{"id":10447,"date":"2022-07-15T22:24:49","date_gmt":"2022-07-15T22:24:49","guid":{"rendered":"http:\/\/legalblog.ie\/state-responsibility\/"},"modified":"2022-12-04T09:30:20","modified_gmt":"2022-12-04T09:30:20","slug":"state-responsibility","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/state-responsibility\/","title":{"rendered":"State Responsibility"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#Responsibility_to_Non-National\" title=\"Responsibility to Non-National\">Responsibility to Non-National<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#Terrorism\" title=\"Terrorism\">Terrorism<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#State_Liability\" title=\"State Liability\">State Liability<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#Standards_of_Care\" title=\"Standards of Care\">Standards of Care<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#Breaches\" title=\"Breaches\">Breaches<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#State_Complaint\" title=\"State Complaint\">State Complaint<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#Objections\" title=\"Objections\">Objections<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/state-responsibility\/#Export_Insurance\" title=\"Export Insurance\">Export Insurance<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Responsibility_to_Non-National\"><\/span>Responsibility to Non-National<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>It is a general principle of international law that a state which injures a foreign national is responsible to that national\u2019s state but not to the national for the harm done.\u00a0 In order to establish state responsibility for an injury to a non-national, there must be conduct comprising an action or omission which is attributable to the State under international law.\u00a0 It must constitute a breach of an international obligation of the state.\u00a0 The state responsibility exists in international law context only.<\/p>\n<p>A state is only responsible for actions that are attributable or imputable to it.\u00a0 Acts are attributable to the State where they are done by their officials within their apparent authority.<\/p>\n<p>This includes actual authority or acts done outside actual authority where the state has provided the means to do the act.\u00a0 Therefore states may be responsible even where the actions are contrary to express directions or even contrary to the law of the state concerned.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Terrorism\"><\/span>Terrorism<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Terrorism is the sustained use of clandestine violence for political purposes.\u00a0 It typically comprises bombings, murder, kidnapping, threats or a combination. In some cases, terrorism has directly supported by states and may even involve direct state action.\u00a0 In the past has been shown that Algeria, Iran, Iraq, Libya, South Yemen, Syria, the former Eastern Bloc states assisted directly in terrorism.<\/p>\n<p>State terrorism may also include clandestine acts against the state\\&#8217;s own population.\u00a0 This has been shown to have taken place in Nazi Germany, Argentina in the mid-1970s.<\/p>\n<p>International efforts to counter terrorism have led to the adoption of the Tokyo Convention 1963, and the Montr\u00e9al Convention 1971 on the hijacking and sabotage of civil aircraft.\u00a0 The 1973 Convention on crimes against diplomats, the 1979 Convention on hostage-taking and the 1988 Convention on the suppression of unlawful acts against the safety of maritime navigation.<\/p>\n<p>The above Conventions provide for international crimes that are punishable by states irrespective of the nationality of the perpetrator, victim or locality of the offence.<\/p>\n<p>States may be pressured into rendering terrorist suspects to international justice by the United Nations.\u00a0 Sanctions were imposed against Libya in order to compel it to turn over alleged terrorists allegedly responsible for the Lockerbie bombing.\u00a0 The states are not generally made directly responsible for terrorist acts.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"State_Liability\"><\/span>State Liability<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>It appears that states are responsible for injuries and damage irrespective of fault.\u00a0 The state or its officials etc. must be shown to have caused the injury.<\/p>\n<p>Some states maintain the position that the national standards of care suffice.\u00a0 That is to say that it is sufficient that non-nationals be treated no less favourably or worse than their own nationals.<\/p>\n<p>The issue has arisen in the context of expropriation and nationalisation, particularly without compensation.\u00a0 In practice, international financial pressure and practical concerns in relation to foreign direct investment have meant that states have been reluctant to apply this standard.<\/p>\n<p>The US has granted federal courts authority to hear cases against foreign states and their officials.\u00a0 Private persons may undertake suits for personal injuries and deaths against foreign state and their officials for personal injuries and death arising from state-sponsored terrorist action.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Standards_of_Care\"><\/span>Standards of Care<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The international standard of care provides that a country which has admitted non-nationals must treat them in a civilised manner.\u00a0 Aliens must not be treated in bad faith, subject to wilful neglect of duty or insufficiency of governmental action so short of international standards that every reasonable and impartial person would recognise its insufficiency.<\/p>\n<p>Delinquencies of this nature may be crimes or torts. Where they breach international peace, deny people the right to self-determination or fail to safeguard human life or dignity, e.g. slavery, genocide and apartheid, they may be categorised as crimes.