State Responsibility in International Law

René Provost, René Provost

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351898034
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

In the wake of the adoption by the International Law Commission of a complete set of articles on state responsibility in international law in 2001, this collection assembles a number of essays tracing key debates which have marked the evolution of this field over the last fifty years. These include explorations of the general theory of state responsibility (link between 'primary' and 'secondary' rules, the place of due diligence, the link between liability and wrongfulness), the consequences of an internationally wrongful act (nature of remedies, suitability of countermeasures, third states and the shift from bilateralism to community interests in the law of state responsibility), the debate over criminalizing state responsibility, and the continuing relevance of the law of injuries to aliens. The collection also contains a series of essays offering critical perspectives on state responsibility, including feminist and developing world perspectives. It is completed by an extensive and up-to-date bibliography.

Part I
Historical Evolution

[1]
THE TRANSFORMATION OF THE LAW OF STATE RESPONSIBILITY

by

Y. MATSUI

Professor of International Law, University of Nagoya

I. INTRODUCTION

The essence of the Part I of the draft articles on State responsibility, adopted by the International Law Commission on first reading from its twenty-fifth to thirty-second sessions, seems to be represented by the following Articles: Every internationally wrongful act of a State entails the international responsibility of that State (Art. 1). There is an internationally wrongful act of a State when: (a) conduct consisting of an action or omission is attributable to the State under international law; and (b) that conduct constitutes a breach of an international obligation of the State (Art. 3). An act of a State which constitutes a breach of an international obligation is an internationally wrongful act regardless of the origin, whether customary, conventional or other, of that obligation (Art. 17, para. 1).¹

This structure of the draft articles is derived from the basic viewpoint of Roberto Ago, then Special Rapporteur on State Responsibility. According to him, rules of international law can be divided into two: the one is the rules which, one sector of inter-State relations or another, impose particular obligations on States, and which may be termed “primary” rules, and the other is concerned with determining consequences of failure to fulfill obligations established by the primary rules, and which may hence be termed “secondary” rules, the field of responsibility being covered by the latter.² Once, he described the codification of the law of State responsibility from this standpoint as “the whole of responsibility and nothing but responsibility”.³

This approach of the International Law Commission to the codification of the law of State responsibility forms a marked contrast to the previous attempts in the same field undertaken by various official and private bodies, which focused on “the responsibility of State for damage done in its territory to the person or property of foreigners”.⁴ Rather, this approach was based on “the most valuable lesson to be drawn from a retrospective examination of the successive efforts to codify this important and delicate sector of international law.”⁵ Therefore, it is quite natural that this approach has provoked many criticisms from the traditional standpoint. For example, R.R Baxter, noting its abstract character, points out that “the circumstances under which responsibility attaches and the remedies to be provided for violations of the rules of law cannot be divorced from the substantive rules of conduct themselves.”⁶ Also, Myres S. McDougal comments that “the more recent work of the Commission has been at such a high level of abstraction as to shed but a dim light upon specific controversies”, and Richard B. Lillich, citing these words of McDougal affirmatively, concludes that it offers “little or no guidance” in the field of treatment of aliens.⁷

But, upon reflection, responsibility of a State did not occur exclusively from damages done in its territory to the person or property of foreigners even under the traditional international law. As is well known, the Permanent Court of International Justice, in its famous judgment on the Chorzów Factory Case, declared that “it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form”.⁸ Again, the same Court, in its judgment on the Phosphates in Morocco Case, called “the violation of international law” as “a definitive act which would, by itself, directly involve international responsibility.”⁹ In fact, we can cite countless cases of diplomatic negotiations, international arbitration or judicial settlement, in which breaches of obligation in various fields of international law, derived from every sources, were at issue.

Then, why did the traditional law of State responsibility, as a distinctive field of international law, confine itself to responsibility of a State for damage caused to foreigners in its territory? The answer to this problem seems to provide us with a firm foundation to understand the substance of the transformation of the law of State responsibility.

II. THE TRADITIONAL LAW OF STATE RESPONSIBILITY

1. The Substantive Rule: An International Standard of Justice

It is a well recognized fact that two mutually antagonistic standards were asserted under the traditional law of State responsibility: the one was an “international standard of justice” advocated by West European countries and the United States of America, and the other was a “national standard” or an “equality of treatment between nationals and foreigners”, which was insisted upon by Latin American, Asian and some of the East European countries in opposition to the former. The former, also called a “minimum standard of civilization”, a “standard of international law” or simply an “international standard”, was typically formulated by Elihu Root as follows:

“There is a standard of justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world. The condition upon which any country is entitled to measure the justice due from it to an alien by the justice which it accords to its own citizens is that its system of law and administration shall conform to this general standard. If any country’s system of law and administration does not conform to that standard although the people of the country may be content or compelled to live under it, no other country can be compelled to accept it as furnishing a satisfactory measure of treatment to its citizens.”¹⁰v

