state responsibility

CHAPTER 9CHAPTER 9
STATE RESPONSIBILITYSTATE RESPONSIBILITY
PROFESSOR
DR. ABDUL GHAFUR HAMID

9.1 NATURE OF STATE9.1 NATURE OF STATE
RESPONSIBILILTYRESPONSIBILILTY
• State responsibility refers to ‘liability’ of a state
under international law.
• Responsibility arises from the breach by a State
of an international obligation. That obligation can
be one of customary international law or a treaty
obligation.
• The main reference: the International Law
Commission’s Articles on Responsibility of
States for Internationally Wrongful Acts 2001,
adopted by the GA on 28 Nov. 2002.

(1) Substantive rules of international law (Primary
rules): customary or treaty rules laying down
substantive obligations for States
(2) The law of State responsibility (Secondary
rules): rules relating to (a) whether there has
been a breach of a primary rule; and (b) the
legal consequences of such a breach.

9.2 ELEMENTS OF STATE9.2 ELEMENTS OF STATE
RESPONSIBILITYRESPONSIBILITY [pp. 253-54][pp. 253-54]
Art. 1: “Every internationally wrongful act of a State
entails the international responsibility of that
State.”
Art. 2: There is an internationally wrongful act of a
state when conduct consisting of an action or
omission:
(1) Is attributable to the state under
international law; and
(2) Constitutes a breach of an international
obligation of the state.

Conduct: actions or omissionsConduct: actions or omissions
• Conduct attributable to the State can consist of
actions or omissions.
• An example of an omission:
• Corfu Channel case (1949) ICJ Rep. 4, where
the ICJ held that Albanian was responsible
because it knew, or must have known, of the
presence of the mines in its territorial waters and
did nothing to warn third States of their
presence.

Actions or omissionsActions or omissions [Cont.][Cont.]
• In the US Diplomatic and Consular Staff
in Tehran case, 1980 ICJ Rep. 3, the
Court concluded that Iran was responsible
for the “inaction” of its authorities which
failed to take appropriate steps to protect
the embassy and its staff.

• Article 2 specifies the two constituent elements
of an internationally wrongful act:
(1) attribution of conduct to the State; and
(2) breach of an international obligation by the
State. [See Tehran Hostage case]
• In principle, the fulfilment of these elements is a
sufficient. In some cases, however, the
respondent State may claim that it is justified in
its non-performance, by referring to a ‘defence’.
• Three requirements: attribution; breach and
absence of any defence.

9.39.3 ATTRIBUTION OF CONDUCTATTRIBUTION OF CONDUCT
TO THE STATETO THE STATE [The first element][The first element]
• The State is an abstract entity. It cannot
act of itself.
• An “act of the State” must involve some
action or omission by a human being or
group. States can act only by and through
their organs or agents.
• The question is which persons should be
considered as acting on behalf of the
State.

• The general rule: A State organ is
considered as acting on behalf of the
State and its conduct is considered as an
“act of the State” for which the State is
responsible under international law.
• As a corollary, the conduct of private
persons acting in their private capacity is
not as such attributable to the State.

9.3.1 Conduct of State organs9.3.1 Conduct of State organs
[Art. 4][Art. 4] [Text Book p. 255][Text Book p. 255]
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.

Executive organExecutive organ
• Massey claim: Failure of Mexican
authorities to punish the killer of Massey, a
US citizen.
• Rainbow Warrior incident: Rainbow
Warrior was blown up by French secret
service agents.

Judicial organJudicial organ
• Immunity from Legal Process of a Special
Rapporteur of the Commission on Human
Rights (1999) ICJ Rep. 87
• [Dato’ Pram Cumarasuamy case]
• “According to a well established rule of
international law, the conduct of any organ of a
State must be regarded as an act of that State.
This rule…is of a customary character.…”

Acting in an official capacityActing in an official capacity
• Even though a person or entity has the
status of a State organ, the State will be
responsible only when that person acts “in
an apparent official capacity”. If the person
acts in a private capacity, just as a private
citizen, the State will not be responsible.

Mallen caseMallen case
• a Mexican consul had been violently attacked
and beaten twice by an American police officer.
• As for the first attack, the evidence indicated a
wanton act of a private individual who happened
to be an official.
• On the second attack, the American police
officer, showing his badge to assert his ‘official
capacity’, struck Mallen with his revolver, and
then took him at gun point to the county jail. It
was held that the US was responsible for this
second assault.

