Central University of South Bihar

CENTRAL UNIVERSITY OF SOUTH BIHAR

In the partial fulfillment of requirement on the subject of Public International law

of BA.LLB (Hons.)

ACADEMIC YEAR :- 2019-2020

Submitted on 6th April 2020

Constituent elements of International

responsibility

Submitted to:
Submitted by
M\S. Kumari Nitu Vaishnavi

Assistant Professor B.A LLB (Hons.)

School of law and governance CUSB1813125066

Central university of South Bihar 4th Semester (Sec-A)

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Acknowledgement
I, vaishanvi, take extreme pleasure in expressing my profound gratitude towards my
Constitutional Law teacher M\s Kumari Nitu (Assistant Professor, Law) for inspiring me and
giving me the invaluable guidance and constant support throughout the course of my project
work. I have taken efforts in thus kind project. However, it would not have been possible without
the kind support of my teacher, friends, colleagues and many more individual persons, writers,
college staffs, librarians and other sources of e-resource. I would like to sincere thanks to all of
them.

I thank my parents for providing me everything whatever be required for the completion of this
project.

Finally, I would like to thanks all Kith & Kins who are a little bit part in helping me for
completing this project.

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Abstract.
The legal concept and the doctrinal theory of state responsibility and liability have been in the
focus of public international law for a long while. By means of domestic legislation, national
law–regardless of the relevance of the international legal framework–governs the system of civil
liability within the area of civil law of each state. Whereas, as opposed to the framework of civil
liability governed by diverse domestic rules, exclusively a standard regulation framed at an inter-
state level can secure a uniform system of state liability. The issue of state responsibility for
nuclear damages raises specific questions to be examined in the framework of general
international regulations (e.g., Conventions adopted within the area of nuclear law) related to
responsibility and liability. Thus, answering or the clarification of these specific pivotal
questions within the scope of public international law shall be our starting point, which may also
entail the modification of the matter of state responsibility and liability (not only in the
concerned branch of law.
The doctrine of international responsibility is one of the core tenets of
international law. Legally speaking international responsibility is ‘simply the
principle which establishes an obligation to make good any violation of
international law producing injury’. International responsibility arises out of
the legal maxim stated by Grotius in 1646 that ‘every fault creates the
obligation to make good the losses’. As states are the conventional subjects
of international law, technically the principle of international responsibility
applies only on the state-to-state level. Duties owned to citizens are left out.
The ILC(International Law Commission) Articles on State Responsibility affirm
this traditional, state centric definition of state responsibility; crystallize
customary international law on state responsibility and set out reparation,
restitution, compensation, satisfaction and guarantees of non-repetition as
the basic legal tools states have to remedy injuries1.

1
Crook,J., ‘The United Nations Compensation Commission: A New Structure to Enforce State
Responsibility’, American Journal of International Law, (1993), p.144

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International Law and Theories of International Responsibility

International Law is the body of law that governs relationships between sovereign states 2. One of
the conceptual foundations underlying international law is that every state is sovereign and
equal3. Each state has equal standing under international Law and all international organizations
are based on this inherent equality4. Because states are regarded as equal entities under
international Law, there exist rights and duties necessary to protect that equality. These rights
and duties comprise the obligations under international law to which each state is held
responsible5. Although states acknowledge their consent to be bound by some rules through
signing and ratifying treaties and other agreements6, there are certain rules that states must follow
regardless of any express consent to do so7. Such rules are contained in the body of international
law know as custom. Customary international law is formed where there is (1) a widespread
uniform state practice (2) states follow out of belief that international law demands their
conformity with that practice, a belief known as opinio Juris8. Customary international law is
binding upon a state because the state is a part of a community of nations and does not depend on
the express consent of the state: “membership in the community of nations presupposes the
compliances of the existent rules of that community and is upon this agreement to observe the
rules of the community that international responsibility is founded9”.
Constituents Elements of international Responsibility are:-
 Damage Theory
 Fault Theory
 Absolute liability
 Risk Theory

2
Black” Law Dictionary, (7th Edition 1999),P.822
3
Ian Brownlie, Principles of Public International law, (5 th Edition. 1998), P.298
4
U.N Charter Article 2, Para 1 (“ The United Nations is based on the principle of sovereign equality of all its
member,”)
5
Fordhan law Review, 2002. P.2
6
Supra Note 17, P. 436
7
Oppenheim’s International Law, (9th ED. 1992)
8
Ibid P. 31
9
Supra Note 5, P.6

