Organ of state in international law

1. Lesson 7
State responsibility : Who is
“STATE/ORGAN OF STATE”

2. What is state responsibility (SR)?
• A state commits an
internationally wrongful act,
and the state is responsible for
that act
• Example : injured foreign
nationals, “forbidden” acts of
government

3. 1. How state responsibility incur?
(Draft Articles on State Responsibility)
•State responsibility occurs when there is an
“internationally wrongful act”.
•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.

4. • Examples of violation (SR):
a) Non fulfillment of state A towards State B
as stated in a treaty or customary
practice, or even in general practice like
protection of diplomatic crops
b) State A ill-treats foreign nationals in its
territory

5. 2. International Minimum Standard
in treating foreign nationals
• International minimum standard, it does
not mean “privilege” but “what constitute
the standard” :[judgement in Neer case]
• “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 government action so far
short of international standards that every
reasonable and impartial man would
readily recognize its insufficiency”.

6. 3. “Act of the State” / Imputability
•A state is liable for its own acts and
omissions; the state is identified with its
governmental apparatus, not with the
population as a whole. If the police attack a
foreigner, the state is liable , if the private
individuals attack a foreigner , the state is
not liable.
•The government apparatus of the state
includes the legislature and the judiciary, the
executive, its local authorities and central
authorities.

7. A state is responsible if…
a) conduct of any State organ having that status
under the internal law of that State shall be
considered as an act of the State concerned. Provided
that organ was acting in the capacity in the case in
question (Art 5)
b) if the conduct of an organ of the State shall be
considered under IL, whether that organ belongs to
the constituent, legislative, executive, judicial or
other power, whether its functions are of an
international or an internal character, whether hold a
superior or a subordinate position in that
organization. (Art 6)

8. c) the conduct of that organ of state shall be
considered as an act of that State , provided
that organ was acting in that in the case
in question (Art.7(1)

9. • d) the conduct which is not an organ of
an entity which is not part of the formal
structure of the State or of a territorial
government entity, but which
empowered by internal law of that State
to exercise elements of government
authority, shall also be considered as an
act of the State, provided that organ was
acting in the capacity in the case in
question (Art.7(2)

10. e) Organs of state, causing an imputable acts out of
disobeyed orders from the state (When officials exceed or
disobey their instructions). Those who act exceed from
their given orders must indicate that “they act with
apparent authority or they are abusing power or facilities
placed at their disposal by the state”.
•Case : Youman
•Mexico sent troops to protect Americans from a mob, but,
instead of protecting the Americans, the troops led by a
lieutenant, opened fire on them.
•Mexico was held liable, because the troops been acting as
an organized military unit, under the command of an officer.
{if the troops had been off duty, their acts would probably
have been regarded as the acts of private individuals}.

11. f) In principle, a state is not responsible
for the acts of individuals, unless they
act on behalf of the state. But the acts of
the individuals may also be accompanied
by some act or omission (oversight,
exclusion) on the part of the State, for
which the State is liable.
Such act or omission may take one of the
six forms;

12. i. Encouraging individuals to attack foreigners
ii. Failing to take reasonable care (due diligence) to prevent the
individuals – for example, failing to provide police protection when
riot against foreigners is imminent. i.e. in early 1969, UK
compensated South Africa for damage done to the South African
embassy in London by demonstrators- the demonstrations have
been advertised in newspaper in several days in advance, and the
attack was foreseeable, however, only one police was on duty
outside the embassy.
iii. Obvious failure to punish the individuals
iv. Failure to provide the injured foreigner with an opportunity of
obtaining compensation from the wrongdoers in the local courts –
this is called ‘denial of justice’
v. Obtaining some benefits from the individual’s act – i.e. keeping
looted property.
vi. Express ratification of the ind’s act- i.e. expressly approving it and
stating that the person was acting in the name of the state.

13. Case : Tehran hostage
• Following the over throw of Shah Reza Pahlevi, a close ally to the
US, the est. of Iran Islamic republic under Ayatollah Khoemeini in
1979, a demonstrator attacked US embassy in Tehran. Iranian
security did not intervene, although they were called to do so. The
embassy was invaded, its personnel and visitors were taken
hostage and the archives were ransacked. The hostages were kept
for more than 14 months. The matter was resolved tru an agreement
mediated by Algerian govt. –led to Iran-US Claims Tribunals in
1981, The Hague, with 4,000 outstanding claims bet the two
nations.
• COURT – militants acts are private individuals because no
indication that they have official status as “agents” of the Iranian
govt, but the govt was held responsible for not protecting the
embassy , and the public statement of Khomeini which condone the
act of hostage-taking.