Due Diligence in International Law [1 ed.] 9789004325197, 9789004283107

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Due Diligence in International Law

Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Phoebe Okowa Sarah Singer

VOLUME 26

The titles published in this series are listed at brill.com/qmil

Due Diligence in International Law By

Joanna Kulesza

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Kulesza, Joanna, author. Title: Due diligence in international law / by Joanna Kulesza. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Queen Mary studies in international law ; volume 26 | Includes bibliographical references and index. Identifiers: LCCN 2016023277 (print) | LCCN 2016023622 (ebook) | ISBN 9789004283107 (hardback : alk. paper) | ISBN 9789004325197 (E-book) Subjects: LCSH: International obligations. | Government liability (International law) | Reasonable care (Law) Classification: LCC KZ4080 .K85 2016 (print) | LCC KZ4080 (ebook) | DDC 347/.05--dc23 LC record available at https://lccn.loc.gov/2016023277

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1877-4822 isbn 978-90-04-28310-7 (hardback) isbn 978-90-04-32519-7 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgement ix Abbreviations xi Table of Treaties and Other Instruments xii ilc Reports and Drafts xiv Introduction 1 Methodology 7 Terminological Issues 7 Fault and Responsibility in International Law 13 1 The Obligation of Due Diligence – Theory and Practice 18 General Principles of International Law 18 The Principle of International Responsibility 29 State as a Collective in Ancient Times and the Middle Ages 32 Individual Responsibility of Monarchs in the Age of Absolutism 36 Enlightenment Concepts of State Responsibility 42 Indirect and Objective Responsibility in International Law 48 Due Diligence and the Question of State Sovereignty 55 Due Diligence and Denial of Justice to Foreigners 65 Due Diligence and Diplomatic Protection 85 Due Diligence in Preventing Transboundary Environmental Harm 91 Due Diligence, Crime Prevention and International Terrorism 105 The Role of Due Diligence in Contemporary International Jurisprudence 113 2 State Responsibility, International Liability and Due Diligence – A Critical Analysis 115 Introductory Remarks 115 League of Nations and State Responsibility 116 The International Law Commission on State Responsibility Principles 124 Due Diligence and State Responsibility 136

vi

Contents

Principles of State Responsibility 149 Attribution of an Internationally Wrongful Act 153 Responsibility for State Bodies 155 Responsibility for State Actors 156 Responsibility for Private Individuals 157 The Question of Indirect (Vicarious) Responsibility of States 158 Circumstances Precluding Lawfulness 164 State Responsibility vs International Liability 165 Due Diligence and the Principle of Good-Neighborliness 167 Principles of International Liability for Harmful Consequences of Acts Not Prohibited by International Law 170 Applying International Liability Norms 177 Due Diligence, Risk and Harm in the Regime of International Liability 181 The Concept of Significant Transboundary Harm 205 On Liability and Responsibility – Assessing ilc Methodology 208 3 Due Diligence in Treaty Regimes 221 Introductory Remarks 221 Due Diligence in International Environmental Law 224 State Responsibility in International Environmental Law 226 Law of the Sea 235 Law of International Watercourses 239 Protection of Foreigners 242 Law of Diplomatic Relations 247 Protection of Aliens and the Obligations of the Sending State 251 Due Diligence Principle as the Shared Element of Treaty-based Regimes 253 Internationally Recognized Preventive Measures 258 4 The Principle of Due Diligence in International Law 262 The Principle of Due Diligence 262 Consequences of Violating the Due Diligence Principle 270

Contents

5 Applying the Due Diligence Principle – Cybersecurity and National Security Issues 276 International Security and Due Diligence 276 Due Diligence in Preventing Terrorist Offenses 281 Cyberterrorism and Cybersecurity 288 Towards a Due Diligence Standard for Cyberspace 300 Bibliography 303 Index 314

vii

Acknowledgement This book has proven to be an enriching academic experience and an exciting intellectual journey crosscutting many policy themes and legal disciplines. While the work of a writer is a solitary task, that of an academic is an inherently collaborative effort, one build upon conference discussions and policy debates. With that in mind the author wishes to thank all those who have contribute to this publication with their supportive comments, patient attention and constructive criticism. The ultimate incentive for this intellectual endeavor was the o­ pportunity to work with the Council of Europe ad-hoc Advisory Group on Cross-border ­Internet to the Steering Committee on the Media and New Communication ­ Services on their proposals for international and multi-stakeholder ­co-­operation on cross-border Internet, one of the early attempts to look at Internet governance and cybersecurity from a comprehensive and adaptive international law standpoint. In particular my sincerest thanks go out to Professor Rolf H. Weber from the University of Zurich, who has patiently and thoughtfully introduced me to the concept of applying international consensus on transboundary harm to Internet governance related challenges. The outgoing support, constructive criticism and friendly encouragement from Professor Joseph H.H. Weiler during our brief encounter at the European ­University Institute in Florence has affirmed me in my decision to take on the challenging research task that resulted in the manuscript of this volume. The ongoing confidence and support provided by Professor Piotr Daranowski at my alma mater, University of Lodz, have ensured the stability and care necessary for any bold academic project to take off. Also the constructive comments from Professors: Maria Magdalena Kenig-Witkowska of Warsaw University and Roman Kwiecień of Maria Curie-Sklodowska University in Lublin have greatly added to the final outcome of this research. My thanks also go out to my colleagues and friends in the academic community, who have supported me in various capacities throughout this work, including Professor Roy Balleste of St. Thomas University in Miami, Florida and Professor Lee Andrew Bygrave from University of Oslo together with his team, whose hospitality and support are always greatly appreciated. The welcoming, warm and yet invigorating atmosphere of the European Democracy annual conferences organized by Professor Alexander Balthasar of the Institute for State Organisation and Administrative Reform at the Austrian Bundeskanzleramt and President Klemens H. Fischer of the Austrian Institute for European and Security Policy has given me the unique opportunity to test ideas and probe solutions proposed in this book

x

Abbreviations

on an enduring and supportive EuDEM audience, for which I thank them. My ­sincerest thanks go out also to my managing editor with BRILL, Ms Ingeborg van der Laan, whose patience with the author and confidence in the manuscript have proven to be the decisive factor to this publication. Last but by no means least my utmost thanks go to my family, without whose patience, ­understanding and continuous support a work such as this could never be ­successfully completed. Any faults or mistakes, regrettably unavoidable in academic work despite due diligence (sic!) exercised by the author, remain her sole responsibility.

Abbreviations ccit CoE gcts hrc iccpr icescr iil ilc marpol rdc lnu un unc unclos unts vcdr

Comprehensive Convention against International Terrorism Council of Europe United Nations Global Counter-Terrorism Strategy Human Rights Committee International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Institute of International Law International Law Commission International Convention for the Prevention of Pollution from Ships Recueil des cours League of Nations Union United Nations United Nations Charter United Nations Convention on the Law of the Sea United Nations Treaty Series Vienna Convention on Diplomatic Relations

Table of Treaties and Other Instruments Congreso Hispano-Luso- Americano de Derecho International (1927) u.n. Doc. A/CN.4/125, 64. Convention for the Protection of the Marine Environment of the North-East Atlantic (ospar Convention) (1993) 2354 unts 67. Convention on Environmental Impact Assessment in a Transboundary Context (1997) unts 1989 (Espoo Convention). Convention on the International Commission for the Protection of the Rhine against Pollution (1963) 994 unts 3 (Bern Convention). Convention on the Prevention and Punishment of the Crime of Genocide (1951) unts 78, 277. Council of Europe, Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (1993) ets 150. Council of Europe, Recommendation CM/Rec(2011)8 of the Committee of Ministers to member states on the protection and promotion of the universality, integrity and openness of the Internet (2011). Draft Paris Agreement under the UN Framework Convention on climate change (2015) un Doc. FCCC/CP/2015/L.9. Geneva Convention on Long-range Transboundary Air Pollution (1979) unts 1302. Helsinki Protection of the Marine Environment of the Baltic Sea Area (1992) unts 25986. International Covenant on Economic, Social and Cultural Rights (1966) unts 993 (icescr). Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 ilm 1550. Rhein Chemical Convention (1977) 16 ilm 242. United Nations Conference on Environment and Development (1992). Report of the United Nations Conference on Environment and Development, Annex i, u.n. Doc. A/CONF.151/26 (Vol. i). United Nations Framework Convention on Climate Change (1992) 1771 unts 107. United Nations, Convention on the Law of the Sea (1982) unts 1833. United Nations, Declaration of the United Nations Conference on the Human Environment (1972) u.n. Doc. A/CONF.48/14/Rev. 1. United Nations, Draft comprehensive convention against international terrorism: Consolidated text prepared by the coordinator for discussion (2005) un Doc. A/59/284, Appendix ii. United Nations, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development (1992) u.n. Doc A/ CONF.151/26 (Rio Declaration).

Table of Treaties and Other Instruments Vienna Convention for the Protection of the Ozone Layer (1985) unts 1513. Vienna Convention on Civil Liability for Nuclear Damage (1963) unts 1063. Vienna Convention on Diplomatic Relations (1961) 500 unts 95.

xiii

ilc Reports and Drafts

Reports of Special Rapporteurs on State Responsibility for Acts Contrary to International Law



FV Garcia Amador



R Ago



W Riphagen



G Arangio-Ruiz

Report on state responsibility ilc Ybk 1954/ii, xxx. First Report on State Responsibility ilc Ybk 1956/ii, 173. Second Report ilc Ybk 1957/ii, 104. Third Report ilc Ybk 1958/ii, 47. Fourth Report ilc Ybk 1959/ii, 1. Fifth Report ilc Ybk 1960/ii, 41. Sixth Report ilc Ybk 1961/ii, 1.

First Report ilc Ybk 1969/ii, 125. First Report Addendum ilc Ybk 1971/ii(1), 193. Second Report ilc Ybk 1970/ii, 177. Third Report ilc Ybk 1971/ii(1), 199. Fourth Report ilc Ybk 1972/ii(1), 71. Fifth Report ilc Ybk 1976/ii(1), 3. Sixth Report ilc Ybk 1977/ii(1), 3. Seventh Report ilc Ybk 1978/ii(1), 31. Eighth Report ilc Ybk 1979/ii(1), 3. Eighth Report Addendum ilc Ybk 1980/ii(1), 13.

Preliminary Report ilc Ybk 1980/ii(1), 107. Second Report ilc Ybk 1981/ii(1), 79. Third Report ilc Ybk 1982/ii(1), 22. Fourth Report ilc Ybk 1983/ii(1), 3. Fifth Report ilc Ybk 1984/ii(1), 1. Sixth Report ilc Ybk 1985/ii(1), 3. Seventh Report ilc Ybk 1986/ii(1), 1.

Preliminary Report ilc Ybk 1988/ii(1), 6. Second Report ilc Ybk 1989/ii(1), 1. Third Report ilc Ybk 1991/ii(1), 1.

ilc Reports and Drafts

xv

Fourth Report ilc Ybk 1992/ii(1), 1. Fifth Report ilc Ybk 1993/ii(1), 1. Sixth Report ilc Ybk 1994/ii(1), 3. Seventh Report ilc Ybk 1995/ii(1), 1. Eighth Report ilc Ybk 1996/ii(1), 1.



J Crawford



Reports of Special Rapporteurs on International Liability for Acts Not Prohibited by International Law



RQ Quentin-Baxter



J Barboza



PS Rao

First Report ilc Ybk 1998/ii, 1. Second Report ilc Ybk 1999/ii(1), 3. Third Report ilc Ybk 2000/ii(1), 3. Fourth Report ilc Ybk 2001/ii(1), 3.

Preliminary Report of the Working Group ilc Ybk 1978/ii(2), 150. Preliminary report: ilc Ybk 1980/ii(1), 247. Second report: ilc Ybk 1981/ii(1), 103. Third report: ilc Ybk 1982/ii(1), 51. Fourth report: ilc Ybk 1983/ii(1), 201. Fifth report: ilc Ybk 1984/ii(1), 155.

Preliminary report ilc Ybk 1985/ii(1), 97, un Doc A/CN.4/394. Second report ilc Ybk 1986/ii(1), 145, un Doc A/CN.4/402. Third report ilc Ybk 1987/ii(1), 47, un Doc A/CN.4/405. Fourth report ilc Ybk 1988/ii(1), 251, un Doc A/CN.4/413. Fifth report ilc Ybk 1989/ii(1), 131, un Doc A/CN.4/423. Sixth report ilc Ybk 1990/ii(1), 83, un Doc A/CN.4/428 and Add.1. Seventh report ilc Ybk 1991/ii(1), 71, un Doc A/CN.4/437. Eighth report ilc Ybk 1992/ii(1), 59, un Doc A/CN.4/443. Ninth report ilc Ybk 1993/ii(1), 187, un Doc A/CN.4/450. Tenth report ilc Ybk 1994/ii(1), 129, un Doc A/CN.4/459. Eleventh report ilc Ybk 1995/ii(1), 51, un Doc A/CN.4/468. Twelfth report ilc Ybk 1996/ii(1), 29, un Doc A/CN.4/475 and Add.1.

First report ilc Ybk 1988/ii(1), 175.

xvi

ilc Reports and Drafts

Second report ilc Ybk 1999/ii(1), 111. Third report ilc Ybk 2000/ii(1), 3. First report on the legal regime for the allocation of loss, ilc Ybk 2003, 42.



Articles Adopted by the International Law Commission

Draft articles on international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities), ilc Report, 1998, u.n. Doc. A/53/10, chapter iv, pp. 19 – 42. Draft articles on Prevention of Transboundary Harm from Hazardous Activities, ilc Report, 2001, u.n. Doc. A/56/10, att. 10. Draft articles on Responsibility of States for Internationally Wrongful Acts, ilc Report, 2001, u.n. Doc. A/56/10, att. 10. Draft articles on the responsibility of international organizations, u.n. Doc. A/CN.4/L.778. Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted on first reading, ilc Yearbook 1996, vol ii(2). Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, ILC Report, 2006, u.n. Doc. A/61/10, pp. 101–182.

Introduction The importance of the concept of due diligence is constantly growing (…). The need to define liability or state responsibility for acts or risk of damage involved in the conduct of hazardous activities is a current concern.1 pemmaraju sreenivasa rao

Due diligence is one of the most ambiguous terms in the contemporary dis­ course on international liability and state responsibility. While crucial to at­ tributing state responsibility for omissions violating international law, it has not been thoroughly discussed in literature. This is primarily due to the fact that the notion itself is difficult to contain as a mere reflection of fast paced globalization and novel technological advancements and yet designated to serve as a yardstick for state efforts in preventing particular, harmful effects. Due diligence has become a short hand reference to a set of criteria for assess­ ing the level of care given by state authorities in a particular case, a standard that has internationally been designed underspecified and thus flexible. Its significance is growing in the era of “privatized” international relations, both political and economic, i.e. at a time when political and trade decisions are shaped by public and private bodies acting on fairly equal footing, with state authorities operating next to powerful international corporations or against influential, global criminal networks. This setting makes it particularly diffi­ cult to identify specific efforts required of states when preventing harmful ac­ tivities originated within state territory, jurisdiction or under state control. Yet specifying such efforts seems necessary in forever more areas of international cooperation, be it preventing terrorist activity, planned within state territory and aimed against foreign states or authorising international companies to conduct risky activities possibly generating significant transboundary harm to foreign interests and individuals. It is for those reasons that states are inten­ sifying their efforts in negotiating the details of mutual obligations aimed at reducing risks and preventing significant harm. This book is an attempt to summarize the contemporary international dis­ course on due diligence. Reflecting arguments made by academia and interna­ tional tribunals, the author argues for the recognition of a state duty to show 1 Pemmaraju Sreenivasa Rao, ‘Second report on international liability for injurious conse­ quences arising out of acts not prohibited by international law’ (1999) u.n. Doc. A/CN.4/501 (hereinafter cited as: Rao’s second report, u.n. Doc. A/CN.4/501), pt. 29, 118.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004325197_002

2

Introduction

due d­ iligence in performing its international obligations as a principle of ­international law. The principle of due diligence is therefore perceived as an element of objective responsibility of states. The customary law obligation of due diligence in performing international obligations is viewed as criteria for attributing state responsibility in cases of violation of international law re­ sulting from an omission, rather than an action, of a state. This perception is meant as an opposition to the controversial, yet still supported, notion of fault as a criteria for state responsibility. The obligation of due diligence has been put into much detail in interna­ tional treaties and practice on state responsibility and international liability. Those achievements have been summarized by the International Law Commis­ sion (ilc) in its reports on those respective areas of international law, but also within judicial decisions on the protection of aliens, diplomatic relations and most significantly, transboundary environmental harm. This body of work al­ lows to specify the universal standard of a “good government” applicable to any state as a criteria for assessing the level of care needed in a given situation. Those elements are the components of the principle of due diligence and constitute an international obligation of states to take all reasonable measures to prevent significant harm to legally protected interests of other states or foreign individu­ als. From a purely academic perspective the violation of an international obliga­ tions, such as that of exercising due care in performing international obligations, can result in state responsibility when e.g. no circumstances precluding lawful­ ness occur. Contemporary state practice shows however that material damage is perceived as a necessary element of attributing state responsibility for lack of due diligence. Moreover, a test of due care of state bodies needs to rely on objec­ tive criteria, such as a clear provision of an international treaty that has been violated or a customary norm, binding upon a state assessed against the factual capability of state bodies to prevent damage. The details of such an obligation of care are discussed in this book. Next to e.g. good faith or good neighborliness, the principle of due diligence is perceived here as an obligation of conduct, rather than one of result, and recognized as a tacit element of all international obligations of conduct, also ones where it has not been explicitly named. This book provides a thorough analysis of the rich body of international law writing and jurisprudence on international liability and state responsi­ bility, offering the details of what the proposed due diligence principle is to impose. While pursuing this goal, the author does not engage with numerous significant issues of international law, such as the definition of state bodies and acts of state, the evolution of the law on state responsibility, the notion of fault, human rights law or the controversial notions of “armed attack” and “ag­ gression” in international law. While the arguments made in the volume touch

Introduction

3

upon many of those issues, they are discussed only in as far as it is necessary for the purpose of reconstructing the content of the principle in question, since a detailed elaboration on their character and origins would reach far beyond the scope of this publication. The author does not therefore discuss in detail the notions of terrorism, state sovereignty, reprisals or sanctions in international law, despite the vivid discussions they have been provoking in the academic and diplomatic circles, but uses them solely to set the boundaries of the prin­ ciple of due diligence. The same has been done with regard to the principles of good neighborliness and sustainable development, which have been used only as the foundations and interpretation guidelines for the due diligence standard. The point of departure for considerations made within this volume is the notion of responsibility in international law, starting with the concept of collective responsibility of the community for the acts of individuals, as recognized by medieval societies. Subsequently, due diligence is discussed in the context of the accountability of a state ruler for his subjects, as derived from Hugo Grotius’ notion of fault in the age of absolutism. The evolution of due diligence, including the departure from Grotius’ fault based theory, is discussed in the context of the works of Hall and de Vattel, as well as the contemporary and controversial notions of “subsidiary” or “vicarious” state responsibility. The argument made in this book for recognizing due dili­ gence as a principle of the law of state responsibility relies on the ilc work on state responsibility and, subsequently, international liability, culminated with the relevant reports by Special Rapporteur Roberto Ago. This targeted review of legal writing on the issue provides the necessary background for an analysis of the evolution of judicial decisions and international arbitra­ tion in cases where failure to show due diligence proved fundamental for attributing state responsibility for omissions. This review sets off with two critical nineteenth century decisions, inadvertently both regarding sea ves­ sels: the Caroline and the Alabama, making a general claim for states to ensure non-intervention with the affairs of their peers by private individuals residing within their territory or jurisdiction. Twentieth century saw a rise in diplomatic disputes as well as in claims for damages suffered by foreign individuals, with states on both sides of the Pacific being held responsible for lack of due diligence in preventing damages to aliens within their ter­ ritories. The assessment of state activity prior to the damages focused on e.g. help rendered to diplomatic personnel, as in the Janina incident or the case of us hostages in Teheran. The second half of 1900s saw rapid technical advancements generating new and genuine threats, not only to the direct interests of other states, but also the natural environment, posed by e.g. the

4

Introduction

d­ eveloping maritime oil transport or nuclear energy. Natural disasters caused by careless use of new technologies or insufficient risk assessment prior to their application saw courts deciding over standards of care in those com­ plex new circumstances, as in e.g. the case of the Canadian smelter in Trail, polluting us crops or the river Rhine pollution following an accident in the Swiss company of “Sandoz”. International courts and tribunals faced ques­ tions crucial to the s­ubsistence of peaceful international relations, ones on the legal limits of allowed interference with the affairs of a foreign country. The old notions of state sovereignty and responsibility gained a new dimen­ sion with the increasing role of private bodies – not just companies, but also individuals and their organized groups – becoming capable of singlehand­ edly affecting significant interferences with the affairs of states. Important questions on limits of state responsibility for the actions of individuals were partially answered in cases regarding armed groups in Nicaragua, the socalled contras¸ supported by the us in their fight against the government as well as in the Srebrenica genocide case, dealing with the formal link between militants and the state. All judicial decisions and arbitral awards that have proved significant to assessing the due diligence standard in international law have also been discussed in Chapter 1. The following chapters are devoted to a review of the work of the League of Nations Union (lnu) and the United Nations (un) on their assessments of state responsibility and international liability. Reflecting the evolution of their position on those two issues, the third chapter covers the former, follow­ ing the efforts of the un International Law Commission (ilc) to identify the ­principles of state responsibility with particular regard to the question of due diligence and the omissions of its bodies resulting in a violation of internation­ al law. In the course of these considerations the following questions, crucial to assessing the role of due diligence in international law, are discussed: the notion and role of state authorities and entities performing state functions, state responsibility for the actions of individuals under state control as well as the controversial notion of indirect (vicarious) responsibility for the actions of private individuals operating within state ­jurisdiction. The focus of the discus­ sion is on the role of due diligence in attributing state responsibility in such cases. State responsibility for violations of international law resulting from the duty of due diligence is referred to in the context of attribution. With regard to due diligence, state responsibility is examined irrespective of the nature of the individual violated obligation, whether customary or treaty-based, within the application of the secondary norms on ­responsibility. A state can be attributed with responsibility for the omissions of its ­bodies if those lead to a violation of international law within state jurisdiction, power or control, also ones

Introduction

5

resulting from the acts of private individuals.2 In this c­ ontext – of attributing state responsibility for a violation of international law – due diligence is dis­ cussed in Chapter 2. There are several general issues pertinent to due diligence, including ques­ tions on the limits of international liability for acts not prohibited by interna­ tional law. This issue was thoroughly analyzed by the ilc, which in 1997 called upon a working group whose work covered the question of due diligence in much detail. Due diligence was recognized as the criteria for assessing state efforts in meeting its obligation of prevention that is the duty to prevent sig­ nificant transboundary harm, including the need for a risk assessment of any dangerous activity conducted within state territory and an engagement in in­ ternational cooperation. Due diligence, an implication of the principle of good neighborliness, has been put into much detail in a series of international law documents, regarding primarily environmental law, and serves as an impor­ tant criteria for assessing state efforts in them meeting their international obli­ gations not just in this area of international law. The content of the duty of due diligence has been most precisely described in a 2001 ilc report consisting of two sets of draft articles: • Draft articles on Responsibility of States for Internationally Wrongful Acts (hereinafter: 2001 ilc Draft Articles on State Responsibility) and • Draft articles on Prevention of Transboundary Harm from Hazardous Activities (hereinafter: 2001 ilc Draft articles on prevention).3 It is in particular Article 3 of the latter that holds most significance for the anal­ ysis provided herein, as it covers a thorough description of due diligence in the law of state responsibility, based on numerous references to international trea­ ties and customs. Other documents that also discuss the place of due diligence in the international legal order include:

2 ilc Report, 2001, u.n. Doc. A/56/10, att. 10, 38–39. The report includes a more moderate provi­ sions than those of the original 1957 draft, where Article 10 indicated that the state is to be held responsible for the damages caused to a foreigner by private individuals if “officials of the State were manifestly negligent” in taking normal measures aimed at preventing such harm and punishing those responsible. ilc, Second report by F.V. Garcia Amador, Special Rapporteur; International responsibility, 1957, u.n. Doc. A/CN.4/106, (hereinafter cited as: García Amador’s second report), 121. 3 ilc Report, 2001, u.n. Doc. A/56/10, att. 10, which includes the 2001 ilc Draft Articles on State Responsibility, 59–365 as well as the 2001 ilc Draft articles on prevention, 366–435.

6

Introduction

• Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities4 (hereinafter: 2006 ilc Draft principles on allocation of loss) and • Draft articles on international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities) (hereinafter: 1998 ilc Draft articles on international liability).5 A discussion on the ilc work in all those areas with a focus on due diligence can also be found in Chapter 2 and includes also the arguments against the ilc methodology, recognizing state responsibility and international liability as separate issues. The role that due diligence plays in both of them is crucial to that critique as it renders the ilc distinction impossible to effectively intro­ duce. It is due diligence that is the shared element of the two, allegedly sepa­ rate, areas of international law. Due diligence is discussed not only in doctrine, court decisions or soft law documents, such as the ilc reports, but, most significantly, has been an impor­ tant factor for numerous treaty-based regimes in international law. A discus­ sion on those regimes and details of the role played by due diligence in each of them, including environmental law, the law of the sea, diplomatic relations or the law of treaties is covered in Chapter 3. A summary of this discussion is presented in Chapter 4. The author ar­ gues that due diligence has been put into enough detail in legal writing and court practice and plays an important enough role to be recognized as a prin­ ciple of international law. The principle of due diligence in international law is defined relying on the work of earlier authors including Riccardo Pisillo Mazzeschi and Georg Schwarzenberger. The latter introduced the category of subsidiary principles of international law, ones needed for the purpose of in­ terpreting the principles of state responsibility. It is in this context that due diligence is perceived here. This chapter aims also to discuss the consequences of failure to show due diligence by state bodies and individuals operating un­ der state power or control. Following the ilc work summarized in the 2001 ilc Draft Articles on State Responsibility, the consequences of state failure in meeting its obligation of due diligence cover all those following any breach of a primary obligation. Also circumstances precluding lawfulness of such breach are applicable in such cases. 4 ilc Report, 2006, u.n. Doc. A/61/10, 101–182. 5 ilc Report, 1998, u.n. Doc. A/53/10, 19–42.

Introduction

7

Methodology The methodology of this book reflects the chronology and work of the ilc re­ garding state responsibility and, eventually, international liability. Also the dis­ tinction between responsibility and liability is reflected in the book, since it has been broadly debated in literature and court decisions, next to the arguments against its introduction. The four soft law ilc documents named above6 play a particularly important role in the identification of the content of the principle of due diligence and its place in the contemporary catalogue of international law principles. The 1998 ilc Draft articles on international liability reflected the 1996 proposal made by Julio Barboza as the Special Rapporteur who discussed in much detail the role of due diligence in the law of state responsibility and, effectively, international liability (hereinafter: Barboza’s draft).7 Although only its sections were adopted for the 1998 ilc document, others were used in the 2001 ilc Draft articles on prevention. And so, as already implied, the narrative of this book follows that of the ilc, documenting the chronology of the due diligence principle, its rise and evolu­ tion, relying upon the methodology of historical research. As a result the notion of due diligence has been derived from the writings of classical international law scholars in the ancient times, through the era of Hugo Grotius all the way to the more recent debates on diligence needed for the effective protection of diplomatic staff. With emphasis on the crucial role played by international soft law for the domain discussed herein, the dynamic analysis of the ilc reports and drafts showed particularly useful, synthesized with the respective jurispru­ dence and court practice. In an attempt to justify the decisions of courts and tri­ bunals, the book includes numerous references to international law scholarly writing, with the summary of the discussion relying on dogmatic methodology.

Terminological Issues

Due diligence needs to be discussed in the context of international respon­ sibility of states and respective legal norms. As already mentioned a de­ tailed coverage of the issue reaches far beyond the scope of this monograph. 6 See supra 2–5 above. 7 Report of the Working Group on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law [in:] Report of the International Law Comis­ sion on the work of its forty-eighth session, ilc Report, 1996, u.n. Doc. A/51/10, att. 1, 100–133.

8

Introduction

Therefore to ensure its clarity a brief terminological reference might prove useful. The ilc identified two areas of its work regarding international accountabil­ ity.8 Chronologically, the earlier one, and therefore one better researched was the question of state responsibility for acts prohibited by international law. This area of international law and relations was intended as distinct from that identified in 1997 as international liability. While the English language, like e.g. German, with its Verantwortlichkeit and Haftung, offer two different terms to cover accountability, many others use only one term to refer to those two legal concepts.9 The notion of responsibility is therefore intrinsically related to the breach of an international obligation, attributable to a state.10 Attribution plays a cru­ cial role when referring to the acts (actions or omissions) of state bodies or individuals acting on behalf of the state or under its control. The ilc clearly emphasized that the notion of responsibility refers solely to states.11 The re­ sponsibility of non-state actors in international law remains disputed, with the 2003 ilc reference to the responsibility of international organizations as a sepa­ rate item on its agenda. The Special Rapporteur on the issue, Giorgio Gaja, has so far presented several reports discussing this matter.12 This book follows the ilc logic and leaves the general question of non-state actors responsibility in international law outside its main scope. The ilc refers to international “liability” relying on the 1998 Draft articles on international liability for injurious consequences arising out of acts not prohibited by international law.13 As per the ilc working documents, the notion of international liability is derived from national regimes on private civil liability. 8 9

10

11 12 13

The term ‘accountability’ is used here to refer simultaneously to both: responsibility and liability. The terminological distinction between “responsibility” and “liability” appears, next to English, only in German and is not recognized in any other official un language; see e.g.: Alan E. Boyle, ‘State Responsibility and International Liability for Injurious Consequenc­ es of Acts Not Prohibited by International Law: A Necessary Distinction?’ (1990) 39 iclq 1, 9. James Crawford, Simon Olleson, ‘The nature and forms of International responsibility’ in Michael D. Evans (ed.), International Law (oup 2010) 455, where the authors refer to the ‘principle (…) of independent responsibility’, one resulting in states being held respon­ sible for own action. 2001 ilc Draft Articles on State Responsibility 32, where the ilc emphasizes that the draft deals only with legal consequences of act prohibited by international law. In 2011 the ilc presented its Draft Articles on the Responsibility of International Organi­ zations, u.n. Doc. A/CN.4/L.778. 1998 ilc Draft articles on international liability, 19–42.

Introduction

9

The ilc deliberately abstracted from “state liability” to address the disputable notion of vicarious responsibility of states for the acts performed by individu­ als and those not prohibited by international law.14 Because the concept of in­ ternational liability goes beyond the scope of national civil liability or criminal responsibility, but even more so with regard to the imminent characteristic of international law to provide a unique, comprehensive perception of notions notorious to national jurisprudence, this book covers international liability as this unique, specific trait of international law, without direct reference to na­ tional perceptions of civil liability or criminal responsibility. The term “inter­ national accountability” is used in this book on rare occasions as a reference to both regimes: that of state responsibility as well as the one on international liability.15 A similar terminological reference needs to be made to the notions of „dam­ age” and „harm”. The ilc devoted much attention to differentiating those terms, similar in their vocabulary context, yet distinctly different in their scope and meaning in international scholarship. The notion of harm has been used by the ilc to imply the potential infringement of, hence a threat to, the le­ gally protected interests of other states, although one that has not yet come to fruition. “Harm” is the threat of “damage”, with the latter referring to the actual infringement suffered by individuals, done to property or environment.16 This latter notion refers to the loss of life, damage to one’s health, loss of or dam­ age to property, including cultural heritage, detriment in natural environment but also the costs generated by rational measures applied to limit the damag­ ing effects or diminish such results.17 The term “damage” is therefore used in this book to describe actual infringement of legally protected interests, while the notion of “harm” refers solely to the threat of such infraction, i.e. to po­ tential damage. This terminological distinction is of crucial importance when attempting to identify the content of the best efforts obligation, fundamental to assessing due diligence that is to efforts aimed at preventing transboundary 14

The theoretical concept of “state liability” was discussed in the first Barboza report, yet took no further traction with the ilc. ilc Report, 1994, u.n. Doc. A/49/10, 155. 15 The notion of “state accountability” has been defined and meticulously covered in a dif­ ferent context by Lisa Yarwood: Lisa Yarwood, State Accountability under International Law Holding States Accountable for a Breach of Jus Cogens Norms (Routledge, London 2011). The present volume does not follow the methodology introduced by Yarwood. 16 2006 ilc Draft principles on the allocation of loss, 120. 17 Working Group on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law (International Liability for Failure to Prevent Loss From Transboundary Harm Arising Out of Hazardous Activities), Report of the Working Group, 2004, u.n. Doc. A/CN.4/L.661, 2.

