International Responsibility: Development, Elements, and Application
Development of the Law of International Responsibility
The development of the law of international responsibility is contained mainly in customary law. However, it is important to clarify the following:
- It does not contain the primary rules of international law (which would be impossible), that is, those whose violation gives rise to international responsibility. It only reflects the secondary consequences of the violation of any international standard.
- It only encodes the rules governing state responsibility for carrying out illegal acts, not the responsibility of other subjects of international law, or private individuals.
- It only deals with liability for wrongful acts, not damaging consequences arising from the performance of acts not prohibited (ultra-hazardous activities), such as the launching of space objects, the transport of hazardous materials, or the peaceful use of nuclear energy.
Basis of International Responsibility
The foundation of international responsibility lies in the commission of an international wrong. This gives the injured party the right to demand compensation for damages. Article 1 of the International Law Commission’s (ILC) draft states, “Any internationally wrongful act of a state entails the international responsibility of that state.”
Responsibility of Other Subjects of International Law
The project refers to responsibility between states, which means that the subject of responsibility is always a state. If a violation is committed by a non-state subject of international law, it is not considered an internationally wrongful act. Taxpayers, even if anyone who suffers damage is an individual, are also states. International organizations can also suffer from and be held responsible for violations of international obligations.
The Constituent Elements of an Internationally Wrongful Act
The ILC requires two elements for an internationally wrongful act: that the failure is attributable to a state (subjective element) and that it violates an international obligation (objective element). It is a system of strict liability; fault is not necessary to state that its conduct constitutes an unlawful act. Some authors consider damage a third necessary element. However, damage is not an independent element but is inherent to the objective element: whenever there is a violation, there is harm, although this cannot always be measured economically. It also states that any wrongful act creates an obligation to make reparation, which could be considered another element. However, the obligation to make reparation is a consequence of the illegal act, not an element of it.
The Subjective Element
Rules on attribution of conduct to the state: Article 4 of the ILC draft states that the conduct of any state organ shall be considered an act of that state under international law, provided that the organ was acting in the exercise of its functions and not as a private individual. This applies regardless of the organ’s hierarchical position (from the Head of State to the lowest-ranking official) and whether it belongs to the central structure of the state or any of its territorial divisions.
The Objective Element
Article 2 of the ILC draft includes the violation of an international obligation. This exists when the act is attributable in accordance with what the duty requires of the state. That is, when the state’s conduct does not meet the requirement, there will be a violation. The project specifies that the origin or nature of the obligation breached is irrelevant. To determine whether a wrongful act has occurred, one need only consider whether the conduct violates an obligation or not. The classification of these obligations is governed by international law (Article 3 of the project) and does not take into account domestic law. There will be a violation if the conduct is in accordance with international law.
The Time Element
The existence of an international obligation in force is crucial. The time factor is important: for an act to be considered an internationally wrongful act, an obligation must be in force.
Moment and Duration of the Violation of an International Obligation
- When an act is instantaneous, the violation occurs when the act is performed, even if its effects continue over time.
- When an act is continuous, the violation occurs at the moment the act begins, and its duration is prolonged for the duration of the act.
- When an act is composite, the violation takes place when the act or omission that implies the existence of the composite act is performed, but the duration will be prolonged from the first until the last performance. The duration will be before and after the commission.