The theory of state responsibility relates to laws and principles that control when and how a country should be liable for a breach of international law. DJ Harris shows that the theory of state responsibility is general and not specific to any particular obligation. Thus, it only applies when a country breaches provisions of international law and set legal consequences of such acts. From this observation, we can see that provisions of state responsibility are secondary laws.
The theory of state responsibility seems to be general and independent from the main international law. In this regard, we can look at state responsibility under obligations that make an act wrongful before international law when we can attribute acts to private persons and officials of a state. In addition, we can also look at liability defence and subsequent consequences of such acts.
DJ Harris shows actions of private individuals and state may be difficult to differentiate. However, the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles) have changed the state responsibility. Draft Articles classify wrongful acts as where the state is liable under international law, and involve a breach of international obligation.
A country can make reparation that can cover compensation, restitution, and satisfaction as forms of remedies. However, remedies also differ based on a given forum, such as UN, ICJ, WTO, and ICC among others.
Treatment of Aliens
The ILC does not allow ill treatment of people irrespective of their nationality. This is the basis of aliens, state responsibility, and the international minimum standard for the treatment aliens. We must understand that states are not under obligation to admit aliens to their countries. However, if a state allows aliens to enter its territory, then it must treat them in a civilised way.
A state can breach international law if it inflicts injury on aliens even if such aliens are outside its territory. Under ILC primary rules, a state cannot perform such acts in another state without authority of the latter.
Under ILC, any failure to act within provisions of the minimum international standard calls for international responsibility of the defendant state, and state of the injured alien to apply its diplomatic right to protection. In other words, a state may use diplomatic means against another state so as to seek redress or compensation. Negotiations, arbitration, or judicial settlements have been useful in such cases.
It also crucial to note that the defendant country does not owe the injured alien any duty, but it owes the country of the alien. The idea is that a country experiences a loss in a situation where any of its citizens suffer injuries. Thus, the claimant country can make, ignore, or abandon a claim. In addition, the claimant state can also accept any value of compensation and has no obligation to pay the injured national. Thus, the injured citizen is at the mercy of his or her country.
Imputability maintains that a state is only liable for its own acts or omissions. Characters in this case are government officials. Thus, this does not account for actions of private individuals. Imputability results into problems in cases where state officials exceed their powers or disobey instructions.
Draft Articles do not apply in all situations especially where specific treaties apply. There is also a challenge in holding a state liable in situations where nonstate actors, such as terrorist groups, NGOs, and multinational organisations may be involved. In this case, some clauses (saving) of Draft Articles maintain that a state may have secondary responsibility for such actors. In cases where certain acts (including ultra vires) affect the international community, then such matters become orga omnes.
According to ILC Draft Article 22, any injured person must exhaust all remedies in courts of the defendant country before his or her state proceeds to make international claims.
Domestic remedy rule cannot apply when the local courts cannot provide redress for the injured person and injury directly affects the state. A state cannot seek redress for such injuries in another state’s courts.