Conduct of persons or entities exercisingConduct of persons or entities exercising
elements of governmental authorityelements of governmental authority
(para-Statal entities) [Art. 5](para-Statal entities) [Art. 5]
The conduct of a person or entity which is
not an organ of the State under Art. 4 but
which is empowered by the law of that
State to exercise elements of
governmental authority shall be
considered an act of the State under
international law, provided the person or
entity is acting in that capacity in the
particular instance.

9.3.2 Liability for9.3.2 Liability for ultra viresultra vires actact [Art. 7][Art. 7]
The conduct of an organ of a State or of a
person or entity empowered to exercise
elements of the governmental authority
shall be considered as an act of the State
under international law if the organ,
person or entity acts in that capacity, even
if it exceeds its authority or contravenes
instructions.

Caire claimCaire claim (1929) 5 RIAA 518(1929) 5 RIAA 518
• Caire, a French national, was killed in Mexico by
two Mexican military officers. After failing to
extort money, they took Caire to the military
barracks and shot him.
• Held: The officers in question, even if they are to
be regarded as having acted outside their
competence…and even if their superior officers
issued a counter-order, have involved the
responsibility of the State, since they acted in
their capacity as military officers and used the
means placed at their disposal by virtue of that
capacity.

Youmans claimYoumans claim (1926) 4 RIAA 110(1926) 4 RIAA 110
• A mob gathered around a house in Mexico
within which were 3 US nationals. The mayor
ordered a lieutenant to proceed with troops to
put an end to the attack upon the Americans.
Instead of doing that they opened fire on the
house which resulted in the death of all the
Americans.
• Held: We do not consider that …acts of soldiers
committed in their private capacity…. it is clear
that …the men were on duty under the
immediate supervision and in the presence of a
commanding officer.

Southern Pacific Properties (Middle East)Southern Pacific Properties (Middle East)
Ltd v EgyptLtd v Egypt (1993) 32 ILM 933, ICSID(1993) 32 ILM 933, ICSID
• The co. entered into a contract with Egypt to
develop land for tourism. There was strong
opposition in Egypt because the plan would
damage valuable antiquities. Egyptian
government withdrew permission. They argued
that Egypt was not responsible because the
permission was contrary to Egyptian law and
therefore ultra vires.
• Held: A State is responsible for unlawful acts of
State organs, even if accomplished outside the
limits of their competence and contrary to
domestic law.

9.3.3 Conduct of persons directed or9.3.3 Conduct of persons directed or
control by the Statecontrol by the State [Art. 8][Art. 8]
• Article 8, “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 instruction of, or under the direction
or control of, that State in carrying out the
conduct.”

Nicaragua caseNicaragua case [pp. 259-60][pp. 259-60]
• The test of “effective control”
• “It would in principle have to be proved that that
State had effective control of the military and
paramilitary operations in the course of which
the alleged violations are committed. The Court
…takes the view that the contras remain
responsible for their acts, and that the United
States is not responsible for the acts of the
contras, but for its own conduct vis-à-vis
Nicaragua.: [Must issue specific instructions
concerning each of the unlawful action.]

Prosecutor v Tadi`cProsecutor v Tadi`c [p. 260][p. 260]
• The test for whether the conduct of group
is attributable to the State is whether they
are under the ‘overall control’ of a State,
without necessarily this State issuing
instructions concerning each specific
action.
• The ILC Article 8 adopts the somewhat
stricter test of the Nicaragua case.

9.3.4 Conduct of an Insurrectional9.3.4 Conduct of an Insurrectional
or other Movementor other Movement
(1)Conduct of a successful insurrectional
movement which becomes a new
government
[Art. 10]
1. 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.

Short v IranShort v Iran (1987) 16 Iran-US CTR 76(1987) 16 Iran-US CTR 76
• Short, an American citizen, was employed by an
American co. in Iran. He alleged that he was
forcefully expelled from Iran 3 days before the
Revolutionary Govt. took office and claimed
damages for his loss of employment benefits.
• Held: (a) Where a revolution leads to the
establishment of a new government the State is
responsible for the acts of the overthrown
government insofar as the latter maintained
control of the situation.

Short v IranShort v Iran [Cont.][Cont.]
(b)The successor government is also responsible
for the acts imputable to the revolutionary
movement even if those acts occurred prior to its
establishment, as a consequence of the
continuity existing between the new organization
of the State and the revolutionary movement.
(c) The claimant is unable to identify any agent of
the revolutionary movement, the actions of
which compelled him to leave Iran. The acts of
supporters of a revolution [as opposed to its
agents] cannot be attributed to the government.
See judgment of the ICJ in Tehran Hostage
case.

