State Responsibility and Liability

This article discusses the impact the 1972 Liability Convention exerted upon the further discussion on state responsibility and liability rules within the UN International Law Commission. The question it seeks to answer is the issue of how, and to what extent, its provisions influenced the development of international law on the responsibility of states and international organizations and the institution of international liability of states. Most notably, the present article demonstrates how the Liability Convention served as a reference point for the International Law Commission’s works struggling to codify the general rules of states’ liability. It also examines the factors that, from the mid- 1990s onward, have steadily diminished its role in the ongoing debate and how it finally informed the final shape of the 2006 Draft principles on the allocation of loss in the case of transboundary harm arising from hazardous activities. Furthermore, it analyses the 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and the 2011 Articles on Responsibility of International Organizations (ARIO). With this in mind, it is put forward that the differences mandate strict differentiation between international responsibility and international liability at the theoretical level. Nonetheless, the Liability Convention could furnish patterns based on which, notably, the institution of joint and several responsibility of states and international organizations, respectively, have been modelled. Therefore, it is concluded that the lex specialis and the self-contained character of the regime established under this Convention effectively limit its impact on the development of international regimes of responsibility and liability of states and international organizations. However, they do not eliminate them altogether. Ironically, in practical terms, the Convention marked the 2001 ARSIWA and, indirectly, the 2011 ARIO more decisively than the 2006 Draft Principles, even though the Convention – similar to the DP 2006 – addresses states’ liability, not their responsibility.

In 2001, the International Law Commission (ILC) adopted Draft Articles on State Responsibility. These establish the secondary obligations that flow from a breach of an independent and preexisting primary obligation. The Draft Articles address a number of issues, including the attribution of conduct to a state, justifications for breach, circumstances precluding wrongfulness, reparation, compensation, bilateral and erga omnes obligations, and countermeasures. This Essay tracks the influence that the Canada-U.S. Trail Smelter arbitral decision has had on the Draft Articles. Trail Smelter is referenced four times in the Commentaries to the Draft Articles; it has played some part in the formulation of specific Articles regarding continuing breach, non repetition of breach, remoteness of harm, and compensation. On a more general note, though, Trail Smelter's influence may be circumscribed by shifts in international environmental law toward facilitating compliance with primary rules rather than seeking compensation for breaches of those rules. This explains why Trail Smelter's evocation of secondary obligations - and the law of state responsibility more generally - lead somewhat of a lonely existence in terms of the law-in-practice regarding international environmental protection. Trail Smelter has played a more vivid role in the ILC's work on state liability (2001), in particular the preventative aspects. Here, the primary rule of Trail Smelter - namely the obligation not to cause serious environmental harm - has acquired considerable currency, exceeding that of Trail Smelter's secondary obligation of reparation and compensation for violation of that primary rule.

This article delves into the deep seabed mining regime under the United Nations Convention on the Law of the Sea (UNCLOS) with a view to inform the negotiating process of the proposed business and human rights (BHR) treaty. It highlights points of convergence and divergence between the two regulatory regimes and explores how the BHR treaty negotiations could draw from the deep seabed mining regime with regard to the responsibility and liability of states and corporations. In particular, it suggests that a BHR treaty could incorporate some of the arrangements of UNCLOS to address state obligations and direct corporate human rights obligations, both of a general and specific nature, including the obligation to carry out human rights due diligence. The article also proposes a mechanism of responsibility and liability of states and corporations under the future BHR treaty going beyond UNCLOS and embracing residual liability for home and/or host states.

