatic staff by private individuals, as occurred with the U.S. embassy in Tehran during the Iranian revolution of 1979 to 1980, a State may incur responsibility, even if those individuals act on their own initiative. Equally, under Article V of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the obligation of a State to punish those responsible for genocide earlier on related to genocide may be breached in instances in which a State fails to punish any person responsible for the genocide, “whether they are constitutionally responsible rulers, public officials, or private individuals.” There is probably a similar rule in general international law in relation to crimes against humanity. In both cases, the basis of responsibility here is not the attribution to the State of the acts of the individuals; it is the failure by the State as an entity to comply with the obligations of prevention and prosecution incumbent on it. A somewhat anomalous instance of attribution is that covered by Article 10. As was noted above, in the normal course of events, a State is not responsible for the acts of private individuals; a fortiori, it is not responsible for the acts of insurrectional movements, because, by definition, an insurrectional group acts in opposition to the established state structures and its organization is distinct from the government of the State to which it is opposed. However, Article 10(1) provides that “the conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law.” Article 10(2) provides for a similar rule with respect to an insurrectional movement that succeeds in establishing a new State within the territory of a pre-existing State. The effect of the rule is to attribute retrospectively the conduct of the movement in question to the State. In the case of a successful insurrectional movement, the acts of the movement are attributed to the State as if the movement had been the government at the time of its acts, even though, if the insurrection had failed, no attribution would be possible. In the case of the establishment of a new State, the effect is even more drastic because acts are attributed to the State retrospectively to a time when it did not yet definitively exist. Except in this case, there is no established machinery for attributing collective responsibility (e.g., for war crimes, genocide, or crimes against humanity) to an armed opposition group. In such circumstances individual responsibility is the only possibility at the international level of ensuring a degree of responsibility for criminal acts. Certain circumstances may serve to preclude the wrongfulness of a breach of international law by a State, in much the same way that defenses and excuses work in national criminal law. In international law these are termed “circumstances precluding wrongfulness” [8] . For instance, the consent of the state to which the obligation was owed will prevent the breach being wrongful, as will, under certain restrictively defined conditions, force majeure, distress, and necessity. Finally, a State taking countermeasures (defined as the nonperformance of an obligation in response to a prior wrongful act of another State, in order to induce that State to comply with its obligations) may mean that what would otherwise be a breach of an international obligation is not in fact wrongful. However, quite apart from the strict procedural conditions with which the taking of countermeasures is hedged, it should be noted that certain obligations may not be the object of countermeasures. Among these are the obligation to refrain from the threat or use of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals under peremptory norms of general international law (jus cogens). This last limitation in fact applies generally to circumstances precluding wrongfulness: it is never possible to plead that a breach of a peremptory norm was justified. The Content of International Responsibility Upon the commission of an internationally wrongful act, new legal obligations come into existence for the State responsible for that act. First, that State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Reparation may take one of three forms: restitution, compensation, or satisfaction (or some combination of them). Traditionally, restitution has played the primary role, although in instances in which restitution is materially impossible, the injured State may have to content itself with compensation or satisfaction. Second, the responsible State is under an obligation to conclude the internationally wrongful act if it is continuing, and in an appropriate case, may be required to make assurances and guarantees of non-repetition. The Articles mark a decisive step away from the traditional bilateralism of international law and toward what has been called “community interest” in the provisions dealing with the States that are entitled to react to the breach of an internationally wrongful act. Traditionally, only the State that was directly injured, or in some way “targeted,” by the breach of an international obligation could demand reparation. In addition, although any state could take unfriendly measures that did not constitute the breach of an international obligation owed to the State at which they were directed (retorsion), the taking of countermeasures was commonly understood as being limited to these “injured States.”