(2)(2) Unsuccessful or on-goingUnsuccessful or on-going
insurrectional or other movementinsurrectional or other movement
- In fact the conduct of unsuccessful or on-going
insurrectional movement can be assimilated to
that of private individuals.
- It can be placed on the same footing as that of
persons or groups who participate in a riot or
mass demonstration, and it is likewise not
attributable to the State [unless the State itself is
guilty of breach of good faith or negligent in
suppressing insurgency, etc.].

Home Missionary Society ClaimHome Missionary Society Claim
(1920) 6 RIAA 42(1920) 6 RIAA 42
The natives of Sierra Leone revolted against the
British because they did not want the collection
of a new tax. During the rebellion, all the United
States’ missions were attacked and destroyed,
and some of the missionaries were murdered.
Held: It is a well-established principle of
international law that no government can be held
responsible for the act of rebellious bodies of
men committed in violation of its authority, where
it is itself guilty of no breach of good faith, or of
no negligence in suppressing insurrection.

Sambaggio caseSambaggio case (1903) 10 RIAA 499(1903) 10 RIAA 499
An Italian national sought compensation for
damage caused by unsuccessful revolutionaries
in Venezuela.
Held: The very existence of a revolution
presupposes that a certain set of men have
gone beyond the power of the authorities; and
unless the government has failed to use
promptly and with appropriate force its
constituted authority, it cannot reasonably be
said that it should be responsible for a condition
of affairs created without its volition.

9.3.5 Conduct acknowledged and9.3.5 Conduct acknowledged and
adopted by a State as its ownadopted by a State as its own
[Article 11]
Conduct which is not attributable to a State
under the preceding articles shall nevertheless
be considered an act of that State under
international law if and to the extent that the
State acknowledges and adopts the conduct in
question as its own.

United States Diplomatic and ConsularUnited States Diplomatic and Consular
Staff in Tehran CaseStaff in Tehran Case (1980) ICJ Rep. 3(1980) ICJ Rep. 3
• In 1979, several hundred student-demonstrators
occupied the US Embassy in Tehran by force
and held the embassy staff as hostages.
• The Court divided the events into two phases.
• In the first stage, the attack was carried out by
militants who in no way could be regarded as
“agents” or organs of the Iranian State’.
Therefore, according to the Court, the militants’
conduct could not be imputable to the State on
that basis.

Tehran Hostage caseTehran Hostage case [Cont.][Cont.]
• Nevertheless Iran was held responsible in that it
failed to protect the embassy and the diplomats
as required by international law (Vienna
Convention on Diplomatic Relations, 1961) .
• The second phase started after completion of
the occupation of the embassy. At this stage, the
Iranian Government was legally bound to bring
to an end the unlawful occupation and pay
reparation. Instead, it approved and endorsed
the occupation and even issued a decree stating
that the American embassy was a centre of
espionage.

Tehran Hostage caseTehran Hostage case [Cont.][Cont.]
• The decree went on expressly to declare that the
embassy and the hostages would remain as
they were until the US had handed over the
former Shah for trial.
• The approval given to the acts of the militants
and the decision to perpetuate them translated
continuing occupation of the embassy and
detention of the hostages into acts of that State.
The militants had now become agents of the
Iranian State for whose acts the State itself was
internationally responsible.

9.3.6 Conduct of private persons9.3.6 Conduct of private persons ––
not attributablenot attributable
• In principle, a State is not responsible for
the acts of private individuals, unless they
were in fact acting on behalf of that State.
• However, sometimes the acts of private
individuals may be accompanied by some
act or omission on the part of the State, for
which the State is liable. The following are
examples of such act or omission:

State will be responsible for its own omissionState will be responsible for its own omission
or inactionor inaction
(1) Failure to take reasonable care (due diligence)
to prevent private individuals from committing
wrongful acts against foreign nationals;
(2) Failure to punish responsible individuals or to
provide the injured foreigner with the opportunity
of obtain reparation from the wrongdoers in the
local courts. [Denial of justice];

(a) Failure to exercise “due diligence”(a) Failure to exercise “due diligence”
Asian Agricultural Products Ltd v Sri Lanka
• A British company brought an action against Sri
Lanka and claimed compensation for the
destruction of its Sri Lankan farm.
• The farm was in an area that was largely under
the control of Tamil Tiger rebels. The farm
management had offered to dismiss farm staff
thought by the Government to be in league with
them.