10

Introduction

harm, effectively subject to potential state responsibility. As per contempo­ rary legal writing it remains disputable whether states violating their duty of prevention by failing to use all necessary measures to prevent transboundary harm are to be held responsible for the resulting harm. There seems to be no clear accord in both: scholarly writing and state policies on state responsibility for harm as a attributable result of lacking diligence, i.e. states being held re­ sponsible for the threat to legally protected interests of other states. The major­ ity of states remain reluctant to accept such interpretation of international law and advocate for the occurrence of actual damage as a necessary prerequisite for state responsibility. Arguments for and against this perception of state re­ sponsibility are discussed below. Another terminological issue that needs to be discussed in the introduction to this book is the notion of due diligence, as it has been present in the inter­ national discourse in a rich array of contexts and meanings. Scholarly writers have been referring to the “concept”, “doctrine”, “test”, “duty” as well as the “ob­ ligation” of due diligence.18 The ilc usually refers to due diligence as a stan­ dard19 and this is the term that is used also by many contemporary authors,20 although the noteworthy report by the first ilc Special Rapporteur on state re­ sponsibility, García-Amador, is in its first part devoted to the “principle” of due

18

19

20

See e.g.: ilc, Report of the International Law Comission on the work of its thirtieth session, 1978, u.n. Doc. A/33/10, attachment, (hereinafter: ilc Report, 1978, u.n. Doc. A/33/10), pt. 19, 151; Seventh report on State Responsibility, by Mr. Willem Riphagen, Special Rapporteur, u.n. Doc. A/CN.4/397, 8 (hereinafter cited as: Riphagen’s seventh, u.n. Doc. A/CN.4/397); D. Freestone, E. Hey, The Precautionary Principle and International Law: The Challenge of Implementation (Wolters Kluwer 1996) 88; Jan Arno Hessbrueg­ ge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’ (2004) 36 nyujilp 267; Nathalia Schrijver, F. Weiss, International Law And Sustainable Development: Principles And Practice (Martinus Nijhof 2004) 28; Boleslaw Adam Boczek, International Law: A Dictionary (oup 2005) 220; Lisa Viikari, The Environmental Element in Space Law: Assessing the Present and Charting the Future (BRILL 2008) 156. ilc Report, 1994, u.n. Doc. A/49/10, which covers the details of the “due diligence stan­ dard” in contemporary international law 169; García Amador’s second report report, u.n. Doc. A/CN.4/106, pt. 4, 122, where due diligence is described as “a standard and not a definition”. See e.g.: Boleslaw Adam Boczek, International Law (n 18) 235; Francisco Forrest Martin, International Human Rights And Humanitarian Law: Treaties, Cases And Analysis (cup 2006) 72; Ian Brownlie, Principles of Public International Law (oup 2008) 440, 455; Anne T. Gallagher, The International Law of Human Trafficking (cup 2010) 241; Kimberly N. Trapp, State Responsibility for International Terrorism (oup 2011) 64.

Introduction

11

diligence as an element of the international responsibility of states.21 Also 21st century international environmental law scholarship refers to the principle of due diligence in the context of environmental protection and prevention of transboundary harm.22 The necessary recognition of due diligence in environ­ mental law has been confirmed also by the ilc.23 Riccardo Pisillo-Mazzeschi was the first legal scholar to devote an original piece of academic writing to the “principle” of due diligence as a recognized element of the law of state responsibility.24 This book is an attempt at further exploring this original con­ cept, providing a comprehensive summary of the scholarly work in the area, in respect of terminology originally used in referenced resources. This author opts for the recognition of due diligence as a principle of international law and as such usually refers to the concept. Lastly, since due diligence needs to be discussed in the context of interna­ tional accountability, the notions of strict liability,25 absolute liability26 and 21 22

23 24 25

26

García Amador’s second report report, u.n. Doc. A/CN.4/106, comments on Articles 10 and 11, pts 15, 122–123, discussed in detail herein below. Georg Dahm, Jost Delbrück, Voelkerrecht, (Springer 2002) vol. I/3, 948; T. Gazzini, The Changing Rules on the Use of Force in International Law (BRILL 2005) 187; Robert P. Barnidge Jr., ‘The Due Diligence Principle Under International Law’ (2006) 8 iclr 81 ff., Lisa Viikari, The Environmental Element in Space Law (n 18) 155; Nathalia Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (cup 2008) 127; Nathalia ­Schrijver, Development Without Destruction: The un and Global Resource Management (Bloomington 2010) 50; Osamu Yoshida, The International Legal Régime for the Protection of the Stratospheric Ozone Layer: International Law, International Régimes, and S­ ustainable Development (BRILL 2001) 65; Chia Lehnardt, Private Militarfirmen und volkerrechtliche Verantwortlichkeit: Eine Untersuchung aus humanitar-voelkerrechtlicher und m ­ enschenrechtlicher Perspektive (Mohr Siebeck 2011) 87. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110 referring to the Rhine river pollusion case, discussed in detail below. Riccardo Pisillo-Mazzeschi, “The ‘Due Diligence’ Rule and the Nature of the International Responsibility of States” (1992) 35 gyil 9–49 and his further works on the issue. See e.g.: Rao’s second report, u.n. Doc. A/CN.4/501, pt. 68, 23; Jaye Ellis, ‘Has International Law Outgrown Trail Smelter?’ in Rebecca M. Bratspies and Russel A. Miller (eds.), Transboundary Harm in International Law, Lessons from the Trail Smelter Arbitration (cup 2006) 60; Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (1993) 4 ejil 96; Ian Brownlie, System of the Law of Nations: State Responsibility (oup 1983) Part 1, 49–50; Jan Willisch, State Responsibility for Technological Damage in International Law (Duncker and Humblot 1978) 293–296, where the liability regime of the 2001 ilc Draft articles is referenced as ‘strict liability’. Fourth report on State responsibility, by Mr. Roberto Ago, Special Rapporteur; The inter­ nationally wrongful act of the State, source of international responsibility, 1972, u.n. Doc.

12

Introduction

objective responsibility,27 as they appear in scholarly writing and international documents, need to be briefly discussed. “Strict liability” also referred to as „risk liability” covers situations when liability is always carried for incurred damage unless particular, individually identifiable circumstances, such as force majeure or war, occur.28 This kind of liability is usually independent of any considerations of fault, although some authors argue that even in the case of strict liability a causal link between a state act, i.e. its action or omission, and the occurrence of damage must be present. In the cases of liability for omissions such a link can be identified with a reference to due diligence, one required from state bodies in preventing the undesired harmful effects. As per the current state of international law, strict liability is applicable only based on detailed treaty provisions that introduce it in given circumstances. A similar dogmatic construct is the one of absolute liability, attributable re­ gardless of any causal link between a state act and a harmful effect, unless particular circumstances precluding lawfulness occur. This kind of responsi­ bility is applicable only in particular cases, based on express consent of states confirmed within a treaty.29 The notion of objective responsibility, rarely discussed by the ilc, appears often in scholarly writing, usually in the context of international environmen­ tal law.30 It usually denotes attributing state responsibility following objective criteria, linking a harmful result to an omission of state bodies that is to a lack of due diligence on their behalf, one to be considered a violation of the state’s

27

28 29

30

A/CN.4/264, vol. ii; hereinafter cited as: Ago’s fourth report, u.n. Doc. A/CN.4/264, 120–121; see also: Lisa Viikari, The Environmental Element in Space Law (n 18) 151, 155. Fifth Report on International Responsibility by Mr. F.V. García Amador, 1960, u.n. Doc. A/ CN.4/125, vol. ii (hereinafter cited as: García Amador’s fifth report, u.n. Doc. A/CN.4/125), pt. 91; 2006 ilc Draft principles on the allocation of loss, 155; 2001 ilc Draft Articles on State Responsibility, 34; Sicilianos Linos-Alexander, ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ (2002) 13(5) ejil 1127–1145; David D. Caron, ‘The ilc Articles on State Responsibility: The Paradoxical Rela­ tionship Between Form and Authority’ (2002) 96 ajil 857–873. Alan E. Boyle, ‘Globalising Environmental Liability: The Interplay of National and Inter­ national Law’ (2005) 1(17) jel 13. See: Convention on International Liability for Damage caused by Space Objects, 1972, 961 unts 187, where Article 2 stipulates that the “launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight”. See the arguments made above and e.g.: L.F.E. Goldie, ‘Concepts of Strict and Absolute Liability and the Ranking of Liability in Terms of Relative Exposure to Risk’ (1985) 16 nyil 175–248.

Introduction

13

duty of prevention, leading to harm or damage, regardless of fault.31 Some au­ thors argue for attributing objective responsibility based on the violation of international law, rather than the subsequent occurrence of damage, yet states are reluctant to accept responsibility in cases where no actual damage follows the breach.32 Objective responsibility reflects what is at times referred to in national law as risk liability, allowing for attributing harmful omissions to state organs, as a projection of their lack of due diligence, resulting in a violation of the state duty of prevention. Unlike risk liability however, objective liability can be applied also when no detailed treaty stipulation is in place. The duty to show due diligence can therefore be derived from a general customary obliga­ tion to prevent harm to other states. Following the objective criteria, a state may be held responsible for its breach in cases where the lack of due diligence of its organs results in damage. The significant terminological issues of due diligence as perceived in international law at the cross-section of state respon­ sibility and international liability reflect the specifics of this legal discipline: while derived from national civil and criminal law systems, both statutory and customary, it generates its distinctive terminology, giving unique meanings to terms already well defined for the purpose of national law. The differences in national terminology and individual liability, responsibility and due diligence multiply the challenges faced by international law of state responsibility and transboundary liability.

Fault and Responsibility in International Law

Despite the long going debate and rapid development of international rela­ tions, the controversial question of fault in international responsibility law remains as vivid and controversial as centuries ago.33 While this book reports on the development of this discourse in the context of due diligence, the 31

32 33

Alan E. Boyle, ‘Globalising Environmental Liability…’ (n 28) 3; Maria Magdalena KenigWitkowska, ‘Prawnomiędzynarodowa odpowiedzialność za szkody transgraniczne w środowisku. Uwagi na marginesie projektu zasad dotyczących alokacji strat wynikających ze szkód transgranicznych spowodowanych działalnością niebezpieczną’ in J. Menk­ es (ed.), Prawo międzynarodowe - problemy i wyzwania. Księga pamiątkowa profesor Renaty Sonnenfeld-Tomporek, Wyższa Szkoła Handlu i Prawa 2006, 314; Riccardo PisilloMazzeschi, “The ‘Due Diligence’ Rule” (n 24) 9–10. A detailed discussion on treaty regimes covering risk liability is presented herein below. This issue remains significant for the entire legal scholarship, see the discussion in Tony Honoré, Responsibility and Fault (Bloomsbury Publishing 1999) who covers the logical dif­ ficulty in assesing and attributing responsibility based on fault.

14

Introduction

i­ntroduction calls for more general observations on fault in international law, with reference to the competing perceptions in international responsibility writing. This will allow for representing the question of due diligence in the broader context, since the latter is at times perceived as an element of fault. Contrary to the general perception and the ilc view of the issue, the question of the role fault plays in international responsibility of states still raises signifi­ cant doubt.34 Both: courts and legal writers differ on the perception and significance of fault. A persistent minority argues that abstract fault, as present in national civil laws, or even one perceived subjectively, as the psychological attitude of the individual actor to his actions and their results, including individuals per­ forming state functions, is a necessary element of responsibility attribution in a given case.35 This perception is being applied to violations of international environmental law, or, using the ilc terminology: violations of primary obliga­ tions of states.36 Yet any reference to the psychology of an individual for the purpose of attributing state responsibility is simply not possible and brings a significant risk of confusion with the intrinsically different national percep­ tions of fault. Instead a reference to the broad catalogue of circumstances pre­ cluding lawfulness, indicated among others by the ilc within its work on state responsibility, such as force majeure, should be used.37 They allow to attribute state responsibility in the case of a breach of an international obligation result­ ing from the action or omission of the state when no circumstance precluding lawfulness occurs. One might also turn to those conciliatory arguments offered by the objective theory of fault, whose proponents view it as the objective link between a state act the resulting violation of international law.38 34

35

36

37

38

See e.g.: Roda Verheyen, Climate Change Damage And International Law: Prevention Duties And State Responsibility (BRILL 2005) 169–183; the interrelationship between fault and responsibility is thoroughly discussed in eg.: Tony Honore, Responsibility… (n. 31) 14–67. See the arguments of both sides presented by e.g. Ian Brownlie, System of the Law of Nations (n 25) 40, who himself observes that the “question (…) whether state responsibility is founded upon fault (…) or strict liability” is unreal. Fault as an element of a primary norm is often cited in the context of environmental li­ ability of the operators of risk-generating enterprises; see e.g.: Alan E. Boyle, ‘Globalising Environmental Liability’ (n 28), 13; Beatrice I. Bonafè, The Relationship Between State and Individual Responsibility for International Crimes (BRILL 2009) 121–124. 2001 ilc Draft Articles on State Responsibility, 71, 76–77. Dahm and Delbruck perceive the reference to force majeure as an alternative to fault: Georg Dahm, Jost Delbrück, Voelkerrecht (n 22) 946. Alan E. Boyle, ‘Globalising Environmental Liability’ (n 26), 3. García Amador’s fifth report, u.n. Doc. A/CN.4/125, 64.

Introduction

15

The former view on fault as a necessary element of state responsibility can be historically dated back to Grotius. With time this notion of fault has been losing in popularity, with the ilc clearly distancing itself from the issue and deciding against fault as a necessary element of state responsibility or inter­ national liability. The ilc was explicit about excluding intentional fault (de­ ceitfulness, malicious fraud, dolus) from the notion of responsibility. It did however seem to permit for negligence as a representation of unintentional fault (neglect, negligence, culpa, neglegentia) to be included in the content of a primary norm, which, when violated, results in state responsibility. Yet when there is no explicit reference to individual fault in the violated primary norm of international law, attributing responsibility relies on the act of the state, re­ gardless of the motivation behind it.39 One could argue to the contrary – that the ilc leaves room for the psychological element to be included in the con­ tent of a primary norm and for it to serve as a criteria for attributing a violation. Therefore, one could argue that in cases when a primary norm refers to neg­ ligence or carelessness as crucial in assessing the enforcement of the primary obligation, this assessment needs to also recognize fault. One should however recognize that the ilc allows for referring in such cases to force majeure as a circumstance precluding lawfulness.40 Moreover, when a state within whose territory the harmful event took place, had been offered help in diminishing its results and rejected it as an act of carelessness or negligence, i.e. fault (culpa), it is understood to have failed to show due diligence.41 Recognizing fault as a criteria for assessing the actions and omissions of state bodies is fundamental to the perception of due diligence and its role in contemporary international law. This author opts for the reference to objective criteria as a measure of state diligence, abstracting from the Gortius’ perception of fault. The conciliatory reference to “objective fault” as a set of criteria to be applied to individual fac­ tual circumstances also goes along the line of this argument. The work of the ilc has therefore actually fueled rather than appeased the legal disputes on fault and its meaning for state responsibility. Some authors argue that recognizing fault in attributing state responsibility depends on circumstances and therefore no general observation on its role or a general principle regarding its significance can be identified.42 As such fault cannot 39 40 41 42

2001 ilc Draft Articles on State Responsibility, comment (10) on Article 2, 36. 2001 ilc Draft Articles on State Responsibility, Article 23, 76. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, comment on Article 22, pt. (9), 119. García Amador’s fifth report, u.n. Doc. A/CN.4/125, pt. 88, 63. James Crawford, Simon Olleson, ‘The nature and forms of International responsibility’ (n 10) 457–458.

16

Introduction

be viewed as a necessary element of international responsibility. It has how­ ever been discussed in the context of due diligence and principles of interna­ tional law. Some authors indicate a “principle of fault” as a necessary element of state responsibility, whereas lack of due diligence is to be recognized as one of the forms of fault, i.e. negligence and can be considered its representation, although needs not be its necessary element.43 Controversially however this perception implies attributing state responsibility does not require a proof of bad faith or negligence, but rather one of will, as decisive for attribution.44 Other authors, when discussing due diligence, refer to it as objective fault.45 Those arguing for recognizing due diligence as a principles of international law, point to it as an element of fault,46 opting for fault as an element of in­ ternational law on state responsibility, reaching beyond its narrow perception in the ilc work. The argument made in this book abstracts from fault as an element of responsibility and focuses on due diligence as a set of objective criteria for measuring actual efforts made by a state to prevent a given result. This objective notion of due diligence as a criteria for attribution escapes the problems implied by the differing perceptions of fault, indicated above, which make it difficult to determine state responsibility and introduce a risk of confu­ sion with national notions of fault and responsibility. Similar suggestions have been made by authors arguing for due diligence as an element of an interna­ tional obligation of a state rather than a criteria for identifying its fault.47 This allows to perceive due diligence as an independent principle of international law, determining state responsibility for a breach of its international obliga­ tion.48 Some authors, offering a conciliatory solution, have referred to “objec­ tive fault” as a leading concept for international liability and state responsibil­ ity for the omissions of state bodies, with the lack of due diligence resulting in a breach of an international obligation of a state or, respectively, a crime or tort of an individual.49 They argue for attributing state responsibility for the lack of due diligence based on “objective fault”, as without one the notion of 43 44 45

46 47 48 49

Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (cup 2006) 227–228. Bin Cheng, General Principles of Law (n 43) 227. The argument made by Cheng is dis­ cussed in more detail in the last chapter of this book. Karl Zemanek, Schuld- und Erfolgshaftung im Entwurf der Völkerrechtskomission über Staatenverantwortlichkeit (Stämpfli & Cie 1980) 322 ff.; see also: Georg Dahm, Jost Delbrück, Voelkerrecht (n 22) 946. Riccardo Pisillo-Mazzeschi, “The ‘Due Diligence’ Rule” (n 24) 9–10. Georg Dahm, Jost Delbrück, Voelkerrecht (n 20) 946. Riccardo Pisillo-Mazzeschi, “The ‘Due Diligence’ Rule” (n 24) 42 ff. Georg Dahm, Jost Delbrück, Voelkerrecht (n 22) 946. Alan E. Boyle, ‘Globalising Environmental Liability’ (n 28) 3.

Introduction

17

state responsibility would be difficult to apply in practice.50 This conciliatory concept allows to use the notion of fault as an objective criteria for the attribu­ tion of state responsibility, combining both opposing views on fault and due diligence. Similar arguments can be found in the works of Roberto Ago, who emphasized that any transposition of the principles of law onto international law theory and practice needs to recognize fault as unique and different from its national perceptions, as in international law due diligence is not necessar­ ily a reflection of negligence. State responsibility can be attributed however also when no fault arises on the part of the state and so state responsibility can at times be objective.51 In this context the provisions of treaties and court decisions on international environmental law can be viewed as a confirmation of “objective responsibility” of states for transboundary environmental harm, including for the actions of individuals outside state control.52 While neither fault nor damage are discussed in the 2001 ilc Draft Articles on State Responsibility, the commentaries indicate that both those elements can appear within the content of an individual, primary obligation of prevention, the violation of which, through an action or omission of a state, may result in its responsibility. The point made in this book follows however those authors who view due diligence as an element of international responsibility, indepen­ dent of fault of a state or its bodies. Lack of due diligence ought to be assessed based on objective criteria, such as the existence and content of a treaty provi­ sion or a customary norm binding upon a state and its violation as well as the actual possibility of state bodies to prevent the following harm or damage. As such due diligence is an element of objective attribution of responsibility for the omissions of state bodies resulting in harm or damage. Due diligence is a prerequisite for the objective attribution of responsibility for the omission of a state body, one contrary to the provision of an internationally binding obliga­ tion of that state. Dogmatically speaking, the violation of such a duty should result in state responsibility, unless any circumstances precluding it arise. State practice however necessitates a practical delimitation of the scope of its ap­ plicability to cases where the failure to show due diligence results in actual damage, making it a necessary criteria for attributing state responsibility. Just as good faith, due diligence must be shown by states in their performance of all international obligations, even those where it has not been clearly identified, except for the obligations of result. 50 51 52

Alan E. Boyle, ‘Globalising Environmental Liability’ (n 28) 3. Report of the International Law Comission on the work of its Fifteenth Session, 1963, u.n. Doc. A/CN.4/163, 249–250. Maria Magdalena Kenig-Witkowska, ‘Prawnomiędzynarodowa odpowiedzialność za sz­ kody transgraniczne w środowisku’ (n 31) 314.

chapter 1

The Obligation of Due Diligence – Theory and Practice

General Principles of International Law

Article 38 of the icj Statute names “general principles of law recognized by ­civilized nations” as one of the sources of international law, next to treaties, custom, doctrine and case law. These sources of international law are used by the icj to settle international disputes and give its opinions, yet the nonexhaustive list is also widely recognized as an open catalogue of sources of international law that has with time been amended to include acts of ­international organizations or unilateral acts of states.1 Following the icj Statute, the ­general principles of international law are to complement treaties and customary practice in identifying the norms governing international relations. While the icj Statute itself falls short of defining the principles, an in-depth discussion among scholars and jurists resulted in numerous definitions and detailed descriptions of this unique category in international law.2 Before discussing the specifics of international law principles, a ­particular category – similar in name yet somewhat different in meaning – needs to be briefly mentioned. The general principles of international law need to be discussed in the context of general principles of law, known to national legal systems. The latter include fundamental norms recognized in most legal ­systems in the world, be it the criminal law principles of nullum crimen sine lege or lex retro non agit, or the civil law liability principles such as endowing the one who caused harm to compensate it if no exonerating circumstances arise or the principle of good faith. Those principles, recognized in municipal legal systems, are used by domestic courts in their proceedings and by national lawmakers when drafting legislation. They do not directly apply to international courts nor directly influence international negotiations, are however a significant resource of identifying and applying the general principles of international law.

1 Charter of the United Nations, Statute of the International Court of Justice. 2 For an analysis of the notion of “principles” of international law see e.g.: Bela Vitanyi, ‘Les positions doctrinale concernant le sens de la notion de principes generaux reconnus par les nations civilisees’ (1982) 1 rgdip 48–116.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004325197_003

The Obligation of Due Diligence

19

The open catalogue of general principles of international law, of most interest to the discussion in this chapter, when analyzed from the perspective of their origins, comprises of two elements: principles “taken from generally recognized national law” and principles “originating in international relations”.3 International law doctrine and practice have adopted some of the principles recognized in municipal legal systems, including but not limited to the ones named above. For example the lex retro non agit principle, present in national criminal laws, can be easily found in respective international treaties, including those of international criminal law or human rights, expressed in stipulations regarding e.g. the right to a fair trial. Similarly, the universally recognized principle of good faith is well present in international relations and law as the foundation of the pacta sunt servanda principle or in agreements regarding compensation of losses. The pacta sunt servanda principle, on the other hand, perceived in the context of international obligations taken upon by sovereign states, not as a trait of a civil contract law, is a good representation of the second group, including those international law principles that are specific to international relations and developed by international law itself. Those principles often deal with particular areas of international law and can be easily identified with reference to e.g. the law of the sea or diplomatic relations.4 The imminent characteristic of international law principles of both groups however is their ever-changing nature as the most general principle of international law is the rule of continuous changeability. Due diligence, discussed in detail in this chapter, belongs into the first ­category – it is a principle of international law that has been derived from national legal systems. As any international law notion however it has been given a unique meaning in the context of international relations, reflecting its flexible and versatile character, shaped by both: criminal and civil law origins. With this in mind, the focus of this chapter is on the general principles of international law, i.e. “general principles of law recognized by civilized nations” as per the icj Statute rather than on general principles of law recognized within 3 Hermann Mosler, ‘General Principles of Law’ in R. Bernhard (ed.), History of International Law (Elsevier Science Publishers 1984) 90. Mosler refers also to two other categories of “principles of law”: those “applicable to all kinds of legal relations” and a complementary thereto category of “principles of legal logic”. The former are the principles shared between the two first categories and include good faith, pacta sunt servanda, equity, estoppel and “respect of basic human rights”. The latter covers those procedural principles of national laws that have been adapted to international relations, such as the supremacy of jus cogens rules. Idem 90–91. 4 Idem 90.

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chapter 1

­national legal systems. Effectively, broad observations on the notion and origins of general principles of law are left beyond the scope of this book. The discussion on general principles of international law as criteria for assessing the acts of states in the context of international accountability dates back to the end of the 17th century.5 One of the first writers on this issue, a German legal philosopher Gottfried Wilhelm Leibniz, argued that it is the consensus of states rather than the sense of natural law, which serves as the initial source of international obligations.6 One of his students, Christian Wolff, further developed this notion, pointing out that the international order, while relying on rules shared among the international community, comprises a catalog of principles acceptable for each state.7 Emer De Vatell, an 18th century Swiss philosopher, took a different approach to the sources of international law, stressing the key role of state practice rather than any abstract consensus as crucial for shaping the norms of international law.8 This dichotomy between an abstract consensus and verifiable state practice as possible indicatives of international legal principles has been represented in contemporary international law till this very day. It were however not only the differing perspectives on the theory of international law that have stirred controversy on the scope and role of principles in international law, but also the fact that any such principles can originate from one of two sources: national legal regimes or international law as demonstrated by interstate relations. This divergence resulted in a lasting debate on the scope of any such principles as well as the understanding of their content and applicability. The recognition of legal principles as a source of international law was particularly eagerly discussed during the development of the Statue of the Permanent Court of Justice (pcij), eventually granting them the status of one of the sources considered by the Court in its adjudication.9 It was ­during 5 J. Walter Jones ‘Leibniz as International Lawyer’ (1945) 1(22) byil 2. 6 Idem. 7 Christian J. Wolff, Jus gentium methodo scientifica pertractatum, J.H. Drake (tr) (Claredon Press 1934). 8 Emer de Vattel, The Law of Nations or the Principles of Natural Law (first published 1758, Charles G Fenwick (tr), Carnegie Press 1916) vol. i, 55–56. 9 Bin Cheng, General Principles of Law (introduction, n 43) 2. It’s worth noting that the original phrase used in the pcij Statute and reproduced in Article 38 of the icj Statute refers to “general principles of law recognized by civilized nations”, with the wording being now perceived as prejudiced and hence outdated: all “nations” are to be considered “civilized”. This might be one of the reasons why the icj rarely refers to individual legal orders to indicate state practice in a given area, as not to imply them being more civilized than others. Gorgio. Gaja, General Principles of Law, Max Planc Encyclopedia of Public International Law, opil.ouplaw.com.

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this debate that some scholars argued that the notion of international law principles can refer only to rules specific to international law, while principles derived from domestic legal orders can serve only as an auxiliary reference. At the same time others pointed out that principles of law are rarely recognized in domestic law and since they cannot be directly applied by national courts, they should not be considered criteria of verifying the legality of state acts.10 Also the question of the origin of those principles was strongly debated, with some authors acknowledging that such rules can only be derived from the laws of nature, while others argued that international law principles can only result from state consensus. There were also those who opted for a middle ground approach, viewing international law principles as a reflection of both: laws of nature and state consensus. Disputable was also the issue of the binding force of such principles: it was unclear whether their legal status can be inferred from the character of the international legal order, or whether it would rather be necessary to identify customary norms, from which a given principle could be inferred and which would justify its application.11 Some authors explicitly argued that the principles of international law are not any part of international law, but solely one of the sources of pcij adjudication as per its Statute, adopted by states.12 The notion of international law principles proved to be controversial. It was however the role that the principles of international law were to play in the international legal order that rose most debate. While some writers saw them in a supporting role, used for the interpretation of customary and treaty norms, others perceived the principles as a subsidiary source of law to be applied solely by the pcij for the purposes of its proceedings.13 Another difficult issue for the states negotiating the pcij Statute was the method of identifying individual principles of international law, one that has remained a challenge ever since. Initially some state representatives pointed out that there was no need to impose any general rules upon the Court, such as a reference to the principles of law, as in making its decisions it should rather resolve to notions of fairness, treaties and customary norms. Others, who also argued for the supremacy of treaty and customary norms over the vague and flexible principles of international law, saw a possibility for including the latter into the catalogue of sources of international law, yet to be applied only for

10

Bin Cheng, General Principles of Law (introduction, n 43) 2–3; Vladimir Duro Degan, ­ evelopments in International Law: Sources of International Law (BRILL 1997) 15. D 11 Bin Cheng, General Principles of Law (introduction, n 43) 4. 12 Idem. 13 Vladimir Duro Degan, Developments in International Law (n 10) 15–16.

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the purposes of adjudication, with the Court itself deciding upon the rules to be applied in a particular case. The Court was to be free in its interpretation of principles when one proved needed for the purpose of applying treaty or customary norms. This latter proposal was at the time perceived as transferring actual legislative authority onto the Court and as such rejected. Another proposal, which referred to international custom as the common practice considered legally binding by states, implied perceiving the principles of international law as a reflection of “judicial consciousness” (conscience juridique) of “civilized peoples”.14 As such, the rules of international law were to be considered a necessary element of the international legal order. One of the examples of such principles could be that derived from national laws and described as the principle of res judicata, used successfully for the purposes of settling international disputes.15 This compromise was eventually confirmed within the pcij Statute,16 where the general principles of international law are an element of state practice and not necessarily conditioned by jurisprudence.17 Including general principles into the catalogue of international law sources taken into account by the Court reflects both: the specificity of common law, where a judge can fill gaps in statutory law with reference to practice and custom, as well as the position of the theory and philosophy of law, putting emphasis on the interpretation of the provisions of statutory law rather than lawmaking itself. At the turn of the nineteenth century the turn to interpretation was the response of continental Europe to the excessive fascination with legal positivism.18 References to the philosophical foundations of lawmaking allowed to argue for the completeness of positive law and correct its faults.19 Principles of law as a source of adjudication reference for the international court fit perfectly with that line of thinking. Even though the category itself seems to be well recognized nearly a century later, its content remains debatable. Today, the principles of i­ nternational law are considered a collection of the most important rules of international law, with some writers raising them to the rank of a unique “constitution” of this branch of legal scholarship.20 Their detailed characteristics or attempted listings differ significantly among international legal scholars and tribunals. 14 15 16 17 18 19 20

Bin Cheng, General Principles of Law (introduction, n 43) 10–12. Idem 12, supra 47. Idem 15. Idem 24. Idem 15. Francois Geny, Méthode d’interprétation et sources en droit privé positif: essai critique, (Libr. Marescq Ainé 1899). Bin Cheng, General Principles of Law (introduction, n 43) 5; Vladimir Duro Degan, Developments in International Law (n 10) 16.

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One of the first contemporary international law treatises on international law principles was authored by Georg Schwarzenberger in 1955.21 The author defined the principles of international law as abstractions and generalizations made on the basis of individual decisions or rules with a limited scope of application.22 He argued that the growing number of international agreements resulted in an evolution of many of their stipulations, going from individual “principles” to more general “rules of law”.23 In developed legal systems principles evolve through case law and treaties relating to specific areas of law. Principles are abstracted by international courts and legal scholars from treaties as well as national and international court decisions. The interpretation of the latter was often carried out with a reference, often one unrealized by the interpreter, to the specificities of a legal system they were innate to that is one which he or she had previously worked in or according to whose principles he or she had obtained a legal education. The content of principles so identified may thus be considered more of a proposal than a statement of facts. With that in mind, the correct identification of international law principles requires an appropriate level of generalization, one not too general or too specific. This condition is met when e.g. the principles are identified with reference to the pcij/icj case law, including dissenting opinions. The principles can therefore be identified by generalizing effects of one or more lawmaking processes, i.e. through the analysis of the sources of international law included in Article 38 of the icj Statute. A principle can also be identified as resulting from an informed decision of a judicial authority, detailing its content within a decision.24 Moreover, some principles of international law can be identified for the purpose of their application to only certain areas of international law, as is the case with the law governing diplomatic relations, while others have a more versatile, flexible character, such as the principle of good faith or state responsibility. Based on the level of generalization used for identifying a given principle and the scope of its application some principles of international law can be recognized as holding most significance and of most versatile character, effectively being referred to as “fundamental principles” of intentional law. Although this distinction is founded on flexible and subjective criteria, some 21

Georg Schwarzenberger ‘The fundamental principles of international law’ (1955) 87 RdC 201. 22 Idem. 23 On the interdependency between “principles” and “rules hammered out in political compromise”, reflecting the former and thus forming one of the models for contemporary society see: Ronald Dworkin, Law’s Empire (Harvard 1986) 211. 24 Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 200–202.

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principles, as Kelsen’s principle obliging “states to behave in accordance with existing practice” are to be considered too general to be directly applicable and hence hold too limited practical use to be considered a principle of international law. A principle considered to be fundamental must meet three criteria. Firstly, it must be “particularly important” for the practice and theory of international law. Also, it must stand out among other rules, allowing for its “natural” application to a wide range of rules of international law. Finally, it must be considered a fundamental element of any regime of international law or be so important to the modern system of international law that disregarding it would result in losing one of the basic features of this system.25 The icj uses interchangeably the terms “general” and “fundamental” in its judgments to indicate particularly important principles of international law.26 A “general principle” can be understood as a synonym for “generally recognized principle” in international law, in contrast to the principles recognized only in the practice of specific treaty regimes. This term describes “generally accepted” or “generally recognized” principle of international law, regardless of its place in the hierarchy of such principles.27 Finally, the number of “general principles” should be kept to a minimum, as to avoid unnecessary duplication of rules and excessive formalism limiting the intrinsic flexibility of international law. Principles should therefore be only abstract generalizations derived from the already recognized rules of international law, expressed in treaties or though customary norms.28 Also, any premature recognition of rules of private law, especially any of its general guidelines as international law principles should be avoided or their too broad application, as those might result in the undesired effect of a judge-made law, alien to international relations, created by states and their authorities rather than courts or tribunals.29 This is not to imply that the principles of international law may not be identical to those recognized in national legal systems since, as explained above, the former are often derived from the latter. International law principles can be their exact reflection or be identified solely on the basis of international practice and jurisprudence and such an understanding of their genesis has no effect on their application and character.30 25 26 27 28 29 30

Idem 203–204. Idem 205. E.g. the European Convention on Human Rights in its Article 7 refers to “the general principles of law recognized by civilized nations”. Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 205. Idem 204. Idem 209; see also generally: H.C. Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and Research, cup 1971. Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 205.

