Central aspects of the modern law of state responsibility have historically developed based on cases concerning the unlawful treatment of foreign nationals. The specific question of the expropriation of foreign property, also belongs to this area, but has become somewhat separated due to the dispute between the North and the South on the ‘New International Economic Order. But for more than two hundred years, international law has laid down a minimum international standard for the treatment of aliens (that is, nationals of other states).
States are not obliged to admit aliens to their territory, but they must treat them in a civilized manner. A fortiori, a state is guilty of a breach of international law if it inflicts injury on aliens at a time when they are outside its territory (for example, if Elopia orders Elopian servicemen stationed in Ruritania, to attack Ruritanian residents). Indeed, a state may not perform any governmental act whatsoever in the territory of another state, without the latter’s consent
To put it in technical terms, failure to comply with the minimum international standard ‘engages the international responsibility of the defendant state, and the national state of the injured alien may ‘exercise its right of diplomatic protection’. This can be achieved by making a claim, through diplomatic channels, against the other state, to obtain compensation or some other form of redress.
The defendant state’s duties are owed not to the injured alien, but the alien’s national state. The theory is that the claimant state itself suffers a loss when one of its nationals is injured. Consequently, the claimant state has complete liberty to refrain from making a claim or to abandon a claim; it may agree to settle the claim at a fraction of its true value, and it is under no duty to pay the compensation obtained to its national (although it usually does). In these respects, the injured individual is at the mercy of his/her national state.
This aspect of diplomatic protection was clearly stated by the International Court of Justice in the Barcelona Traction case in which it held that, within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its right that the State is asserting. The ICJ in Nottebohm rejects Liechtenstein’s entitlement to assert diplomatic protection in respect of Nottebohm by demoting formal citizenship from a sufficient condition for the espousal of diplomatic protection to a necessary but insufficient condition.
One of the nationality’s chief functions is to rationalize the exclusion of non-citizens from state territory and to provide a return address for the deportation of previously admitted non-citizens. To make this system work, the corollary of a state’s right to deport non-citizens must be the duty of the state of nationality to receive and admit its nationals. The assumption that states will receive their deported nationals underwrites the willingness of states to admit foreign nationals in the first place. Should the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to municipal law, if means are available, to further their cause or obtain redress. The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. Since the claim of the State is not identical with that of the individual or corporate person whose cause is espoused, the State enjoys complete freedom of action. However, international law does not entirely disregard the individual; the compensation obtained by the claimant state is usually calculated by reference to the loss suffered by the individual, not by reference to the loss suffered by the claimant state.
‘Imputability’
A state is liable only for its acts and omissions; and, in this context, the state is identified with its governmental apparatus, not with the population. The governmental apparatus of the state includes the legislature and the judiciary, as well as the executive; and it includes local authorities as well as central authorities. The ILC draft articles on state responsibility shed some light on the same. According to the Draft articles, conduct of an organ of the State shall be considered as an act of that State under international law, whether that organ belongs to the constituent, legislative, executive, judicial or other power, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State’ (draft article 6); ‘[t]he conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under international law, provided that organ was acting in that capacity in the case in question’ (draft article 7(1)); and that ‘[t]he conduct of an organ of an entity which is not part of the formal structure of the State or of a territorial governmental entity, but which is empowered by the internal law of that State to exercise elements of governmental authority, shall also be considered as an act of the State under international law, provided that organ was acting in that capacity in the case in question’ (draft article 7(2)).
A state is liable for the acts of its officials only if those acts are ‘imputable’ (that is, attributable) to the state. (The question of whether an act is attributable to a state must be distinguished from the issue of whether or not some form of fault on the part of the state needs to be established to engage its international responsibility, a controversial matter). The idea of ‘immutability’ creates problems when officials exceed or disobey their instructions. It would be unjust if a state could limit its liability simply by giving restrictive instructions to its officials (for example, if it could escape liability for road accidents merely by telling its chauffeurs to drive carefully); and the cases indicate that a state is liable for the acts of its officials, even when they exceed or disobey their instructions, provided that they are acting with apparent authority or that they are abusing powers or facilities placed at their disposal by the state.