• Neglecting this offer, the Government
forces launched a vast counter-insurgency
operation in that area.
• Some company workers were killed and
the
• farm was destroyed.
• The Tribunal held that Sri Lanka was
responsible because it violated its due
diligence obligation.

(b) Denial of justice(b) Denial of justice
• A State is responsible under international law if it
fails to punish responsible individuals or to
provide the injured foreign national with the
opportunity of obtaining compensation from the
wrongdoers in the local courts.
• In Janes Claim, Janes, an American citizen, was
murdered at a mine in Mexico. The person who
killed Janes was well known in the community
where the killing took place.

• There is evidence that a Mexican magistrate
was informed of the shooting within five minutes
after it took place. However, even after eight
years had elapsed, the murderer had not been
apprehended and punished by the Mexican
authorities.
• The Commission found that Mexico was
responsible for the denial of justice and awarded
damages accordingly.

9.4 BEACH OF AN INTERNATIONAL9.4 BEACH OF AN INTERNATIONAL
OBLIGATIONOBLIGATION
[The Second Element][The Second Element]
[Article 12]
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.

Art. 12: ExplanationArt. 12: Explanation
• The phrase “regardless of its origin” refers to all
possible sources of international obligations.
• In the Rainbow Warrior Arbitration (1990) 20
RIAA 217, it was held that “ any violation by any
State of any international obligation, of whatever
origin, gives rise to State responsibility and
consequently, to the duty of reparation.

Art. 12: ExplanationArt. 12: Explanation
• International obligations may be
established by a customary rule of
international law, by a treaty, by a
judgment given by the ICJ or any other
international tribunal.
• In international law, there is no distinction
between “contractual” and “tortious”
responsibility nor between “civil” and
“criminal” responsibility.

9.5 DEFENCES9.5 DEFENCES
[Arts. 20-26]
These articles deal with the six types of
‘defences’ available to a respondent State,
namely:
(1) consent; (2) self-defence;
(3)countermeasures; (4)force majeure;
(5) distress; and (6) necessity.

Force majeureForce majeure
• It is defined in Article 23 (1) as “the occurrence
of an irresistible force or of an unforeseeable
event, beyond the control of the State, making it
materially impossible in the circumstances to
perform the obligation.”
• Rainbow Warrior Arbitration: France argued
that urgency of medical treatment amounted to
force majeure.
• Held: “the test for force majeure was one of
‘absolute and material impossibility’. It does not
cover a circumstance rendering performance of
the obligation more difficult or burdensome.”

DistressDistress
• Distress is defined in Article 24 (1) as a
situation where “the author of the
[otherwise wrongful] act…has no other
reasonable way, in a situation of distress,
of saving the author’s life or the lives of
other persons entrusted to the author’s
care”.

NecessityNecessity
• Article 25 (1): An act which (a) is the only
means for the State to safeguard an
essential interest against a grave and
imminent peril; and (b) does not seriously
impair an essential interest of the State or
States towards which the obligation exists,
or of the international community as a
whole. The ILC, in its commentary affirms
the exceptional nature of the plea of
necessity.

9.6 LEGAL OCNSEQUENCES OF AN9.6 LEGAL OCNSEQUENCES OF AN
INTERNATIONAL WRONGFUL ACTINTERNATIONAL WRONGFUL ACT
• The following are the legal consequences of an
internationally wrongful act:
(1) Continued duty of performance;
(2) cessation and non-repetition;
(3) Reparation;
(4) Countermeasures.

(1) Reparation for injury(1) Reparation for injury
A important legal consequence of an
internationally wrongful act is that the
injured State is entitled to obtain
reparation from the wrongdoing State.

Chorzow Factory CaseChorzow Factory Case
Reparation must, as far as possible, wipe
out all the consequences of the illegal act
and re-establish the situation which would,
in all probability, have existed if that act
had not been committed. Restitution in
kind, or, if this is not possible, payment of
a sum corresponding to the value which a
restitution in kind would bear ….

Forms of reparationForms of reparation
[Article 34]
Full reparation for the injury caused by the
internationally wrongful act shall take the
form of restitution, compensation and
satisfaction, either singly or in
combination, in accordance with the
provisions of this chapter.

RestitutionRestitution
[Article 35]
A State responsible for an internationally wrongful
act is under an obligation to make restitution,
that is, to re-establish the situation which existed
before the wrongful act was committed, provided
and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion
to the benefit deriving from restitution instead of
compensation.

• Material restitution (Restitution in kind) [p. 289]
An example of restitution in kind is found in the
Temple of Preah Vihear Case (1962)ICJ Rep. 6.
in which the World Court ordered Thailand to
return to Cambodia religious objects it had taken
illegally from a temple in Cambodia.

