State Responsibility for Human Rights
The adoption of the UDHR1 in 1948 was a watershed in the development of international human rights law principally because it provided the moral axis on which international law and international relations would from henceforth revolve. A plethora of international and regional treaties have since been adopted. They form a phalanx of safeguards against intrusion into individual freedoms or group identity and autonomy, and provide a launch pad for claiming certain goods and services from the state or for participating in the polity. One of the key principles of international law which have been affected radically by international human rights law is the long-standing doctrine of state responsibility. This doctrine assigns liability to a state that breaches its international obligations. In its traditional sense, it provided remedies to a state for internationally wrongful acts committed by another state. This chapter seeks to explore the ways in which international human rights law, spearheaded by the UDHR, has fundamentally altered the doctrine of state responsibility in international law. The discussion will dwell on the following questions. Who can invoke the doctrine? Whose rights give rise to state responsibility? Can non-state action give rise to state responsibility? The last question will lead to a discussion of the implications of the doctrine of state responsibility for the position of non-state actors in relation to human rights.
2. State Responsibility
2.1 Meaning and Basis
State responsibility is a general principle of international law that is as old as international law itself. One of its early progenitors is the concept of just war and reprisals developed in the fourteenth and fifteen centuries, which posited that a state was entitled to wage war, as a matter of last resort, to enforce its rights against another state and, conversely, that a state which waged an unjust war had the obligation to pay damages to the injured state.2 Hence, state responsibility has long encapsulated the simple but vital principle that to every legal wrong must attach legal responsibility. Judge Huber in the Spanish Zone of Morocco Claims (Spain v United Kingdom) stated: ‘Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparation.’3 In Chorzów Factory (Indemnity), the Permanent Court of International Justice (PCIJ)observed that ‘any breach of an engagement involves an obligation to make reparation … reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.’4
State responsibility is therefore essential to the authority and effectiveness of international law. Without any form of legal responsibility, the obligations created by international law would not command respect from states. Furthermore, state responsibility emanates from the nature of the international legal system, which relies on states as a means of formulating and implementing its rules, and arises out of the twin principles of state sovereignty and equality of states.5 Consequently, to establish state responsibility, one must demonstrate that one state owes another an international obligation, that the duty-bound state has breached the obligation, and that the breach has caused damage to the state to which the duty was owed.
The rules on state responsibility are embodied in customary international law. However, the International Law Commission (ILC) adopted the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (Draft Articles) on 9 August 2001, which seek to codify these rules. The ILC referred them to the United Nations (UN) General Assembly (GA) for the latter to take note of them and at a later stage decide whether they should be adopted in the form of a convention or declaration.6 The GA has not yet taken a decision on the manner in which the Draft Articles should be adopted. Consequently, the Draft Articles have no legal authority, save to the extent to which they simply restate the existing rules of customary international law.
2.2 Traditional Parameters
Before the UDHR was adopted, the doctrine of state sovereignty served as a shield to protect states from international scrutiny in matters concerning the domestic protection of human rights. Issues of human rights within the domestic sphere fell within the boundaries of state sovereignty, and, by operation of its sister doctrine of the equality of all states, no state had a right to question the status of human rights in another state.7 The incursion by one state into the sovereignty of another state was permissible only where that state sought to protect the rights of its nationals threatened or violated in that other state. The doctrine of state responsibility was thus developed as a device aimed principally at protecting the rights of aliens in a foreign state.8 Although there was no common international standard for the treatment of citizens, its basic premise was that foreign nationals were entitled to be treated equally with nationals or at least in accordance with minimum international standards of justice.9 The doctrine was enforced by states through diplomatic means and at times through international arbitration/adjudication or force.10
The adoption of the UN Charter11 was a milestone in that it placed human rights, which were later set out ad seriatim in the UDHR, the International Covenant on Civil and Political Rights (ICCPR)12 and its Protocols, and the International Covenant on Economic, Social and Cultural Rights (ICESCR)13 – the so-called International Bill of Rights – at the centre of international relations in the new world order.14 Since then, human rights have evolved into something of vital international concern. They are no longer constrained by the notion of state sovereignty, as states cannot rely on this doctrine to fend off international opprobrium in the face of serious violations of human rights occurring within their jurisdictions. By accepting that all human beings have human rights irrespective of the state they are in, the basis for the international protection of human rights ceased to rest on the nationality of the individual. Human rights are now understood to inhere in individuals independently of their nation state, binding the latter as well as other states. Inversely, states now incur international responsibility for the rights of non-nationals as well as for those of their own citizens. We explore in detail the implications of these changes below.
3. To Whom Is Responsibility Owed?
3.1 The Dwindling Importance of Nationality
Under the traditional conception of state responsibility, the duty to afford minimum protection to the rights of non-nationals was owed by the host state of the non-nationals to the state to which the latter owed their nationality. The non-nationals themselves did not have any recourse or rights of their own against the foreign state. As Anzilotti argued, when a state violated the rights of non-nationals, it was not the right of the individual which was violated, ‘but rather the right of the State to see that the individual be treated in accordance with international law’.15 The Permanent Court of International Justice (PCIJ), in the Mavrommatis Palestine Concessions case, echoed this view:
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 ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.16
This viewpoint flows from the conventional understanding of subjects of international law as limited to states. None other than states can claim rights or be burdened by obligations in international law, if only because international law is based on the consent of states and develops from state conduct and relations. Individuals, according to this line of thinking, can only be indirect beneficiaries of international rights.
