State Responsibility during State Failure - a Question of Attribution and State Definition

Abstract: The term 'failed states' is still new to the international society and has as such not yet received any legal status. Nevertheless, the concept of failed states does have legal implications on many fields of international law. The law of State Responsibility constitutes such a field. The International Law Commission has in its articles on State Responsibility attempted to clarify legal uncertainty and to avoid the possible evading of responsibility by disintegrating states with a specific rule of attribution. The question in this thesis is to analyze - from a failed state perspective - whether the International Law Commission has succeeded in its attempt. In the thesis it is concluded that the articles on State Responsibility of most interest in the context of failed states are articles 9 and 10. Article 9 deals with the situation of when State Responsibility can be raised for acts carried out in the absence or default of official authorities. The prerequisites set out in the article are not applicable to every situation of state failure. For instance, the article does state that private persons shall perform the conduct. Failed states are in many cases characterized by a fight over power by different factions or by de facto governments. The International Law Commission has also in its commentaries emphasized the exceptionality of the situation in question, something that further diminishes the applicability of the article to situations of state failure. Yet, practice by the Iran-United States Claims Tribunal shows that article 9 is applicable to situations of temporary state failure, when the prerequisites in the article are met. Moreover, an examination of the Tribunal's contribution to the law of State Responsibility has, inter alia, shown that the Tribunal set the standards for burden of proof high for the part to the case that claimed State Responsibility. Furthermore, it is concluded in the thesis, that the law of State Responsibility is dependant upon the concept of statehood and what the international community considers a state to be. The law of State Responsibility can, as the name suggests, only be applied to states, not to other entities or occurrences in current international law. Situations of prolonged state failure - state collapse - therefore raises the question of state definition and state recognition. The meaning of state recognition is contested in the legal writing. Some scholars consider state recognition to have a merely declaratory function, while others consider it to have a semi-constitutive or an evidentiary function. This thesis concludes that state recognition at least reinforces the criteria for statehood. Somalia is an example of a state which suffers from state collapse. The northern part of Somalia, Somaliland, has declared independence, but is not yet recognized as a state by the international community. Since it is impossible to raise State Responsibility vis-à-vis Somalia, no violator against which injured states could claim redress exists, as long as the international community continues to withhold recognition of entities such as Somaliland. The International Law Commission has therefore failed in its attempt to avoid the possible evading of responsibility in disintegrating states.