CompensationCompensation
[Article 36]
1. The State responsible for an internationally
wrongful act is under an obligation to
compensate for the damage caused thereby,
insofar as such damage is not made good by
restitution. …
• See, e.g., The I’m Alone case, where the
Commissioners recommended the payment by
the United States of $ 25.000 as a material
amend in respect of the wrong committed by the
United States in sinking the I’m Alone.

SatisfactionSatisfaction
[Article 37]
1. The State responsible for an internationally
wrongful act is under an obligation to give
satisfaction for the injury caused by that act
insofar as it cannot be made good by restitution
or compensation.
2. Satisfaction may consist in an
acknowledgement of the breach, an expression
of regret, a formal apology or other appropriate
modality….

A good example of different forms of satisfaction
can be found in the Borchgrave case,(1937)
PCIJ, Ser. A/B, No 72, 165. In this case, a
Belgian national was found dead on the roadside
in Madrid. The Belgium Government demanded
as reparation: (1) an expression of the Spanish
Government’s excuses and regrets; (2) transfer
of the corpse to the port of embarkation with
military honours; …and (3) just punishment of
the guilty.
See also Rainbow Warrior Arbitration

(2) Countermeasures(2) Countermeasures
Apart from self-defence. There are two traditional
types of self-help, namely: (1) retorsion; and (2)
reprisals.
A retorsion is an unfriendly act against an
unfriendly act which does not involve a breach
of an international obligation. Examples are:
(1) Disruption of normal diplomatic relations;
(2) Embargoes of various kinds;
(3) Withdrawal of voluntary aid programmes.

• A reprisal is an unlawful act in response to an
unlawful act of another State.
• According to modern terminology, the term
‘countermeasures’ mainly refers to ‘reprisals’.
• The pre-condition for any lawful countermeasure
or reprisal is that another State must first commit
an internationally wrongful act against the State
taking the countermeasure.

• A countermeasure (although it involves a breach
of an international obligation) is done in
response to the wrongful conduct of the wrong-
doing State and is, therefore, deemed to be
lawful under international law.
• Examples: Suppose that State B committed an
internationally wrongful act against State A.
(1) A could seize or freeze the assets of B
available within its jurisdiction;

(2) A could suspend its treaty obligations towards
B;
(3) A could confiscate property owned by
companies
of B available in A.
• Like other forms of self-help, countermeasures
are open to abuse. They are, therefore, justified
only in certain conditions and are subject to
stringent limitations.

Limitations on countermeasuresLimitations on countermeasures
(1) Countermeasures must be directed at the
wrongdoer State only and with the objective of
compelling it to cease the wrongful act or to
make reparation for it [Art. 49];
(2) Countermeasures shall not involve the use of
armed force [Art. 50(1)(a)] [obligation to refrain
from the use of force, Art. 2(4) of the Charter] ;
(3) Countermeasures shall not violate basic
obligations under international law, e.g.,
obligations for the protection of fundamental
human rights or obligations under jus cogens
[Art. 50(1) (b)(c)&(d)];

Limitations (Cont.)Limitations (Cont.)
(4) Countermeasures shall not affect any dispute
settlement procedure between two parties and
inviolability of diplomatic agents, etc.[Art. 50(2)]
(5) Principle of ‘Proportionality’: countermeasures
must be commensurate with the injury suffered
[Art. 51]; see - Naulilaa case(1928) where it was
held that one should consider as excessive and
therefore unlawful, countermeasures that are out
of all proportion to the act motivating them; see
also Air Services Arbitration, (1946) 17 RIAA
417.

Conditions relating to resort toConditions relating to resort to
countermeasurescountermeasures
(1) Before taking countermeasures, the injured
State shall notify its decision to take them and
offer to negotiate [Art. 52(1)];
(2) Countermeasures may not be taken and if
already taken must be suspended, if:
(a) the wrongful act has ceased; and
(b) the dispute is pending before a court or
tribunal which has the authority to make
decisions binding on the parties [Art. 52(3)(4)].

9.7 INVOCATION OF RESPONSIBILITY9.7 INVOCATION OF RESPONSIBILITY
RESPONSES BY THE INJURED STATERESPONSES BY THE INJURED STATE
AND OTHER STATESAND OTHER STATES
• Once it has been established that a State
is responsible under international law, the
next step to be considered is what the
injured State, or other States having the
legal interest in the breach, may do, or
what action they may take in order to
secure the performance of the obligations
of cessation and reparation on the part of
the responsible State.