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International law knows however also different legal categories, similar in meaning yet different in application and context. Those include e.g. “equal and inalienable rights of all members of the human community” referred to in the Preamble to the Universal Declaration31 or the notion of “fundamental rights and duties of states” focal to the 1949 Draft declaration on the rights and obligations of states.32 Those general notions are a reflection of legal naturalism and do not presuppose a practical application of values so indicated, but are rather to be perceived an interpretative guideline for the documents they accompany.33 When attempting to identify an indicative catalogue of international law principles, few undisputed values come to mind, such as that of state ­sovereignty – a fundamental principle of international law. Similarly, the principle of consent can be accounted for in international law and practice, limiting the scope of the former by enabling states to restrict their sovereignty through international consensus expressed in treaties or through customary practice. With that in mind setting the limits of applying individual principles must always follow a detailed analysis of current state practice.34 Presently, the norms laid down in the un Charter are considered undisputed principles of international law as peremptory norms, despite the significant differences in their practical application, varying among states and regions.35 Other principles of international law can be deduced from those general ones, based on an analysis of one of three sources: treaties, customary practice and national standards.36 There are also those principles of international law which are applicable to particular legal regimes, sometimes referred to as “optional principles”.37 Keeping in mind the need to maintain a narrow catalogue of international law principles, those are to be identified with caution, to avoid covert law-making by the courts. When identifying a principle of international law, two aspects need to be  considered. First, principles should be identified ­independently of other 31 32 33 34 35

36 37

G.A. Res. 217A (iii), 1948, u.n. Doc A/810, 71. ilc Draft Declaration on Rights and Duties of States, G.A. Res. 375 (iv), 1949, u.n. Doc. A/RES/375(IV). Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 206. Idem 212. Pierre M. Dupuy ‘L’unite de l’ordre juridique international’ (2002) 297 RdC 215–221; E. de Wet ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611–632; Bardo Fassbender, The United Nations Charter As the Constitution of the International Community (Martinus Nijhoff Publishers 2009) 164–165. Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 206–207. Idem 208.

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norms or rules recognized within a particular legal system. Secondly, any ­principle of international law needs to be verified against the content and ­applicability of other principles to assess its usefulness to the system and possible conflicts with its other elements. Unless the priority of one principle over another can be justified, they need to be considered equal and applied in a balanced manner depending on circumstance.38 This task is often left to the discretion of international courts, which are to determine the actual scope of the principle and its relationship with underlying norms as well as other, related principles of international law.39 Some authors perceive the role of international adjudication as particularly important in assessing the contents of international consensus on a given principle. They opt for the reconstruction of international law principles from international case law rather than directly from national practice, with the former being perceived as a verifiable confirmation of the principles of international law through state acts.40 According to this view general principles need to be distinguished from the more practical and individual rules.41 As expressed in the 1903 Gentini arbitration, a rule of law is practical and binding, while its principle expresses a general truth, serving as a guideline in various life circumstances with its application resulting in a given effect.42 International law principles are therefore not specific rules of conduct, but rather general directives underpinning the regulatory system.43 While clear and detailed rules are part of hard international law, enshrined in treaties, principles, much 38 39 40

41 42 43

Idem 210. Idem 211. See e.g. Fannie P. Dujay, Executrix of the Estate of Gilbert F. Dujay (u.s.a.) v. United Mexican States decided before the Mexico/U.S.A. General Claims Comission, 1929, riaa 1929, No 4, 452, where the Comission found that the existence or lack of a “rule” of law is the result of legal reasoning. This was to imply that any principle is the result of the application of laws, based on varying examples of state practice, performed for the purpose of identifying the contemporary consensus on a given issue, one to serve as a principle of the law of nations. The Comission observed: “The existence or non-existence of a rule of law is established by a process of inductive reasoning, so to speak; by marshalling the various forms of evidence of international law to determine whether or not such evidence reveals the general assent that is the foundation of the law of nations”. Georg Schwarzenberger ‘The Inductive Approach to International Law’ (1946–47) 60 hlr 539; Bin Cheng, General Principles of Law (introduction, n 43) xiv, 1, 5. Bin Cheng, General Principles of Law (introduction, n 43) 24. See e.g. the Gentini case (Italy v. Venezuela), riaa 1903, No 10, 556. Bin Cheng, General Principles of Law (introduction, n 43) 24 refers to “essential qualities of juridical truth” as the foundations of such a legal system and implies that the phrasing of the Statute covers also “maxims of law”.

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more general in their content and form, are a part of the international soft law, even if they have been included in the text of an international agreement, like the precautionary principle or the principle of sustainable development.44 What is more, the principles of a legal system need to be distinguished from moral or religious ones. This can be done through a reference to their internal recognition by most nations as parts of their legal, rather than moral or religious, systems.45 With that in mind, one can assess that legal principles to be considered as having international application form the basis of national legal systems of almost all countries in the world. Recognition of a principle in the domestic legal order of developed countries allows for it to be considered a principle of international law.46 A reference to legal principles – rather than those moral or religious – is meant to serve as a safeguard against arbitrary authority of an international judge in settling a dispute.47 Recognition of a given principle in national legal systems of most countries serves therefore as a measure to ensure the objective assessment of any given circumstances by an international judge, regardless of his or her formation or origin.48 And so when reconstructing international law principles from, for example, the Statute and work of the pcij, the following could be identified: the principle of res judicata, the principle of good faith, the nullum crimen sine lege principle, the prohibition of abuse of rights or the lex specialis derogat legi generali principle. Based on the analysis of the pcij case law this catalogue is also to include: the principle of self-preservation, the principle of international responsibility of states as well as the principles of international procedure.49 Within the general principle of state responsibility, some complementary individual ones have also been indicated, like the principle of individual responsibility, the controversial principle of fault, the principle of compensation and the principle of proximal causality.50 With a catalogue of norms so construed, due diligence is most often discussed with reference to the principle of state responsibility, or more precisely, 44

45 46 47 48 49 50

Alan E. Boyle, ‘Soft Law in International Law Making’ in International Law, Anthony Evans (ed.), (oup 2010) 122. An example of such a soft law reference to a legal principle can be found in e.g. Article 3 of the United Nations Framework Convention on Climate Change which indicates that states “should” undertake actions to prevent climate change. Bin Cheng, General Principles of Law (introduction, n 43) 24–25. Idem 25. Although Boyle argues that a reference to general principles of law introduces common law of precedents into the international legal system: Alan E. Boyle ‘Soft Law... (n 44) 132. Bin Cheng, General Principles of Law (introduction, n 43) 25. Idem 29–104, 163–256, 257–386 respectively. Idem 208–217, 218–232, 233–240 and 241–256 respectively.

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with that of fault. Lack of due diligence is indicated as one of possible manifestations of fault: negligence. Negligence, including culpable negligence, could be briefly defined as a failure to meet one’s legal duty to demonstrate a certain degree of care. Negligence is therefore a form of fault, but not its indispensable part.51 Culpable negligence that is a lack of necessary care on behalf of a state which was aware of possible harmful circumstances of a given activity or, in the given circumstances, should have been aware of them, can result in state responsibility. This occurs in particular when the state was required by an explicit provision of law to demonstrate a certain degree of care and failed to do so.52 It can however be also held responsible in cases when a particular legal duty holds no reference to the duty of care. Responsibility can be attributed whenever the state is in breach of its international obligation, with limited exceptions granted for particular circumstances, which the state could not prevent. Yet, controversially, some authors argue that attributing responsibility for the breach of an international obligation does not require proof of bad faith or lack of due diligence.53 The state is to be held responsible for the failures of its bodies, even if done in good faith.54 Proof of bad faith or negligence may be required only if formulated by the wording of the infringed rule of international law.55 In such cases attributing state responsibility does not require, as a rule, proof of bad faith or negligence, as it depends only on the existence of will on behalf of state authorities. Bad faith or lack of due diligence are therefore viewed not as a circumstance lifting a given international obligation, unlike state inability to meet its objective, i.e. force majeure.56 Those observations on assessing the content of international law principles can only partially be supported. As demonstrated in this book it is only the 51 52

53

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55 56

Idem 227–228. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, pt. (9), 119. If the state of origin had been offered help in neutralizing the arising damage by an international organization or a third party and declined such assistance, be it as a result of carelessness or negligence, it is deemed to have acted without due diligence. Bin Cheng, General Principles of Law (introduction, n 43) 227. It was in the 1923 S.S. Wimbledon case decided between Great Britain and Italy v. Japan and Germany where the pcij refrained from requesting proof of bad faith or negligent as crucial for ma king its decision. pcij, S.S. “Wimbledon” case, (1923) 1 pcij Reports, series A. First report on prevention of transboundary damage from hazardous activities, by Mr. Pemmaraju Rao, Special Rapporteur, u.n. Doc. A/CN.4/487, (herein after cited as: Rao’s first report, u.n. Doc. A/CN.4/487), pt. 20, 9, where the obligation to perform preventive measures was presented as entailing the prerequisite of good faith. Article 2 of the 2001 ilc Draft Articles on State Responsibility. Bin Cheng, General Principles of Law (introduction, n 43) 228.

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lack of action on the side of state bodies to which they were required by international obligations that can become grounds for state responsibility.57 At the same time it is rather the objective attribution than assessment of fault that serves as grounds for state responsibility. Assessing fault is not possible e.g. as per the stipulations of the 2001 ilc Draft Articles on State Responsibility recognized as proof of binding customary law.

The Principle of International Responsibility

Due diligence is often discussed in the context of state responsibility, yet it is also often evoked together with the debatable question of fault in international law. State responsibility is one of the easily identifiable principles of international law.58 A breach of an international obligation by a state, regardless whether treaty-based or customary, usually carries with it the responsibility of the infringing state. It bears responsibility not only for the actions of its bodies, but also for their omission inconsistent with the content of an international obligation. The principle of international responsibility is being inferred from centuries of international law practice and means the accountability of international law subjects for “inexcusable” violations of their international obligations.59 The practical application of this principle needs to be uniform, regardless of differences in national practice regarding civil and criminal liability, even though identifying uniform, dogmatic justification for state responsibility has been proven difficult.60 Despite the fact that due diligence is usually referred to as a measure of state efforts in preventing a given, harmful event, some authors have argued against identifying due diligence as a criteria for attributing state responsibility. They claim it is fault rather than due diligence that should serve as a measure of state efforts.61 Due diligence has therefore been referred to as “objectified” 57 58

59 60 61

Idem 228. Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 349 ff. The principle of state soveregnty, consent, good faith or self defence are among other  principles of international law mentioned here. Those are perceived in the context of principles and rules of lawmaking, the accompanying comparative analysis and the Basic principles of international order that play equal parts in ensuring “equilibrium of international law and society”. Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 349–350. Idem 352. Karl Zemanek, Schuld- und Erfolgshaftung… (n 43) 315–334.

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fault62 and often discussed in the context of “blameworthiness” of a particular state act, resulting from its foreseeable consequences or recklessness. The latter is to imply the awareness of inevitable consequences of a given act and consent for their occurance. Fault so perceived can play an important role in determining state responsibility if a particular international standard introduces an obligation to prevent a given event. Hence if damage is caused by an individual action, one not performed under the authority or on behalf of the states, that state may be held responsible for the omissions of its organs which are in violation of its international obligations. Yet this perception of fault is different from its traditional meaning in national legislation, when fault is the mental attitude of individuals performing functions on behalf of the state. It is rather to designate the lack of their actions, required within a standard of international law. Courts and tribunals can thus identify the standard of due diligence and apply it to assess the possible omissions by particular state organs. It is therefore not the question of the mental attitude of an individual serving as a state authority but rather of cause and effect between the omission of a state authority and the rise of a harmful effect. Should such a causal link show identifiable, responsibility can be attributed to a state.63 This perception of fault can be deceiving. While its content follows the lines set by principles of state responsibility on due diligence, the very notion holds a threat of reference to and confusion with terminology common to national criminal and civil law regulations. Fault in national laws is viewed as both: the individual mental approach to a given action, assessed by courts (criminal law) and an objective standard of conduct verified as either reckless or diligent in the due process of law. With international law introducing unique definitions for its terminology, the reference to due diligence as an objective standard of state efforts ­introduced through international norms seems an option not flawed with potential confusion or too strong of a reference. Secondly, as discussed in detail in Chapter ii, the notion of fault, due to its confusing character described above, has shown extremely controversial in international negotiations, proving to be the bone of contention for the ilc deliberating the Draft Articles on State Responsibility.64 The eventual compromise was found primarily due to the flexible perception of fault, with due diligence serving as an objective standard, within which fault may appear if so stated within an individual norm of international law. Moreover, the ilc work on international liability

62 63 64

Idem 322 ff. Ian Brownlie, Principles of Public International Law (introduction, n 20) 440. For a detailed analysis of this issue see the discussion in Chapter 2.

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offers a detailed ­perception of due diligence, one easily applicable to breaches of international obligations by negligent states. It is for those reasons that the notion of fault has usually been discarded as a category of international law and should be substituted with the objective standard of due diligence.65 The objective standard of due diligence has been discussed in academic writing as a criterion independent of the nature of harm, but rather a primary standard of conduct. Some authors argue that while some international standards are of particular importance, they require states demonstrating due care in their observance, yet other international obligations contain no such requirement. Hence if a given obligation holds no reference to due diligence it should not serve as a criteria for assessing state efforts.66 It must be observed however that the need to show due diligence can be also implied from the nature of the obligation, as is the case with international environmental law, relying primarily on precautionary measures ensured by states. As already mentioned fault has been often rejected by international law scholars due to the centuries-old dispute and inconsistent case law regarding it, often resolving to its psychological understanding. Fault should therefore be substituted with an objective standard of state action required not so much by the secondary norms of state responsibility, but by the primary norm requiring a certain effort. A state is therefore to be held responsible for the actions of individuals only if it did not exercise due diligence in performing its duties identified within primary norms of international law. Moreover, any liability for damages caused by dangerous activities relies strictly on the content of a specific international commitment, usually done in writing. As indicated by ­numerous treaties on international liability state failure to meet such an obligation of prevention can lead to responsibility, based on a detailed analysis of the objective standard introduced by the primary norm. As shown further in this book, those individual standards share many common features allowing for the identification of an objective standard of “due diligence”, recognized also in customary law.67 Due diligence can thus be perceived as a part of 65

66 67

For a discussion on the groups of international legal scholars following the objective or fault theories on international responsibility see e.g. Karl Strupp, Woerterbuch des Volkerrechts (Druckner and Humblot 1960) 336–337. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 19. Georg Dahm, Jost Delbrück, Voelkerrecht (introduction, n 22) 945–948. G. Handl, State Liability For Accidental Transnational Environmental Damage by Private Persons, American Journal of ­International Law 1980, No 74, 564; Alan E. Boyle, Saving the World – Implementation and Enforcement of International Environmental Law through International Institutions, ­Journal of Environmental Law 1991, No 3, 240.

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a primary international obligation, rather than a proof of fault. It serves as an objective standard, as indicated in the Alabama case introducing the obligation of states to ensure a minimum standard of protection, both in the body of law and in its implementation.68 The content of the commitment to show due diligence in a given situation is to be determined based on an analysis of the accompanying customary and treaty-based norms.69 The standard may be altered to introduce a more diligent conduct in cases of significant interests at stake, as identified in a given situation. Failure to comply with the due diligence standard occurs whenever the law of the state does not reflect the elements of this international minimum standard or when, despite the introduction of relevant standards, those are not being effectively enforced. Should a state introduce relevant provisions and apply them, it is not to be held responsible for lack of due diligence, regardless of the outcome such measures bring.70

State as a Collective in Ancient Times and the Middle Ages

Notions of responsibility for the actions of individuals have been subject to a vivid evolution throughout the years of international legal scholarship. Jan Arno Hessbruegge refers to two leading trends identifiable in this evolution, juxtaposing the attribution (imputability) and due diligence. He argues that European legal writing, derived from the Roman concept of jus gentium and then reflective of the politics of the Westphalian order, left a distinctive mark on contemporary international law and, effectively, on the law of international responsibility.71 This Roman inspiration is clearly visible in the history of the law of international responsibility. The origins of state responsibility for the actions of individuals date back to Roman times. Social specifics of that era determined the characteristics of this legal notion. The basic unit of an ancient society, including that of the Romans, was the family, headed by its oldest male. Each member of a family had their fixed place in the social order, their specific rights and obligations.72 Families formed domiciles, those evolved into tribes 68 69 70 71 72

Georg Dahm, Jost Delbrück, Voelkerrecht (introduction, n 22) 948. Idem 948. Alan E. Boyle, Saving the World (n 117) 272. Jost Delbrück, Rüdiger Wolfrum, Völkerrecht (introduction, n 22), para. 183, 948. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 266–267. Henry S. Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas, London 1861, 128. Charles Sumner Lobingier, The Evolution of the Roman Law: From Before the Twelve Tables to the Corpus Juris, New York 1923, 30–33.

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and they all together formed a community. Henry S. Maine referred to this form of social order as one of concentric circles.73 The collective understanding of social structure resulted in a notion of collective interaction among communities. It was the interaction of entire communities that ensued the actions of their single member, rather than their members acting solely on own behalf. This collective understanding of social interaction found its way into the Roman concept of the law of nations – jus gentium. Gaius in his “Institutions” described jus gentium as the law followed by all peoples and which all peoples respect equally, as it originates from natural reason (naturalis ratio).74 The latter is a notion that at the time of Gaius’ writing had several meanings.75 It covered man made laws, applied to non-citizens but also a way of thinking about law as the commonwealth of all men, regardless of their origins.76 Gaius perceived jus gentium as equal to jus naturale, as their joint source was the natural reason. Ulpian referred also to natural law (jus naturale) understood as the law of nations, recognizing both disciplines, next to jus civile, as equal elements of the existing legal systems.77 According to him the law of nations was common to all men, while the law of nature was shared by all living creatures, including animals (quod natura omnia animalia docuit).78 Tony Honore argues that Ulpian found the law of nature as morally superior to the law of nations, as the latter applied only to the human race.79 The law of nations (jus gentium), which can be found today in the etymology of the German word Völkerrecht or the French droit des gens, in the ancient times also covered its contemporary meaning: what is being referred to as public international law that is the legal principles behind international relations of states and communities.80 Hessbruegge however interprets the latter meaning of jus gentium differently.81 He describes it as not only designating international public law in its contemporary meaning, but rather as describing Roman internal order related 73

Henry S. Maine, Ancient Law… (n 72) 128; Charles Sumner Lobingier, The Evolution… (n 72) 30. 74 Gaius, Institutes of Roman Law E. Poste (trans.) (oup 1904) 31. 75 Max Kaser, Römische Rechtsquellen und angewandte Juristenmethode: ausgewählte zum Teil grundlegend erneuerte Abhandlungen (Bohlau 1986) 91. 76 Idem. 77 Ulpian, The Digest of Justinian, A Watson (ed.) (Krueger 1985) 1.1.1.3, 4; Rafael Domingo, The New Global Law (cup 2010) 10. 78 Ulpian, The Digest… (n 77) 4. 79 Tony Honore, Ulpian Pioneer of Human Rights (Routledge 2002) 80. 80 Max Kaser, Römische… (n 75) 91. 81 Max Kaser, Ius Gentium (Bohlau 1993) 3–6.

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to Rome’s international relations, including the conditions for engaging in war and proclaiming peace.82 The law of nations so defined was not restricted to the scarce description of the legal consequences following the actions of one member of the community in their international context or the internationally recognized way of declaring war but rather, with a reference to religious laws, made any success or failure in war dependant on meeting the rituals it foresaw.83 It was the religious law that justified the physical immunity of messengers and ambassadors, the right of asylum or the binding force of treaties.84 Jus gentium lost its religious character when the Roman Empire broadened its boundaries to include members of different cultures and religions.85 The Roman law of nations became dominated by the laws of nature based on equity (aequitas)86 with their principles often identified through reference to religious laws respected by the varying communities within the growing territory of the Roman Empire.87 According to Henry Wager Halleck, the Roman jus gentium was neither a system of statutory law nor a „code of jurisprudence” decided upon by its subjects. It was rather a set of civil law principles governing interactions between Roman ­citizens and members of numerous and varied other communities, now within Empire’s borders.88 Its principle aim was to settle disputes.89 82 83

84 85 86

87 88

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See also: Henry Wheaton, History of the Law of Nations in Europe and America (Gould, Banks and co. 1845) 25–29. Henry Wager Halleck, International Law: Or, Rules Regulating the Intercourse of States in Peace and War, San Francisco 1861, 3; Henry Wheaton, Elements of International Law (Boston 1866), (reprint: Claredon Press 1936) xvi. Henry Wager Halleck, International Law… (n 83) 3; Henry Wheaton, Elements… (n 83) 4–5. Frederick Bird, ‘Moral Universalities as Cultural Commonalities’ in F. Neil Brady (ed.) Ethical Universals in International Business (Springer 1996) 110. S. Whittaker, Good Faith in European Contract Law (cup 2000) 77; R.W. Dyson, Natural Law And Political Realism in the History of Political Thought: From The Sophists To Machiavelli (Peter Lang 2005) 130–131; Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (MacMillan 1911) 119–120. Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights Natural Law and Church Law (Scholars Press 1997) 25–30, 51–55. Henry Wager Halleck, International Law (n 83) 3, 4; Alexander Orakhelashvili, Research Handbook on the Theory and History of International Law (Edward Elgar Publishing 2011) 13–14; Antonio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (BRILL 2010) 37 ff.; R.A. Macdonald, ‘Metaphors of Multiplicity: Civil Society Regimes and Legal Pluralism’ (1998) 15 Arizona jicl 69 69; Berta Esperanza, ‘International Law Human Rights and Theory: Civil and Political Rights – An Introduction’ (1996–1997) 28 University of Miami Inter-American lr 226–235. Heinrich A. Rommen, Die Staatslehre des Franz Suarez (S.J. 1947) 275; R.W. Dyson, Natural Law… (n 86) 127–130.

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When identifying the norms of the law of nations, Roman referred to i.e. the Greek notions of the law of the sea.90 According to Max Kaser the Roman meaning of jus gentium was synonymous with customary law. The meaning of the law of nations perceived as the rules of interaction between citizens and non-­citizens gained in significance in the third century B.C. together with the ­Roman expansion onto Italian lands.91 Jus gentium no longer contained the description of rituals necessary to win battles but rather situations where the communities of the Empire could engage in “just” wars. It became an element of social norms used for assessing a war was to be considered just (bellum justum et pium), a notion recognized also outside the borders of the Empire.92 It was at this time that the elements of the Roman legal system which later became the origins of contemporary law of state responsibility were created.93 They had their roots in the evolution of the Roman law of nations, which recognized community’s responsibility for the actions of its member. Even though Polibius’ idea of ruler’s obligation to punish the culprits for the damages he had inflicted upon foreigners resembles the contemporary notion of state responsibility for the denial of justice to foreigners or, to put it more broadly, for state’s inaction in breach of its international obligation to act, the origins of the two institutions differ significantly. In ancient times the responsibility of the ruler was in no way related to the lack of due diligence in preventing a given harmful result caused by an individual. It originated from the infringement of the norms of the law of nations by one of the ruler’s subjects. This construct resembles the characteristics of ancient societies, where collective responsibility was considered the norm – individuals did not act on their behalf and on their own account, but only as representatives of communities they belonged to.94 A collective responsibility so perceived was present also in the middle ages. Early European communities of vii–xi century developed independently yet remarkably similar legal orders relying upon the tribes or “stems” (Stamm) 90 91 92 93

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Henry Wager Halleck, International Law (n 83) 3. Max Kaser, Ius…, (n 81) 4–6. Max Kaser, Ius…, (n 81) 28–29; Anthony Grafton, Glenn W. Most, Salvatore Settis, The Classical Tradition (hup 2010) 972, who discuss the genesis of the notion of a just war. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 277. James Brown Scott, The Catholic Conception of International Law: Francisco de Vitoria, Founder of the Modern Law of Nations, Francisco Suárez, Founder of the Modern Philosophy of Law in General and in Particular of the Law of Nations: a Critical Examination and a Justified Appreciation (New York 1934) (reprint: Lawbook Exchange, 2007) 157–160, who discusses in detail the evolution of the rules of international responsibility. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 279.

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comprised on households. The tribes shared villages, villages formed counties, with those building up loosely integrated duchies or kingdoms.95 This low level of social integration brought about a collective model of responsibility (Sippenhaftung).96 Communities within a middle age kingdom were perceived as a whole, where as the actions of each of their members, be it unintentional, were viewed as the acts of the group. In response to the damage caused by an individual belonging to a different group, the members of the harmed tribe could have called for a bloody revenge or monetary compensation. If the culprit’s tribe wished to be set free from responsibility for the actions of an individual belonging thereto, it could have banned them from the community by making them an outlaw (vogelfrei), who could be deprived of life without any legal consequence for the takers.97 While the middle age politics followed the Roman principles of jus gentium and reflected the principle of collective responsibility, it was at this time in history that the foundations for the contemporary scholarship of international law of state responsibility were laid. The brink of the 15th century was the time when the denial of justice to foreigners within his power by one ruler could have been recognized as a valid ground for his responsibility against other monarchs.98 It was this latter notion – the medieval perception of king’s responsibility for the denial of aid to a foreigner – rather than the group responsibility of a community for its member that resulted in the contemporary notions of state responsibility.

Individual Responsibility of Monarchs in the Age of Absolutism

At the age of absolutism the Roman influences of jus gentium and its middle age reflections remained present. Absolutism was also the time when international law became an independent legal discipline. It was when the great legal 95 96 97

98

Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (hup 1983) 52. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 279. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 280. Harald Maihold, ‚Die Sippenhaft: Begründete Zweifel an einem Grundsatz des “deutschen Rechts”‘ (2005) 18 Mediaevistik 117–144; W. Schüpbach, Sippenhaftung: Roman, Zwickau 1996. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 281.

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writers like Alberto Gentilis, Oxford professor of civil law with Italian origins, or Hugo Grotius, dedicating his “Law of war and peace” to Louis xiii, who subjected the norms of international responsibility to a significant, rapid evolution. The historical circumstances of the age of absolutism, where the state was identified as unanimous with its ruler, just to mention Louis’ xiv “I am the state”, resulted in significant changes in the perception of state responsibility, the interrelationship of states’ communities and their kings. The fault of the monarch was perceived as grounds for the international responsibility of state, next to the fault of the nation acting through its parliament, but, unlike in the middle ages, no longer was an act of an individual perceived sufficient ground for state responsibility, even if that individual was a state official authorized by the monarch.99 Gentilis relied upon Roman writings when describing the rules of international customary law, especially the narrow perception of the law of nations. He referred to as jus inter gentes, a phrase describing customary law consisting of the rules of interaction among and between communities.100 In his “Three books on the law of war” he presented a unique, lay and universal perception of the Roman jus gentium, a study of international practice rather than of dogmatic discourse or a reference to religious law.101 He perceived the law of nations as subject to consensus among all kings (maior pars orbis), appointing the study of international law with the sole task of pragmatic analysis of state practice.102 He made references to the notion of the common heritage of mankind,103 deriving international law from a sense of „innate reason” and commercial equity (aeqiutas mercatoria). With a view of ­international law so defined, he focused his research on the study of just war. Elaborating on the notion of collective responsibility known to Roman law, Gentilis added his own, novel and creative, elements such as the qualification of just causes for war as either “natural” or “man-made”. The first ­category covered those circumstances where a natural prerogative, such as e.g. a merchant’s right to take part in commerce, had been taken away. In a situation where a natural prerogative had been taken away or restricted, Gentilis found it justified to 99 100 101 102 103

Daniel R. Coquillette, The civilian writers of Doctors’ Commons London: three centuries of juristic innovation in comparative commercial and international law (Springer 1988) 65. Daniel R. Coquillette, The civilian… (n 99) 64. Idem 65. Thomas Eeskine Holland, An inaugural lecture on Albericus Gentilis delivered at All Souls college November 7 1874 (Macmillan 1847) 34. Non unius est reipublicae sed omnium; This reference is made when discussing the philosophy of war, arguing for its recognition as a fact of international practice.

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engage in a “just” war. “Man-made” reasons to engage in a just war included, according to Gentilis, a breach of statutory law such as failing to recognize the special privileges of diplomatic staff.104 Such breaches to be recognized as grounds for state responsibility needed to be committed by a state ruler himself, not by e.g. his plenipotentiaries, state officials or legislative organs.105 Gentilis argued that a state can be held responsible only for an act consented to by a collective organ representing it. This perception of state responsibility is a clear reflection of absolute monarchy – state authority rests at the hands of the monarch, resulting in an exclusive and necessary correlation between state responsibility and monarch’s competence. Hence it was a notorious fact that the entire community could not be held responsible for the actions of its individual members, departing from the ancient notion of collective responsibility. Instead Gentilis introduced state responsibility based on fault, where a state warned of a potential violation to be committed by its citizens failed to act within its jurisdiction to prevent it.106 Effectively a legitimate reason for engaging in a just war would be a “sin of omission” – a situation where an individual had committed a violation and the ruler failed to meet their obligation of compensation. State responsibility arises together with the actual damage, while the potential possibility to prevent it does not create and obligation of compensation, solely one of prevention. Gentilis recognized therefore a state duty to punish or extradite the culprit. Failing to meet this duty gave grounds to a just war against the community which failed to punish or give away the wrongdoer.107 The notion of collective responsibility was never directly reflected in the writings of Grotius. According to him responsibility in international law was

104 Gentilis fails to recognize purely commercial relationships as those of international legal nature, referring to them as a “sort of” international law. Alberto Gentilis, De Jure Belli Libri Tres (Clarendon 1933) 86–98; based on the translation from Latin provided by Daniel R. Coquillette, The civilian… (n 99) 65–66. 105 Originating from a constitutional law formation, Gentilis referred to state parlamentary rather than national courts as state bodies. A. Gentilis, De Jure Belli Libri Tres (Clarendon Press 1933) 103; based on the translation provided in Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 281. 106 Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 281–282; Francisco Forrest Martin, International human rights (n 18) 72; James Brown Scott, Law, the State, and the International Community (Columbia up 2002) 193. 107 Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 282.

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to be perceived narrowly and cover solely the actions of monarch acting as an individual.108 In his writings Grotius introduced two categories of grounds for state responsibility, with the first one covering what has been known as civil liability. When describing its elements Grotius relied on the civil law doctrine he was well acquainted with, where accountability was always a relative of an individual behavior. The second category of responsibility Grotius proposed in international law was one that resembled today’s criminal responsibility. It is this part of his work that has attracted most attention over the years, although it might seem that the criminal law doctrine is ill s­ uited for the purposes of international relations as it poorly reflects its specifics.109 Grotius himself referred to both categories when describing international responsibility, and while pointing to their shared characteristics he argued for the responsibility to be a necessary consequence of an individual action.110 Without fault on the part of the ruler, one which resulted in the actions of his subjects, the king could at best be held responsible before national courts, not however held accountable on the international level and so no responsibility could be attributed to the state. Grotius argued that rulers cannot be held responsible for the actions of their soldiers or seamen who caused damage to kings’ ­allies, against orders to the contrary. Applying this view to the question of international state responsibility he argued that a state cannot be held responsible for the actions of individuals but rather for own actions or omissions. Hence no community or its authorized body is to be held responsible for the actions of individuals u ­ nless it aided the wrongdoers in inflicting the damage or has shown negligent in preventing it. Referring to the ancient lex Rhodia de iactu he argued that there is no state that does not have to deal with the problem of disobedient subjects and just as a father is not to be held responsible for the actions of his children, or a master for his servants, so is a ruler not responsible for the actions of his subjects. The presumption of the lack of responsibility may therefore be rebutted by depicting the role of the state in the occurrence of damage, regardless whether its role was active or passive, that is whether caused by action or omission. With that in mind, Grotius made a distinction between an “active” joint responsibility for an act to which the state contributed and a “passive” joint

108 James Crawford, Allan Pellet, Simon Olleson, Kate Parlett (eds.), The Law of International Responsibility (oup 2010) 258. 109 Idem 258. 110 Hugo Grotius, on the law of War and Peace (1625) R Tuck (ed.), (Liberty Fund 2005) Book ii, Chapter xxi, i, 215, whereas prerequisites of responsibility such as crime, treaty or “law of nature” are named.