The accountability of the subjects of international law for their acts and omissions, and the consequences thereof, is fundamental to the effectiveness and legitimacy of international law. Yet, the international environmental accountability of states remains a difficult and controversial topic, for both doctrinal and policy reasons. With few exceptions, states have not addressed this question in international environmental treaties, neither have international courts been burdened with cases or requests for advisory opinions on questions of environmental responsibility or liability of states. This article provides an analysis of the relationship between international environmental law and state responsibility, including a discussion of primary obligations, environmental harm, and the standard of care/due diligence. For the purpose of this article, accountability is used as an “umbrella term” and refers both to the responsibility of states and international organizations for internationally wrongful acts, as well as to their liability to make reparation for harm and damages resulting from their activities. Accountability for internationally illegal acts, such as breach of a treaty or the violation of customary law rules, is relatively well developed in general international law under the concept of state responsibility, though not in a codified, treaty-based manner and some uncertainties exist. In general, state responsibility refers to the accountability of a state for a violation of international law and is premised upon an internationally wrongful act which can be attributed to a state. Such internationally wrongful act can arise from the breach of an international legal obligation (“primary law”), established by treaty law (e.g. bilateral or multilateral environmental agreements) or by a customary norm of international law (for example the prohibition of environmental harm). The consequences of international responsibility for a wrongful act are the obligation of the wrong-doer to cease that act, to offer assurances of non-repetition, and to make full reparation of the injury caused by the internationally wrongful act, including compensation for environmental damage. On the other hand, rules for strict liability for environmental harm resulting from lawful activities are not so well established, and remain singular and exceptional. In general, states have shown little interest in setting up a general liability framework for environmental damage and only very few international environmental regimes impose liability and compensation schemes on states. Some issue-specific international environmental treaties impose civil liability on private actors, but do not establish a compensation scheme for states. Those liability rules are not used to prevent pollution or damage, but serve as a “backstop” to provide access to compensation when damage occurs despite the implementation of treaty rules that aim at preventing damage. Such damage can occur by accident or non-accidentally. In the later cases, compensation can be rewarded where a state did not exercise proper care so as not to cause adverse environmental effects to other states or areas beyond national jurisdiction or to prevent others in its territory from causing such effects. This standard is captured by the doctrine of “due diligence” which has been defined to require what a responsible government can be reasonably expected to do under normal conditions in a similar situation; applying its best practicable and available means. Due diligence does not refer only to unlawful omissions by a state, but also predominantly to the obligation of conduct to show proper care by exercising good government, management and control, for example, through enacting necessary legislation, effective law enforcement to prevent or terminate illegal activities.

Objective: This article aims to explore the foundational principles and norms governing the responsibility of states in international law, with a focus on the legal frameworks outlined by the International Law Commission’s Articles on State Responsibility. It seeks to deepen the understanding of state accountability and its implications for international relations. Method: The study utilizes a comprehensive review of case law, scholarly interpretations, and legal frameworks to examine key concepts such as internationally wrongful acts, state liability, reparations, and compensation mechanisms. The research also considers the interplay between state sovereignty and international obligations. Results: The analysis reveals the challenges states face in adhering to their international legal commitments, particularly regarding the protection of human rights and the resolution of international disputes. It also highlights the complexities in balancing state sovereignty with legal accountability. Novelty: This article contributes a deeper understanding of state responsibility within the broader context of international relations, emphasizing the need for legal accountability in fostering stability and justice in the international community. It provides a nuanced perspective on how state responsibility operates in contemporary international law.

The Market Stall Pharmaceutical Business Policy under Minister of Health Regulation No. 11 of 2025 represents a deregulation measure that expands the retail distribution of over the counter medicines beyond formal pharmaceutical service facilities. While intended to enhance public access to medicines, particularly in underserved areas, this policy raises fundamental legal concerns regarding regulatory coherence, supervisory design, and the scope of state responsibility in safeguarding consumer safety. This study examines the policy from the perspective of health administrative law and consumer protection, emphasizing the precautionary principle, state responsibility, and state liability as normative benchmarks. Employing a doctrinal legal method with statutory, conceptual, and comparative approaches, the research also reviews supervisory models for over-the-counter medicines in selected Asian jurisdictions. The findings reveal three critical regulatory gaps: vertical inconsistency between deregulation norms and higher health legislation; horizontal fragmentation in inter agency supervision; and the absence of explicit state liability mechanisms in cases of consumer harm. These deficiencies extend beyond administrative technicalities and pose risks of maladministration, potentially undermining the constitutional right to health. The study argues that deregulation in the health sector cannot be construed as a reduction of state obligations. Rather, the state remains the ultimate guarantor of public safety and must ensure integrated, risk-based, and accountable supervision to prevent regulatory failure and to uphold consumer protection within the framework of the rule of law.

