Page 122 - Law of Peace, Volume ,

Pam 27-161-1

CHAPTER 7
STATE RESPONSIBILITY

Section I. GENERAL CONCEPTS OF STATE RESPONSIBILITY
7-1.Introduction. a. As emphasized throughout the pre- direct injury arisiig out of an omission, not an act, was the
ceding chapters of this publication, states are considered Trail Smelter Case 3 decided in 1941 by a Special Arbitral
the primary, if not exclusive, subjects of international tribunal. The Convention establishing this Tribunal called
jurisprudence. Consequently, it is the state that is ac- for the application of the ". . .law and practice followed in
corded international rights and privileges, and, concomi- dealing with cognate questions in the United States of
tantly, it is the state that must bear international respon- America as well as international law and practice." 4 The
sibility for those violations of international law attributable arbitration grew out of air pollution from sulphur dioxide
to it. The purpose of this chapter is to examine the ways in fumes emitted by a smelter plant at Trail, British Colum-
which states incur such international responsibilities. No bia, owned by a Canadian corporation. In a previous deci-
area of international law has generated greater controversy sion, the Special Arbitral tribunal had found that the
during the last few decades than the law of state respon- fumes caused damage in the State of Washington during
sibility. Even the most basic principles upon which this the period from 1925 to 1937. In holding Canada respon-
concept is founded have not been immune from attack. sible and directing injunctive relief and payment of an in-
b. It is essential to begin any discussion of state respon- demnity, the Tribunal stated:
sibility with an answer to a basic question: How and in A State owes at all times a duty to protect other States against in-
what ways may a state incur responsibiity on an interna- jurious acts by individuals from within its jurisdiction. A great number
tional level? The answer, in which every word has irnpor- of such general pronouncements by leading authorities concerning the
tance, is: A state may be held internationally responsible duty of a State to respect other States and their temtory have been pre-
for any act or omission attributable to the state which sented to the Tribunal. These and many others have been carefully ex-
amined. International decisions, in various matters, from the Alabama
results in a violation of substantive international law and case onward, and also earlier ones, are based on the same general princi-
which iMures another state. Conjunctively, if an act or ple, and, indeed, this principle, as such, has not been questioned by
omission attributable to a state violates any of the substan- Canada. 5
tive international norms discussed throughout this and b. Indirect Iqjuries to the State. As noted the ways by
other DA publications and the consequence of such act is
injury to another state, the delinquent state is responsible which one state may directly injure another, through an
for making reparation or giving satisfaction to the injured act or a failure to act, are fairly easily defined. The great
state. Moreover, a delinquency may also give rise to puni- dficulty in discussing state responsibility lies in the area of
tive individual or collective sanctions being taken by the determining what constitutes an indirect injury to a state.
affected state or states. 1 The materials which follow do not relate to responsibility
7-2.What Constitutes a Violation. The reparation flowing from a directly inflicted injury by one state on
aspect of state responsibility will be dealt with in the latter another state, but rather deal with the circumstances
portion of this chapter. Initially, however, attention must under which one state may be responsible to another
be focused on the question, "How may a state be in- because of an act or omission which results in injury to a
jured?" private or juristic (corporate) national of the latter. Stated
a. Direct Iw'ury to the State. The most easily explained succinctly, because only a state may bring a claim for
and understood form of injury to a state is that which is reparation under existing international law, the state itself
called direct injury. Since any violation of a substantive must suffer an injury. Injuries to private citizens or cor-
principle of international law by a state resulting in injury porations must be litigated by the state. Thus,the state is
to another gives rise to state responsibility, the substantive said to suffer indirect injury as a result of internationally il-
bases for direct responsibility are almost infinitely varied. legal actions taken against its nationals. It is only by the
For example, violation of a treaty, failure to respect the use of such a fiction that aptate is able to comport with the
immunity of another state's ambassador, assertion of en- still predominant theory that only states may participate in
forcement jurisdiction within the temtory of another state the public international law system. Accordingly, a careful
without its consent, and use of force in violation of the examination of state responsibility for injuries to aliens is
U.N. Charter would all give rise to state responsibility. 2 the key to a thorough understanding of the total concept
One of the best known examples of responsibility for a of "state responsibility."

1. These sanctions must, of course, be canied out in accordance 3. Trail Smelter Case (United States v. Canada) 3 U.N.R.I.A.A.
with the U.N. Charter and other applicable norms of international law. 1905, 1908 (1941).
2. See generally KeIsen, General Theogv of Low and State, 328-41, 4. Id. at 1963-64.
357-58 (Wedberg transl. 1945). 5. Id.