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responsibility of a state negligent in preventing harm.111 Negligence could take on the form of tolerating a harmful action (patientia) or giving refuge to the culprit (receptus), where the latter happens when the state fails to punish or extradite the culprit despite knowing of his fault.112 Using the legal concept of joint responsibility he argued that the ruler is to be held jointly responsible for an infringement committed by his subject when he knows of such an infringement and despite the obligation he is under, fails to prevent it (patientia). As he explains, a monarch’s responsibility is a consequence of his “forbearance and connivance”: In the case of a sovereign’s responsibility for the acts of his subjects, there are two things to be considered (…) and those are the forbearance, and the encouragement or protection, which he has shown to their transgressions. As to forbearance, it is an acknowledged point that when he knows of a delinquency, which he neither forbids nor punishes, when he is both able and bound to do so, he becomes an accessory to the guilt thereof. (…) besides the knowledge of a deed, to constitute a participation in the guilt, the person so knowing it, must possess the power to prevent it. And this is what is meant by the legal phrase that the knowledge of a crime, when it is ordered to be punished, is taken in the sense of forbearance or connivance, and it is supposed that the person, who ought to have prevented it, did not do so. In this place knowledge implies a concurrence of will, and connivance a concurrence of design.113 His notion of receptus on the other hand reflects Gentili’s idea of ruler’s responsibility for the lack of putting the culprit before a local court or extraditing him, as per the contemporary principle obliging states to extradite or prosecute. Grotius acknowledged state omission as its fault, perceived independently of an individual deed by a state subject. When it came to omissions, he opted for the responsibility of monarchs and state officials who failed to take preventive measures against robbery and piracy which they could have 111 Hugo Grotius, On the Law… (n 110) Book ii, Chapter xvii, 157 ff. 112 Idem. For a commentary see e.g.: James Crawford, Allan Pellet, Simon Olleson, Kate ­Parlett (eds.), The Law of International Responsibility (n 108) 259; Edouardo Jimenez de Arechaga, ‘International Law in the Part Third of a Century’ (1978) 159 RdC 283–284; ­Hermann Mosler, The International Society As a Legal Community (Alphen aan der Rijn 1980) 163. 113 Hugo Grotius, On the Law… (n 110) Book ii, Chapter xxi, ii, 216.

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and should have taken.114 In such cases the damage was deemed to be directly caused by the one who was legally bound to prevent it by a direct order or show of help and failed to do so. Going beyond Gentili’s idea, he argued for recognizing kings’ fault in sheltering the culprit who had caused harm to another state. Such responsibility was to be viewed as analogous to that of anyone else offering refuge to a fugitive of law or someone hiding away from justice in a foreign territory, regardless of the location where his crime was committed.115 The concepts introduced by Grotius and Gentilis have been reflected in the works of many legal writers to follow.116 Richard Zouch, who took over Gentilis’ post at Oxford, identified international responsibility as that of the king.117 Just as Grotius he acknowledged the responsibility of the ruler as dependant on his fault, resulting in an infringement of individual rights. Should there be no proof of such fault, international responsibility could not be attributed.118 He developed on previous concepts by narrowing the scope of activities a state may be held accountable for. He rejected Gortius’ notion of receptus by failing to recognize a culprit simply residing within state territory as sufficient ground for attributing fault to the monarch and argued that any obligation to extradite such a perpetrator may only originate from a treaty.119 A similar perception of the duty to extradite or prosecute can be identified in contemporary international legal writing.120 114 Idem 215 ff. 115 Idem, Chapter ix, xx, 162 where he writes: “Sovereign Princes and States are answerable for their neglect, if they use not all the proper means within their power for suppressing piracy and robbery”. Grotius introduced two categories of justice: “expletive” and “attributive”, where he argued against Aristotel’s similar notions of “geometrical” and “arithmetical” justice. With that e.g. “expletive” justice reflects Aristotel’s “geometrical” (or “commutative”) justice, although referring solely to “perfect rights” i.e. ones that are binding and enforceable. Hugo Grotius, On the Law… (n 110) Book i, Chapter i, viii, 142–147. For a detailed commentary see: James Crawford, Allan Pellet, Simon Olleson, Kate Parlett (eds.), The Law of International Responsibility (n 108) 259. 116 Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 284. 117 Richard Zouch, Iuris et iudicii Fecialis sive Iuris inter Gentes et Quaestionum de Eoden Explication, (James Brierly trs, Liberty Fund 1911) 106–107. 118 Idem 106. 119 Idem 107. 120 M. Cherif Bassiouni, Edward Martin Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (BRILL 1995) 23–41. See also: ilc, ‘The obligation to extradite or prosecute (aut dedere aut judicare), Final Report of the International Law Comission’ (2014) 2 yilc Part Two.

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Enlightenment Concepts of State Responsibility

Samuel von Pufendorf, a seventeenth century German jurist, economist and philosopher further developed the responsibility concepts introduced by Gentilis and Grotius.121 He viewed international law as ethical research and argued for recognizing the law of nature, a set of principles shared by all humans, as its substance. As such international law was to facilitate the interactions between states viewed as independent, self-governing communities.122 Puffendorf argued against state responsibility for the actions of residents or citizens as such responsibility would imply a necessary state interference with the performance of individual liberties. He viewed any such interference as undesired and ineffective, since regardless how intensely a state tries to exercise its authority, individuals are always granted a certain freedom ensured by the laws of nature, enabling them to harm others: individuals, communities or states.123 Pufendorf followed Grotius in his reference to the notions of patentia and receptus, yet making due diligence the focus of his research.124 When introducing a presumption of state fault he claimed that a state may be held responsible for failing to prevent harm caused by a private party when it cannot be proved that the state carries no such responsibility.125 The responsibility of a monarch was therefore to be considered the consequence of an objective infringement upon “an overriding legal-moral order”.126 Yet Puffendorf’s contemporary, J.W. Textor, another German law professor working in Heidelberg, argued for a different understanding of due diligence with a monarch’s obligation to provide compensation solely when it was him who carried the fault for failing to prevent the damage. According to Textor the monarch was to be held liable only for harm that he had been capable of preventing and failed to do so.127 This perception of responsibility for omissions dominated international legal writing at the end of the nineteenth century when the notion of attribution in the law of state responsibility was being developed. It meant a departure from the former perception of responsibility as a derivative of fault. 121 Samuel Pufendorf, Two books of the Elements of Universal Jurisprudence, W A Oldfather (trs) (Liberty Fund 2009) xii–xiii. 122 Idem 7–8. 123 Idem 21. 124 Idem 21. 125 Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 285. 126 James Crawford, Allan Pellet, Simon Olleson, Kate Parlett, The Law of International Responsibility (n 108) 47. 127 Johann Wolfgang Textor, Synopsis of the Law of Nations (Carnegie Institution 1916) 142.

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Absolutism brought a revolution to international responsibility of states. Originating from the collective responsibility of communities for their individual members, one recognized within the hierarchical tribal societies, the rapidly evolving international law scholarship came to recognize a narrowly perceived state responsibility as that of state ruler for his actions and omissions as well as the actions and omissions of state authorities, including judicial or lawmaking bodies. In the light of the ongoing political changes, this evolution is easily justified: medieval states resembled tribal communities while Gentili’s or Puffendorf’s contemporaries entrusted state powers with the monarch.128 It was also the Westphalian order that enhanced the perception of statehood as impersonated with the monarch. After the Thirty Years War that left Europe in crumbles, the Munster/Osnabruck 1648 peace treaty was a mutual recognition of monarchs’ equality and independence as representatives of the states they ruled. The practical perception of sovereignty resulted in kings prerogative to decide upon all events and actions performed with the territory they governed. In the post-Westphalian world the monarch was entrusted to rule the state so as to secure raison d’état, perceived as separate from his own interests or those of the collective residing within state borders. This unique new notion, introduced by Cardinal de Richelieu during the Thirty Years War when calling upon the king of France to protect state interests, was to be filled with meaning by the contemporary monarchs, guarding the interests of the state rather than those of the king or the collective of individuals residing within the territory he ruled. The king was to protect the raison d’état in such a way as to find the compromise between his conscience and politics (l’harmonie des maximes d’Etat avec celles de conscience).129 This unique role that the monarch had been entrusted with reflected a state perceived as a territory, rather than a group of individuals or a coherent community sharing a set of moral or religious values. This resulted in a relatively narrow perception of state responsibility, bringing a necessary departure from Grotius’ perception of fault of the monarch as grounds for state responsibility, as a state was no longer to be perceived as one with its ruler and could no longer easily be subjected to such a personification.130 Yet the new notion of state responsibility still followed Grotius’ principle of no responsibility without fault (“qui in culpa non est, natura ad nihil

128 Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 285. 129 Etienne Thuau, Raison d’Etat et Pensee Politique a l’epoque de Richelieu (Colin 1966) 213. 130 Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 286.

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tenetur”) and carried on with the legal fiction of state joint responsibility for its citizen’s misdemeanors.131 The seventeenth century saw yet another shift in the perception of state responsibility. Scholars departed from collective responsibility only to view the individual as an independent, whose actions could endow the king with international responsibility. Henry S. Maine described this evolution as gradual loosening of family ties which resulted in the enhanced emphasis on individual obligations towards the community. It was the individual, rather than an entire family or kinship that became the addressee of civil laws, rights and obligations and the role of family ties was replaced by the notion of a social contract.132 As this shift did not happen rapidly, some references to the Roman notions of jus gentium can still be found in the writings of Christian J. Wolff and his contemporaries.133 Wolff argued that a state should not allow its subjects, including both: citizens and foreigners within its rule, to cause damage to other sovereigns, yet should such damage arise, it was up to the ruler to make the culprit accountable for his actions. Despite this strict dogmatic approach, Wolff did not recognize the actions of individuals as those of the sovereign. They were not to be attributed to a state unless the monarch acknowledged or recognized them as his own. Going beyond his era, Wolff referred to “state” responsibility for a “citizen” rather than “king’s” responsibility for his “subject”.134 This was a sign of times when the absolutistic notion of joint responsibility of the ruler for his subjects was being substituted with the contemporary notion of state attribution.135 As such Wolff’s work could be recognized as a blueprint for the icj reasoning in the Teheran hostages case.136 He also argued for attributing actions of groups of individuals or legal bodies to a state when they were acting on state orders or following its authorization.137 Following Wolff, Emer de Vattel in his 1758 “Law of nations” defined the title notion as a discipline of law which binds nations viewed as political unions, i.e. communities of individuals joined together for the reasons of shared security and other benefits.138 131 132 133 134 135

Karl Strupp, Woerterbuch… (n 65) 336. Henry S. Maine, Ancient Law… (n 72) 169. Christian J. Wolff, Jus gentium methodo scientifica pertractatum (n 7) 161. Christian J. Wolff, Jus gentium methodo scientifica pertractatum (n 7) 161–162. Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 289. 136 The case is discussed further in this chapter. See also: Jan Arno Hessbruegge, ‘The Historical Development of the Doctrines of Attribution’ (introduction, n 18) 289, Christian J. Wolff, Jus gentium methodo scientifica pertractatum (n 7) § 314, 160. 137 Christian J. Wolff, Jus gentium methodo scientifica pertractatum (n 7) § 315, 160. 138 Emer de Vattel, The Law of Nations or the Principles of Natural Law (n 58) 53.

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Deriving richly from the Roman jus gentium doctrine in his description of the sources of international law he referred to the law of nature as a set of superior norms applicable to individuals, states and nations.139 Followingly, when describing due diligence, de Vattel argued that a nation or a monarch should not allow its citizens to commit illegal acts against the subjects of other states or states themselves. With that in mind he opted for the attribution of a joint responsibility for any such breach to the ruler who allowed for it to happen. Denoting Grotius’ notion of patientia, he found it impermissible for a monarch to tolerate his subjects’ willfulness towards other nations. He argued for the ruler’s international obligation to actively counter any actions of his subjects harmful to other sovereigns. Yet, clearly, not every act of an individual resulted in state responsibility since, as de Vattel pointed out, an illegal act of one of the members of a community cannot be equaled to that of an entire nation. Moreover, when it came to the duty to punish or extradite the culprits, de ­Vattel saw it as not originated solely by contract, but rather by the ties of friendly relations and good neighborliness.140 Relying on such a broadly defined basis for international cooperation, he offered a novel ground for international responsibility, one originating from a monarch’s lack of due care. A king was to be held accountable when following his continuous habit the subjects would grow accustomed to robbing foreigners or invading neighboring lands. In such a case the ruler was to be held responsible for their misdemeanors.141 De Vattel went on to introduce a right to a joint self defence against such attacks, arguing that all nations have the right to join forces against a careless ruler, aiming to make him defenseless as a joint enemy of mankind.142 This dual perception of responsibility was derived from the pacta sunt servanda principle, as international responsibility can only be invoked when a breach of a mutual obligation occurs between states. That was not the case when e.g. the generally perceived interests of the international community were harmed in any way.143 Even thought Wolff and Vattel’s ideas were novel and groundbreaking at the time, they have not managed to make international law depart from its 139 140 141 142

Idem 55. Idem 369–370. Idem 372–373. Emer de Vattel,, The Law of Nations or the Principles of Natural Law (n 58) para. 78, 372. Almost 240 years later the International Law Comission introduced a similar notion in its Draft Articles on the responsibility of states from 2001, see: 2001 ilc Draft Articles on State Responsibility, Article 9, 49, introducing state responsibility for the acts performed during the absence or inactivity of state organs. 143 With time de Vattel’s approach has been confirmed by the majority of international legal scholars. See e.g. the discussion in Georg Nolte, ‘From Dionisio Anzilotti to Roberto Ago:

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original perception of shared or collective responsibility, characteristic of early tribal communities.144 Nineteenth century writers, Phillimore and Burlemaqui, referred to Grotius’ patientia when discussing harmfull actions as grounds for monarch’s responsibility for private individuals.145 Not only was a harmful action of private individuals ground for responsibility, it was also a just reason for war. This was the case when a monarch knew of the misdemeanors of his subjects and despite an obligation and opportunity to prevent them failed to do so, effectively acting in compliance with perpetrators of the illegal activity he had allowed for.146 Such a perception of an obligation to respect the sovereignty of others had led Phillimore to add a presumption of monarch’s responsibility for the actions of his subject, endowing the ruler with the burden of proof of his diligence in preventing foreign harm.147 Phillimore argued for consequences more severe for a monarch who had tolerated harmful actions of numerous groups of his subjects acting astray, particularly those acting in armed bands.148 Phillimore’s contemporaries, like William E. Hall, also claimed that the state is to be responsible for the actions and omissions performed within state territory, should they result in harm to another state or its subjects.149 A state was to be held responsible only when it had failed to prevent, penalize or punish harmful actions of an individual acting within state territory. Hall went further, pointing to the territorial link between the ruler and the perpetrator as key in attributing responsibility to the monarch. Yet the relationship between state and individuals residing within its borders was viewed as significantly more distant than that of the monarch and state officials. This resulted in a different perception of state responsibility for the actions of the former. When it came to private individuals a state was obliged to perform an overall control of their actions, just as regards any other activity within state borders. Such ­control

144 145 146 147

148 149

The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 13(5) ejil 1085. Christian J. Wolff, Jus gentium methodo scientifica pertractatum (n 7) 161. Jean Jacques Burlamaqui, Burlemaqui’s principles of natural law (J Nourse 1763) 255. Robert Phillimore, Commentaries upon international law (Butterworth 1871) vol. i, 258. Robert Phillimore, Commentaries upon international law (n 146) 258, who claims that “it is presumed” that the ruler knows what kind of misdemeanors are to be usually expected of his subjects and is aware of his capabilities in preventing them, as long as there is no convincing proof to the contrary. A similar perception of responsibility can also be observed in the earlier works of de Vattel: Emer de Vattel, The Law of Nations or the Principles of Natural Law (n 58) 369–370. Robert Phillimore, Commentaries upon international law (n 146) 259. William Edward Hall, A Treatise on International Law (oup 1895) 226.

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was viewed as a part of exercising state authority. Effectively a state was to be held responsible only for such actions of private individuals which could be rationally considered to have been known to the state and could have been prevented. Hall went on to refer to “diligence” in this context, used to describe the criteria of this rational presumption. A state could have therefore made itself free from responsibility once it proved to have met one of three criteria, regardless of it having been successful or having failed in preventing the harm. And so state authorities could have argued to have been in a justified misperception of the actual circumstances, one that made them refrain from introducing any preventive measures. Should however a state have engaged in preventive measures and failed to prevent harm, all it needed to do was to show that harm was impossible to avoid despite watchfulness proportionate to the known nature of harmful circumstances and possible with the means available at that time. Should a state not be able to show any of the two circumstances named above, it could have alternatively tried to show that the harm resulting from particular activities or omissions was incidental or not dependent of any of the actions taken within state territory, which could have been prevented.150 The assessment of state rationality in taking preventive measures was to be based on the knowledge available to the state before harm occurred, not thereafter.151 According to Hall the only measure of diligence in certain circumstance was therefore the level of care shown in a given case, not one measured with reference to the actual harmful consequence which has already occurred. For the assessment of the level of diligence shown by the state the local, national standard of care, exercised by the state in its own matters, was to be applied. If a state had given as much attention to a particular case as seems appropriate in certain circumstances to a moderately intelligent person, then it had met its obligations and could not be held responsible.152 When identifying those rudimental criteria of due diligence as a measure for assessing state efforts in meeting its international obligations Hall relied on a state duty to enact and enforce such laws as expected of a state “well organized at a moderate level”,153 regardless of measures which the state takes to achieve such goal.154 It could

150 Idem 226–229. 151 Idem 229, claiming that the failure to prevent the escape of an officer kept captive can lead to the fall of an empire. 152 Idem 229. 153 Idem 230. 154 Idem 230–231.

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not however effectively be held free from responsibility solely by declaring anarchy as a willingly chosen form of internal organization.155

Indirect and Objective Responsibility in International Law

Also Lasa Oppenheim, a 20th century German international legal writer considered one of the founders of contemporary international law, followed his predecessors in recognizing state responsibility for any harm caused to another state by a breach of an international obligation through actions of the head of state or government members that is an act of “international delinquency”.156 When referring to state responsibility for the acts of individuals not acting on behalf of the state or authorized by it, he introduced a novel distinction between original and vicarious responsibility of a state, one to raise much controversy in the centuries to come.157 The original responsibility of a state was to follow state failure to meet its international duty of preventing, within its own capabilities, any harm caused to other states by its citizens or residents.158 A state which „intentionally”, „maliciously” or as a result of „culpable negligence” failed to meet this duty was to bear original responsibility for its own action or omission.159 Since however preventing all harmful events within a state territory is impossible, Oppenheim suggested that even if the state did not show ill will or even a lack of diligence in preventing harmful acts, yet harm to other state’s interests or goods did arise, the originating state should be held indirectly responsible. Oppenheim referred to this latter form of responsibility as “vicarious”. Such vicarious responsibility was to be invoked only when the state was not able to prevent harm.160 States were therefore to be held indirectly responsible also for activities other than their own, such as the actions of their agents acting beyond the authorization or mandate they had received as well as private individuals, including nationals and foreigners (“aliens”) residing within state borders.161 And so Oppenheim argued for the state to be held responsible for the actions of its military or administrative organs acting beyond authorization, 155 156 157 158 159 160 161

Idem 230–231. Lassa Oppenheim, International law: a treatise (Longmans, Green & Co. 1920) 245. Idem 36. Idem 258. Idem 258. Idem 258–259. Idem 244.

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as a state was required to exercise a “disciplinary control” over their actions.162 A state was therefore above all obliged to distance itself from such harmful acts through the relevant declaration and condemn them, providing words of regret or “even” apology to the victims. It was also under an obligation to compensate for losses incurred and to punish the perpetrators “appropriately”, that is reflective of the circumstances of the case.163 When seeking a justification for such a broad perception of state responsibility Oppenheim referred to the lack of a direct effect of international law against the actions of individuals. It is only states, he argued, that can effectively oblige individuals to respect the law of nations. This is why in the system of international law there must be a norm requiring states to exercise their authority over individuals within their jurisdictions and to effectively introduce international obligations in national laws and ensure their enforcement. Attempting to exemplify this categorization, Oppenheim argued that a state ought to be held responsible for the harmful actions of individuals within its territory just as it is responsible for the acts of its government, individuals it has authorized or ones acting on its behalf. This obligation remained valid for the acts of citizens as much as for those of foreign residents and resulted in responsibility when the state did not try to prevent their harmful actions intentionally or as a result of “culpable negligence”, one measured against state capabilities (“as far as possible”).164 Oppenheim’s original concept was that of vicarious responsibility, intended to amend for the shortcomings of the well recognized international law principles of direct responsibility and reflecting Grotius’ notions of patientia and receptus. He pointed out a general obligation of states to “force the courts” to properly play their role if they should excessively or unreasonably delay court proceedings, actually deny justice or “clearly and intentionally apply the law improperly”, causing injury to another country.165 However, while the responsibility of the state for acts of its administrative organs and the army was ­unlimited, indirect responsibility for the actions of individuals was, in his view, “relative”. The only duty of the state in respect of these persons was in fact a demonstration of due diligence in preventing harm they might cause to other states. If however such a harmful act was committed by a private person, the obligation of the state was then limited to compensating the victim. This obligation was to be satisfied by state within the limits of its capabilities, by punishing the perpetrators and requiring them to pay due compensation. 162 163 164 165

Idem 251–252. Idem 255. Idem 244–245. Idem 253–254.

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State responsibility for the actions of individuals was not to go any further, as per Oppenheim’s reasoning. The state was under no obligation to provide own compensation, not even in a case where a perpetrator failed or was unable to do so. Only in cases where the state had failed to show due diligence, whether in preventing the act or punishing the perpetrators, could it be obliged to pay compensation.166 A detailed critique of the concept of indirect responsibility is discussed further in this book. Dionizio Anzillotti, a nineteenth century Italian international lawyer and a judge of the pcij, in his work on state responsibility pointed to authorities’ non-compliance with international obligations as a ground for holding a state accountable.167 With that he paved the way for the twentieth century ilc work on state responsibility, as his writings were the inspiration for the reports of Roberto Ago, the first ilc Special Rapporteur on state responsibility.168 Anzillotti argued that a state should bear responsibility only when the attributed action was contrary to an existing norm of international law, one originated by a contract as per the pacta sunt servanda principle. According to him, any violation of international law gave grounds only for reparation claims, because only such claims could be justified by content of the existing principles of state responsibility.169 Dionizio Anzilotti’s approach was an early attempt at introducing strict liability in international law, viewing compensatory claims as distinctively different from retaliatory measures or military interventions, applicable in cases of international law violations. While he did consider an infringement of vital interests of another state a prerequisite for state responsibility, he refrained from viewing any violation of a general obligation as ground for compensation, relating the latter to an infringement of specific interests.170 Effectively, violations of international law giving ground to state responsibility could result from both: actions and omissions of state bodies. Evaluation of such violations was to rely on the individual norm of international law and the circumstances of its violation, rather than on domestic laws and the specifics of state authority whose actions or omission had caused a violation of international law, with denial of justice serving as one of the ­examples of state 166 Idem 259. 167 Dionizio Anzilotti, Lehrbuch des Völkerrechts, C Bruns, K Schmit (trs) (de Gruyter & Company 1929) 360. See also: Pierre M. Dupuy, ‘Dionisio Anzillotti and the Law of International Responsibility of States’ (1992) 3 ejil 139–148. 168 Pierre M. Dupuy, Dionisio Anzillotti (n 218) 139–148. See also further in this book for a discussion on the evolution of the due diligence principle. 169 Dionizio Anzilotti, Lehrbuch des Völkerrechts (n 217) 360, 365–366. 170 Georg Nolte, ‘From Dionisio Anzilotti to Roberto Ago’ (n 143) 1087.

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o­ missions resulting in state responsibility.171 With that in mind, the recognition of state responsibility was not the effect of an individual attitude of individuals performing state functions but rather irrespective of any notions of fault, whether in appointing the officials or their supervision. The ground for responsibility was granted by the very breach of an international obligation, whether by action or omission of state body. State responsibility for omissions was recognized by Dionizio Anzilotti as the need to show due diligence in preventing harm to other states.172 He further developed the concept of state responsibility for the acts of individuals by observing that violations of international law may also be caused by private individuals acting under a mass psychosis or a harmful social movement. He argued that a state from whose territory a harmful activity had been originated was responsible against the victim for the failure to prevent the damage, which also resulted in a compensatory duty and an obligation to punish the perpetrators. These particular international obligations of states were viewed by Dionizio Anzilotti as an emanation of their responsibility for the actions of individuals, regardless of the lacking direct effect of international laws onto individuals. Controversially, he argued that this construct was similar to the private law risk liability for the damage done by dangerous animals.173 This perception was not taken on by his contemporaries without critique. Hersch Lauterpacht criticized the positivist concept of Dionizio Anzilotti as too narrow, going for the broad application based on natural law, taking on a new approach to the rights inherent to man, leaving behind the concepts of Grotius and the Roman era.174 Lauterpacht perceived state responsibility as the result of an equal balance between customary and statutory laws, with the leading role left to judges and legal doctrine as those who were entrusted to ensure a practical applicability of dogmatic concepts and provisions of treaties.175 It was Roberto Ago who followed Dionizio Anzilotti’s writings to develop a unique and influential perception of state responsibility, one that found its way into the ilc draft principles. As the first ilc Special Rapporteur on state responsibility, he presented the first report on the principles of state responsibility in 1976, summarizing the many years of research on the subject. Although he followed Dionizio Anzilotti in his positivist approach, Ago’s take 171 172 173 174 175

Dionizio Anzilotti, Lehrbuch des Völkerrechts (n 217) 368. Idem 390–391. Idem 378, 380. Hersch Lauterpacht, Regles generals du droit de la paix, ‘RdCes’ 1937, No 62 (iv), 353 ff. Georg Nolte, ‘From Dionisio Anzilotti to Roberto Ago’ (n 143) 1093.

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on Anzilotti’s ideas was supported by a different dogmatic, one later described as the Renaissance of natural law in international legal scholarship.176 The legal positivist saw sovereignty as central to international law and argued for setting limits to state responsibility accordingly. He claimed responsibility could only be borne by a state which had infringed its positive, treaty-based or customary, obligation.177 The first Special Rapporteur inaugurated his vivid presence in the state responsibility discourse for the years to come with his 1939 lecture on international tort, delivered following the invitation of the Hague Academy of International Law.178 It was exemplary of his approach to international law and state responsibility, as it reflected Dionizio Anzilotti’s legal positivism as well as the much criticized concept of fault, derived from Grotius’ work, yet seen from a new perspective. Roberto Ago rejected the notions of state complicity in international harm, thus far present in the international dialogue as a transposition of national criminal laws. He also argued against state provocation, aid or other participation in the harmful actions of private individuals, although perceived fault as a necessary element of state responsibility.179 In his writings however fault is not seen as the action of the individual perpetrator, but rather as the lack of due diligence on behalf of the state when exercising its powers over individuals within state authority.180 Lack of due diligence, conceived as a “subjective element of fault”, was seen by Roberto Ago as a precondition of state responsibility, although applicable only in cases of state omissions, i.e. state failure to prevent individual activity, conducted within state jurisdiction.181 Moreover, he argued, international practice calls for a simultaneous, be it indirect, representation of state fault in matters relating to its responsibility for the operation of its bodies or authorized representatives. He argued for a reverse burden of proof in cases of harmful state omissions, pointing out that when there was no fault in state performance, no violation of international law was to be attributed. The prerequisite of fault, Roberto Ago claimed, was acknowledged in international practice of courts and tribunals which attributed no responsibility to states in violation of an international duty when such violation had resulted

176 177 178 179 180

Idem 1084. Dionizio Anzilotti, Lehrbuch des Völkerrechts Berlin 1929, 365–366. Roberto Ago, ‘Le delit international’ (1939) 68 RdCes 419–554. Helmut Phillip Aust, Complicity and the Law of State Responsibility (cup 2011) 12. Roberto Ago, ‘Le delit international’ (n 228) 476; Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 11. 181 Idem 473–476, 491–492.

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out of force majeure, error or another fortuitous event as there was no fault to show on their side.182 Arguing for the prerequisite of fault, he claimed that it could only be perceived as that of individuals acting as state bodies. Their actions could be attributed to the state as a necessary, subjective condition of its responsibility. Consequently he perceived state practice to require the reversed burden of proof whenever state responsibility for the acts of state bodies and its representatives was considered. Such proof was needed to show no ­violation of international law and, implicitly, no state fault.183 Moreover, unlike Dionizio Anzilotti, Roberto Ago renounced domestic laws as a criteria for attributing state responsibility, opting rather for an objective, international standard. At the time however subjective theory of international responsibility was a minority concept.184 Drawing on the experiences of World War ii he argued that there is a set of common interests shared by the international community, which can be identified by a ­reference to the laws of nature and states infringing upon them must bear responsibility.185 Roberto Ago understood state responsibility as an objective consequence of certain events, i.e. one following a violation of legally protected interests of another state together with the causal link between the violation and the act of state behind it, regardless of individual fault of the physical actor.186 The concept of individual fault was rejected for three main reasons. First, because of the practical impossibility to determine the mental attitude towards the particular act, crucial to attributing individual responsibility, in the case of a legal person such as the state. Secondly, as there is no fault to be identified on behalf of the acting state since state acts are determined by domestic laws. Finally, the third argument against the theory of fault originated from the practical impossibility of assigning it to a state in case of the acts of private individuals it had not authorized.187 At the time, Roberto Ago a­ rgued, international practice saw the existence of an

182 Idem 475; Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 11. 183 Roberto Ago, ‘Le delit international’ (n 228) 476–498. The idea of subjective fault as a necessary element of state responsibility had its followers in the second half of the ­twentieth century, primarily in the Italian doctrine, for more examples see: Riccardo Pisillo-­Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 11–12. 184 ilc Report, 1976, U.N. Doc. A/31/10, 18–19. 185 Georg Nolte, ‘From Dionisio Anzilotti to Roberto Ago’ (n 143) 1084. 186 Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 15, where the author points to the numerous supporters of this approach to Anzilotti’s ideas. Ago’s revision of Anzilotti’s points focused on attributing state responsibility based on universal, rather than domestic, criteria. 187 Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 15–16.

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international obligation of a state to take certain actions as crucial for attributing responsibility, rather than the very failure to prevent a given event. Effectively, the obligation to exercise due diligence could not be viewed as absolute, but did contain a relative duty to demonstrate preventive and control measures specified in the content of an international consensus regarding a particular activity. Due diligence was thus the content of an existing international obligation, rather than a subjective element of state responsibility. It ought to be observed that despite the evolving perception of international responsibility some writers still view n ­ egligence, perceived as Dionizio Anzilotti’s “objectified” guilt, as conditioning attribution for the violation of due conduct. It is this unique combination of objectivity by Dionizio Anzilotti and fault by Roberto Ago that makes the majority view on due diligence eclectic. And so, while some authors still view fault as attributable based on the individual activities of state bodies,188 others argue that state fault can be applied solely when responsibility for the acts of private individuals is concerned.189 There are also those scholars who refer to fault whenever state responsible for omissions violating international law are discussed. Despite arguing for fault as a precondition of state responsibility, some authors realize its relativism, indicating that both: its recognition and interpretation lie in the hands of the judge reviewing a particular case. To avoid such legal uncertainty, a necessary consequence of such a liberal approach to fault and state responsibility, some scholars try to indicate particular criteria for the courts to follow whenever fault on behalf of the state is to be considered.190 And so, even though the debate on the role of fault remains eager, it is certain this notion no longer denotes an individual approach to a given act. It is rather an ambiguous term used to indicate a set of state duties which, when failed, result in an internationally wrongful act. The era in international law dogmatic which derived state responsibility from the fault of its bodies, was brought to an end with the ilc work led Roberto Ago. Contemporary references to fault in international responsibility indicate quite a different approach than that discussed by Grotius or Anzilotti. The contemporary notion of state responsibility relies on an objective violation of international obligations and the ability to attribute the responsibility for such a violation to the state. These two elements: a violation and an attribution, must remain in an objective, causal relationship. In this discourse the notion of fault appears at times as a justification for a particular obligation of diligence, aimed at ensuring state compliance with standards considered particularly significant for the i­nternational community, such as those ­regarding 188 Idem 14–18. 189 Karl Strupp, Das völkerrechtliche delikt (Kohlhammer 1920) 45 ff. 190 Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 18–19.

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the natural environment.191 So understood, the concept of fault is based on objectified criteria of attribution.192 And although it appears in contemporary legal writing, references to fault are scarce in the work of the ilc, who ensured leaving this controversial topic aside.193 As a result, much of twentieth century international law doctrine rather than to fault refers to the objective standard of due diligence which, as a common law principle, can be seen as an element of the duty to meet international obligations (pacta sunt servanda). A detailed description of due diligence as present in the work of contemporary legal writers and in the evolving case law is described in detail below.