Connecting traditional military domains (land, sea, and air), cyber and space domains are critical in the modern defense of worldwide assets. These domains leverage evolving technologies and international partnerships to further the national security interests of cooperating nations. International and domestic laws governing cyber and space assets rely on separate and distinct legal frameworks, effectively creating legal silos within each domain. Regardless, application of some key provisions of the Outer Space Treaty overlap with cyber operations and should be applied in the cyber threat context – state responsibility and liability. These provisions provide the framework to determine state liability under specific circumstances. Unique to the space domain, the Outer Space Treaty requires state responsibility for “national activities in outer space,” a term undefined in the treaty. In accordance with the treaty provisions, states provide that responsibility through licensing regulations, statutes, oversight of launches, on-orbit activity, and other space-related conduct. Governing state liability, the liability provision and the subsequent Liability Convention render a state liable even after a state has transferred ownership of a satellite. Cyber operations conducted against space objects further complicate the legal remedy process, but should not preclude application of traditional space law. While the writers of the Outer Space Treaty could not have considered cyber operations as part of these provisions, these responsibility and liability provisions today partially bridge the gap between the legal frameworks mentioned previously. This paper argues legal practitioners can and should apply the responsibility and liability provisions to cyber operations and threats against space objects. Additionally, states can further bridge the gap between domains by addressing cyber operations in domestic space law. These applications modernize the law and reflect the true reality of multi-domain assets and the technological reliance on space and cyber domains.

The article summarizes the arguments and counterarguments within the scientific debate on the application of the principles and practices of international law to assess the compensation of a State’s damage as a result of the illegal acts and/or inaction of another State. The main purpose of the study is to analyze the causes of the crisis against the Rohingya ethnic group and to assess its likely devastating effects on Bangladesh. The systematization of literary sources and approaches to the settlement of international disputes of this kind indicate that in practice there are two approaches that can be used to file and pursue a claim for redress for Myanmar. The urgency of solving this scientific problem is that, as a neighboring country, Bangladesh has faced the need to resolve the issue of refugees from the region and accordingly takes an active part in resolving this protracted conflict caused by Myanmar’s actions against the Rohingya ethnic group, the persecuted ethnic minority in the world. According to the Office of the United Nations High Commissioner for Refugees, the unlawful and brutal actions of the Myanmar army have forced more than a million Rohingya refugees to flee their homes and migrate to Bangladesh, causing enormous negative effects on its economy, the environment and the rule of law. The study confirms that, under international law, Bangladesh has the right to sue Myanmar for unfair and cruel oppression of Rohingya rights. During the course of the study, the author has used such sources as periodicals, UN reports, and documents from Rohingya human rights organizations. The principles of international law on state liability are used as a methodological tool for assessing Myanmar’s liability. The results of the study may be useful for policymakers exploring the strategy of addressing the challenges of Myanmar’s compensation claims, as well as for international organizations that are addressing the Rohingya crisis. Keywords: cruelty, international wrongdoing, imperative norm, compensation, state responsibility, Myanmar, Bangladesh, Rohingya national migration, refugee rights, ethnic minorities, damages lawsuit.

Although the Liability Annex is interesting in itself, since it establishes one further regime providing for compensation for environmental damage, it is perhaps even more interesting to examine which of the lessons are to be learned for customary international law on international liability. The Liability Annex and the Protocol on Liability and Compensation to the Basel Convention provide identical answers concerning the economic assessment of environmental damages by using the necessary response actions as a basis for calculation. This approach is probably more acceptable than the approach taken by the judgment in the Zoe Collocotroni case and the Erika case . Further, it is to be noted that the Liability Annex and the Protocol on Liability and Compensation to the Basel Convention both refer to the standard of strict liability rather than absolute liability. Finally, they both follow the same approach concerning State liability. Keywords: Antarctica; customary international law; environmental damage; international liability; Liability Annex; state responsibility

The consensus of the concept of “environmental damage” by the international community is crucial to address the issues concerning liability and responsibility of states in international environmental law. Moreover, compensation of environmental damage is very difficult to achieve in international environmental law. Compensation is reparation applying for loss or damage as a result of acts or omissions that are subjects of international law and the effect of natural disasters on the people, property and the environment. The complexity of human-caused environmental damage, the limit of prevention and compensation of damage in the national, regional and global context are the main limit of the development of international law.. The initial aim of this paper is to examine the evolution of the concept of “environmental damage” in international environmental law, and secondly, to determine the challenges of this concept in international environmental law.