9.7.1 Invocation of responsibility by an9.7.1 Invocation of responsibility by an
injured Stateinjured State
• Under Article 42, a State is entitled as ‘an injured
State’ to invoke the responsibility of another
State if the obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the
international community as a whole, and the
breach of the obligation specially affects that
State.

• The concept of the ‘injured State’ is important in
the invocation of responsibility. This is the State
whose individual right has been infringed by the
internationally wrongful act or which has
otherwise been particularly affected by that act.
• A state which is injured in the sense of Article 42
is entitled to resort to all means of redress. It can
raise a claim against the responsible State,
commence proceedings before an international
tribunal, or take countermeasures.

9.7.2 Invocation of responsibility by a9.7.2 Invocation of responsibility by a
state other than the injured state:state other than the injured state:
The concept of obligationsThe concept of obligations erga omneserga omnes
• The term “erga omnes” means “towards
all”.
• Obligations erga omnes are concerned
with the enforceability of norms of
international law, the violation of which is
deemed to be an offence not only against
the state directly affected by the breach,
but also against all members of the
international community.

• According to Article 48 (1), “any State other than
an injured State is entitled to invoke the
responsibility of another State in accordance
with paragraph 2 if: … (b) The obligation
breached is owed to the international community
as a whole.”
• The existence of the obligations erga omnes
has been confirmed by the International Court of
Justice in Barcelona Traction, Light and Power
Co. case:

Barcelona Traction CaseBarcelona Traction Case
• 33. … [A]n essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those
arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the
former are the concern of all States. In view of
the importance of the rights involved, all States
can be held to have a legal interest in their
protection; they are obligations erga omnes.

• 34. Such obligations derive, e.g., in
contemporary international law, from the
outlawing of acts of aggression, and of
genocide, as also from the principles and
rules concerning basic rights of the human
person including protection from slavery
and racial discrimination.

9.8 TREATMENT OF FOREIGN9.8 TREATMENT OF FOREIGN
NATIONALSNATIONALS
• A state has no general obligation to admit
foreigners or foreign companies to its territory.
However, once foreign nationals or companies
are present in its territory, the State is under an
international obligation not to ill-treat them.
• If the State violates this obligation it may incur
international responsibility to the State of whom
the person is a national.
• This type of State responsibility is one of the
commonest forms of responsibility that arises in
international law today.

The law of diplomatic protectionThe law of diplomatic protection
• The national State has the right under
international law to extend diplomatic protection
over its nationals or corporations present in a
foreign country.
• The ‘law of diplomatic protection’ is an important
subset of State responsibility. It can be defined
as “resort to diplomatic action or other means of
peaceful settlement by a State adopting in its
own right the cause of its national in respect of
an injury to that national arising from an
internationally wrongful act of another State.”

9.8.1 National treatment or international9.8.1 National treatment or international
minimum standard?minimum standard?
• Whether or not a State is internationally
responsible for the way it treats foreign nationals
depends on the standard of treatment which
international law obliges that State to adopt.
• It is only if the State falls below this standard that
it becomes internationally responsible.
• Unfortunately, there is considerable debate as to
the correct standard of treatment.
• There are two contrary views in this respect: the
standard of national treatment and international
minimum standard.

National treatmentNational treatment
• The state is not responsible if it accords foreign
nationals standard of treatment which is not less
than its own nationals, even though that
standard may be much lower compared to
international standard.
• it is favoured by ‘developing States’ especially
because it allows them to establish an economic
and social system of their own design.
• It allows a State to nationalize property owned
by foreigners without fear of international
responsibility, if its national law allowed it to
nationalize the property of its own nationals.

International minimum standardInternational minimum standard
• Many states, especially those of the developed
world, maintain that the treatment of foreign
nationals is governed by an ‘international
minimum standard’.
• This means that every state must treat foreign
nationals within its territory by reference to a
minimum international standard, irrespective of
how national law allows that State to treat its
own nationals. The standard has enjoyed the
support of many international tribunals. [e.g.,
Neer claim]

What is the correct standard to beWhat is the correct standard to be
followed?followed?
• There is no real consensus about which
standard is obligatory under customary
international law.
• This has caused considerable problems in the
field of expropriation of foreign property.
• Although it appears that with globalization, more
and more countries are ready to support the
international minimum standard, the acute
problem is that there is no agreement in respect
of the content of this standard.