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Fault Theory
It is often said that a state is not responsible to another state for unlawful acts committed by its
agents unless such acts are committed willfully and maliciously or with culpable negligence10.
It is difficult to accept so wide a conclusion and so invariable requirement. A general floating
condition of malice or culpable negligence rather contradicts the scientific and practical
considerations underlying the law as to international responsibility. Few rules in treaties
imposing duties on states contain anything expressly in terms relating to malice or culpable
negligence, and breaches of those treaties may more involve the responsibility of a state party. It
is only in specific cases when particular situations demand it that willfulness or malice or
negligence may be necessary to render a state responsible; for example, if the state knowingly
secretly involves in the wrongful acts of insurgents or rioters, it would become liable, although
not generally otherwise, or if it were negligent in failing to provide adequate police protection for
diplomatic premises against the injurious acts of demonstrators or rioters, and damage
occurred11. There are arguing theories as to whether responsibility of the state for unlawful acts
or omissions is strict or whether it is necessary to show some fault or intention on the part of the
officials concerned. The principle of responsibility maintains that the liability of the state is
strict. Once an unlawful act has taken place, which has caused injury and which has been
committed by an agent of the state, that state will be responsible in international law to the state
suffering the damage irrespective of good or bad faith. To be contrasted with this approach is the
subjective responsibility concept (the ‘fault’ theory) which emphasizes that an element of
international or negligent conduct on the part of the person concerned is necessary before his
state can be rendered liable for any injury caused 12. The relevant cases and academic opinions are
divided on this question, although the majority tends towards the strict liability, objective theory
of responsibility.
In the Neer Claim13 in 1926, American superintendent of a Mexican mine was shot. The USA, on
behalf of his widow and daughter, claimed damages because of the lackadaisical manner in

10
J.G Starke (introduction to international law), 10 th Edition
11
Report of International Law commission, 25th Session 1973
12
Malcolm N Shaw ,International ,(5th Edition)
13
4. RIAA, P. 60 (1926).

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which the Mexican authorities pursued their investigations. The general claims commission
dealing with the matter disallowed the claim, in applying the objective test.
In the Caire Claim14, the French-Mexican claims commission had to consider the case of a
French Citizen shot by Mexican soldiers for failing to supply them with 5,000 Mexican dollars.
Verzijil, the presiding Commissioner, held that Mexico was responsible for the injury caused in
accordance with the objective responsibility doctrine that is ‘the responsibility for the acts of the
officials or organs of a state, which may devolve upon it even in the absence of a “fault” of its
own’.
A leading case adopting the subjective approach is the Home Missionary society claim15 in 1920
between Britain and the United States. In this case, the imposition of a ‘hut tax’ in the
protectorate of Sierra Leone triggered off a local uprising in which society property was
damaged and missionaries killed. The Tribunal dismissed the claim of the society (presented by
the US) and noted that it was established in international law that no government was responsible
for the acts of rebels where it itself was guilty of no breach of good faith or negligence in
suppressing the revolt. It should, therefore, be noted that the view expressed in this case is
concerned with a specific area of the law, viz the question of state responsibility for the acts of
rebels.
Imputability
“Imputability’ in the context of international responsibility means ‘attributable’. A state is only
responsible for acts or omissions which can be attributed to it as its own. In international law, a
state responsible for the actions of:
(a) The government,
(b) Any political sub division of the state,
(c) Any organ, agency official employee or other agents of its government or of any sub division
acting within the scope of their employment16.
Immutability is a legal fiction assimilating the acts of those identified above to the state as if
they were its own. A state is not responsible for acts committed by one of its nationals (provided,
that is, he is a private individual and is not for example a policemen) against a foreigner. The
individual may, of course, be liable to prosecution in the domestic courts and indeed the

14
5 RIAA, p. 516 (1929)
15
6. RIAA, P. 42 (1920)
16
Rebecca, M.M Wallace, International Law; (2nd Edition 1993)