Due Diligence and the Question of State Sovereignty

Arguably no other term in international law scholarship and practice has caused more confusion and debate than sovereignty.194 The notion dates back to sixteenth century, with its content shifting and adjusting to political needs, usually putting more emphasis on the rights of states than their duties. Always perceived as a natural consequence of the composition of international community, one consisting of independent peers, the contemporary principle of sovereignty prohibits each state from interfering with the affairs of another, emphasizing state independence as fundamental to statehood. Initially it was the right of a state to decide upon using force in shaping its international relations that was perceived as a foundation of sovereignty.195 Yet as international relations evolved and economic ties among states thickened, national sovereignty became subject to forever stricter and far-reaching limitations, ones accepted by states themselves or adopted in international treaties, possibly 191 Alfred Verdross, Bruno Simma, Universales Völkerrecht (Duncker & Humblot 1984) 850, 855; Jost Delbrück, Rüdiger Wolfrum, Völkerrecht (introduction, n 22) 948; Riccardo PisilloMazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 13–14; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, Oxford 2009, 215–216. 192 Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 19. 193 It was eventually the Special Rapporteur, James Crawford, who proposed a practical compromise on fault as a possible element of the violated international standard – a tactic that proved successful in concluding the final draft of the 2001 ilc Draft Articles on State Responsibility. For more details see further in this text. 194 For a thorough perspective on the notion of sovereignty and its evolution see e.g.: Roman Kwiecien, Suwerennosc panstwa. Rekonstrukcja i znaczenie idei w prawie m ­ iedzynarodowym (State Sovereignty. The Reconstruction and Meaning of the Notion in International Law), Kantor Wydawniczy Zakamycze, 2004. 195 Peter Malanczuk, Aukhurst’s Modern Introduction to International Law (Routledge 2007) 17–19.

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o­ riginated by international custom. In today’s globalised community the limits of state actions permitted without consultation with, or at least considering the interests of, others are narrow. State duties originating from participation in international organizations as well as their enhanced, multilateral economic relations, indispensable at the time of fast-paced globalization, are clearly visible within all areas of state activity. And so, even the original token of state sovereignty, the use of force, is subject to severe restrictions. As per the un Charter this original state prerogative is subject to international assessment and, as a general rule, consensus of the un Security Council. The narrow, yet still controversial exception, granted to states acting in self defence against an armed attack is a mere reflection of the right originally fundamental to state sovereignty.196 This restriction has been rapidly evolving to reach further, with states becoming obliged not only to refrain from using force or its threat, but also to take active steps aimed at preventing force used or threatened against foreign sovereigns, should such use or threat originate from within state territory or individuals within state power or control.197 This latter notion has recently gained much in significance in the light of the ongoing global “war on terror” and with reference to states “sponsoring” terrorist acts or organizations.198 This alleged “sponsoring” usually takes the form of states enabling their territory for terrorist training, preparing attacks or by simply tolerating the operation of terrorist groups performed within state jurisdiction. Measures taken by a state to prevent terrorist attacks are assessed with reference to a due diligence standard present in international arrangements on antiterrorist law, just to mention Article 5 of the Convention on financing terrorism.199 The 196 The exception to the prohibition of the use of force in international relations, other than self-defence and the use following the authorization of the Security Council is Article 107 UNC provision that grants states the right to act against states which have been “an enemy of any signatory” to the Charter and during the Second World War remains of purely historic character. 197 See the icj case law discussed further in this chapter. 198 For a discussion on due diligence in the context of terrorism prevention see further in this chapter. 199 International Convention for the Suppression of the Financing of Terrorism, un General Assembly Resolution 54/109 of 9 December 1999. Article 5 entrusts each state with the right to “take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed” a terrorist offence, as defined in the treaty. The best efforts obligation included in this statement introduces a due diligence standard for terrorist prevention with regard to funding and tolerating such activity within state territory or control.

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­ rinciple of maintaining peaceful international relations, fundamental to the p un Charter and expressed in its Article 1, results therefore in a crucial restriction of the original understanding of state sovereignty as well as in particular state duties aimed at preventing threats to international peace and order. This same reasoning of state obligation-to protect the interests of their sovereign peers-rests behind individual duties on the preservation of the natural environment, the treatment of aliens or the protection of individual rights, effectively limiting state freedom in exercising its prerogatives.200 As a result states are obliged to take active steps to prevent transboundary environmental harm or, respectively, grant foreigners residing within their borders a minimal standard of care with respect of their human rights. State efforts in protecting such third party interests are to be evaluated based on respective due diligence criteria, relative of available technical knowledge and a theoretic model of a “good government”, one performing its functions to meet the international obligations of the state. In this context the obligation of due diligence is to be perceived as one of the limits to state sovereignty. Its recognition results in states needing to acknowledge a series of case specific obligations of conduct, aimed at p ­ reventing an undesired effect, harmful to other members of the international ­community or foreign individuals. It was in the course of the ilc work on state r­ esponsibility and international liability that the “primitive” and “unlimited” application of the principle of state sovereignty, viewed as an absolute right of the state to engage in any activity, was strongly criticized and subjected to explicit limitations.201 State sovereignty is subject to restrictions for e.g. states engaging in new kinds of international activities, followed by violations on the rights and prerogatives of other members of the international community, as per the rules of state responsibility. In this context the fundamental duty of a state is to refrain from violating its international commitments, regardless whether such duty is perceived as rooted in a particular obligation, customary or treaty based, or in the fact of its violation.202 The principle of state sovereignty is therefore to be viewed as equal to the principle of consent, allowing for introducing restrictions of the former through state practice.203 It is the a­ nalysis of state practice that allows to indicate details of this interrelationship between state sovereignty, responsibility and due diligence. Due diligence as an ­element 200 Details of the due diligence obligation regarding those particular areas of international law and relations are discussed further in this chapter. 201 Riphagen’s second report,u.n. Doc. A/CN.4/344, 85. 202 Idem 85. 203 Georg Schwarzenberger ‘The fundamental principles of international law’ (n 21) 211.

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of the law on state responsibility, indicating what measures states need to undertake to protect the legitimate interests of others, sets the limits to state sovereignty. State sovereignty stops where the obligation to diligently protect the rights and interests of others starts. Any attempt to identify the content of the due diligence obligation needs therefore to commence with a look at case law indicating this fragile balance. Starting with the case law considered fundamental to international law, one should point to due diligence as the counterbalance to state sovereignty as it has been identified in the rich jurisprudence on state responsibility. International courts and tribunals have been finding states internationally responsible for foreign harm resulting from lack of due diligence on the part of their organs in a wide range of circumstances. Most implicit violations resulting from the lack of due diligence as well as most controversial cases are discussed below. One of the leading cases for due diligence in preventing foreign harm is  that of the ship Caroline, dating back to 1837.204 The Caroline case sets 204 The Caroline Case, 1837, 29 British and Foreign State Papers, 1129. It should be noted that currently the Caroline case is often invoked in the discussion on the fight against international terrorism as an alleged justification for preemptive self-defense. For a detailed discussion see e.g.: Ian Brownlie, Principles of Public International Law (introduction, n 20) 734; White House, The National Security Strategy of the United States if America (The White House 2002) 15; Nicholas Tsagourias, ‘Necessity and the Use of Force: a Special Regime’ (2010) 4 nyil 19; Kinga Tibori Szabó, Anticipatory Action in Self-Defence: Essence and Limits under International Law (Springer 2011) 74. This discussion focuses on the alleged necessity to recognize preemptive self-defense in contemporary international law, regardless of the prohibition of the use of force under Article 2 para. 4 of the un Charter. Supporters of preemptive self-defence argue that it was the case Caroline that set a standard for contemporary self defence against individual terrorist actions. Scholars opposing such arguments claim that an early 19th century standard cannot be justified in 21st century circumstances as that would equal a clear disregard for a century of evolution of international law, culminated by the absolute prohibition on the use of force in the un Charter in 1945. Recognizing preemptive self-defence is contradictory to the idea of identifying individual, exceptional circumstances justifying the use of force without the authorization of the Security Council. While those arguments are convincing, it should be noted that there are also those conciliatory writers arguing for recognizing preemptive self-defence originated by the Caroline case for a limited category of individual actions harmful to foreign interests. Such proposals ought to be considered as the avant-garde of international law, seeking to identify the future way for international law. See also: Antonio Cassese, International law (oup 2005) 298, who names numerous abusive references to the Caroline case serving as a justification for armed interventions in the nineteenth and twentieth century. The arguments of the proponents of preventive self defence are discussed by e.g. Peter Malanczuk, Aukhurst’s… (n 237) 312; Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (oup 2010) 56, 73–74 and the sources referenced therein.

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a due ­diligence standard for the conduct of states enabling their resources or allowing individuals within their territory to act against the interests of foreign states. It was in 1837, during the Canadian uprising against British rule that the United States tolerated supplying arms to insurgents from its territory on board of Caroline, flying an American flag, giving her refuge in the port of Fort Schlosser, close to the Canadian border. It was then that the issue of actions required from state to prevent individual acts harmful to foreign sovereigns needed to be answered for the first time, when British military had attacked and destroyed the vessel only to request one of the men involved in the attack to be released.205 British statement to the us Secretary of State is regarded as referencing a classical case of self defence, but involves a due diligence questions. The us strongly opposed the supposition of self-defence in the British attack upon the Caroline while within us borders, requiring proof of an imminent attack upon British interests, yet the case remains a key argument for state duty to protect others from threats generated by private individuals within state borders. The case is often cited as the paramount example of self defence against actions of private individuals acting from abroad, referring to states’ duty to refrain from enabling their territories for activities of terrorist nature.206 While the right to anticipatory self defence remains a point of contention among international legal scholars, there is little doubt that a failure to meet this obligation may result in international responsibility of the state hosting the wrongdoers, when no circumstance precluding lawfulness occurs. While the Caroline case may ­easily be recognized as the starting point for the evolution of self defence in contemporary international law, its significance has changed with the adoption of Article 2 para. 4 unc, obliging all states to respect the 205 Antonio Cassese, International Law (n 204) 298; Robert Y. Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 ajil 82–99; John Bassett Moore, A digest of international law (Government Printing Office 1906) vol. ii, 24–27, 409–413. 206 Helen Duffy, The ‘War on Terror’ and the Framework of International Law, Cambridge 2005, 57, 302; Nicolas Tsagourias, ‘International Peace and Security’ in Jean D’Aspremont (ed.), Participants in the International Legal System (Routledge 2011) 330; Tom Ruys, ‘Armed Attack’ and Article 51 of the un Charter: Evolutions in Customary Law and Practice (cup 2010) 382; Jonathan Somer, ‘Acts of Non-State Armed Groups and the Law Governing Armed Conflict’ (2006) American Society of International Law Insight, available at: accessed 14 March 2016; Derek W. Bowett, Self-Defence in International Law (Clark 2009) 49; Richard Lillich and John Paxman ‘State Responsibility for Injuries to Aliens Occasioned by Terrorist Activities’ (1977) 26 aulr 309–310.

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sovereignty of others, implying a duty to refrain from actions endangering this very substance of statehood. States respecting the sovereignty of others need to show due diligence in preventing harm to third party interest that is to, among other actions, take all necessary measures to prevent malicious activity of private entities within their territories. Refusal to take any action or taking action apparently below actual state capability exposes such undiligent state to international responsibility. In this respect the Caroline case, more than the arguable right to anticipatory self defence, implies the principle of good neighborliness rooted in due diligence, obliging states to respect the sovereignty of others, in particular prevent harm caused to them by, ensuring diligent implementation of international commitments. Another case, one also concerning sea vessels, holds further arguments for recognizing due diligence as a limitative clause upon state sovereignty. It is the case of the Alabama navy ship and other vessels produced by Great Britain and offered to the Confederates in the us Civil War, which resulted in the Alabama claims.207 An arbitral tribunal was set up to settle the dispute between the United States and Great Britain, which concerned Britain’s liability for its failure to maintain neutrality in the internal us conflict between the Confederates and Unionists. Its alleged failure to remain neutral occurred when it had provided support to the former by allowing for the construction of the Alabama ship and four other navy vessels, which were offered to the Confederates despite official protests of the United States. British authorities knew that the vessels were intended for military expeditions against Unionist trade ships.208 As in the Caroline case, also here state sovereignty of the United States was under threat by actions of foreign individuals operating within a foreign jurisdiction. United States entered the dispute accusing the British of a breach of

207 Barboza’s twelfth,(1996), u.n. Doc. A/51/10, 111; Charles Cotesworth Beaman, The national and private “Alabama claims” and their “final and amicable settlement” (W.H Moore 1871) 171–286; John Bassett Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party, Together with Appendices Containing the Treaties Relating to Such Arbitrations, and Historical and Legal Notes on Other International Arbitrations Ancient and Modern, and on The Domestic Commissions of the United States for the Adjustment of International Claims (Government Printing Office, Washington 1898) vol. iii, 2208–2210. 208 The divisions to use the vessel were referred to as Confederate Commerce Raiders. For more details see: Charles Cotesworth Beaman, The national… (n 257) 4; George Townley Fullam, The journal of George Townley Fullam boarding officer of the Confederate sea raider Alabama (UoAP 1973), vii; Terry L. Jones, Historical Dictionary of the Civil War (Lanham 2011) 81.

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a mutual obligation to maintain neutrality.209 This violation had been committed by Great Britain through its failure to diligently prevent the use of its territory in a manner inconsistent with the treaty, that is for the purpose of supporting one side of the conflict.210 Effectively, in the dispute the parties presented opposing definitions of due diligence and views they expressed were to shape many future discussions on the notion of due care provided by the state when safeguarding third party interests. United States described due diligence as care proportional to the size of the object in question and to the dignity and power of the party providing it.211 According to this definition due diligence meant that a state should show “vigilance” and undertake all necessary means at its disposal to prevent infringements upon the territorial integrity of another state. Such activities should also include preventing individuals within state territory from preparing and committing acts of war against the will of state authorities. Due diligence meant taking vigorous action to identify all events within state territory which might endanger the security of other parties. It also carried with it a commitment to use all means at the disposal of the state to prevent such harmful action, taken immediately after being informed about the preparations thereto. Any effort, other than those described above, could not be considered diligent. The level of due diligence should therefore be determined in relation to emerging risks or possible injury.212 In this dispute the United Kingdom defined due diligence as such which governments typically provide with respect to their own affairs. The content of the obligation to show due diligence was, according to the British, described within domestic laws and irrespective of the content and nature of the international obligations of the state.213 The tribunal considered this latter definition too narrow, preferring the more precise and demanding standard proposed by the us. The judges pointed out that the British unduly narrowed the definition of due diligence, limiting it only to the efforts described within national ­legislation, unjustifiably abstracting from state’s international obligations. The latter may require adjustment of national laws, as per the principle 209 J. Hatschek, Karl Strupp, Woerterbuch des Voelkerrechts und der Diplomatie (de Gruyter 1925) vol. ii, 133–134; John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. vii, 1010. 210 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. vii, 496. 211 Idem 572–573. 212 Idem. 213 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. vii, 612–613. The same arguments were used by the British in its disputes with Morocco, discussed in more detail herein below. See: the Menebhi case.

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of the ­primacy of international law over domestic regulations.214 The Court identified the standard of due diligence as one proportionate to the actual threat to the interests of any of the conflicting parties and confirmed that as a result the British have failed to remain neutral.215 The dispute ended with a settlement – United Kingdom agreed to pay more than $14 million in damages to the United States.216 The Alabama claims case goes to show that the obligation to perform international duties is accompanied by the tacit implication for such performance to be diligent. With that, due diligence sets the limits to sovereignty, originally curbed by the acting state upon deciding to engage in any contractual relationships with other international actors. Some commentators have argued however that this case actually dealt with uk negligence in enforcing its international obligations rather than tort liability, as the British have not met the criteria for due diligence they had ­themselves indicated.217 Yet other authors suggest that the court introduced a criterion of proportionality for due diligence, where the level of state care ought to be proportionate to the size of probable damage. Such approach would however significantly limit state capability to avoid responsibility, as the size of damage is often too difficult to predict beforehand and eventually would make it impossible to effectively prevent any claims against the originating state. This view might seems justified in the context of the factual circumstances of the Alabama claims case, yet it is rather the proportionality of the efforts and not the size of the pending damage that should serve as an objective and verifiable criterion for assessing the level of rendered care on behalf of the state. This controversy surrounding an international standard for state care, represented in the Alabama claims case, with the two competing views on due diligence, referring either to domestic standards or the size of potential damage, has resurfaced in the course of the debate on the standard of due diligence.218 It was United Kingdom who argued that the obligation of due diligence should be interpreted narrowly, so that its lack would give ground to state ­responsibility only in situations where the government has not made sufficient efforts to prevent a given harmful action, yet was required to do so u ­ nder domestic law. This 214 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. vii, 616–617; Barboza’s twelfth (1996) u.n. Doc. A/51/10, 111. 215 Idem 654. 216 Idem 630. 217 Julio Barboza, The environment, risk and liability in international law (BRILL 2011) 50. 218 See Chapters iii and iv for a discussion on the role of damage in assessing state due diligence. Contemporary doctrine tends to presume that the size of damage is not crucial to attributing responsibility, it is rather the gravity of breach of a given obligation resting upon the state that determines its accountability.

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view might be seen as a subjective standard of due diligence – it would be the state in question who sets the actual standard of care required in a given situation within its national legal framework. Effectively, the assessment of the degree of diligence shown by the government would be made with regard to the efforts usually made by that government in internal affairs, and as such could be reasonably expected in the implementation of its international obligations. The settlement in the Alabama claims case indicates however that the notion of due diligence was at that time perceived as the commitment of the state to take all possible measures to prevent harmful conduct within its jurisdiction, whereas the assessment of these efforts should be made with regard to two elements. First, it is the behavior of other governments in similar situations that allows to indicate a standard of due care. Secondly, and more significantly to the tribunal in this case, it was the size of damage caused by lack of care or the gravity of the actual threat to the interests of a foreign sovereign, i.e. the size of failure to show due diligence in meeting the international obligation in question, that was decisive for state responsibility.219 It is worth noting that currently it is neither the size of actual damage nor its threat that serve as reference for assessing the level of due diligence but the actual content of the obligation to prevent certain consequences together with the usual state practice in a particular area of ­international affairs. The prohibition of the use of state territory in a way that cases foreign harm appeared in a sequence of international court decisions, dealing with the protection of aliens and, most significantly, with environmental damage.220 While any restriction on the use of state territory directly impacts the exercise of its sovereignty, it is in the context of the use of force, discussed herein above that this link between sovereignty and due diligence is easiest to capture. For the purpose of emphasizing this connection, but also to show the evolution of the approach to damage as a prerequisite of state responsibility for its omissions, one should look at the 1949 icj decision in the dispute between Great Britain and Albania regarding the incident in the Straits of Corfu.221 It was here that the court confirmed the general principle of non-liability of the state for the actions of private individuals, carried out within its territory. The ­question raised before the icj concerned the responsibility of Albania for damages incurred by the British fleet as two of its warships sailed through the mined ­territorial 219 See also: Xue Hanquin, Transboundary Damage in International Law (cup 2009) 162–164. 220 See the Trail smelter case, fundamental to international environmental law, discussed further in this chapter. 221 Corfu Channel Case, icj, International Court of Justice Reports 1949 (hereinafter cited as: Corfu Channel case), 21–22.

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waters of Albania. Albania was not responsible for the placement of mines, but having knowledge of them it had failed to warn the British captains of the impending danger.222 The icj ruled that the mere fact of damage as a result of the explosion of the mines within the territory of Albania did not make that state responsible. International obligations of Albania, resulting from the recognized principles of international law, are limited to providing explanations regarding the circumstances of the incident.223 A state may not refuse such explanations, citing lack of knowledge or concern about the actions of individuals on its territory as the only reason for its refusal. To a limited extent the state is obliged to provide information also about its ways of acquiring knowledge and obtaining clarifications regarding the harmful incident. The fact of exercising territorial control by the state does not give a presumption to authorities’ knowledge of any and all illegal activity within state territory nor of its perpetrators, neither does it imply an obligation to hold such knowledge. The obligation to provide information also does not stem from any presumption of state responsibility, but only from its unique and often exclusive opportunity to gather information about events within its own territory, usually not possible to obtain by the victim alone.224 With all those circumstances presumed, the icj found that Albanian authorities were required to inform the British ship captains of the minefield located within the territorial waters of the country to protect the safety of navigation. This obligation resulted from the general and unanimous “elementary considerations of humanity”, more demanding in times of peace than that of war, the principle of freedom of the seas and the obligation of every state to prevent the conscious use of its territory for acts harmful to the interests of other countries.225 Moreover, the authorities should take all necessary steps to prevent damage to other states. The icj indicated the obligation of every state to refrain from knowingly enabling its territory to acts violating the rights of other states.226 In this particular case Albania has not taken any action to prevent the disaster: either did it inform of the existence of the minefield or did it warn the British about the impending danger, even though its officials possessed the knowledge about the threat and had the 222 Corfu Channel case, 21–22. Based on factual circumstances, the Court was convinced that the crew of the Albanian harbor must have noticed the vessel that was placing the mines. 223 Corfu Channel case, 18. 224 Idem 18. 225 Idem 22. 226 Corfu Channel case, 22. For a confirmation of this principle see also: Pulp Mills on the River Uruguay case (Argentina v. Uruguay), icj Reports 2010, 38, discussed in detail further in this chapter.

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time necessary to forward the warning. Having acquired knowledge about the mines in the territorial waters, ­Albanian port workers should have informed the ships about the location of the mines. Given the failure to take any action aiming at preventing the explosion, including the provision of relevant information, Albania has been recognized as internationally responsible for damages incurred by British ships and was obliged to pay compensation.227 The cited cases depict a direct link between state sovereignty and its limitations set by the international duty to diligently perform international obligations, in particular to protect the rightful interests of others, including the duty to prevent the threatening harm. While the work of the ilc together with the rich legal scholarship on the issue have put this dependency into much detail, the very foundation of the principle of due diligence as a restriction of state sovereignty is rooted in the early case law briefly discussed above. Discussed below are other international cases concerning individual areas of international law and relations that have added to the identification of the due diligence principle.

Due Diligence and Denial of Justice to Foreigners

Due diligence required from states in preventing damage to foreign interests, be it of the state itself or of its citizens, was originally indicated in cases dealing with denial of justice to foreigners who have suffered damage while visiting the responsible state. It was not so much the responsibility for the individuals inflicting harm, but rather for the courts who failed to compensate the victim or punish the culprits, hence for the omissions of state bodies, in this case – for the judiciary. A rich variety of such decisions can be found in late 19th century case law concerning us citizens working abroad. And so, the Ruden case serves as the first contemporary attempt at attributing responsibility to a state failing to respect the rights of non-citizens.228 While this case deals with the denial of 227 Corfu Channel case, 22–23; Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (oup 2000) 67–68, who emphasizes the fact that the court decision was based on the principles of international law. Facts of the case have been presented in much detail in e.g.: J.E. Read, The Trail Smelter Dispute in Rebecca M. Bratspies, Russel A. Miller (eds.), Transboundary harm in international law (introduction, n 25) 27–33. 228 Ruden & Company, decided under the Convention of July 12, 1863, between the United States and Peru, cited in John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. ii, 1653.

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justice, it primarily confirms the lack of state responsibility for the actions of private individuals. The Mixed Commission of the United States and Peru looked into a compensation claim from a us citizen against Peruvian authorities. Ruden was the victim of an alleged act of vandalism, with his Peruvian plantation destroyed, the crops and buildings burnt and the fences torn down. Initially it was not clear whether this act was committed by civilians, using the inattention of the owner or by the members of the armed forces. The Peruvian justice system failed to identify and punish the culprits and to recognize Ruden’s compensation claim. The Venezuelan Umpire serving for the Committee found Peru responsible for the denial of justice to Ruden, as the state had prevented him from obtaining compensation and seeking justice, but also because of its likely involvement in the attack on the plantation. Incriminating evidence against Peruvian military was presented by us consular staff and accepted by the court. This decision is of interest here primarily because it confirms the lack of state responsibility for the actions of private individuals.229 It is however also one of the first to analyze state responsibility for the acts and omissions of state bodies, although here it was the direct involvement of the military in the creation of the damage that played a significant part in the attribution. Similar claims were filed by another us citizen against Mexico for his damage suffered in the territory of that state (Glen case).230 Mexico failed to put to justice the perpetrators of the death of Mrs. Glenn’s husband and son, deprived of life by members of the Mexican armed forces, acting, according to the widow, on direct orders from the National Congress of Mexico. Although the claimant had failed to demonstrate a direct relationship between the killers and the Congress, the umpire found Mexico guilty of denial of justice by its failure to put the perpetrators to justice. This decision confirms the lack of state responsibility for the actions of private individuals, as it was how the court viewed the culprits. Even thought they were claimed to be members of the armed forces and have acted upon official orders, this was not successfully proven before the court. In this decision, taken the very same year as the Ruden claims, the court goes a step further to recognize state responsibility for the omissions of its organs, in this case its judiciary.231 Contrasting the two cases shows that it was second part of the 19th century that saw the first instances 229 See the commentary in Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 75, 101. 230 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. iii, 3138. 231 riaa 1925, New York 2006, No 4, 96–97. C. Eagleton, Denial of Justice in International Law, American Journal of International Law 1928, No 22(3), 538, 542.

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of attributing state bodies omissions to the negligent state as grounds for its international responsibility. Subsequently, the Cotesworth and Powell case from 1872 concerned two uk businessmen who sought compensation for the denial of justice they had suffered in Colombia as a result of the “notorious injustice” that prevailed in the country in the years 1858–1860.232 Colombian branches of us companies, led by the victims, signed a contract with a local entrepreneur for the supply of tobacco. In 1859, i.e. during the insolvency proceedings of their supplier, revolution broke out in Colombia. The proceedings were conducted before the court in Bogota, which housed the supplier’s headquarters. The court had ordered a seizure and sale of all the goods in question to cover for customer claims, yet parts of case files went lost, making it difficult to identify the detailed claims and the actual value of the seized resources. The local civil court dismissed the uk citizens’ claims against the judge and the prosecutor, who were responsible for the negligent conduct of the state bodies, and refused to initiate criminal proceedings against them for any possible infringements of the judge to be dismissed following the 1863 amnesty law.233 This was also the time of significant changes to local laws, an effect of the unstable political situation in the region.234 Eventually, in 1865, following numerous inquiries from Cotesworth and Powell, Colombian authorities stated that they could not be held liable for the local court in Bogota and the victims were not entitled to compensation. Investigating this case was a British-Colombian Mixed Commission, established earlier that year by a bilateral treaty of arbitration. The Commission took the deliberations on the limits of state responsibility for its bodies a step further, pointing out that a nation is not liable for actions of individual citizens, if it neither “approves or ratifies” them.235 However, if state authorities acknowledge or confirm the individual activities, even by implication, those become “a public concern” and as a result the victim may presume the state itself to be the perpetrator. Such presumption may follow a case of a denial of justice, if granting access to a fair and prompt trial falls within the scope of state competence, if the state pardons the perpetrator or if it deprives the victim of the possibility to claim damages or compensation. The arbiters argued that it is an established principle of international relations that by p ­ ardoning the perpetrator the state 232 Henry La Fontaine, Pasicrisie internationale historie documentaire des arbitrages internationaux (BRILL 1902) 173. 233 Idem 174. 234 Idem 174. 235 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. ii, 2082; Henry La Fontaine, Pasicrisie internationale (n 232) 187.

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takes over the responsibility for his past deeds.236 States hold responsibility against foreigners who had been denied justice or who had fallen victims of acts of obvious and overt illegality. This first case occurs when courts refuse to hear the case or the complaint following national procedural laws. Denial of justice also takes place where the time for hearing the case is unjustifiably long. Finally, illegality occurs when the judgments are made in flagrant breach of applicable law or when they are clearly unfair.237 This case goes yet another step towards recognizing state responsibility for the omissions of its bodies. Detailing the ways in which a state may perform such an omission and emphasizing the relationship between the act of a state body and its responsibility, the Commission emphasized its dissent with applying national laws to rid international responsibility. State approval of undilligent conduct of state bodies necessarily leads to state responsibility. As the decisions and recommendations presented above show, in the nineteenth century the state was not deemed to incur responsibility for the actions of individuals, including those it had authorized yet who exceeded the scope of state authorization, as did the Colombian courts in the Cotesworth and Powel case.238 Individual actions could therefore lead to state responsibility only if they were accompanied by action or omission on the side of state authorities, who had denied justice to the foreign victim. State confirmation of individual action could therefore be either explicit or implicit. Also the arbitral awards on Italian claims against Peru, following damages incurred by Italian citizens on Peruvian soil confirmed the lack of state responsibility for individual acts. In e.g. the Capalleti case the judge refused to award compensation to the Italian victim, Capalleti, who filed a claim against Peru. He sued the government for items stolen from his Peruvian home and damages following his abduction and unlawful deprivation of liberty by a commander of a division of rebels during the 1894–1895 Peruvian civil war. The umpire found that stealing f­ urniture and small items belonging to the plaintiff 236 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. ii, 2085; Henry La Fontaine, Pasicrisie internationale (n 232) 189. 237 Henry La Fontaine, Pasicrisie internationale (n 232) 188. See also the commentary in Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 75, 101, who emphasizes that the Commission based Colombia’s responsibility “solely on the consequences of the amnesty granted by that country to the guilty parties”, thus adhering “to the well-established principle in international polity, that, by pardoning a criminal, a nation assumes the responsibility for his past acts”. 238 This principle was well reflected in Article 7 of the 2001 ilc Draft Articles on State Responsibility, which provides for attributing state responsibility for the action of state officials acting beyond their authority.

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could not be attributed to the authorities of the country and as such did not amount to grounds for state responsibility.239 Since this was a case of theft, a crime recognized in Peruvian domestic law, it was this national norm that served as reference for the empire, rather than any provisions of international law.240 Significantly, the victim himself handed the keys to his house to the Italian consul, entrusting him with the safety of the estate.241 The commission found no faulty omissions on the part of state authorities, freeing Peru of any ­international responsibility. Similarly, in 1905 the triparty claims commission for France, Italy and Venezuela considered the matter of an Italian Aquilino Poggioli. While the circumstances of the case also dealt with official authorities using private individuals for committing ordinary crimes, the inaction of state bodies resulting in a gross denial of justice resulted in responsibility for the negligent Venezuelan state. In 1891, while in Venezuela, Poggioli was attacked by four Venezuelans and left with a crippling disability. In 1899 these same perpetrators deprived his brother of life as a tragic culmination of a series of repressions the two Italian entrepreneurs had been subjected to by Venezuelan authorities in the province of Los Andes for nearly a decade.242 Among his allegations Poggioli claimed arson of houses, shops, mills and plantations belonging to the brothers Poggioli, allegedly committed by state officials as well as the intentional, malicious closing of their port and depriving the brothers of ownership of numerous cattle herds. All those actions, claimed Poggioli, had no legal basis and were aimed at depriving them of their rights. The plaintiff also claimed insults and threats from the authorities against him and his brother. All these incidents combined led to the bankruptcy of the company, the loss of family property and consequently of living resources.243 Furthermore, alleged perpetrators of the murder of the plaintiff’s brother were released by the general of Venezuelan army and enrolled in its ranks, avoiding any responsibility for their actions. Their military superiors took no action to put the culprits to justice, despite repeated interventions by Poggioli. During their service the perpetrators had committed other violations against the plaintiff and his family, i.e. the victim’s widow and 239 Sentence arbitrale sur la réclamation numéro 54, présentée par Don Aquilino Capalleti, riaa 1901, No xv, 439 (Capalleti case). See the commentary in: Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 79, 102. 240 The opposite conclusion was drawn from similar factual circumstances some 30 years earlier in the case of the Alabama ship case discussed above. 241 Capalleti case, 439. For a commentary see: Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 79, 102. 242 Poggioli Case, riaa 1903, No x (hereinafter cited as: Poggioli case), 669–692. 243 Poggioli case, 672–675.

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children and remained unpunished. In addition, local authorities in Los Andes warned the culprits of any possible attempts of arrest, thereby pre-empting any potential police proceedings originated with central authorities. This state of affairs persisted for more than two years, during which, despite direct orders from the central government in Caracas, those responsible for the death of Aquilino’s brother never faced justice.244 In the light of these facts the claims commission found Venezuela responsible for the material damage suffered by the plaintiff as it tolerated serious injury inflicted upon him by private individuals while the perpetrators, whose identity had been indicated beyond any doubt, successfully fled punishment. Venezuela was found responsible also based on the fact that its officials, acting jointly with the perpetrators, contributed to the loss of property and bankruptcy of the plaintiff, leaving him without compensation.245 Furthermore, state responsibility can be asserted also if only a part of the violations was caused by the acts of state officials and the rest resulted from their suggestions or was the result of authorities’ indulgence.246 Venezuela has therefore committed a breach of its obligations and was responsible for the denial of justice, committed in this case by its administrative authorities. Furthermore, since the provincial government of Los Andes acted together with the perpetrators, it can be attributed with the resulting damage caused to private persons and the harmful act may be considered an act of state. This conclusion was derived also from state failure to put the perpetrators to justice. Such omission cannot be regarded as an “act of a well-ordered state”, but rather as lack of action on the side of some of its organs, which gave ground to state responsibility.247 The ruling in the Poggioli case puts more detail into the line of adjudication known thus far. A failure on the side of judicial or administrative authorities can give ground to state responsibility for the actions of individuals resulting in limited access to or denial of justice, preventing access to an effective investigation or compensation. Venezuelan responsibility in the Pogiolli case stemmed also from other types of offenses committed by public authorities. First of all, state responsibility resulted from local authorities’ complicity in individual actions.248 The claims commission, citing scholarly legal writing, pointed out that regardless of whether the officials’ own actions caused damage to the interests of foreigners or whether it was the government who failed 244 245 246 247 248

Idem 673. Idem 669. Idem 673. Idem 689. Idem 690.