Examples of the international minimum standard inExamples of the international minimum standard in
operationoperation
• Duty not to harm: The State and its organs have
the legal obligation to refrain from harming
foreign nationals (see Youmans Claim).
• Not to mistreat in lawful custody: In the Roberts
Claim, it was held that the treatment of Roberts
in Mexican prison and the length of detention
before facing trial were unreasonable and below
the ‘ordinary standards of civilization’.
• Denial of justice: “A State is responsible if an
injury to an alien results a denial of justice.”

• Denial of Justice exists when there is a denial,
unwarranted delay or obstruction of access to
courts, gross deficiency in the administration of
judicial or remedial process, failure to provide
those guarantees which are generally
considered indispensable to the proper
administration of justice, or a manifestly unjust
judgment.
• In Chattin Claim, Mexico was held responsible
for inadequacies and unfairness in the trial and
prosecution of Chattin.

9.8.2 Admissibility of claims9.8.2 Admissibility of claims
Article 44
The responsibility of a State may not be invoked
if:
(a) The claim is not brought in accordance with
any applicable rule relating to the nationality of
claims;
(b) The claim is one to which the rule of exhaustion
of local remedies applies and any available and
effective local remedy has not been exhausted.

9.8.2.1 Nationality of claims9.8.2.1 Nationality of claims
A state can make an international claim
against another State when the injured
person is its national.
The general rule on ‘protection of
nationals’ can be found in the following
leading case:

Mavrommattis Palestine Concession caseMavrommattis Palestine Concession case
(Jurisdiction)(Jurisdiction) (1924) PCIJ Ser. A, No. 2, p.12(1924) PCIJ Ser. A, No. 2, p.12
• It is an elementary principle of international law
that a state is entitled to protect its subjects,
when injured by acts contrary to international law
committed by another state, from whom they
have been unable to obtain satisfaction through
the ordinary channels. By taking up the case of
one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his
behalf, a state is in reality asserting its own
rights.

Bond of nationality: basis for the claimBond of nationality: basis for the claim
Panevezys-Saldutiskis CasePanevezys-Saldutiskis Case
• The case concerned a claim for compensation
for the expropriation of a railway company filed
by Estonia against Lithuania.
• Held: It is the bond of nationality between the
state and the individual which alone confers
upon the state the right of diplomatic protection,
and… the right to take up a claim.

(1)(1) Protection of private individualsProtection of private individuals
The Hague Convention on the Conflict of
Nationality Laws, 1930
Article 1
It is for each state to determine under its own law
who are its nationals. This law shall be
recognised by other states in so far as it is
consistent with international conventions,
international customs, and the principles of law
generally recognised with regard to nationality …

Hague ConventionHague Convention [Cont.][Cont.]
Article 5Article 5
Within a third state, a person having more than
one nationality shall be treated as if he had only
one…. A third state shall, of the nationalities
which any such person possesses, recognise
exclusively in its territory either the nationality of
the country in which he is habitually and
principally resident, or the nationality of the
country with which in the circumstances he
appears to be most closely connected.

Nottebohm caseNottebohm case
Liechtenstein v Guatemala; 1955 ICJ Rep. 4Liechtenstein v Guatemala; 1955 ICJ Rep. 4
- Mr. Nottebohm was born in Germany. In 1905 he
went to Guatemala, where he resided and
conducted his business activities until 1943.
- In 1939, he visited Liechtenstein to apply for
naturalization. After acquiring Liechtenstein
nationality, he went back to Guatemala.
- Later, Guatemala expelled, and seized the
property of, Nottebohm. Liechtenstein instituted
proceedings against Guatemala. Guatemala
argued that Liechtenstein could not extend
diplomatic protection to Nottebohm in a claim
against it.

Nottebohm caseNottebohm case [Cont.][Cont.]
Judgment of the ICJ
• …Nationality is a legal bond having as its basis
a social fact of attachment, a genuine
connection of existence, interests and
sentiments, … the individual upon whom it is
conferred … is in fact more closely connected
with the population of the state conferring
nationality than with that of any other state.

• He (Nottebohm) had been settled in Guatemala
for 34 years. He had carried on his [business]
activities there.
• In contrast, his actual connections with
Liechtenstein were extremely tenuous. No
settled abode, no prolonged residence in that
country. No intention of settling there. … on the
contrary, he returned to Guatemala very shortly
after his naturalization and showed every
intention of remaining there. …

These facts clearly establish, on the one hand,
the absence of any bond of attachment between
Nottebohm and Liechtenstein and, on the other
hand, the existence of a long-standing and close
connection between him and Guatemala. That
naturalization …lacking in genuineness requisite
to an act of such importance, …It was granted
without regard to the concept of nationality
adopted in international relations.