A passport is the property of the State which issues it. As such no State or other legal entity has a right to alter an existing passport of a holder or forge false documentation purporting to have been issued by a State. The fundamental issue therefore, is whether a State or instrumentality of that State can use a forged passport with impunity, particularly in the course of criminal activity. On 19 January 2010, Mahmoud al-Mabhouh, considered to be a senior commander of Hams, a radical Palestinian group, was assassinated at a hotel in Dubai in a manner usually employed by professionally trained military and secret service agencies. The killing was attributed to Mossad, the Israeli secret service. Quite apart from the criminality of the assassination, the issue of the use of forged passport was brought to bear by some countries which alleged that the perpetrators of the crime had allegedly forged passports that seemingly belonged to those countries. This international incident sparked off a legal and diplomatic discussion in the media as to the responsibility and liability of States—which condone or allow the use of these forged documents—towards those States that are affected. This article discusses the position at international law with regard to the falsification of passports.

Presented paper aims to define obligations of receiving state according to premises of diplomatic mission. This is particular kind of real estates, which are located on territory of state. Author tries to answer a question about legal effects of violation premises of diplomatic mission on the ground of the international law. Article contains key provisions of the international law for this issue, which are connected to premises of diplomatic mission and ground for the responsibility and liability of state. Presented acts of the international law concerns on not only diplomatic law, but also law of special missions and antiterrorist law. Author describes also legal status of premises of diplomatic mission on territory of receiving state. Analysis of abovementioned provisions is necessary to derive obligations of receiving state. Moreover, there are described the most well-known cases of assaults on premises of diplomatic mission and statistics concerning on this subject. Author considers possible cases of violation of premises of diplomatic mission and international legal effects of such case. There can be many cases, because inviolability of premises can be an act of third state, which is bound by provisions of diplomatic law, both agreements and custom.

The sovereign right of States to peaceful use of nuclear energy is analysed in this chapter on the basis of current non-proliferation law and international environmental law. The exercise of this right depends on the implementation of certain obligations under international law. The high bar of the legality of peaceful nuclear energy is explained by the dual-use nature of the materials and technologies associated with nuclear energy and the transboundary nature of environmental protection. The notion of sovereignty as independence and superiority does not serve the challenges of peaceful nuclear energy and the modern understanding of the environment as an area of common concern. Against this background, a cooperative approach is suggested in order to successfully resolve the prevention and mitigation of nuclear accidents. The principles of international environmental law pose stringent requirements for the legal use of nuclear energy, which offer additional arguments for responsible behaviours of both States and non-States’ actors in cooperation with international organisations and in particular with the IAEA. The subject of sovereignty is closely linked with the responsibility and liability of States in case of nuclear environmental damage. The present nuclear liability regime should be strengthened by adopting an international legal instrument covering both civil and international liabilities.KeywordsSovereigntyPeaceful uses of nuclear energyNon-proliferation lawEnvironmental lawNuclear liabilityObligation to cooperate

The sovereign right of states to peaceful nuclear energy is analysed on the basis of principles of international environmental law. The exercise of this right depends on the implementation of certain obligations under international law. The notion of sovereignty as independence and superiority does not serve the challenges of peaceful nuclear energy and the modern understanding of the environment as an area of common concern. Against this background a cooperative approach is suggested in order to successfully resolve the prevention and mitigation of nuclear accidents. The principles of international environmental law pose stringent requirements for the legal use of nuclear energy, which offer additional arguments for responsible behaviours of states in cooperation with international organisations and in particular with the IAEA. The subject of sovereignty is closely linked with the responsibility and liability of states in case of nuclear environmental damage.

On 2 April 2015, the ITLOS delivered its first-ever Advisory Opinion on a request submitted by the Sub-Regional Fisheries Commission, a regional fisheries organization of seven West African States. The Advisory Opinion has invoked considerable excitement for its elaboration of the concept of ‘due diligence’ obligation in the UNCLOS context and their consideration of the issue of responsibility and the potential liabilities of flag States and their vessels operating in EEZ. This paper reviews and reflects on the Tribunal’s Advisory Opinion with particular focus on the flag States responsibilities and liability for illegal, unreported and unregulated (IUU) fishing by vessels flying its flag, and the obligations of States to secure sustainable management of fisheries resources in EEZ. The Tribunal’s interpretation of the Convention in the Opinion has brought some clarity to the IUU regime that is inadequately addressed in the UNCLOS. The Opinion has the potential to strengthen international norms on IUU fishing and sustainable fisheries resources management.