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to take immediate steps to thwart harmful activities of its local officials, be it just by directly or indirectly approving of their actions, “justice and equity” necessitate country’s “diplomatic responsibility” and indemnification for the damage caused.249 The province of Los Andes had been “notorious, grossly careless and disorderly in managing its own affairs” over the years. Moreover, by failing to punish the culprits Venezuela has become to some extent an accomplice to the damage and as such should be held responsible for the acts of its local authorities. Their malicious actions were widely known and done conspicuously. The state was then “obviously responsible” for the failure to use appropriate preventive means and for the failure to punish the perpetrators within its “legal powers”.250 Relying on the writings of Halleck, the commission put the criteria for attributing state responsibility in the cases of harm caused by individuals acting in their own capacity and at the orders of the state into more detail. It followed the scholarly writing to observe that in the case of private individuals their connection with the state is more loose and may only be evoked “to the extent of the general control exercised over everything” within state territory “for the purpose of carrying out the common objects of government”.251 State can therefore be only held responsible for such individual actions “as it may reasonably be expected to have knowledge of and to prevent”.252 Paving the way for the ilc work in the second half of the twentieth century, the commission reflected on Halleck’s observations to confirm that: If the acts done are undisguisedly open or of common notoriety, the state, when they are of sufficient importance, is obviously responsible for not using proper means to repress them; if they are effectually concealed or if, for sufficient reason, the state has failed to repress them, it as obviously becomes responsible, by way of complicity after the act, if its government does not inflict punishment to the extent of its legal powers.253 Other cases dealing with denial of justice to foreigners that have helped to identify the limits of state responsibility for lack of due care were presented in the course of the Anglo-Spanish dispute settlement concerning British claims to shares in an international zone in Morocco, one supervised by Spain.254 One 249 250 251 252 253 254

Idem 670. Idem 690; Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 80, 102. Poggioli case, 688. Idem 688. Idem 688. British claims in Morocco case, riaa 1924, No 2, (hereinafter cited as: British claims in Morocco case), 615.

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of the first modern definitions of due diligence was presented for its purposes by pcij judge Huber. The facts of the case originate from a 1923 contract between Great Britain and Spain, based upon which the two states presented to the court claims of 53 residents of the territory remaining at the time in British jurisdiction, primarily citizens of the United Kingdom. The claims concerned their personal damages as well as those done to their property within a Spanish administered zone of Morocco. The damages to British citizens in the Spanish zone of Morocco resulted from military actions, uprisings and robberies. United Kingdom did not however put forward any claims relating directly to those damages. It assumed that the Spanish government could be only responsible for those, had it shown negligence when it could have prevented the damage, or if it had indemnified its own citizens and denied compensation to foreigners, possibly in the case when the uprising had resulted in the seizure of power by the insurgents. None of those occurrences took place, so the British authorities demanded for Spain to be held responsible for the actions of its officials and soldiers, although they were not directly endowed to prevent the harmful acts of the insurgents. According to the British, Spain was to be held responsible for the prolonged delay in conducting indemnification proceedings, which effectively resulted in a denial of justice to the victims of the violations. It was not the manner in which domestic law was being applied that gave rise to the claims, but rather a norm of international law, which prohibits the actual denial of justice to foreigners that allegedly took place in this case. The plenipotentiaries of Spain refuted the allegations stating that responsibility for denial of justice could only be invoked if the state failed to apply national procedural laws and that was not what had occurred.255 Before examining individual claims judge Huber reiterated a number of rules describing due diligence in the context of state responsibility in international relations, emphasizing that the territorial aspect of exercising state sovereignty is the foundation of international law. Therefore, the right to diplomatic intervention into the relations between the state and individuals within its territorial jurisdiction can only be of an exceptional nature. It can only be invoked in situations where a particular event or occurrence gives rise to international responsibility of the state or the overall security situation in the country exercising its territorial jurisdiction falls below a specified level of security, p ­ ossibly, the actual ­judicial protection is illusory.256 Moreover, although a state cannot be considered responsible for the consequences of war or internal unrest, it may be held ­liable for the acts or omissions of its authorities, committed at that time. A state bears i­ nternational 255 Idem 635. 256 Idem 615.

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responsibility when the government abandons its duties, although in the given circumstances it should have prevented activities harmful to its residents. It is also to be held responsible when it had failed to make such harmful actions seize by acting with due diligence in helping the victims or preventing the harm done to them and their interests when performing to the best of its possibilities.257 When assessing individual harmful acts the state is to be held responsible if the diligence demonstrated in preventing damage to the interests of foreigners was far from the diligence demonstrated in the conduct of state’s own affairs (lat. diligentia quam in suis).258 A state is also to be held responsible if it fails to take actions aimed at punishing the perpetrators who have committed crimes against foreigners or fails to use sanctions provided by internal law to prosecute and punish them. This requirement is, however, not an absolute one, because when examining the circumstances of each case, the resources available to the state and its organs at the particular time must be taken into account. Responsibility for the acts or omissions of public authorities is something other than responsibility for the actions of persons within the territorial power of the state or for the actions of its officials. Huber identified a minimum degree of caution exhibited by state organs. It encompasses their duty to make use of the available infrastructure and monitor the activities carried out in state territory to prevent damage caused to foreigners as the necessary characteristics of every government.259 He has also pointed out that it cannot be required from a state whose citizens have suffered damage or have been deprived of protection to remain passive, when no just cause for such omission occurs.260 Effectively, it is a prerogative of each state to seek damages for violations against individuals within its personal jurisdiction, i.e. its citizens. A state enforcing its territorial jurisdiction may be held responsible not only because of the lack of caution in the prevention of harmful acts, but also because of lack of diligence in prosecuting the perpetrators of crimes and the lack or effective civil claims available to foreign victims while in state jurisdiction. The assessment of due diligence provided by a state should not be made with a reference to a standard described within the provisions of domestic law, as argued by Spain, but rather set against the diligence shown by the state in its own matters, regardless of the contents of local laws.261 257 Idem 636. 258 British claims in Morocco case, 644. For a commentary see also: Riccardo Pisillo-­Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 40. 259 British claims in Morocco case, 644. 260 Idem 642. 261 Idem 645.

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Huber single-handedly offered solutions to the 51 British claims based on careful factual and legal analysis of each of the individual occurrences. As such they hold little practical significance today, yet his observations go far beyond the needs of assessing this particular set of events. Not only are they broadly considered fundamental to the ilc work on state responsibility, but, for the purpose of the argument made here, offer a careful analysis of due diligence required of a state in protecting the interests of foreign individuals. Most of Huber’s observations have made it into the ilc work on prevention and liability, although e.g. the standard of care required from local authorities currently tends to rely more on good international practice, possibly regional custom, than usual domestic practice. Also, according to Huber, state responsibility for the denial of justice depends on the nature of a particular infringement. Only by analyzing the specifics of a claim can one decide whether a denial of justice had actually occurred.262 This practical test was used to settle one of the individual claims by a British citizen named Menebhi, as described below. One of the British claims dealt with the damages suffered by British national, Si-el-Haj-el-Mehdi el-Menebhi, who demanded compensation for stolen cattle.263 A 30 men strong group of offenders entered the international zone of Morocco from the zone supervised by Spain. Judge Huber found that the degree of care required from the authorities under the particular circumstances is conditioned by the means available to them. The assessment of the manner in which those resources were used depends on the facts of the case and the actual object of protection.264 The obligation of prevention in this particular case was on the Spanish authorities residing in the international zone of Morocco. However, the British authorities also ignored the claims filed against local authorities who failed to initiate any proceedings ex officio. The first notice of offense was filed by the British eight days after the incident, when the perpetrators were already back in the Spanish zone. In this situation, the Spanish border guards had no reason to believe that the herding of cattle was illegal and were under no obligation to prevent the perpetrators to enter the Spanish zone. The responsibility of the Spanish authorities can therefore follow only their attitude when punishing the perpetrators of the offense, while it is not relevant to the actual crime or its consequences. As a rule, Huber argued, a state is not obliged to pay compensation for any damages caused within its territory.265 United Kingdom claimed however that even after the complaint 262 263 264 265

Idem 645. Idem 624, 790–791. Idem 636. Idem 790.

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was filed no action to punish the perpetrators was taken by the Spanish authorities. Moreover, taking into account the level of insubordination and inefficiency of the local government, it was unlikely that the results of the police investigation would have had any significant impact on solving the case. Huber observed however that this state of affairs did not in itself constitute a violation of international law and Spain did not incur responsibility for the damage itself or for not having prevented it. The only responsibility that could be attributed to Spain was the responsibility for the lack of investigative cooperation between officials of the two administrative zones under its jurisdiction.266 In formulating the duty of prevention Huber pointed out that the authorities of the country can implement it only to defend state borders, not so much with respect of internal order. Therefore, the duty of the state is limited to the prosecution and possible punishment of offenders, but does not go as far as an absolute obligation to prevent any violations committed within state borders.267 The Spanish authorities however have not fulfilled this duty of prevention as they failed to initiate an investigation aimed at identifying and punishing the offenders. Such failure constituted a violation of an international obligation. Responsibility of Spain stemmed therefore not directly from the attack of its citizens on a British subject, but resulted from the way that the state chose to enforce justice.268 State responsibility for omissions can be characterized by four specifics. First, Huber generally rejected state attribution for acts of private individuals acting in own capacity – as a general rule a state is not to be held responsible for such acts. This observation remains well recognized also in contemporary international law. Huber pointed out that the harmful actions of private individuals are distinct from acts or omissions attributable to a state. Thirdly, if the damage done to a foreigner was originated by a private individual, state responsibility can only be attributed following a breach of a duty by state executive, who failed to take action to prevent the damage or by its judiciary, who failed to prosecute the perpetrators. Finally, when estimating the amount of compensation, the nature and scale of state ­omission, not the size of the actual damage caused by private individuals, should serve as a key criterion. The principles of state responsibility for omissions, as identified by judge Huber, strongly influenced future case law on state responsibility as well as the work of the ilc on state responsibility, international liability and prevention. 266 Idem 791. 267 Idem 710. 268 Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 82, 103.

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The ruling in the Menebhi case implied that a state is not liable for harmful a­ ctions of private individuals if it exercises due diligence in preventing such harm and takes due action to identify and punish the perpetrators. A decision reflecting this approach was made by the joint committee on US-Mexican claims in 1925 in the case concerning the murder of a us citizen named Janes in M ­ exico by a Mexican citizen, a miner, dismissed from work in the mine where Janes was a manager. The plaintiff Laura Janes, late Janes’ widow, claimed ­Mexico responsible for its failure to show due diligence in ­prosecuting and punishing the perpetrators.269 United States pointed to the “complicity” of the Mexican authorities in the murder as state authorities, by failing to catch and punish the perpetrator, “pardoned and confirmed” the crime, making it its own.270 President of the Committee, umpire Vollenhoven, when assessing Mexico’s responsibility for negligence, referred to the case law of arbitration courts and concluded that a state showing a significant lack of diligence in prosecuting and punishing the perpetrators holds “derivative liability” for its “complicity” in their crime.271 Attributing state responsibility when authorities are unable to prevent the occurrence of damage relies on the assumption that the absence of punishment is a manifestation of praise for the malicious behavior, especially in a situation where the authorities allowed the perpetrators to leave the territory of the country after having pardoned them or subjected their crimes to an amnesty. The state is also to be held responsible when the authorities knew of the perpetrators’ intentions to commit a crime, could have prevented it but failed to do so.272 In the situation under consideration in the Janes case, the authorities failed to punish the perpetrators but did not have the actual possibility to prevent a crime, neither did they take an active part in its commission. Therefore the state was to bear responsibility for the failure to watchfully prosecute and properly punish the culprits, not, as implied by the plaintiff, for its participation in the crime being committed. As much as the perpetrators are guilty of violating national criminal laws, so is the state responsible for its own infringement of international obligations in p ­ reventing the damage they had done to foreigners. The failure on the part of state bodies to undertake steps necessary to trial and punish the perpetrators does not equal state’s recognition or acknowledgment of their crime. The actions of the perpetrators can thus be only attributed to them only when the state can be held responsible for the acts or omissions of its bodies. These two categories of 269 270 271 272

Janes case, 83. Idem 90. Idem 86. Idem 86.

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events need to be analyzed with reference to their own, unique accountability regimes: national criminal law for the actual crime and international responsibility rules for the omission of state bodies resulting in denial of justice to Mrs. Janes.273 The breaches committed by the individuals and those on the part of state bodies were considered different in origin, character and effect.274 Effectively, the state was obliged only to cover for the damage resulting from its own omission, not the entire loss generated by the harmful event. This approach was also later adopted by the ilc, which referred to the significance of the omission rather than the size of damage as an indication of the compensatory duties of the originating state. In the dissenting opinion presented by the us judge, which was not included either in the arbitral decision or in the later ilc work, he stressed that in determining the amount of compensation the state should bear full responsibility for damages, regardless of the nature and scale of its harmful omission.275 The principle of non-liability of the state for acts of individuals, reflected in the Janes case, was applied also in several subsequent arbitral awards of the same US-Mexican commission, decided between 1927 and 1928, in particular in cases: Kennedy,276 Venaby277 and Canahl.278 In this last case the commission unanimously reduced the amount of compensation awarded to the plaintiff because the ongoing unrest in Mexico had made the authorities incapable of efficiently carrying out justice.279 In late nineteenth century the us had been represented also in cases against Venezuela, in circumstances very similar to those discussed above. The ­arbitral awards followed the line of reasoning to later develop the international due diligence standard focal to this work. One of those cases was the 1885 case of de Brissot, Rawdon, Stackpole and de Hammer. Here the Claims Commission established under the Convention between the United States of America and Venezuela referred to the notion of due diligence in international law when 273 Idem 88. 274 Idem 89. 275 Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 85, 103. Currently absolute responsibility can be found in the regime on liability caused by space object following a strict, treaty-based consensus; for more details see Chapter v below. 276 George Adams Kennedy v. United States of Mexico, riaa 1927, No iv, 194–203. 277 H.G. Venable v. United States of Mexico, riaa 1927, No iv, 219–261. 278 Louise O. Canahl v. United States of Mexico, riaa 1928, No iv, 389–391. 279 That is why in the Kid case presented in 1931 before the British-Mexican Comission the umpires fund these conditions not to have been met which resulted in Mexico’s impunity. State authorities took immediate and decisive action aimed at identifying and arresting the culprits of those responsible for the death of the plaintiff’s husband. See: Annie Bella Graham Kidd v. United States of Mexico, riaa 1931, No v, 142–144.

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attributing responsibility to Venezuela for the omissions of its bodies.280 The case concerned an attack in a Venezuelan port of Apurito onto a ship carrying the President of Venezuela, conducted by private individuals, discontent with his rule. President Garcia came out of the incident unharmed, but two crew members, Hammer and de Brissot died while a third one, Stackpole, was wounded.281 The plaintiffs, all of whom were us citizens, that is the widows of the murdered sailors and the injured Stackpole, filed compensation claims against Venezuelan authorities based on their insufficient efforts to capture and punish the attackers. Upon examining the matter, the commission confirmed that the obligation to take action to identify the offenders and put them to a fair trial rests with each country. This obligation stems from the fact that the state, as “a moral person” is obliged to take responsibility for the consequences of its actions borne by individual members of its community.282 For the same reason, a state is obliged to pay compensation for the actions of people “dependent on it” and those for whom it is “accountable”.283 The commission noted that only if state authorities had done everything they reasonably could in a particular situation, was Venezuela free from responsibility. Upon introducing a so perceived standard of due diligence, the commission pointed out that state authorities have failed to take any steps to establish the identity of the leaders of the group that had committed the assault. If there had been a coordinated action carried out by state bodies, aimed at bringing the perpetrators to justice or proceedings initiated to prove their innocence, Venezuela could have been considered to have met its duties. In the circumstances of the case however the commission held that the state was responsible for failing to identify and prosecute the offenders. At the same time the (relatively low) amount of compensation awarded was to reflect the fact that the state omission was not “scandalous”.284 The steamer Apure case confirms attribution of state responsibility for acts and omissions of state bodies, not those of private individuals. Also, as a general rule, the amount of compensation awarded in a given case should reflect its specificity and the nature of infringement committed by state authorities 280 Claims Comission established under the Convention concluded between the United States of America and Venezuela on 5 December 1885, Cases of Amelia de Brissot, Ralph Rawdon, Joseph Stackpole and Narcisa de Hammer v. Venezuela (the steamer Apure case), riaa 1903, VOLUME xxix, pp. 240–260. 281 The steamer Apure case, 243. 282 The steamer Apure case, 244. 283 John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. iii, 2952. 284 Idem 2953.

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rather than the gravity of the inflicted damage. The state should also be seen as a “dual legal person”, i.e. as “a civil person”, taking responsibility for its territory and events happening within it, much as the private notion of “patrimony”, but also “a political person”, independent and sovereign, entrusted with the obligation of care for the public order and the interests of residents. State responsibility for damage caused to foreigners by government officials has therefore also a moral aspect to it, due to the similarity of the role of the state to the function of a “patron” in the Latin patrimony, one who is responsible for the management of the assets entrusted to them. It therefore bears the responsibility only if the damage resulted from its complicity, e.g. through an obvious denial to justice. At the same time, the state as a “political” person bears responsibility for the acts of its organs only if the circumstances of the case, that is the fact that had caused the damage, can be morally attributed to it.285 Such attribution should follows four criteria. First, the authorities must have been aware of the unlawful behavior of state official early enough to be able to prevent it and must have failed to do so. Secondly, they must have had the actual possibility to correct the action and chosen not to do so. Thirdly, for it to be attributed with responsibility, the state needed to have shown ignorance in detecting the breach, proving bad faith when not taking appropriate steps to obtain such knowledge. Fourthly, the state is responsible when having been warned of the harmful activity it has not taken action to put the official in question to justice or not taken proper steps to prevent further violations of a similar kind.286 The detailed discussion on due diligence presented by the commission to a large extent remains accurate today. All the criteria of diligence, including state failure to take appropriate action to learn of a threat of damage or its failure to take appropriate steps to put the perpetrators to justice are still perceived as a sign of negligence, although e.g. the reference to the civil liability of a “moral” person can now only rarely be found as a justification for attributing responsibility to a negligent state. As the sustainable line of adjudication shows, state responsibility is also not to be attributed for the actions of private individuals when it comes to damages caused during internal unrest, riots or rebellion. Especially at such a difficult time a state is not to be held responsible for the actions of members of a violent group acting to upset the public order, as first acknowledged by the US-Chilean claims committee, established in 1892 based on a respective bilateral treaty. It was tasked with reviewing the claims related to the murder of a governor of a penal colony in Sandy Point in Chile, a us citizen Lovett and all 285 Idem 2953. 286 Idem 2953.

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his garrison killed by rebellious inmates.287 This event took place during the arrival of new prisoners by sea, supervised by us nationals, following a request for assistance from Chilean authorities. The ship’s private owner and several other crew members also lost their lives in the attack.288 The commission found that the infringement committed by state residents cannot be attributed to the state and the authorities can be held responsible on behalf of the state for an offense committed within state territory only when there is evidence that they were able to prevent harmful acts, but failed to do so, intentionally or carelessness. Here, as the government was clearly not able to control the rebels or prevent the damage, the state was freed from any accountability.289 Another case dealing with state responsibility in a time of internal turmoil was that adjudicated by the US-Panama claims committee in 1933. It was called upon to investigate Panama’s responsibility for the damages caused to foreigners during the riots against signing of the very arbitration agreement the committee was set up to enforce.290 The diplomatic meeting which resulted in the signing of the agreement was not granted a sufficient police protection, with only three police officers protecting it, those permanently stationed in the city where the diplomats met. Noyes, a us citizen who had suffered accidental injuries during the riots, filed claims against Panama requesting compensation. He blamed city officials for it not having provided an effective police protection, which resulted in the plaintiff being attacked and beaten by the rioters. The plaintiff claimed also that Panama had failed to show due diligence in maintaining public order as well as in taking reasonable steps to apprehend and punish the attackers, which was to make it responsible for the occurred damages.291 The commission was quick to deny Noyes’ claims, stating that under international law a state is not responsible for “mere facts of aggression” which can be, on regular basis, easily maintained with adequate police force. It did not recognize the damages caused by the rioters as lack of due diligence on behalf of the state, regardless of the fact that the signing of the convention was not accompanied by enhanced security forces.292 The security forces present 287 Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 90, 106. 288 Lovett et a L.V. Chile, Comission for the Settlement of Claims under the Convention of 7 August 1892 concluded between the United States of America and the Republic of Chile Case Frederick H. No. 43, decision of 10 April 1894, riaa 1894, vol. xxix, 319–321 (Lovett et al. case). 289 Lovett et al. case, 320–321; John Bassett Moore, History and Digest of the International Arbitrations (n 207) vol. iii, 2991. 290 Walter A. Noyes v. Panama, riaa 1933, No vi, (hereinafter cited as: Case Noyes), 308–312. 291 Case Noyes, 309. 292 Idem 311.

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at the scene met their duties by taking active steps to protect the victim, and as soon as information of the growing scale of the riot was shared with central authorities, police reinforcement was immediately sent to town. Also, as per the circumstances of the case, no claims of state responsibility for its failure to initiate proceedings against the attackers seemed justified.293 Damage caused to a foreigner by private individuals, which could have been prevented with enhanced police protection, was not viewed as entailing state responsibility. Attributing responsibility to a state requires showing particular circumstances justifying it, linking state action or omission to the damage. The commission went to identify two situations that are followed by state responsibility. The first occurs when authorities are directly involved in harmful activities of private individuals. Secondly, a state may be held responsible when its authorities fail to meet their general duty to maintain internal order, prevent crime or punish perpetrators. In the particular circumstances of the case none of these criteria were met, leaving Panama free of responsibility.294 The case is one more example setting the limits of state responsibility, which does not reach as far as to cover the acts of private individuals and the damage they might cause without the direct participation of state authorities, be it through their actions or omissions. More details on the due diligence standard were presented in 1903 by the British-Venezuelan mixed commission when deciding upon a relatively simple complaint from an English company, John Davis & Son.295 Its owners claimed that because of the negligence of a Venezuelan customs officer they were unable to process their orders in time, effectively suffering losses in their business income. The consignment in question, one for an Italian company operating in Venezuela, was received from the customs warehouse two years after its arrival rather than the fifteen days provided for in national law. It was the negligence of the customs officer, the plaintiffs claimed, which caused the shipment documents to miss the local recipient, making the delivery impossible. The commission found that the claim was manifestly unfounded, blaming the victims for the late delivery, as they had failed to attach shipment documents to their cargo and provided them only three months after the shipment of the goods. With simple factual circumstances, the observations of the commission carry further the evolution of the due diligence standard. It had indicated details of state duties relating to the protection of foreigners against the negligence of state officials. According to the commission any claim for compensation for 293 Idem 309–310. 294 Idem 311. 295 John Davis & Son v. Venezuela, riaa 1903, No ix, 462 (hereinafter cited as: Case Davis).

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the failure to show due diligence by a civil servants should entail prior notification to the state, indicating the prospected harm to rightfully protected ­interests of the claimant, thereby granting authorities the opportunity to prevent the damage. A state can be found responsible for negligence should it fail to show “care, precaution, and vigilance” required in given circumstances to protect the interests of any third party, resulting in damage.296 “Culpable negligence” is therefore to be considered the failure to meet legal obligations, i.e. a pre-existing commitment to demonstrate a certain level of care.297 The commission distinguished negligence from lack of care required under the circumstances, while describing the latter as an omission of a “reasonable” person, manifested by a failure to show diligence, skill and prudence, legally required in given circumstances to protect third parties from harm.298 Due diligence covers therefore state responsibility for either the failure to act in a way expected from a reasonable and prudent person in given circumstances or its performance of an action that such a person would seize. The commission also introduced a particular category of “latches”, referring to state neglecting a duty to protect the execution of laws or to enforce them in a timely manner. In other words, the due diligence criteria was to imply a state failure to meet a legal obligation to act or, respective of the circumstances, to refrain from action. A “timely” manner was not a criteria of actual duration, but rather a reference to the actual possibility of effective enforcement of laws, with particular emphasis on equal treatment of all plaintiffs, when considering their claims.299 And so, the due diligence standard was amended with a reference to the time and manor in which national authorities need to act in order to avoid international responsibility. In 1933 the already mentioned US-Panama claims committee had before it a case brought by a us citizen, Lettie Charlotte Denham, whose husband, also a us citizen, was killed in Panama. The murder of James Denham was committed by his former employee. The perpetrator was arrested, tried and sentenced to 18 years and four months imprisonment, but after 37 months was set free following an amnesty. The plaintiff argued for attributing Panama with responsibility for both: lack of due diligence in protecting foreigners and significantly shortening the actual sentence for murder, which constituted a violation of the claimant’s right to a just punishment of the crime her husband fell victim to. Initially the commission failed to recognize any failure on the side of Panama in its duty to protect foreigners. However, as much as the sentence imposed on 296 297 298 299

Case Davis, 463. Bin Cheng, General Principles of Law (introduction, n 43) 226. Case Davis, 463. Idem 463.

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the perpetrator was not inadequate as per international standards, such was its execution. The significant reduction of the time of imprisonment resulted in the inadequacy of the actual punishment with the committed crime by any international or national standard and, effectively, in Panama’s responsibility for the actions of the National Assembly, imposing excessively light punishment for the victim. The commission recognized Denham’s claim and awarded her with compensation. The state was therefore held responsible for the actions of its organs – the National Assembly declaring the amnesty, which the plaintiff was not able to appeal. In assessing the amount of compensation awarded to the victim, the commission did not take into account the size of damage caused by the offender but rather the scale of violations committed by the authorities. The commission argued that even though the action of the National Assembly did not concern this particular case alone and the shortening of the sentence did not result from a single, specific action of a state authority concerning one convict, Panama incurred international responsibility because state responsibility for failing to adequately punish the perpetrators of crimes against foreigners is not based on a particular approach to the individual perpetrator. The content of this commitment is clear and results in each state’s duty to introduce appropriate national laws as to meets its aim and cover its scope. A failure to comply with the obligation to justly punish offenders may give rise to state responsibility. The international duty to punish offenders of crimes against foreigners does not expire in case of an amnesty as there is the recognized principle of the primacy of international obligations over the content of national laws.300 The findings of the US-Panama claims commission were completed with the decision in a case of a us citizen named Adams, who was a victim of an armed robbery and a beating by a police officer on duty. For his misconduct the police officer was punished by the disciplinary court with a dismissal from 300 Case Denham, 313. See also the case of Ida Robinson Smith Putnam v. United States of Mexico, riaa 1927, No iv, 151–155, where a claims commission attributed international responsibility to Mexico for the decision of an appellate court altering a death penalty awarded to an ex police officer who had murdered a us citizen while off duty, with an eight year prison sentence. The circumstances of the case indicated a lack of due diligence on behalf of the local authorities, which resulted in a prison break of the sentenced perpetrator after 36 months of imprisonment. State authorities were not able to either capture nor punish him. The commission recognized that those were not the actions to be expected of a well organized government and found the state responsible for the damage suffered by the plaintiff. See also: F. R. West v. United States of Mexico, riaa 1927, No iv, 270–272 and Article 34 of the United Nations Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331 (further herein: vclt).

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the service and 30 days’ imprisonment. The judgment was carried out for 13 days at the police station and its vicinity. Criminal proceedings were instituted and temporarily suspended on 27 September 1921, whereas the temporary suspension still continued during the work of the commission, i.e. almost 12 years later. After the proceedings were initiated, the accused was being held at the headquarters of the court for 10 weeks. Despite the conflicting testimony of the victim on the amount which was the subject of the robbery, the Commission concluded that Panama improperly punished the policeman and recognized its responsibility for failing to ensure a fair trial to the us victim, supporting Adams’ claim for damages. The commission considered it unnecessary to identify general standards concerning the operation of state officials outside the scope of their authority or received orders, as in the Adams case it was without a doubt that the policeman had acted as a private individual, that is outside the limits of his official duty. The commission found it irrelevant that the perpetrator was a uniformed policeman on duty, acting beyond the scope of his responsibilities, as the state bore no responsibility for his actions. It was however found responsible for the actions of its judiciary, which did not carry a fair investigation and failed to punish the perpetrator in a manner proportionate to his offense. Reflecting the conclusion in the Denham case, the commission considered that it was irrelevant to the responsibility of the state whether the decision underlying the lack of appropriate punishment related to a single case or a group of cases or offenders.301 Finally, state duty to take active measures to ensure the security of foreigners within its territory as well as the lack of state responsibility for the actions of private individuals were confirmed by the Governing Commission for the Territory of the Saar Basin in 1933 which found Germany free from responsibility for the kidnapping of three French citizens, residing within the territory, by German nationals. The kidnapped were abducted to the German town of Kaiserslautern and unlawfully deprived of their liberty there. A representative for the Reich argued at the hearing that the perpetrators acted with private motives and with the help of a few friends, beyond any awareness and ­consent of the local police or other state bodies and The state was to hold no responsibility for the independent actions of private individuals. Moreover, German police freed the victims and handed them over to the guard at the border of the territory. Also, German authorities launched an investigation immediately after having received information about the incident. Following the line of adjudication discussed above, in light of the fact that the state had no direct influence on the abduction and that it did take all necessary measures to 301 Gust Adams v. Panama, riaa 1933, No vi, (hereinafter cited as: Case Adams) 321–324.

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i­ dentify the culprits and punish them, the commission sided with the defence and found Germany free from responsibility as it had shown due diligence in protecting foreigners in its territory.302 The rich case law dealing with the protection of foreign individuals against the internal threats of a country of their residence clearly indicates two basic principles of state responsibility, both rooted in the notion of due diligence. A state is not to be held responsible for the damage caused by private individuals as long as it had no direct involvement in their harmful actions. This reflects the general principle that a state cannot be held responsible for the actions of private individuals. Due diligence comes into play when the damage occurs and the state was either in a position to prevent it or at least to identify and punish the culprits. In either of those cases the state is under a general international obligation to ensure the reasonable protection of individuals by taking all appropriate measures to learn of the threats and to prevent them, but also to ensure that the aliens will be granted access to the judiciary and other forms of administrative or legal assistance. The measures taken in a particular circumstances depend directly on the factual capabilities of the state. At the time the cases cited above were decided there seemed to be little accord on the appropriate reference for assessing the level of care expected of a well ordered state. Only later did international scholarship and judiciary agree on such a reference to be made when evaluating state efforts and for it to be an objective one, that is one relating to the usual practice of states worldwide or at least in a particular region. Initially however it was not clear whether it was enough for states to refer to best national practice to ensure their lack of responsibility for the damage suffered by foreigners while in their territory or jurisdiction. This was decided based on further developments in other areas of international law, including diplomatic relations and the protection of natural environment, both discussed in more detail below.

Due Diligence and Diplomatic Protection

While the general obligation of states to take all necessary measures to ensure the protection of foreigners in their territory or jurisdiction is a well developed concept in international law, a higher degree of care is required of states with respect of diplomatic personnel residing within their borders. Identifying the 302 Rendition of Suspected Criminal (Saar Territory) Case, League of Nations Official Journal 1933, No 14, (hereinafter cited as: Rendition of Suspected Criminal (Saar Territory) Case), 1046–1050.

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details of this standard followed a complicated diplomatic process, as it started with the controversial case regarding the death of an Italian general Tellini and the members of the judicial committee he headed in the whereabouts of the Greek town on Janina (the Janina incident). The Council of the League of Nations set up a Special Commission of Jurists to resolve legal uncertainty regarding the incident between Italy and Greece, concerning the assassination near the border with Albania.303 Chairman of the Commission, general Tellini, and its members were entrusted with the task to determine the course and contents of the disputed Greek-Albanian border. While examining the case, on the morning of August 27, 1923 they were deprived of life when within Greek borders. There was no evidence of direct involvement of the local armed forces or law enforcement in their murder. Yet when seeking a probable justification for the crime, the Italian authorities claimed it might have been Tellini’s Italian citizenship that had served as a possible motif for the crime, in the light of the converging political objectives of Rome and Tirana, the latter siding with the Hellenes. In response to the attack, the head of the Italian State at the time, Mussolini, issued a list of considerable demands for the Greeks. Once they failed to meet those, Italy initiated a military occupation of the Greek island of Corfu.304 Mussolini did not however pose any claims as to the Janina incident, not even referring to the possibility that the crimes might have been carried out by private individuals or resulted from any state omission, presupposing absolute responsibility for the breach of international obligations within diplomatic law.305 Given the special status of the victims, Mussolini implied that Greece was responsible for the deaths of the Italian diplomats as the crime was committed on Greek soil, failing however to refer to any particular act or omission of state bodies. Interestingly, this position was confirmed in the resolution of the Conference of Ambassadors ­dated September 5, 1923, where the League of Nations confirmed the ­“automatic” ­responsibility of States for “political crimes” committed within their territory.306 The Italian occupation of Corfu resulted in significant 303 James Crawford, Allan Pellet, Simon Olleson, Kate Parlett, The Law of International Responsibility (n 108) 1075. 304 A letter from September 27, 1923 from Mussolini to Greek authorities demanded them to punish the culprits and issue compensation for all losses, quoted in Franciszek Przetacznik, Protection of Officials of Foreign States According to International Law (BRILL 1983) 202. 305 Przetacznik calls such an act an expression of arrogance: Franciszek Przetacznik, Protection of Officials of Foreign States (n 304) 202. 306 League of Nations Official Journal 1924, No 4, 524; quoted in Franciszek Przetacznik, ­Protection of Officials of Foreign States (n 304) 202.