<\/p>\n<p>Other breaches may be categorised as torts\/civil wrongs.\u00a0 This would most commonly happen in the event of expropriation or nationalisation of aliens\u2019 or foreign businesses\u2019 property.\u00a0 Similarly, denial of justice is a tort.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Breaches\"><\/span>Breaches<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>States have a right to expropriate under domestic law.\u00a0 However, it must be done for legitimate public purposes and states must pay prompt, adequate and effective compensation.\u00a0 The expropriation must not be discriminatory, in bad faith, or politically motivated.\u00a0 Compensation must be adequate.<\/p>\n<p>A denial of justice contrary to international law arises when there is a denial, unwanted delay or obstruction of access to courts.\u00a0 It also applies in respect of gross deficiency in the administration of judicial or remedial processes, failure to provide guarantees that are generally considered indispensable to the proper administration of justice or manifestly unfair judgments.\u00a0 An error of a \u00a0national court which does not produce manifest injustice is not a denial of justice.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"State_Complaint\"><\/span>State Complaint<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A state may only bring a complaint on behalf of its nationals.\u00a0 In the case of dual nationals, either state may generally complain.\u00a0 A state with the master nationality, one with the greater links, may complain against another.<\/p>\n<p>A state may refuse to bring a complaint on behalf of its national.\u00a0 It may settle it or abandon it without the national\\&#8217;s consent.\u00a0 The international courts have held that clauses in agreements whereby nationals agree not to ask their home state to intervene are invalid.<\/p>\n<p>The subject of a complaint must be a real and bona fide connection with the complainant state. The individual, company or firm must first exhaust all its local remedies within the foreign state.\u00a0 Failure to do so is an objection to a claim in an international tribunal.<\/p>\n<p>If no adequate remedy is available, if it is waived by treaty, if the injury is done directly to a state or if the defendant state has delayed excessively in granting a remedy, the requirement does not apply.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Objections\"><\/span>Objections<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A state may be barred from taking a claim by waiting too long, delaying too long or if the complainant has dirty hands.\u00a0 Where for example, wrongs were done to a business which was engaged in a wrongful activity, the complaint was denied. Relief may be by way of satisfaction, damages, or restitution in kind.<\/p>\n<p>States may raise objections to complaints on a number of bases.\u00a0 If the plaintiff does not have standing, that is to say, he is not qualified to appear before the court, he may not proceed.\u00a0 In most international tribunals such as the International Court of Justice, only states may take complaints.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Export_Insurance\"><\/span>Export Insurance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Insurance may be available to cover certain risks in international trade.\u00a0 In some cases, private insurers will not cover risks in certain countries because they are high.\u00a0 Many governments provide state-sponsored insurance agencies providing export insurance against risks in high-risk countries.<\/p>\n<p>The United States Overseas Private Investment Corporation insures against political-type risks such as expropriation and political violence.\u00a0 Expropriation has been relatively unusual in the last 30 years.\u00a0 Outright expropriation is less common than gradual expropriation by a series of cumulative effects.<\/p>\n<p>Developing countries are aware of the risk that expropriation may discourage future investment.\u00a0 However, they are now less likely to resort to outright expropriation than in the 1960s and 70s but may resort to steps having equivalent effects.<\/p>\n<p>The US agency covers acts or a series of acts for which the state is responsible, which are illegal under domestic or international law and which have a substantially adverse effect on the enterprise or the investor&#8217;s rights under the enterprise.<\/p>\n<p>The US agency offers assurance that guarantees investors will be able to convert local currency into dollars.\u00a0 A risk in developing countries may be currency controls and their tightening of currency controls.<\/p>\n<p>Political violence may be due to wars, civil strife, or terrorism. The premiums are higher for countries with greater political risk.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10447\" data-postid=\"10447\" class=\"themify_builder_content themify_builder_content-10447 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Responsibility to Non-National It is a general principle of international law that a state which injures a foreign national is responsible to that national\u2019s state but not to the national for the harm done.\u00a0 In order to establish state responsibility for an injury to a non-national, there must be conduct comprising an action or omission [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[143],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10447"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10447"}],"version-history":[{"count":4,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10447\/revisions"}],"predecessor-version":[{"id":21054,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10447\/revisions\/21054"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10447"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10447"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10447"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}