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government, concerned may be held internationally liable if it fails to discharge its duty “of
diligently prosecuting and properly punishing”17. Acts of private personal performed on their
own initiative in an emergency, for example a natural disaster, are attributable to the state18.
A state cannot deny responsibility for an international wrong on the grounds that the act is under
its domestic law, ultravires. A state can be held liable for the conduct of an official even when
official competence has been exceeded, provided that is, the officials acted with apparent
authority as competent officials or organs and the powers or methods used were appropriate to
this official authority19.
In the Youmans Claim20 Mexico was held liable for the conduct of certain members of its
military who acted in defiance of orders and instead of offering protection to a group of
Americans, opened fire on the house where the latter were seeking refugee. The United States
Mexican General Claims Commission maintained that the Mexican Government was liable for
the soldier’s unlawful acts, even though the soldiers had exceeded their powers.
A state is responsible for the acts of all its officials irrespective of their rank 21 and as is illustrated
by the Rainbow Warrior Case, a state is responsible for the acts of its security services. It is not
responsible for the conduct of either foreign states or international organizations within its
territory. A state is not held liable for the activities of insurrectionaries 22, but should the
insurrectionaries be successful in their objective and become the subsequent government they
will be held liable for any wrongful act committed during their struggle for power.
International responsibility covers many fields. It includes unlawful acts or omissions directly
committed by the state and directly affecting other states, for instance, the breach of a treaty, the
violation of the territory of any other state or damage to state property23. An example of the latter
heading is provided by the incident in 1955 when Bulgarians fighter planes shot down an Israeli
civil aircraft of its state airline, E1A1.
Another example of International responsibility in illustrated by the Nicaragua Case24, where the
ICJ found that acts imputable to the US include the laying of mines in Nicaraguan internal
17
Noyes claim, 6 R.I.A, 308 at 311, (1933)
18
Draft Article 8(b)
19
Draft Article 10
20
4.R.I.A.A 110 (1926)
21
Peter Malanczuk, Modern international law, 20 th edition 2000
22
Draft Article 14
23
Supra Note 30,p. 347
24
Nicaragua v, United states, ICJ Reports, 1986

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territorial waters and certain attacks on Nicaraguan Ports, oil installations and a naval base by its
agents. Imputability is the legal fiction which comprehends the actions or omissions of state
officials to the state itself and which renders the state liable for damage resulting to the property
or person of an alien.
Damage theory
The ILC has not treated “damage” as a separate constituents elements of State responsibility. 25
The special Repporteur Ago argues that the requirement of damage is really contained in the
primary rules and not in the secondary rule concerning State responsibility; hence the element of
damage has been implicit in the first consecutive elements 26. The draft code of 2001 is prepared
the commission does not treat damage as an element of state responsibility.
The view of the International law commission is not based on sound logical considerations. The
requirement of damage is not a part of primary rule. It is connected with the secondary rules of
state responsibility. Since it can be implemented or redressed on the diplomatic or judicial plane.
A certain conduct is forbidden because it is likely to cause damage to the other subjects; however
State A only became responsible toward state B if, as a result of forbidden act of the State A,
state B suffers damage. Thus, the failure to fulfill an international obligation is a necessary, but
not a sufficient element in the case of international violation of law. In order to create link of
responsibility between the acting and claiming state, the fulfillment of an additional condition,
namely, damage suffered by the claiming state, is required.27

25
Year book of International Law Commission, Vol.II(1973) 169-70
26
Ibid, Vol. II (1970) 183, 308
27
Eduardo Jimenez De Arechaga has rightly remarked:”The requirement of damage is really an expression of the
fundamental legal principles that no one can maintain an action unless he has an interest of legal nature.

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Conclusion

International responsibility refers to the liability of States for internationally wrongful acts—that
is, breaches or violations of international obligations. Such obligations may arise out of treaties
or out of recognized rules of general international law. These rules may relate to the interactions
between States, or between States and the nationals of other States, which nationals may be legal
or juristic persons. We have noted the rules relating to the representation of nationals by States
on the international plane and instances in which such rules will not apply. While ARSIWA
explicates many of these rules, some of them, such as the application or interpretation of the
‘effective nationality’ principle, are left to be determined by courts and tribunals. While there is a
general rule that States will be held responsible for their internationally wrongful acts, there are
instances in which such responsibility will not be incurred by an erring State, such as where the
consent of the injured State is given for the act and instances of force majeure, distress,
necessity, self-defence, and countermeasures.

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Bibliography
 Dr.S.K. Kapoor ( International Law & Human Rights) 21th edition, Central Law
Agency ,Allahabad
 The United Nation Compensation commission: A new structure of responsibility’ ,
American journal of international law, (1993).
 International Law Hand book, collection of instruments, United Nations NewYork, 2017
 Gurdip Singh , International Law ,3rd Edition 2015, Eastern book Company.

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