The consequence of the doctrine of state responsibility for injury to aliens was also to deny any other state than the national state of the alien a right to act for the rights of that alien. In the Panevezys-Saldutiskis Railway case, the PCIJ stated:
In the opinion of the Court, the rule of international law on which the first Lithuanian objection is based is that in taking up the case of one of its nationals, by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right, the right to ensure in the person of its nationals respect for the rules of international law. This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. Where the injury was done to the national of some other State, no claim to which such injury may give rise falls within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse.17
International human rights law has altered these traditional conceptions of state responsibility in two fundamental ways. The first concerns the status of the individual in international law and the second relates to the range of states which can enforce rights in international law.
The formulation of human rights in the UDHR leaves no scope for doubt that individuals are direct beneficiaries of human rights in international law. For example, it guarantees every human being the inherent right to life, liberty and security of person or the right of all persons to equality before the courts.18 The same guarantees are explicit in the ICCPR. Other treaties reveal a rather abstruse way of protecting international human rights whereby states are obligated to recognize certain prescribed rights.19 Nevertheless, these treaties not only establish reciprocal rights for contracting states but also obligate all states to respect and protect the rights of individuals within their jurisdictions. The Inter-American Court of Human Rights (IACtHR) fittingly stated:
The Court must emphasize, however, that modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.20
Moreover, the prominence, which has been given to individual petitions, communications or complaints procedures since the UDHR was adopted, has underscored the status of the individual as a direct beneficiary, claimant and enforcer of rights in international law.21
3.3 Other States
As noted above, the second impact of human rights jurisprudence which has evolved since the UDHR was adopted relates to the relaxation of the rule that only the state which is the nationality of the injured person has the right to enforce that person’s rights. All states irrespective of nationality can enforce international human rights. The International Court of Justice (ICJ) in the Barcelona Traction case explained this principle thus:
an essential distinction should be drawn between obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law; others are conferred by international instruments of universal or quasi-universal character.22
It is clear therefore that under international human rights law state responsibility can be claimed by any state within the community of nations as opposed to the nation state of the injured person.23 This right is implicit in the notion of inter-state complaints. It is also embodied in the charter-based mechanisms for the protection of human rights, which tend to enforce rights in a disinterested manner guided only by common interests of the international community.24
The Draft Rules on State Responsibility postulate a broader concept of an ‘injured state’ for purposes of invoking the responsibility of a state. It defines an injured state as one which has suffered a breach of a duty owed to it individually or as part of a group of states or the international community as a whole.25 To this extent, these rules are abreast of the developments of international law as regards the widening of the standing to enforce international human rights. However, they completely ignore the idea of state responsibility to individuals as direct beneficiaries and claimants of rights, thereby ignoring the practice and jurisprudence in international human rights law over the past six decades establishing that individuals can and have been enforcing their international human rights through international fora and mechanisms.
4. Whose Acts Give Rise to State Responsibility?
The rules of state responsibility are anchored within the state action paradigm.26 The Draft Articles codify this tradition by insisting that only acts of the state can give rise to state responsibility. In terms of these articles, state responsibility is incurred when two elements are proved: first, there must be conduct consisting of an act or omission that is attributable to the state under international law; second, the conduct must constitute a breach of an international obligation of the state.27
The rules of attribution fall into two broad categories. The first encompasses the rules relating to the conduct of acts or omissions of the state itself, its officials, its organs, or the organs of another state placed at its disposal.28 In respect of these, the state may still be responsible even when the conduct of an organ of state, or of a person or entity empowered to exercise elements of governmental authority, is in excess of authority.29
The second category deals with state responsibility in respect of the acts of non-state actors. Such acts may qualify as acts of state in certain defined circumstances.30 Firstly, Article 5 of the Draft Articles stipulates that the conduct of a person or entity that is not an organ of the state ‘empowered by the law of that State to exercise elements of the governmental authority’ can give rise to state responsibility provided that the person was acting in that capacity in the particular instance in issue. This rule encompasses a wide range of bodies which are not state organs, but are empowered by state law to exercise elements of governmental authority, such as public corporations, quasi-public entities, and private companies.31
Secondly, in terms of Article 8 of the Draft Articles, the conduct of a person or group of persons acting on the instructions of, or under the direction or control of, a state can be attributed to the state in question. Where conduct is authorized by the state, liability is incurred regardless of whether the person to whom authorization is given is a private individual.32 It also does not matter whether the conduct involves public functions or governmental activity.33 What is required is proof of state authorization.
Thirdly, Article 9 of the Draft Articles provides that the conduct of private persons or groups exercising elements of governmental authority ‘in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority’ can be attributed to the state. To rely on this rule, the conduct must relate to the exercise of public functions or governmental authority, there must be absence or default of official authorities, and the circumstances must have justified the exercise of those powers.
Fourthly, Article 10(1) of the Draft Articles provides that ‘[t]he conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law.’ Similarly, ‘[t]he conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration’ amounts to an act of the new state.34