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d­ amage to property and loss of human life. Greeks, left alone on the political arena, turned to the League of Nations with a request to reexamine the situation underlying the escalating conflict and asses Greece’s possible responsibility for the Janina incident. A Special Commission called upon by the League of Nations for this very purpose concluded that the state may be held responsible for political crimes committed on its territory to the detriment of foreigners if it had failed to take all reasonable measures to prevent the crime, arrest the perpetrators and bring them before a criminal court.307 The mere presence of a foreigner on state territory and the circumstances of their visit oblige state authorities to take particular caution in ensuring their safety. State responsibility therefore arises when the authorities fail to take action in circumstances obliging them to do so.308 Following the report, yet despite substantial support received from the international community, Greece decided to settle the case with Italy awarding it a high compensation. It was the only politically possible way to have Italian troops leave Corfu. At that time the first secretary of the British Foreign ­Office in response to further controversial actions of M ­ ussolini, confirmed that the United Kingdom, acting as the drafter of the controversial settlement agreement, has curbed the League and imposed hefty fines on Greece without evidence of its fault, without reference to the Hague tribunal, disbanding the inquiry committee for the sole purpose of a political compromise.309 This early decision dealing with the standard of care required vis-à-vis diplomatic personnel set back the development of international responsibility as it had gone against the principles established thus far. One must note that the Janina incident case confirms the strong dependency of international law, its practice and theory, on the current distribution of political powers. Other cases which followed proved that international law requires a higher level of care in the case of threats to diplomatic personnel, state responsibility is however far from an absolute one.310

307 League of Nations Official Journal 1924, No 4, 524; quoted in Franciszek Przetacznik, ­Protection of Officials of Foreign States (n 304) 202. S. Rosenne, The International Law Commission’s Draft Articles on State Responsibility: Part 1, Articles 1–35, The Hague 1991, 122; James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge 2002, 91. 308 S. Rosenne, The International Law Commission’s Draft Articles on State Responsibility: Part 1, Articles 1–35, The Hague 1991, 122. 309 P.J. Yearwood, ‘Consistently with Honour’: Great Britain, the League of Nations and the Corfu Crisis of 1923, Journal of Contemporary History 1986, Vol. 21, No. 4, pp. 559–579. 310 For a debate on these and other cases see also: T. Becker, Terrorism and the State: Rethinking the Rules of State Responsibility, Bloomsbury Publishing 2006, 34–35.

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Most significantly, state responsibility for omissions resulting in harm to diplomatic personnel has been the focus of icj considerations in the case concerning us diplomats held hostage in the headquarters of their missions in Teheran in 1979. Anti-American sentiments enhanced in Iran after ayatollah Khomeini’s rise to power that is at the beginning of the Islamic revolution. State authorities led by prime minister Bazargan were not able to contain the protests against us presence in the country, following the overthrow of pro-American shah Pahlavi, who fled the country to seek refuge in the us. On November 4th, 1979 during an anti-American demonstration in Teheran that gathered roughly three thousand people, a few hundred protesters broke the bars in the windows of the us embassy building to enter the premises and keep employees hostage for the following months. Security guards, employed by the local government, took no action to restrain the protesters or discourage them from entering. 52 embassy employees were held hostage. While the demonstrators tried to set the building on fire for two hours and break through the metal doors to enter further rooms in the building where other employs were hiding, national security forces were not ordered to offer the diplomatic staff any assistance, despite their repeated pleas for help to the Iranian ministry of foreign affairs and the prime minister’s office, directed by a un diplomat.311 The government took no action to secure the area from the attackers, save the hostages or initiate negotiations with the protesters. No action was taken even when two other us embassies in Tabriz and Shiraz fell victim to similar attacks. With no help from local authorities, the diplomatic staff were held hostage in derogatory conditions for the following 444 days.312 The negligence of local authorities was particularly blatant since in a similar situation that arose in February of that same year, with 40 hostages held in a us embassy in Iran, all were freed by Iranian security forces and a formal apology for the event was offered to the us president on behalf of the government.313 When the Teheran 311 United States v. Iran, Case concerning United States Diplomatic and Consular Staff in Tehran, International Court Of Justice Pleadings, Oral Arguments, Documents 1982, (hereinafter cited as: Case of United States Diplomatic and Consular Staff in Tehran) 3; icj temporary order of December 15, 1979 in the Case of United States Diplomatic and Consular Staff in Tehran, icj Reports 1979, 7; icj Judgment of May 24, 1980 in the case of ­United States Diplomatic and Consular Staff in Tehran, 1980, (hereinafter cited as: ­judgment in the United States Diplomatic and Consular Staff in Tehran case) 3; icj order of May 12, 1980 in the case of United States Diplomatic and Consular Staff in Tehran, icj Reports, 1981, 45. 312 Case of United States Diplomatic and Consular Staff in Tehran, 3–8. 313 Judgment in the United States Diplomatic and Consular Staff in Tehran case, 31.; J.C. Barker, The Protection of Diplomatic Personnel, Aldershot 2006, 77.

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hostages case came before the icj, the us argued for Iran’s responsibility for the hostage crisis as a breach of its international obligations, rooted in the law of diplomatic relations. us also argued for Iran to refrain from further infringements that is to free the hostages, compensate the damages and initiate criminal proceedings against the perpetrators of the attack.314 In its ruling the icj referred to the rules of state responsibility for the actions of private individuals. It confirmed Iran’s obligation to protect all members of the diplomatic staff residing within its territory from any threats, referring directly to Article 22 para. 2 vcdr. Its stipulations oblige the receiving state to take all appropriate steps to protect the premises of the mission from any intrusions, damage or disturbance, making this duty a “special” one.315 Iran failed to meet its obligation by failing to show due diligence in protecting us diplomatic staff. This omission resulted in an over year long hostage crisis that the icj attributed to Iranian authorities who had failed to take appropriate steps to ensure protection of the mission premises, its personnel and archives.316 They failed to take any steps aimed at preventing the attack or putting it to a stop, neither in Teheran, they were rather Tabiz or Shiraz.317 These omissions were however not the strict result of negligence or incapability to act, an element of national policy executed by governmental bodies. There were practical capabilities at hand to effectively perform state duties, as Iran had proved earlier that year by successfully reacting to a similar case.318 Quoting numerous statements from the leaders of Iranian revolution,319 including Khomeini himself, the icj argued that: The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible.320

314 Vienna Convention on Diplomatic Relations, 18 April 1961, 500 unts 95 (hereinafter: vcdr). 315 Article 22 vcdr. 316 Judgment in the United States Diplomatic and Consular Staff in Tehran case, pt. 74, pt. 63, 31. 317 Idem 31. 318 Idem 31. 319 Idem 33. 320 Idem 35.

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With that the icj recognized state consent to an ongoing violation of international law as equal to accepting such violation for its own, resulting in state responsibility. This was not to imply however that the actions of the militants were to be recognized as those of “agents” of the state nor that they could be directly attributed to a state.321 Such attribution could only follow a direct authorization of the protesters by an authorized state body instructing them to perform a given operation and in the given case no sufficient proof was presented.322 In this context the icj did consider several public declarations made by Khomeini, describing the United States as responsible for “all his country’s problems”, which could be perceived as “giving utterance to the general resentment felt by supporters of the revolution at the admission of the former Shah to the United States”. They were however not to be recognized as direct authorization for the attacks. Such was to be found in Khomeini’s message of 1 November 1979 to his “dear pupils, students and theological students”, encouraging them to “expand with all their might their attacks against the United States”,323 as well as in his congratulations on the seizure of the embassy building directed at the militants on the evening of the attack. There were also other statements of “official approval” resulting in a persisting violation of international law.324 An “official government approval” of the attacks could also be found in Khomeini’s decree of 17 November 1979, identifying the American Embassy as “a centre of espionage and conspiracy” and its employees as “people who hatched plots against our Islamic movement” who “do not enjoy international diplomatic respect”. Official support of the embassy occupation was expressed by Khomeini when stating that the embassy premises and the hostages “would remain as they were” until the United States handed over the former shah and returned his property to Iran.325 Despite declarations of other Iranian authorities regarding their plans to offer assistance to the victims of the attack, no actual attempts to that aim were made.326 Although the icj declined granting the militants the status of state agents, some authors argue that Khomeini statement of November 17th sets a deadline 321 Idem 29. See also: Pierre Dupuy, ‘The International Law of State Responsibility: Revolution or Evolution’ (1989) 11 mjil 121–122 on the varying scholarly assessments of the icj decision. 322 Judgment in the United States Diplomatic and Consular Staff in Tehran case, pt. 58, 29. 323 Idem 29. 324 Idem 29–30. 325 Idem 35. 326 Judgment in the United States Diplomatic and Consular Staff in Tehran case, pt. 70–73, 33–36.

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following which the militants became actual agents of the state.327 Effectively, before this deadline Iranian authorities can only be attributed with responsibility for omissions, their direct responsibility for militant’s actions as those of state agents encroaches after November 17th.328 While this latter view is not broadly shared, the Teheran hostages case clearly shows that there is a special higher degree of care required in the protection of diplomatic personnel, one originated by the Article 22 vcdr. It also allows for attributing state responsibility for actions of private individuals the state recognizes as its own through official statements.

Due Diligence in Preventing Transboundary Environmental Harm

A unique standard for preventing third party harm has been developed also, and arguably most significantly, in the field of environmental protection. The 15 years long dispute between Canada and the United States dealt with a zinc smelter in the Canadian town of Trail and, as time has shown, was fundamental to the rise of international environmental law.329 The dispute originated with a us claim to impose emissions restrictions on a Canadian zinc smelter, which had caused damages in the natural environment of border areas of the United States, lowering crop yields in the state of Washington. The steelworks in the Canadian Trail emitted large quantities of impurities to the atmosphere and these, carried by the wind, induced damage to the natural environment in the United States. The damage caused a significant decrease in yields and property values. The owner of the factory in question, the Consolidated Mining and Smelting Company of Canada in Trail, British Columbia, had earlier consented with Canadian farmers who issued similar claims, offering them compensation for the lost crops, yet consequently refused to adopt any restrictions for its emissions as they would equal the reduction of its profitable production.330 In this case the us farmers did not agree to settle for compensation alone. As a result, in 1927 the question of harmful emissions from the C ­ anadian smelter 327 Antonio Cassese, International Law (n 204) 250–251. 328 Judgment in the United States Diplomatic and Consular Staff in Tehran case, pt. 74, 36. 329 Trail Smelter Arbitral Decision, American Journal of International Law 1939, No 33, 182–212 and Trail Smelter Arbitral Tribunal Decision, American Journal of International Law 1941, No 35, 684–736. 330 J.R. Allum, ‘An Outcrop of Hell’: History, Environment and the Poltics of the Trail Smelter Dispute in Rebecca M. Bratspies, Russel A. Miller (eds), Transboundary harm in international law (introduction, n 25) 15.

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became the subject of legal and diplomatic proceedings initiated by both governments, first before the International Joint Commission and after 1935 before the Court of Arbitration, established as per a bilateral treaty to solve the problem of the harmful emissions.331 The Court of Arbitration introduced a recommendation, biding to the states, that introduced a ban on harmful transboundary emissions. It was substantiated by the observation that states cannot authorize such use of their territory that would cause damage beyond their borders. As indicated by some authors, this observation with time became the content of the contemporary principle of good neighborliness recognized in international environmental law.332 Any harmful use of state territory results in international responsibility of that state, even when the harmful activity was not initiated or supervised by state authorities. Referring to earlier scholarly writings, the court identified a principle fundamental for international environmental law, requiring states to always protect third parties from the harmful actions of individuals operating or located within state jurisdiction.333 With little prior case law dealing with cross-border damage, the court referred to prior academic writings and local, us practice on interstate disputes.334 A us court dealing with interstate air pollution liability, emphasized that there is a “fair and reasonable expectation” from a state to ensure that its environment is not significantly p ­ olluted.335 Based on this presumption, the court held that under the principles of international law, as well as of the law of the United States no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the 331 See also: Maria Magdalena Kenig-Witkowska, ‘Prawnomiędzynarodowa odpowiedzialność za szkody transgraniczne w środowisku’ (introduction, n 31) 311–312. 332 Idem 311. 333 Trail Smelter Arbitral Tribunal Decision, American Journal of International Law 1941, No 35, 713. 334 Trail Smelter Arbitral Tribunal Decision, American Journal of International Law 1941, No 35, 714. As emphasized by Birnie, Boyle and Redgwell, the principles of international environmental law only partially rely on joint state practice. See: Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 27. 335 Trail Smelter Arbitral Tribunal Decision, American Journal of International Law 1941, No 35, 716, where the Court cites the Georgia v. Tennessee Copper Co. 1907 case. As pointed out by Ellis, this decision taken in similar circumstances did not acknowledge the responsibility of the state of Tennessee from whose territory the harmful emissions were originating. It was just the polluting company that was obliged to pay compensation. Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 58.

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properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.336 This decision implies international responsible of a state for emissions originated within its territory, causing harm in another state. This approach to state responsibility, abstracting from attribution based on the acts or omissions of state authorities, falls outside the traditional framework of international responsibility of states.337 The duty to protect third parties from harm originated within state jurisdiction cannot serve as ground for absolute responsibility of states for the actions of private individuals, solely due to the fact that the acts were performed within state borders. Private actions have always been recognized in international law as an insufficient single ground for state responsibility.338 The actions of individuals can give rise to state responsibility only in case of state’s own omissions in preventing the conclusive harm, when the state had been informed of the malicious activity or when it has actively supported it.339 This principles was in force also in 1941, when the court decided on the complaint of a group of us farmers against a Canadian company.340 With that in mind, the Trail smelter decision goes beyond the state responsibility considerations made so far. The court failed to provide a detailed description of the legal qualification of Canada’s omissions as per the obligations present in international law and remained silent on the content of such obligations resting upon Canada. Its omissions could be legally qualified as grounds for state responsibility by reference to at least one of the three grounds for responsibility known to international law: risk liability, nuisance or lack of due diligence.341 Here however the court referred only to “serious consequences” and “clear and convincing evidence” that justify Canada’s responsibility.342 Some international legal writers view the court’s reasoning as confirming an ­international

336 Trail Smelter Arbitral Tribunal Decision, American Journal of International Law 1941, No 35, 716. 337 Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 59. 338 Clyde Eagleton, The Responsibility of States in International Law, New York 1928, 8–9, quoted in Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 59–60. 339 Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 60. 340 Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (n 227) 67–68. 341 Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 60. 342 Trail Smelter Arbitral Tribunal Decision, American Journal of International Law 1941, No 35, 716.

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obligation to demonstrate due diligence in international ­relations.343 Such an interpretation would be consistent with the absolute duty of preventing damage to other countries, caused from state territory, declared by the court. It brings with it however numerous concerns on the interdependence between state responsibility and international liability for acts not prohibited by international law. As already mentioned, the observations made in the Trail smelter decision fall close to the principle of good neighborliness, enshrined in Article 21 of the Stockholm Declaration.344 According to Barboza this principle can be easily derived from actual state practice, leaving no room for absolute and unlimited state sovereignty.345 The decision in the Trail smelter case had strongly influenced the theory and practice of international law in general and the terms of state responsibility in particular. This impact can be best exemplified with the turbulent evolution of ilc’s work on state responsibility and international liability, as the debates started in 1978 and were only summarized in 2001 with the 2001 ilc Draft articles on prevention. The dogmatic inability to find consensus between the general principles of international liability for acts not prohibited by international law and state responsibility for the breach of its international obligations caused a dynamic growth in the number of multilateral and bilateral treaties on international environmental law. In view of the practical difficulties in i­dentifying the liability rules applicable to cases dealing with diligence in environmental protection, numerous specific treaty regimes, primarily describing the content of the duty of prevention, but also on the rules of compensations, have been put into place.346 The provisions of these conventions 343 Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 60–61; Birnie, Boyle and Redgwell view the decision as fundamental for the international duty of prevention: Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 145. Maria Magdalena Kenig-Witkowska views the court sentence as the content of the principle of prevention; Maria Magdalena Kenig-Witkowska, Międzynarodowe prawo srodowiska (Wolters Kluwer 2011) 19; although as pointed out by Ellis many authors also refer to the differences between the court decision and the current scope of the prevention principle; Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 62. 344 Declaration of the United Nations Conference on the Human Environment, u.n. Doc. A/CONF.48/14/Rev. 1, hereinafter cited as: the Stockholm Declaration. The principle of good neighborliness is discussed further in this book. 345 See also: Barboza’s second report, u.n. Doc. A/CN.4/402, 157. 346 The numerous treaties include e.g.: the 1979 Geneva Convention on Long-range Transboundary Air Pollution (unts 1302) and its eight additional protocols; the 1985 Vienna Convention for the Protection of the Ozone Layer together with the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer; the 1992 Helsinki Protection

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indicate the particular duties and effective actions to be taken by a diligent state in order for it to be cleared of international responsibility in the prevention of environmental harm.347 Some of those documents introduce procedures applicable in case of state non-compliance with the provisions of the treaty and accompanying measures designed to substitute the lacking international liability norms. Some suggest that these procedures are an intermediate instrument between conciliation and judicial resolution of international disputes, while others argue that the procedures originate from treaties, viewing them as a consequence of the pacta sunt servanda principle. Some authors still recognize these procedures as strictly soft law measures.348 The Trail smelter case decision together with its consequences, including the vivid development of environmental law treaties, have strongly contributed to the development of the contemporary notion of due diligence. The Canadian case was however not the only one that contributed to the enhanced state practice in environmental treaty making. When attempting to describe due diligence in the treaty based regime of environmental law, one also needs to refer to the 1986 case of the contamination of the river Rhine by a Swiss pharmaceutical company Sandoz (now operating as Novartis). The contamination of Rhine waters resulted from a fire in the Sandoz agrochemical warehouse, when the stored chemicals that caught fire were washed into the river together with those used to extinguish the flames. Also the air was contaminated, with tons of harmful emissions polluting the atmosphere, originating from the fire and substances used for extinguishing the burning warehouse. They all caused pollution of the river and its surrounding waters, turning them red.349 The cause of the fire was never determined, yet the resulting contamination caused significant damage to the river ecosystem and the nearby area. Criminal proceedings of the Marine Environment of the Baltic Sea Area (unts 25986); 1992 United Nations Framework Convention on Climate Change (unfccc; 1771 unts 107) together with the 1998 Kyoto Protocol. The latest development in this area is the Draft Paris Agreement of December 2015 (un Doc. FCCC/CP/2015/L.9). 347 The mutual relationship between international liability and state responsibility is discussed in detail in the following chapter. 348 Maria Magdalena Kenig-Witkowska, Międzynarodowe prawo… (n 346) 133–138, discussing the non-compliance procedures. See also: Jaye Ellis, ‘Has International Law…’ (introduction, n 25) 64; Rüdiger Wolfrum, Means of Ensuring Compliance and Enforcement in International Environmental Law, RdC 1998, No 272, 9–154; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 245. 349 In the subsequent years the river Rhine naturally and completely cleared its waters. Arno Boos-Hersberger ‘Transboundary Water Pollution and State Responsibility: The Sandoz Spill’ (1997) 4(1) Ann.SurveyICL 107.

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on the charges of murder and 21 cases of unintentional bodily harm led to the acquittal of the seven suspected Sandoz employees. No one was found guilty of violating company procedural regulations. Two ­Sandoz employees who caused additional river pollution after the fire had started by rinsing the ashes with running water, were sentence to minor fines for having violated internal procedures. Without litigation Sandoz entered into more than 1,100 settlement agreements with the victims from Switzerland, France, Germany and the Netherlands amounting to 42 million Swiss francs. Other claims for nearly 14 million francs were covered by insurance companies. ­Sandoz also laid out 10 million francs to the “Rhenish Fund”, financing research on the ecosystem of the river.350 The responsibility of Swiss authorities for the damages caused by the accident in the Sandoz warehouse could have been considered as derived from customary law, but it did primarily rely on the provisions of multilateral treaties on the Rhine river system, including the 1963 Agreement Concerning the International Commission for the Protection of the Rhine Against Pollution,351 as well as the 1976 Convention for the Protection of the Rhine Against Chemical Pollution.352 Switzerland was party to both agreements. By virtue of the former treaty an international committee of experts was appointed and tasked with solving the problems of growing water pollution. When 13 years after the funding of the Commission the results of its work were unsatisfactory to state parties, the Rhein Chemical Convention was signed, granting more authority to the Commission.353 Within this treaty states introduced international arbitration as a mean of solving disputes on the scope of responsibilities originated by the agreement.354 The primary goal of both treaties was preventing damage to the Rhine ecosystem rather than ensuring legal means of ascertaining due compensation for actual damage. Therefore the treaty contained no particular provisions on any compensation duties of state parties, even in a situation when the operator of the harmful activity would have refused to compensate the caused damage. Determining the role and accountability of Switzerland 350 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (n 349) 107–109. I. LeyboldJohnson, Kontroverse um Brandplatz Schweizerhalle dauert an, swissinfo.ch, Oct., 31, 2011, ­available at: accessed 14 March 2016. 351 994 unts 3, 1963 (hereinafter cited as: the Bern Convention). 352 16 ilm 242, 1977 (hereinafter cited as: the Rhein Chemical Convention). Currently both treaties have been replaced with the 1999 Bern agreement on the protection of the Rhine river (Übereinkommen zum Schutz des Rheins). More information is available at: accessed 14 March 2016. 353 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (n 349) 114–115. 354 Article 15 of the Rhein Chemical Convention.

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in the case was therefore particularly difficult. There was no treaty-based system for compensating damage nor for attributing responsibility, the treaties provided only for a possible arbitration of any disputes. What added to the difficulty was the fact that the cause of the fire was unknown – it could have been arson as well as be a result of failed administrative procedures within the warehouse. National authorities from all states involved were well aware of the actual difficulty in attributing the fault for the explosion. France was the first country to file a compensation claim against Switzerland, yet no arbitral proceedings followed, as Swiss authorities and ­Sandoz management complied with the claim and paid due compensation.355 It was therefore never clearly identified whether and if so to what extent ­Switzerland bore responsibility for the ­damage. Compensation claims against Switzerland, based on the supposition that it had violated its international obligations, could imply a causal link between the damage and the act or omission of state authority. Such a causal link would be difficult to prove, particularly due to the unknown cause of the fire. It might have been easier to prove that the Swiss authorities had failed to meet its duties of prevention provided for in the Rhine treaties, although none of them included a direct presumption of responsibility on behalf of state parties. Storing chemicals in the Sandoz warehouse was done in accordance with Swiss law that is the warehouse was deemed suitable for storing chemicals as per a local administrative decision, but the applicable national laws failed to meet the standards of the Rhine treaties. The warehouse where the fire broke out was initially used for storing equipment and only later used to store chemicals, following the administrative decision issued in accordance with national laws. However, as per the report of the insurance company from 1981 the warehouse did not actually meet the requirements for chemical storage and the administrative decision could have been issued in breach of national laws.356 Swiss authorities knew about the insurance report and refrained from taking any action, be it amending local administrative laws accordingly or repealing the administrative decision. Such a failure could be considered a breach of Article 7 of the Rhine Chemical Convention, obliging states to effectively implement the provisions of the convention in national laws. Moreover, a 24-hour delay in making information about the incident available to the public, including authorities and residents of affected countries, could be viewed as a violation of Article 11 of the convention, necessitating states to promptly meet the information obligation. These potential violations would allow the attribution 355 Xue Hanquin, Transboundary Damage in International Law (n 219) 91. 356 Wir sollten aufwachen und überlegen, DER SPIEGEL 1986, No 47, 138–147, available at: accessed 14 March 2016.

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of international responsibility for the damage to Switzerland, regardless of its treaty-based obligation to participate in potential arbitration proceedings. Yet judicial recognition of Swiss authorities, omissions was not in the interest of any of the parties involved. Filing an official claim against Switzerland with an international court could have led to the indication of individual elements of the precautionary principle, binding on all parties to the Convention. This was a risk no country wanted to take, particularly since the assessment of the relative Swiss law was the highest among all Rhine states.357 With that in mind, the Swiss government acknowledged its responsibility for the lack of due diligence in preventing the accident through insufficient regulation of the operation of the pharmaceutical industry and no international court proceedings on the Sandoz incident case were launched.358 Paradoxically the Swiss recognition of the claim showed a weakness rather than a strength of the treaties, that is the blurred lined between treaty-based international environmental law provisions and the general principles of international responsibility of states. It is difficult to establish the necessary co-­ relation between attributing state responsibility for the omission of its organs and the expert assessment of technological or biological causality. This practical difficulty directly affects the application of the precautionary principle.359 As the Sandoz case shows, introducing more precise standards for due diligence is often not in the interests of the contracting parties. While this book aims to identify the details of the contemporary due ­diligence principle, it must be observed that at times the intrinsic flexibility of the ­precautionary principle serves its purpose, leaving much to the good will and diplomatic abilities of the parties, seeking rather consensus than a rigid legal order. The Sandoz case is not the only international occurrence that tested the limits of the due diligence standard. State responsibility for the omissions resulting in environmental harm was the subject of a number of cases concerning international environmental law. Due diligence is seen as a part of its fundamental principle of prevention, constituting the obligation of states to assess the environmental impact of activities, that could potentially have consequences 357 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (n 349) 118–119. 358 Barboza’s twelfth,(1996), u.n. Doc. A/51/10, comment (5), 110, 2001 ilc Draft articles on p­ revention, pt. (8), 154; See also: Arno Boos-Hersberger, who emphasizes that Switzerland was never held responsible for the damages caused by Sandoz before any international court to recognize its lack of due diligence and the ambit of its potential responsibility remains unclear; Arno Boos-Hersberger ‘Transboundary Water Pollution’ (n 349) 104. 359 The interdependency of the two accountability regimes: that of state responsibility and the one of international liability are discussed in the following chapter.

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significantly harmful to the natural environment, before undertaking them.360 The obligation of states to take reasonable efforts to prevent damage to the environment was confirmed in numerous treaties and court decisions, one of which is the 1997 decision on the potential damages to the Danube river bed in Hungary, caused by Slovakia.361 The 1977 treaty between Hungary and Czechoslovakia concerned the dam on the river Danube, one used for the subsequent hydroelectric power plant, to prevent flooding and improve the navigability of the river. Its design and construction, subject to this agreement, were to be developed and carried out jointly by both parties. Originally due to economic difficulties in Hungary and later due to concerns about the environment expressed by Hungarian experts, authorities in Budapest delayed the project. In 1983 in Prague the states jointly agreed to postpone the construction. At that time Hungary was facing growing criticism of the potential environmental harm caused by the project.362 Effectively, when Hungary showed no more interest carried on, Slovakia alone, trying to regulate the river bed according to one of the technical variants inconclusively discussed with Hungary. In 1992 Hungary denounced the 1977 treaty. That was also the year when the activities on the Slovak territory caused a 90 percent depletion of water in the old riverbed, threatening the ecosystem of the river.363 The subsequent icj dispute focused on Slovakia’s responsibility for acts contrary to the object and purpose of the 1977 agreement. On the sidelines of these considerations the icj noted for the first time the presence of the principle of sustainable development as recognized in international law364 and the accompanying duty to demonstrate 360 The obligation to ensure Environmental Impact Assessments (eias) of potentially harmful activities is discussed in detail in Chapter iv. 361 icj Decision of September 25, 1997 in the Gabčíkovo-Nagymaros Project (Hungary v. ­Slovakia), icj Reports, 1997, No 92, (hereinafter cited as: case Gabčíkovo-Nagymaros), part B.a., para. 140, 39. 362 At the beginning of 1984 the so-called Danube cricle was created, a social movement against the construction of the dam. The arguments presented by the activitsts were the primary reason why the Hungarian authorities decided against the construction in 1989. See: S. Krech, J.R. McNeill, C. Merchant, Encyclopedia of World Environmental History, New York 2004, vol. ii, 654. 363 H. Fürst, The Hungarian-Slovakian Conflict over the Gabčíkovo-Nagymaros Dams: An Analysis, Intermarium 2003, vol. 6, No 2, 2. 364 See also: Maria Magdalena Kenig-Witkowska, “Koncepcja ‘sustainable development’ prawie ­miedzynarodowym, (1998) 8 …, 57–58, who emphasizes the role of the judiciary in identifying the catalogue of international law principles. The ­principle of sustainable development named in the Gabčíkovo-Nagymaros case and the subsequent gatt decision in the US-Mexican dispute in the “tuna wars” confirm the recognition of this principle in the international legal regime.

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due diligence in the implementation of this principle. Due diligence in this case included the need to perform an environmental impact assessments as well as the duty to monitor the environmental effects of each planned activity that might have a significant impact on the natural environment. The icj ruled that both countries were in breach of international law with regard to the bilateral treaty. While Hungary unilaterally decided to suspend the implementation of the project, Slovakia violated its terms and conditions single-handedly implementing plans scheduled for mutual cooperation.365 The Court refused to settle the dispute on the merits, encouraging the parties to intensify their negotiations referring to the principle of sustainable development as their guideline.366 Although within its 1997 decision the icj did not explicitly define due diligence, it did refer to state responsibility for the omissions of its authorities. Slovakia was bound to provide an impact assessment for its planned actions prior to their implementation of the project as well as subsequent monitoring of its consequences. This commitment resulted from the principle of sustainable development and required state due diligence in its performance.367 The icj also noted that the environmental impact of the project was a key element of its implementation, as evidenced by the sheer amount of expert testimony presented by the parties, although the contents of these expert opinions were often contradictory.368 Assessing the risks inherent to the project should have been based on “current standards” as implied by the provision of the bilateral treaty requiring states to preserve water quality in the Danube and protect its living resources. “Vigilance and prevention” are necessary in ​​environmental protection as their lack may result in irreversible damages to living resources. The effects of the use of natural resources can be well predicted and controlled with the use of available technologies. Effectively, it is those technologies that impact the scope and content of new norms and standards international law. These norms and standards must be respected not only in the course of the implementation of new projects, but also in the implementation of activities initiated before they became available. Economic development may only unfold with respect for the natural environment and such is the aim of the sustainable development principle.369

365 Case Gabčíkovo-Nagymaros, 53–54. 366 Idem 78. 367 Lisa Viikari, The Environmental Element in Space Law (introduction, n 18) 272. Case Gabčíkovo-Nagymaros, 77–78. 368 Idem 77. 369 Idem 78.

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This co-relation of technical development and environmental protection was elaborated by Judge Weeramantry, Vice-President of the icj at the time. He pointed to the principle of “continuing environmental impact assessment” which, in his opinion, covered both: the need to assess the effects of the project prior to its implementation, as well as a commitment for countries to provide permanent recapitulation of such an assessment throughout the life of every potentially harmful venture.370 Therefore, the obligation regarding Environmental Impact Assessment (eia) is a dynamic one. State duty to provide an up-to-date eias remains valid for the entire life of each project that holds a significant threat to natural resources. The bigger the project, the greater the need for continuous monitoring of its effects.371 The principle described by Judge Weeramantry is a practical elaboration on the principle of due care and introduces an obligation of “watchfulness and anticipation”. Weeramantry suggest that the content of the basic principles of international environmental law – the principle of “trusteeship of earth resources” – is a commitment to provide prudent management of natural resources with diligence and due care for future generations.372 The Gabčíkovo-Nagymaros case may be viewed as an opportunity that the icj took to confirm the applicability of environmental obligations vis-à-vis all states, obliging them to ensure that activities within their jurisdiction and under their control are carried out with respect to the natural environment.373 Similar statements have been included in icj work on the uses of nuclear energy, in particular for military purposes. Those observations are discussed below. The icj work on environmental law clearly shows that the starting point for any responsibility attribution is the assessment of efforts taken by a state to prevent harm caused to third parties. This is particularly vivid in the context of protecting natural environment, considered a shared resource. Environmental damage caused by the use of nuclear energy, in particular nuclear weapons, has been under consideration of international courts and tribunals on several occasions. When it comes to due diligence in international law the icj nuclear weapons advisory opinion seems of particular importance.374 370 371 372 373

Case Gabčíkovo-Nagymaros, Judge Weeramantry dissenting opinion, 88. Idem 111. Idem 108. icj advisory opinion on the legality of use of nu clear weapons, icj Reports 1996, vol. 1, 241–242. 374 But see also: The People of Bikini, by and through the Kili/BikiniEjit, Local Government Council Plaintiffs v. us, United States Court of Federal Claims 1996. Available at: accessed 14 March 2016. us court failed to recognize the claims of the people of Bikini, arguing lack of jurisdiction.

