On 13 February 2019, a suicide attack targeting the personnel affiliated with the Islamic Revolutionary Guard Corps (IRGC) in the south-east province of Iran resulted in the death of 27 people. Jaish al-Adl, a jihadist armed group based in Pakistan, claimed responsibility for this attack. The next day, a suicide bomber attacked the security personnel in Pulwama district in Indian-controlled part of Kashmir, killing 40 police forces. This attack was carried out and claimed by Jaish-e-Mohammed, an Islamist armed group based in Pakistan. In both cases, Pakistan condemned the attacks and denied any alleged link to these armed groups. Regardless of the allegations of complicity in supporting and equipping these armed groups on the part of Pakistan, there remain vital questions on the legal analysis of its responsibility for the cross-border violence caused by non-state armed groups, mainly based in Pakistan.
Legal Framework of International Responsibility of State
The primary rules of State responsibility are codified in the Draft Articles on Responsibility of States for Internationally wrongful acts of 2001 (“Draft Articles”), prepared by the International Law Commission and adopted by the United Nations General Assembly resolution 56/83. They have not yet been formulated into a binding international convention; however, these rules are perceived to be indicative of customary international law, and therefore, binding upon all States.
Pursuant to Art. 2 of the Draft Articles, international responsibility of a State is established only for such time as it can be “attributable” to that State while “constituting a breach of an international obligation” of it. Therefore, speaking generally, there should be a link between the wrongful act and the State itself. Moreover, it merits particular notice that not all kinds of link or mere connection –e.g. by virtue of nationality, incorporation, etc.- account for State responsibility. With respect to the commentaries to the Draft Articles, ‘the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State’.
Sic Utere Principle and Limiting State Sovereignty
The International Court of Justice (ICJ) in the South-West Africa Advisory Opinion (1971) pointed out that ‘physical control of a territory… is the basis of State liability for acts affecting other States’. In this sense, the question arises as to what extent a State may be held responsible for the unlawful acts of private actors – including, but not limited to, non-State armed groups – that may establish their headquarters on the territory of that State, and carry out intense cross-border violence against the adjacent territories therefrom. This question presupposes lack of consent on the part of the State for the unlawful operations of those non-State actors.
The international jurisprudence has already addressed this concern, relying on the principle of sic utere tuo utalienum non lædas. Having its roots in the Roman civil law, this principle restricts any kind of enjoyment of one’s own rights which may infringe upon the rights of others. In the Trail Smelter case (U.S. v. Canada) in 1941, the arbitral tribunal proposed the following definition of the sic utere principle: ‘No State has the right to use or permit the use of its territory in such a manner as to cause injury … in or to the territory of another or the properties or persons therein’ (emphasis added). This argument was affirmed in Lac Lanoux arbitration award (1957) between France and Spain. Although most of the cases relying on this principle deal with the environmental disputes, it can, however, be argued that this concept may be applied ex analogia to other similar cases of relatively different factual backgrounds.
It is well settled that the principle of sic utere tuo utalienum non lœdas constitutes an established norm of general international law, as pointed out by the International Law Commission (ILC). Moreover, the recognition of this long-standing principle of international law has not been confined to international jurisprudence. The U.S. Supreme Court in Glass v. The Betsey (1794) underlined that the Latin maxim sic utere tuo utalienum non lœdas has been incorporated into ‘the law of nature’, and is, therefore, binding on all members of ‘the great society of nations’. In 1891, it was invoked by the United States while expressing its deep concern towards the persecution of Russian Jews that had resulted in the flow of refugees to the U.S. territory.
This principle may rule out any pretext of non-accountability on the part of State for the wrongful acts – other than those directed, instigated or controlled by the State itself – endangering peace and security at both domestic and regional levels. In the Corfu Channel case (1949), The ICJ maintained the position that every State is under an obligation ‘not to allow knowingly its territory to be used for acts contrary to the rights of other States’ (emphasis added). This definition, aligned with the one suggested in the Trail Smelter case, offers a two-fold analysis in this regard: it is clear that a State will breach the sic utere principle if it knowingly (and wilfully) uses its territory to affect the legitimate rights of other States, but this principle also covers a failure on the part of State to suppress the armed operations of non-State actors, which are directed from its territory and may result in serious damage to other States.
As highlighted by Judge Bhandari in his separate opinion in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), the sic utere principle should be considered as a “logical corollary of the foundational principle … that each nation is sovereign over its own territory’. Aligned with the primary rules of State responsibility which also govern the wrongful cross-border activities of States, the sic utere principle alludes to the obligations of a State vis-à-vis neighbouring States, or in other words, the principle of good- neighbourliness as endorsed by Art. 74 of the UN Charter. In light of the foregoing, Pakistan may be responsible with respect to the cross-border operations in the territory of its neighbouring States carried out by non-State armed forces. This argument is also supported by the obligation of due diligence which itself is a general principle of international law. Any failure on the part of Pakistan to repress the armed forces involved in recurrent violent attacks against the adjacent States might give rise to a setback in the maintenance of peace and security in the South Asia region, which has always been prone to both internal and inter-state conflicts.