Fault Theory

As per this view a State is not responsible to another State for unlawful acts committed by its agents unless such acts are committed willfully and maliciously or with culpable negligence. This approach is the subjective responsibility concept which emphasizes that an element of intentional or negligent conduct on the part of the person concerned is necessary before his state can be rendered liable for any injury caused. A leading case adopting the subjective approach is the Home Missionary Society claim in 1920 between Britain and the United States. In this case, the imposition of a ‘hut tax’ in the protectorate of Sierra Leone triggered off a local uprising in which Society property was damaged and missionaries killed. The tribunal dismissed the claim of the Society (presented by the US) and noted that it was established in international law that no government was responsible for the acts of rebels where it itself was guilty of no beach of good faith or negligence in suppressing the revolt. It should, therefor, be noted that the view expressed in this case is concerned with a specific area of the law, viz. the question of the state responsibility for the acts of rebel. Whether one can analogize from this generally is open to doubt. The doctrine and practice support the objective theory (i.e. strict liability). This is proper, particularly in view of the proliferation of State organs and agencies.

In the Corfu Channel case, the International Court appeared to lean towards the fault theory by saying that it cannot be concluded from the mere fact of the control exercised by a state over its territory and waters that the state necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have, the authors.