• (Therefore) Guatemala is under no
obligation to recognise a nationality
granted in such circumstances.
Liechtenstein consequently is not entitled
to extend its protection to Nottebohm vis-
à-vis Guatemala and its claim must, for
this reason, be held to be inadmissible. …

(2)(2) Protection of CompaniesProtection of Companies
• A State can bring an international claim on
behalf of a company possessing its
nationality
• A company is regarded as having the
nationality of the State under the laws of
which it is incorporated.

Barcelona Traction, Light and Power CoBarcelona Traction, Light and Power Co..,, [1970[1970
ICJ Rep. 3]ICJ Rep. 3]
• Barcelona Co. was established in Canada under
Canadian law to develop electricity supplies in
Spain. In 1948 a Spanish court declared the Co.
bankrupt and ordered the seizure of the assets
of the Co. in Spain. Canada intervened on behalf
of the company but later withdrew. Belgium
brought this claim in respect of the injury to its
nationals who were shareholders resulting from
the injury to the company. Spain objected that
since the injury was to the company, not the
shareholders, Belgium had no right to bring the
claim.

Barcelona Traction caseBarcelona Traction case [Cont.][Cont.]
Judgment of the ICJ
• The concept …of the limited liability company …
the separate entity of the company and that of
the shareholders, each with a distinct set of
rights. … So long as the company is in existence
the shareholder has no right to the corporate
assets. …
• Barcelona Traction has lost all its assets in
Spain, and was placed in receivership in
Canada….

• It cannot, however, be contended that the
corporate entity of the company has ceased to
exist.… It has not become incapable in law of
defending its own rights and the interests of the
shareholders. Only in the event of the legal
demise of the company are the shareholders
deprived of the possibility of a remedy available
through the company; …that an independent
right of action for them and their government
could arise.

• The traditional rule attributes the right of
diplomatic protection of a corporate entity to the
state under the laws of which it is incorporated
and in whose territory it has its registered office.
• In the present case, it is not disputed that the
company was incorporated in Canada and has
its registered office in that country.
• Accordingly, the Court rejects the Belgian
Government’s claim…

9.8.2.2 Exhaustion of local remedies9.8.2.2 Exhaustion of local remedies
• It is an established rule of customary
international law that an injured individual
(or company) must have exhausted any
available and effective local remedy in the
responsible State before an international
claim can be brought on his behalf. [See
Art. 44 (b)].

Ambatielos ArbitrationAmbatielos Arbitration
Greece v UK (1956) 12 RIAA 83Greece v UK (1956) 12 RIAA 83
- Ambatielos, a Greek ship-owner, contracted to
buy some ships from the British Government
and later accused the British government of
breaking the contract.
- In the litigation before the English HC,
Ambatielos failed to call an important witness
and lost; his appeal was dismissed by the CA.
- Greece made a claim on his behalf before an
international arbitral tribunal.
- Held: Ambatielos failed to exhaust local remedies
( he had failed to appeal from the CA to the H
L).

Robert E. BrownRobert E. Brown casecase
(US v UK), (1923) 6 RIAA 120, at 129(US v UK), (1923) 6 RIAA 120, at 129
• The Tribunal held that the local remedies
rule did not apply because it found that “All
three branches of the Government of the
South African Republic conspired to ruin
the claimant’s enterprise…. The judiciary,
at first recalcitrant, was at length reduced
to submission and brought into line with a
determined policy of the Executive.”

Finnish Ship-owners ArbitrationFinnish Ship-owners Arbitration
Finland v UK, (1934) 3 RIAA 1479Finland v UK, (1934) 3 RIAA 1479
• During the World War I, 13 ships belonging to
Finnish ship-owners were used by the UK
Government, of which 4 were lost.
• The ship-owners claimed damages before the
Admiralty Arbitration Board in the UK. The Board
decided: the ships were requisitioned by Russia
and not, as required by the British legislation, by
the UK, and that accordingly no compensation
was payable.
• No appeal. The matter was later brought by
Finland before an international arbitration
tribunal.

Finnish Ship OwnersFinnish Ship Owners [Cont.][Cont.]
The UK objected on the ground that the Finnish
ship-owners had not exhausted local remedies
in the UK. The arbitrator rejected this objection.
Award of the Arbitrator
• The local remedies rule does not apply where
there is no effective remedy. This is the case
where a recourse is obviously futile. …
• The appealable points of law obviously would
have been insufficient to reverse the decision of
the Arbitration Board.

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