The conduct of an organ of a State, of a territorial governmental entity or of an entity empowered to exercise elements of governmental authority, such organ having acted in that capacity, shall be considered as an act of the State under international law even if, in the particular case, the organ exceeded its competence according to internal law or contravened instructions concerning its authority. In principle, a state is not responsible for the acts of private individuals, unless they were acting on behalf of that state or exercising elements of governmental authority in the absence of government officials and under circumstances that justified them in assuming such authority.
There are special rules concerning responsibility for acts of an insurrectional movement. But the acts of private individuals may also be accompanied by some act or omission on the part of the state, for which the state is liable. Such act or omission was noted in 1969 the United Kingdom compensated South Africa for damage done to the South African embassy in London by demonstrators; the demonstration had been advertised several days in advance, and an attack on the South African embassy was foreseeable, even though the demonstrators’ main target was Rhodesia House— and there was only one policeman on duty outside the embassy. What constitutes ‘reasonable care’ will depend on the circumstances—foreigners who remain in remote areas of the countryside in times of unrest cannot expect the same police protection as foreigners in a peaceful capital city —but special care must be taken to prevent injury to diplomats. Another instance includes the express ratification of the individual’s act—that is, expressly approving it and stating that that person was acting in the name of the state. The Tehran Hostages case is particularly illuminating in respect of the above. Following the overthrow of Shah Reza Pahlevi, a close ally of the United States, and the establishment of the Islamic Republic of Iran under the regime of Ayatollah Khomeini, on 4 November 1979, demonstrators attacked the American embassy in Tehran. Iranian security forces did not intervene, although they were called upon to do so. The embassy was invaded, its personnel and visitors were taken hostage and the archives were ransacked. Most of the hostages were kept for more than 14 months until 20 January 1981, an unprecedented event in the history of diplomatic relations. After an abortive military rescue attempt by the United States on 24–5 April 1980 (the helicopters encountered technical difficulties in the deserts of Iran), the matter was finally settled by an agreement (the ‘Algiers Accords’), mediated by the Algerian Government, which led to the establishment in 1981 of the Iran-United States Claims Tribunal in 28 See ILC draft articles 8 and 11. The Hague had to deal with some 4,000 outstanding claims between the two nations by arbitration. What matters here concerning the issue of state responsibility is the view taken by the International Court of Justice to which the United States had taken a resort (Iran refusing to participate in the proceedings).
The Court distinguished between Iran’s responsibility for the first phase of events and a second phase. In the first phase, the Court regarded the militants as private individuals because it found no indication that they had any official status as ‘agents of the Iranian government. Thus, in this phase, no direct responsibility on the part of Iran could be established. However, in this phase, Iran was held responsible indirectly for the omission to protect the embassy. The direct responsibility of Iran was assumed for the second phase given public statements of Ayatollah Khomeini condoning the hostage-taking and because of the decision of the Iranian government to maintain the situation from which it sought to benefit, and not to take steps against the militants. The Court dismissed the argument submitted by Iran in letters of December 1979 and March 1980 that the seizure of the embassy was a reaction to criminal interference by the United States in the affairs of Iran. Even if that were true, this would not have justified Iran’s conduct, because diplomatic law itself provided the necessary means of defense against illegal activities of members of foreign diplomatic and consular missions (i.e. declaring them persona non grata and requiring them to leave the country).
Thus, the Court held Iran responsibly and under an obligation to release the hostages, restore the Embassy to the United States, and make reparation to the United States, which was to be determined, if the parties failed to agree in a further round of proceedings. The case was later terminated following the agreement reached between the parties in the Algiers Accords. Finally, there are special rules concerning the attribution of conduct of organs of international organizations and a foreign state acting on the territory of another state.
Ankit Malhotra is reading Law at Jindal Global University and has a Bachelor of Arts Degree in International Affairs. He is also the President and co-founder of the Jindal Society of International Law.