This international standard of justice was asserted in relation to diversified fields of State conduct. For example, the Bases of Discussion drawn up by the Preparatory Committee for the League of Nations Conference for the Codification of International Law seemed to stipulate this standard at least in relation to the following: acts relating to the operation of the tribunals (Bases Nos. 5 and 6); the protection of foreigners by the executive power (Basis No. 10); the protection of foreigners from damage caused by a private individual (Bases Nos. 17 and 18); acts of armed force or authorities in the suppression of insurrection, riot or other disturbance (Basis No. 21 (2)).¹¹

This standard was also supported by almost all scholars in those countries which themselves advocated it. For example, Edwin M. Borchard said that the principle of equality of treatment between nationals and aliens “is conditioned upon the fact that (a state’s) administration of justice satisfies the standard of civilized justice established by international law.”¹² Also, according to Clyde Eagleton, “a state may be responsible not merely for the same protection which it offers to its own citizens, but for a protection which measures up to reasonable standard of civilized justice. It may set such standards as it may desire for its own citizens; but where aliens is concerned, international law enters with its own standards.”¹³

We do not intend here to examine whether the international standard of justice was the established one or not under the traditional law of State responsibility. But, at least two comments may be due to this standard here.

First, in contrast to the fact that the international standard of justice was asserted by West European countries, including the United States of America, against Latin American and Asian countries, the mutual relations of the former countries seemed to be regulated by the national standard. When an anti- Spanish mob damaged the Spanish consulate and residents in New Orleans in 1851, the United States Secretary of State Webster wrote to the Spanish Minister, “(the U.S. Government) supposes that the rights of the Spanish consul … are quite different from those of the Spanish subjects who have come into the country to mingle with our own citizens, and here to pursue their private business and objects. The former may claim special indemnity; the latter are entitled to such protection as is afforded to our own citizens.”¹⁴ Also, in 1855, the Secretary of State Marcy, though admitting that the Austrian criminal proceedings had many harsh features and were deficient in many safeguards which the U.S. laws provided for the security of the accused, declared, “it is not within the competence of one independent power to reform the jurisprudence of others, nor has it the right to regard as an injury application of the judicial system and established mode of proceedings in foreign countries to its citizens when fairly brought under their operation.”¹⁵

Sometimes, the U.S. Government even relied on its domestic laws as a defense against claims from foreign countries. Thus, the Secretary of State Fish, in reply to the Mexican Minister who demanded punishment of murderers of Mexican citizens in Texas in 1875, said that it was undoubtedly the duty of a government to prosecute such offenders according to law by all the means in its power but that if this duty was honestly and diligently fulfilled, the obligations of the government were discharged, and that “under the system of law which pervades this country, no person can be arrested …except upon the affidavit of a credible witness”, this condition being lacking in this case.¹⁶ Commenting on the attitude of the U.S. Government such as this, Amos S. Hershey noted the “double inconsistency-that of theory and practice on the one hand, and that of our attitude at home and abroad on the other--”¹⁷

Second, the international standard of justice was so vague and elastic that it could hardly serve as a concrete and definite standard. For example, a famous decision of the Mexico-U.S. General Claims Commission in the Neer Case, in an attempt to formulate “the test of international standards”, said, “the treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.”¹⁸ This decision is sometimes cited to show that the international standard is rather a low standard, but, as is seen, it fills with subjective expressions and the determination seems to fall solely on a “reasonable and impartial man”.

This indefiniteness of an international standard was recognized even by its advocates.¹⁹ Therefore, they recommend that a dispute on this respect should be referred to an arbitration. But, most disputes involving State responsibility had been settled through diplomacy, and even when they were referred to arbitrations, negotiations between Governments concerned were necessary at their initial stages. In these circumstances, an interpretation of international standards by the Government of a developed State usually tended to predominate. As McDougal puts it, “the decision-makers of powerful industrialized states are in a position to exert disproportionate influence upon the outcome of controversies …. Hence the norms of the industrial power tend to affect the result.. .”²⁰

But, at least on one point, the content of the international standard was rather definite, namely on the compensation for expropriation of foreign property. Thus, the U.S. Secretary of State Hull wrote to the Mexican Ambassador in Washington on April 3, 1940; “the Government of the United States readily recognizes the right of a sovereign state to expropriate property for public purposes. However, the right to expropriate property is coupled with and conditioned on the obligation to make adequate, effective and prompt compensation.”²¹ It was quite natural, however, that Mexico did not concur with this view. It maintained, “there is in international law no rule universally accepted in theory nor carried out in practice, which makes obligatory the payment of immediate compensation nor even of deferred compensation, for expropriation of a general and impersonal character.”²² There seems to be no need for us to dwell on the fact that the controversy between developed and developing countries concerning the compensation for expropriation has not been settled in a definite manner up to now.

2. The Procedural Rule: the Right of Diplomatic Protection

Procedural aspects of the traditional law of State responsibility may have been represented by the right of diplomatic protection, which was formulated by the Permanent Court of International Justice in the Mavrommatis Palestine Concession Case as follows:

“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...