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In this particular case, following a request by New Zealand, the icj analyzed the legality of France testing nuclear weapons in the waters of the Pacific Ocean in mid 1990s. In 1995 New Zealand referred to the court for an a­ dvisory opinion on the execution of icj’s earlier decision concerning France, when the authorities in Paris were ordered to provide for an eia as a ­consequence of the general obligations implied by the precautionary principle in international law.375 The 1995 claim was New Zealand’s reaction to the French announcing their plans for underground nuclear tests, the harmful results of which would reach New Zealand is territory. New Zealand authorities argued that the planned underground nuclear testing should be considered contrary to international law if France fails to carry out an environmental impact assessment or if this assessment shows risk of significant damage to the marine environment.376 Although the icj ruled the case to be out of its jurisdiction, the judges’ dissenting opinions have been perceived by scholars and practitioners alike as confirming the precautionary eia obligation and reflected in a later icj advisory opinion.377 The original dissenting opinions argued for the recognition of the primary obligation of states to carry out environmental impact assessments for planned activities. This obligation was viewed as entailing the need to provide evidence that the planned activities would not result in transboundary harm.378 They also confirmed the customary character of Principle 21 of the Stockholm Declaration, which prohibits the use of or allowing for the use of state territory in a manner that is to cause significant damage beyond state borders.379 These

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376 377 378

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For a detailed discussion see: Malgosia Fitzmaurice, Contemporary Issues in International Environmental Law (Cheltenham 2009) 165. Other claims regarding the legality of nuclear tests include e.g. the joint cases of Australia v. France and New Zealand v. France, icj decision of Dec. 20, 1974, icj Rep. 1975, No 253, 253–274; New Zealand v. France, icj decision of Sept. 22, 1995, I.C.J. Reports 1995, 288–308. See also: New Zealand v. France, Request for an Examination of the Situation in Accordance with the Court’s Judgment in the Nuclear Tests Case, icj Reports 1995, 288–308 (hereinafter cited as: Nuclear trials case). The precautionary principle implied in this case is discussed in more detail in the following chapter. Nuclear trials case (n 373) 290; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 138–139. See supra 382 below. Judge Weeramantry dissenting opinion, Nuclear trials case (n 428) 317–362; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 138–139; Malgosia Fitzmaurice, Contemporary Issues (n 377) 21–22. Judge Weeramantry dissenting opinion, Nuclear trials case (n 428) 347; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 139; M. Fitzmaurice, Contemporary Issues (n 377) 21–22.

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observations were reflected in the 1996 icj advisory opinion.380 Referring to the question legality of the use of nuclear weapons, the court refrained from recognizing all nuclear tests as contrary to international law, yet it did confirm a general obligation resting upon states to ensure that activities within their jurisdiction and under their control are carried out with reverence of the natural environment of other countries and the space outside the jurisdiction of the state.381 The icj recognized this obligation as part of contemporary international environmental law, referred to by legal writers as the no-harm principle. This principle covers the primary obligation of states to ensure such use of their territory and resources that does not cause significant transboundary harm.382 Violating this principle results in a compensatory duty. Therefore states need to consider the environmental impact of activities within their territories and the interests of other states also when e.g. exercising their right to armed self-defense or using new technologies. While the relevance of due diligence in the application of the no-harm principle is discussed in more detail in the following chapter, it needs to be observed here that the assessment of state efforts on their eia obligation is to be made with regard to the standard of due diligence relevant in particular circumstances. The eia is a necessary element of due diligence required in activities posing a potential threat of significant harm to the natural environmental. Between 2006 and 2010 the icj decided on a case similar in its circumstances to that of the Slovak-Hungarian dam dispute at Gabčíkovo-Nagymaros, discussed above, yet one also touching upon the effects of new technologies on the future of natural environment. In the river mills case Argentina asked the icj to decide on provisional measures against Uruguay to halt the construction of river mills within Uruguayan territory. The construction of the mills would adversely affect the environment of the neighboring Argentina through contaminating the waters of the Uruguay river flowing within Argentinean borders. Argentina accused Uruguay of breaching its obligation of due diligence by failing to establish and implement measures necessary to protect the natural environment of the river.383 Such an obligation was implied by a bilateral treaty between the parties. Upon reviewing Argentinean claims, the icj offered a detailed analysis of the facts and many opinions of experts, using 380 See supra 377 below. 381 icj advisory opinion on the legality of clear weapons, icj Reports 1996, vol. 1, 241–242. 382 Roda Verheyen, Climate Change (n 32) 147; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 139. 383 Argentina v. Uruguay, icj Reports, 2010, (hereinafter cited as: Pulp Mills on the River Uruguay case), 3–4.

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the latest ­technology to determine the environmental impact of the disputed structure.384 The icj referred to the Gabčíkovo-Nagymaros dam case and pointed out that a state is responsible not only for its own actions, but is also under an “obligation of due diligence” applicable to the activities it controls.385 The bilateral treaty between the disputing parties included an obligation to protect the aquatic environment, which included the duty to prevent its pollution through appropriate policies and measures. The court read this obligation as “an obligation to act with due diligence in all the activities carried out in the jurisdiction or control of any party”.386 Due diligence includes therefore an obligation to act rationally and in good faith with the use of “best available technology” and reference to “best environmental practices”.387 It is a duty that requires not only the adoption of appropriate legislation, but also a certain level of vigilance in its enforcement as well as in administrative control over public and private entities, including monitoring their activities to protect the rights of the other party. As per the bilateral treaty a state was to bear responsibility when it had failed to act with due diligence, i.e. failed to take all necessary measures to enforce the relevant regulations with respect of public or private entities in its jurisdiction. Under the treaty the duty of due diligence in establishing and enforcing the law was reinforced by a requirement for any such rules and measures to be consistent with international agreements and, if appropriate, in accordance with the guidelines and recommendations of international technical bodies. Due diligence was therefore identified to mean both: compliance with international agreements and with internationally agreed technical standards, even ones without a legally binding character. The court interpreted the obligation to protect and respect the natural environment with reference to the practice of states and argued they considered it a principle of international law states need to carry out eias in cases where there is a risk that the “proposed industrial activity may cause significant adverse transboundary effects, in particular, in the common natural resource”. The icj pointed out that “the customary rule of international law incorporating the principle of precaution is derived from due diligence” required of a state in its own territory. 384 Pulp Mills on the River Uruguay case, 55–56. 385 Temporary order, Pulp Mills on the River Uruguay case (Argentina v. Uruguay), icj 2006, icj Reports 113, para. 72, 132, discussing the Gabčíkovo-Nagymaros case. Mirina Grosz, Sustainable Waste Trade under wto Law: Chances and Risks of the Legal Frameworks’ Regulation of Transboundary Movements of Wastes (BRILL 2011) 121. 386 Pulp Mills on the River Uruguay case, 58. 387 Pulp Mills on the River Uruguay case, pt. 101, 38; Mirina Grosz, Sustainable Waste… (n 386) 121; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (n 191) 148–149 emphasizing that this approach to due diligence allows for its flexibility reflecting the circumstances of a particular case.

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Referring to the Corfu case decision, discussed above, the icj pointed out that “it is the obligation of every state to not knowingly provide its territory for acts violating the rights of other states”.388 Therefore it is not to be considered a sign of due diligence and fulfillment of the implied obligation of vigilance and prevention when a state planning to implement a project which by its nature affects the river system or water quality, fails to provide on eia. The icj recognized therefore eia as a necessary element of due diligence. It also pointed out that when potentially harmful activities have been initiated, they need to be continuously monitored. Each state is obliged to determine in national legislation or in the course of the concession procedure the details of an eia required in such a case. These regulations should take into account the nature and scale of the project, its likely negative impact on the environment as well as the need to exercise due diligence in conducting such an assessment.389 When evaluating the actions of Uruguay in question, the court took into account the choice of the planned location in particular and whether this location was at all fit for such activity. It found that the poor choice of location was a threat to the environment and the ecosystem of the river. The obligation to prevent the contamination of the environment and the subsequent obligation of diligence bring with them the need for a careful analysis of the underlying technologies and their effect on the environment. Such an assessment should be made with consideration of the guidelines and recommendations of international technical organizations. A state must therefore use all means at its disposal to prevent actions that could be carried out on its territory or in any place within its jurisdiction and could result in significant damage to the environment in another state. Such a commitment “is a part of the canon of contemporary international law regarding the protection of the environment”.390

Due Diligence, Crime Prevention and International Terrorism

The question of due diligence is closely related to the scope of subjects whose actions can result in state responsibility. As the development of contemporary international law has shown, the old principle that states cannot be held directly responsible for the acts of private individuals who do not act in their 388 Pulp Mills on the River Uruguay case, 38 and 58. 389 Idem 58 and 61. 390 Pulp Mills on the River Uruguay case, 62, 65, 101, citing the icj advisory opinion on the legality of nuclear weapons, icj Reports 1996, vol. i, 242. See also: International Tribunal for the Law of the Sea (2001) Ireland v. United Kingdom (hereinafter cited as: mox power plant case) 33.

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authority or under their direct orders remains valid, yet it is accompanied by states’ obligation to ensure the non-harmful use of their territories. While the states are not to be held responsible for the actions of private companies or individuals operating within state territory, they must ensure the proper operation of their bodies authorized to supervise any risk-generating activity within state jurisdiction. This conclusion adds to the already ambiguous notion of ultra vires responsibility of states, the relationship between an individual and state bodies in the performance of acts contrary to international law. The question of state responsibility for the actions of individuals has been thoroughly discussed in the context of crime prevention and international terrorism. For the purpose of delimiting the scope of the due diligence obligation of states the conclusions originating from the line of adjudication in criminal law need to be briefly discussed. In recent years international courts have taken altering approaches to the concept of state supervision over the acts of individuals. This evolution is important in the light of the due diligence analysis provided here, as only when a state cannot be held responsible for the actions of individuals, can it be confronted with a claim for the lack of due diligence on the part of its organs in supervising such individuals. An attempt at identifying this thin line between state responsibility for own actions and the omissions of its bodies is made below, with reference to the leading cases on the notion of state control over individuals and its responsibility for their activities. The control that states must exercise over entities whose actions could be attributed to them have been discussed in e.g. the icj judgment on the US-supported guerrilla groups (contras) in Nicaragua.391 In 1984 Nicaragua filed a claim to the icj against the United States concerning their liability for military and paramilitary activities in the territory and against the authorities of Nicaragua.392 The Court, not unanimously, found that the United States actively supported the actions of the Unilaterally C ­ ontrolled ­Latino Assets (uclas)393 with the help offered by the us government, ­providing uclas with funding and logistic support from outside Nicaraguan territory.394 Assistance granted by the United States involved help in mining Nicaraguan seaports at the turn of 1983/1984 and was executed under the authority of the President of the United States by people paid for, instructed and authorized by United 391 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (hereinafter cited as: the Contras case), icj Judgment of 27 June 1986, 24. 392 The Contras case, 24. 393 cia used the acronym for the members of the contras it was collaborating with. The Contras case, 35. 394 The Contras case, 45.

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States officials. us helped also with ten other air, ground and sea strikes, made during the same period of time by the uclas.395 When authorizing the uclas to mine Nicaraguan harbors, the us government did not issue any warning for ships transiting the territorial waters of Nicaragua, which resulted in significant material damage and human casualties and in a subsequent rise of maritime insurance rates.396 Originally the attacks were attributed to the antigovernment guerrillas who were considered to be acting alone. Initially the us government kept its support of the contras secret but after a series of press articles, statements by representatives of us authorities and ultimately the decision of the Congress, which officially donated significant funding to “direct or indirect military or paramilitary operations in Nicaragua” in 1983, us support for the contras became an element of White House foreign policy.397 The performance of covert operations in Nicaragua was later also confirmed during a press conference by us President Reagan, a few days after one of the attacks on Nicaraguan harbours.398 Relying on us support, uclas caused considerable material damage, perpetrated killings, murders, kidnappings, acts of torture and rape. Nicaragua claimed that us exercised “effective control” over the contras, helping them strategically and tactically, to overthrow the Nicaraguan government.399 Protests from Nicaraguan authorities failed to change us policy. Nicaragua interpreted Reagan’s statements as confirmation of United States continuous and systematical assistance to mercenaries who carried out military operations against the government. The icj held however that the president’s statement was only a confirmation of us participation in the events and not an explicit acceptance of responsibility or confirmation of participation of us state service officers.400 395 The Contras case, 48–49. The ten attacks addressed by the court included events that occurred between September 1983 and April 1984 that included: the attack on the Sandino international airport in Managua by a Cessna aircraft; a repeated explosion of the underwater oil pipeline and part of the oil terminal at Puerto Sandino; an attack on oil storage facilities at Benjamin Zeledon on the Atlantic Coast; an attack was by air and sea on the port of Corinto, involving the destruction of five oil storage tanks, the loss of millions of gallons of fuel, and the evacuation of large numbers of the local population; attack by speedboats and helicopters using rockets against the Potosi Naval Base; El Bluff mine explosion and an attack on oil and storage facility at San Juan del Sur by speedboats and helicopters. 396 Idem 48–49. 397 Idem 21–22. 398 Idem 49. 399 Idem 21. 400 Idem 49.

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The icj judgment in the contras case introduced the test of “effective control” in the attribution of state responsibility for the actions of individuals. While dismissing Nicaraguan claims in their part related to direct us responsibility for human rights violations of guerillas, the icj relied upon a test of “effective control”, arguing that a state may only be held responsible for its “effective control” over such group and its actions, i.e. when it was able to indicate the way and manor of their performance. The icj observed that it were the contras who remain responsible for their acts, in particular the alleged violations of humanitarian law. The icj argued that “for this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed”.401 Effectively the us were found responsible for “planning, direction and support” of the guerrilla troops and their actions.402 Following a general principle of international law, a state is responsible for own actions and so in this case the us could be attributed with a “breach of its obligations under customary international law not to use force against another State”, an intervention into the affairs of Nicaragua, a violation of its sovereignty, interrupting peaceful maritime ­commerce and a breach of its obligations under the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956, all of which the us committed through exercising effective control over the uclas.403 This subjected us to international responsibility as the violations could not be committed by the contras without the control of the United States, yet the fighters were not considered us agents.404 Also, the us had violated international customary law by failing to make known the existence and location of the mines it had placed in Nicaraguan waters.405 401 The Contras case, 64–65. The icj argued that: ‘United States participation(…) in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself (…) for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in ­Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State’. The Contras case, 64–65. 402 Idem 50. 403 Idem 147–150. 404 Idem 64–65. 405 Idem 137.

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The contras case decision confirms the principle of state responsibility attributed solely on state acts, yet indicates that it may arise also in case of damages caused by individuals not directly acting on state orders and, simultaneously, not based on state omissions, i.e. also when the state ­effectively, but not directly, controls such harmful activities. The contras case decision might therefore be viewed as the missing link between state responsibility for acts prohibited by international law and international liability, placing “effective control” as basis for attributing harmful activities performed under the control of the state, not just ones following state omission. In legal writing however the effective control test is usually set against the significantly different approach to state responsibility for the acts of individuals represented by another international court almost two decades later.406 A similar question – one on state responsibility for acts of individuals – was the focal point of a decision by the International Criminal Tribunal for Crimes in the former Yugoslavia (hereinafter: icty) in the 1999 Tadic case.407 It needs to be emphasized that the issues tackled by the two courts differed significantly: while the icj was looking at us responsibility for the breach of international law, the icty has been set up to deal with international criminal law and the international responsibility of individuals for grave violations of international law. With this significantly different task faced by the two courts in mind, some general observations on the approach to state attribution with individual actions can be made. In the Tadic case the main task of the court was confined to determining if the conflict during which the grave human rights violations charged to Dusko Tadic took place, was of international or of internal character. Deciding the case of an alleged violation of humanitarian law was only possible after having made a reference to the standards of international ­responsibility of states. The icty thereby introduced a test of overall control, reflecting recent case law and state practice, as applicable to state responsibility for the actions of individuals and groups. Effectively the court introduced a concept competitive to that of effective control, fundamental to the icj 1986 contras case decision. The theory of overall control can be viewed as strictly limiting the variety of situations when states can be held responsible for the actions of individuals that they support or accept, although was not introduced in the course on the debate on state responsibility of states but solely to determine the applicability of international humanitarian law in the 406 icty Trial Chamber, Prosecutor v. Tadic Judgment, 7 May 1997, Case No. IT-94-1-T, (Tadic case judgment) 156; icty Appeal Chamber, Prosecutor v. Tadic Judgment, July 15, 1999, case no. IT-94-1-A (Tadic case appeal). 407 See supra above.

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case presented to the court, as per the mandate assigned to it. Considerations of the icty were therefore made for a different purpose than the one of the contras case. The court examined the question of criminal responsibility of the accused, Dusko Tadic, a member of paramilitary forces behind inhumane acts and cruel treatment, rape, murder and torture of Muslims detained in internment camps at Omarska, Trnopolje and Keraterm in the district of Prijedor, in Republika Srpska, currently within the territory of Bosnia and Herzegovina.408 He was convicted of crimes against humanity, violations of the Geneva Conventions and customary law of war.409 In its decision the court referred to the test of “overall control” regarding state responsibility for individual actions.410 It pointed out that according to the norms of international law assigning state with responsibility for the actions of individuals requires the state to have exercised a particular type of control over individuals and activities. The level of such control can vary, depending on the circumstances of the case and does not always need to be high.411 Yet the level of control that would allow for the assignment of state responsibility for the actions of armed forces to Yugoslavia, would be the level of “overall control”, demanding from the authorities not only providing funding and ­equipment to the individuals, but also state participation in the planning and supervision of their activities.412 With that in mind the icty limited the scope of individuals whose actions may incur state responsibility to only such groups, which are entirely controlled by the state that is whose every member follows state ­instructions.413 Effectively, the evolution of international jurisprudence is viewed as significantly restricting the scope of individuals whose actions may be imputable to the state, this enhances the chances of state responsibility for omissions of their authorities, including insufficient diligence in overseeing activities within state jurisdiction and control. This is particularly the case since 2007, when the icj reflected on the overall control test from the Tadic case in its assessment of the Bosnian genocide in Srebrenica.414 Again, this was not a strict state responsibility case, as the court 408 409 410 411 412 413 414

Tadic case judgment, 3–4. Tadic case appeal, 74–75. Idem 48–49. Idem 48. Idem 48. Idem 49. icj, Bosnia and Herzegovina v. Serbia and Montenegro – Application of the Convention on the Prevention and Punishment of the Crime of Genocide Judgment of 26 February 2007 (hereinafter cited as: Bosnian genocide case).

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was tasked to determine whether the Convention on the Prevention and Punishment of the Crime of Genocide could be applied to the crimes committed by Serbs against Bosnian Muslims during the war in former Yugoslavia.415 Bosnia and Herzegovina filed a request with the court for it to assess the possibility of applying the convention to Serbia with regard to its role in the massacre. The icj ruled that the massacre in Srebrenica constituted genocide as per the Convention and therefore the treaty can be used to resolve the dispute. The court also pointed out, though not unanimously, that the young Serbian state could not be held internationally responsible for the breach of the provisions of this convention, as Serbia was neither directly responsible for the genocide in Srebrenica nor for complicity thereto as per Article iii of that treaty. With that the court echoed and reaffirmed the overall control test from the Tadic case, according to which Serbia was to bear international responsibility for individuals only if the representatives of state authorities had given them direct instructions to commit crimes or participated in them, which was not the case here.416 The court held however that Serbia committed a violation of the treaty by failing to take action to prevent the massacre and to cooperate with the icty on putting those directly responsible for the event to justice, most notably general Ratko Mladic who has successfully fled law enforcement for numerous years. This interpretation allowed to attribute the state with international responsibility.417 Looking to due diligence as crucial for the resolution of the dispute, the court stated that the obligation in question concerns the need for a state to take certain actions, rather than achieve a certain result. One can therefore not reasonably expect from authorities of the state to prevent genocide, ­regardless of the circumstances, yet it is their duty to take all reasonable and possible action aimed at preventing such grave event. A state is therefore not to be held responsible simply because it has not achieved the expected result, i.e. has not been adle to successfully prevented such violations, but rather for having demonstratively refrained from taking any action to prevent it even when appropriate measures could have been taken and their adoption would have helped to prevent the crime. Verification of the degree of care shown by the state must therefore be carried out with reference to the particular circumstances of the case, yet should rely on three criteria. First, a validation of the actual possibility of effectively affecting the behavior of individuals capable of committing 415 Convention on the Prevention and Punishment of the Crime of Genocide, unts, vol. 78, 277. 416 Bosnian genocide case, 127–128, 230–231, 240. 417 Idem 229–230.

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or having committed the crimes needs to be assessed.418 This assessment can vary considerably depending on e.g. the characteristics of the country where it is carried out. Its outcome depends largely on the physical distance between and government and the place of the crime as well as from the effectivness of political authority and other relations between the authorities and the actors of the events.419 The second criterion of due diligence relies on the interpretation of international law norms applicable in a particular factual situation as it is only based on their content that authorities are able to carry out the obligations incumbent on the state. Their actual ability to influence the course of events within the state is dependent on the particular legal rules with regard to events and persons posing a threat to the interests protected by international law. With that in mind it remains without merit whether state authorities claim or even prove that if they had taken all rational measures in their disposal they would have been unable to prevent the genocide. Regardless of the difficulties in assessing any such proof, it holds no value for the case in question. It cannot be ruled out that the combined efforts of several countries, each of which would have met its own commitment to prevent the crimes, could have helped to prevent genocide, even if this could not be achieved by a state acting alone. Thirdly, a state can be held internationally responsible only if the violation of international law, in the given case – the act of genocide, was actually committed.420 A breach of an international obligation occurs when the crime only begins to be committed, which does not mean that the obligation arises only when preparations for its commission are initiated. The obligation to prevent violations and the corresponding duty to take active measures to prevent it arise at the moment when state authorities become aware of or should have, under normal circumstances, learnt about a serious risk of crime being c­ ommitted. From this moment on if the state disposes of means that can contribute to stopping the suspected preparations to a violation or there is reasonable suspicion that there are individuals intending to commit it, the state is required to use the resources at its disposal to prevent the crime, acting as circumstances permit. If however the crime is not committed, a state that has failed to act cannot be held responsible for its inaction as according to the rule set out above, there must be a criminal conduct of individuals for a state to be considered in breach of its duty of prevention.421

418 419 420 421

Idem 221. Idem 221. Idem 221. Idem 222.

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The above-mentioned cases of Tadic and the Bosnian genocide show that the general obligation of states to prevent violations of international law carried out within their jurisdiction or control and the principle of due diligence describing its content play an important role not only in international environmental law, where they already hold a well established position, but also in human rights law or in the implementation of the principle of sovereign equality of states. Due diligence of authorities in meeting their international obligations, including the prevention of harmful individual actions, carried out on their territory or under their control, complements the notion of state responsibility. It can be argued that while the narrow perception of state responsibility for the actions of individuals, as per the overall and effective control doctrines of international courts, limits direct state responsibility to only those harmful events which follow a direct order from state authorities, the principle of due diligence, one well defined in the jurisprudence presented above, fills the existing gap in the law on attribution of state responsibility. When an individual action cannot be attributed directly to a state as it lacks control over it, be it effective or overall, states can be held responsible for harmful results of omissions. Even if they have not instigated the harmful actions or state participation is impossible to prove, the notion of state responsibility for lack of due diligence in preventing a harmful event can be used to attribute international responsibility to that state for not having taken appropriate action in order to prevent it. With that in mind, as per the existing jurisprudence, the principle of due diligence can be viewed as a universal and flexible tool against states tolerating individuals inflicting damage within or outside state territory.

Role of Due Diligence in Contemporary International Jurisprudence

The evolution of international jurisprudence described above indicates that the lack of state responsibility for actions of private individuals, located within state territory or under state jurisdiction, is the broadly accepted principle of international law. At the same time the practical application of this principle is subject to significant restrictions resulting from the notions of state responsibility for omissions of its organs or persons acting under its authority. A unique role is played here by judicial bodies and law enforcement, as in situations where they fail to provide protection to foreign interests or individuals a state may be held to international responsibility for failing at its obligation to protect the broadly perceived sovereignty of other states and the security of their citizens or representatives.

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While initially state responsibility focused on cases of denial of justice, the strait of Corfu case introduced a broader notion of state responsibility for the failure of its bodies, requiring them to take active efforts to protect countries whose interests and security are vulnerable to damage originated in state territory. The scope of this positive obligation to protect foreign interests has been subject to modifications and significantly broadened following the Janina incident case or that of diplomatic representatives of the American hostages in Tehran. Although the notion of state responsibility for the acts of state organs or persons acting under their control has been limited as per the decisions in the contras and Tadic cases, the positive obligation of prevention was broadened with the development of international environmental law and the Trail smelter and Sandoz incident cases. The principle of due diligence therefore holds a fixed place in the contemporary law of state responsibility and implies a state obligation to take all necessary measures, expected of a good government in given circumstances to prevent any harm done to other states or their citizens. The criterion of a “good government” is to be perceived objectively, with reference to best international practice and best available technology. The duty to prevent others harm is particularly well defined in international environmental law, where it includes e.g. the duty to perform eias before starting any activities that might hold the risk of significant third party harm.

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State Responsibility, International Liability and Due Diligence – A Critical Analysis

Introductory Remarks

Due diligence needs to be discussed in the context of the law of state responsibility as recognized in international law. An in-depth discussion on the perplexities of state responsibility goes far beyond the scope of this book, yet its basic characteristics need to be briefly covered in order to set the background for the principle of due diligence in international law. It is not the intention of the author to clarify all the controversies well present in international law and practice regarding state responsibility but only to discuss those that serve as the background for the duty of due care endowed upon states with the rules of international law. In order to do so the status quo of state responsibility, one of the more controversial areas of international relations, must be referred to. With that objective in mind, many significant notions of state responsibility will be covered only in as far as it is necessary for this intended purpose.1 The following analysis of international practice, describing the rules of international responsibility of states, reflects the evolution of this particular area of international law. It covers the discussion on this topic in interna­tional discourse, originating from state responsibility for the violations of international law committed by state bodies all the way to international liability for acts not prohibited by international law – one of the newest additions to the vast catalogue of items on the ilc state responsibility agenda. The starting point for this evolution should be put down to the work of the League of Nations and its successor, the United Nations. They both devoted much effort to identifying the principles of state responsibility for acts prohibited by international law. These considerations are therefore the starting point for the discussion presented in this chapter. The un endowed the ilc with the task of 1 Some of the issues that have not been thoroughly covered in this volume include the notion of “state bodies” and the scope of its practical application, the theory of state control or the notion and scope of retaliatory measures. Also the question on the legal status of internal unrest and riots, usually discussed separately when state responsibility for the actions of individuals is at stake, is left outside the main focus of this book and discussed only in so far as state is responsible for lack of due diligence in preventing the effects of such events is concerned. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004325197_004

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carrying on with state responsibility research left off by the League of Nations. The ilc members soon decided that the relatively narrow notion of state responsibility was insufficient to address all the issues at hand and introduced a second thread on their agenda, one that dealt with the question of the limits of international liability for the injurious consequences of actions not prohibited by international law. This evolution as well as ilc logic behind its introduction are the focal point of this chapter as they reflect the evolution of international law on the subject, with e.g. the ilc identifying detailed state obligations derived from the principle of prevention, fundamental to international liability for transboundary harm. Within this context the author follows the evolution of the state duty to act with due diligence in preventing significant harm to third parties originated from within state jurisdiction or by individuals under state control. It is argued that due diligence, common to both accountability regimes: that of state responsibility and that of international liability, makes the ilc instigated dichotomy ill-founded. The two regimes should rather be perceived as complementary with the shared criterion of due diligence serving as the necessary link between them.

League of Nations and State Responsibility

Until the 20th century state responsibility enjoyed little attention from international legal scholars.2 As discussed in the previous chapter, early international writers focused on the accountability of kings, princes and communities rather than on dogmatic concepts justifying state responsibility in international law. 20th century writers also devoted little attention to the notion, often not considering it worthy of a separate chapter in an international law treatise.3 The Westphalian order, focused on the concept of raison d’etat, strongly influenced the agenda of the League of Nations, also with regard to state responsibility research. Although in 1924 the League of Nations did put state responsibility on its agenda as independent of all other issues in international law, its research went no further than the analysis of the duty of compensation regarding damage caused to foreigners within state territory.4 It was in 1924 2 Ian Brownlie, System of the Law of Nations (introduction, n 25) 2. 3 Ian Brownlie, System of the Law of Nations (introduction, n 25) 7. 4 League of Nations, Official Journal, Special Supplement 1924, 10; reprinted in First Report of the Special Rapporteur on State Responsibility Roberto Ago, 1967, u.n. Doc. A/CN.4/217, att. 6 (hereinafter cited as: Ago’s first report, u.n. Doc. A/CN.4/217) , pt. 32, 142; Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter I, n 476) Symposium on the ilc’s State ­Responsibility

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however that the League of Nations took on a bigger challenge, one that necessitated an in-depth state responsibility discussion. It set up an expert committee tasked to coordinate the work on codification of international law. The 1930 Hague Conference was to be devoted to codification of international law and became the first ever meeting of government representatives on this topic.5 The themes that were to become the subject of discussion during the conference and considered suitable for codification included citizenship, territorial waters and, as already mentioned, state responsibility for damage caused to foreigners or their property in state territory.6 During the second session of the conference held in Geneva in 1926 the committee of experts listed seven individual themes as possible parts of its final report including state responsibility for alien damage. This approach was supported by the majority of the League of Nations members, with only four states arguing against developing a treaty on the issue.7 Crucial to this discussion was the Guerrero Report, issued as auxiliary material to conference participants, a 1926 document named after the chairman of the subcommittee of experts on progressive codification of international law who had presented it.8 Yet despite the broad approach to codification of international law taken on by the League of Nations, the debate on state responsibility went no further than alien claims. The standard for state responsibility proposed within this draft was based on the presumed lack of state responsibility for damage caused to a foreigner by a state representative whose actions exceeded the powers laid down in national law.9 This presumption did not cover three exceptional situations: (1) state failure or delay in preventing pending damage it had been informed of; (2) harmful acts of state officials which have not been immediately subjected to court proceedings following national law and (3) lack of local legal remedies available to

5 6 7 8

9

Articles: Introduction and Overview, American Journal of International Law 2002, No 96, 776–777. Hunter Miller, ‘The Hague Codification Conference’ (1930) 24 ajil 674. Idem; Edwin M. Borchard, ‘Responsibility of States’ at the Hague Codification Conference’ (1930) 3(24) ajil 517–540. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 33. The report of the Sub-Committee of the Committee of Experts for the Progressive Codification of International Law of the League of Nations (hereinafter cited as: Guerrero report), u.n. Doc A/CN.4/96, att. 1. Hunter Miller, The Hague Codification Conference, American Journal of International Law 1930, No 24, 674; Edwin M. Borchard, Responsibility of States…, (Chapter I, n 473) 517–540. Guerrero report, para. 4, 174 and 221; Edwin M. Borchard, ‘Theoretical Aspects of the International Responsibility of States’ (1929) 1 Heidelberg jil 223–250.

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foreigners in cases of material damage or denial of justice.10 The experts summarized their work in three documents: the Guerrero report, a plan of discussion points (“Schedule of Points”), and the “Bases of Discussion”, covering 30 state responses to the points of discussion, with state responsibility covered briefly in the last document.11 The key question was on state responsibility for the actions of private individuals harming personal or property rights of a foreigner within state territory. The expert committee indicated that state responsibility in such circumstances should be limited to cases when state authorities failed to do “what is in their power” to preserve order and prevent crime or to grant “reasonable” protection of person and property. State responsibility was to arise when a state failed to show “reasonable diligence” of its judiciary and punish perpetrators of the violations.12 The committee asked state parties to take a stance on the question of responsibility attribution: whether the state at fault needed to direct its action against the foreigner or whether it was sufficient to simply attribute it with responsibility based alone on the harmful omission of its organs. The wording of the questions indicated that state responsibility cannot originate solely from individual acts of state citizens. State responsibility was to be attributed only in cases of state omissions resulting in damage to a foreigner. This assumption was confirmed by the 23 state responses addressed to the committee, although only ten of them clearly indicated that there was a special obligation of states to ensure protection of foreigners. States representatives indicated that international responsibility could be attributed only where there was a breach of a state obligation to ensure the safety of a foreigner, with e.g. Germany clearly stating that under the principle of international responsibility states are responsible for their own disregard for international law.13 Consequently, state responsibility was to result only from omissions of state bodies, never solely from the actions of private individuals. Damage caused to foreigners by private parties could result in state responsibility only if state authorities violated international law by ignoring their obligation to protect foreigners in a given situation. Even in such a case however, it was not the individual action that gave rise to state responsibility but rather the omission of its bodies. Some discussants indicated that a state is to be held responsible only if the damage is due to the fact that a duly authorized representative of that state failed to take steps that should have been taken with due diligence to prevent and/or punish the malicious ­actions.14 Others 10 11 12 13 14

Guerrero report, para. 4, 174. Edwin M. Borchard, Responsibility of States…, (Chapter I, n 473) 517. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 92, 107. Ago’s fourth report, u.n. Doc. A/CN.4/264, 107. Ago’s fourth report, u.n. Doc. A/CN.4/264, ftn. 160, 107.

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indicated however that a state is not to be held responsible for the wrongful actions of individuals directed against foreigners as only a faulty action on behalf of the state itself, not an act of a private individual, can justify state responsibility.15 State representatives gave comprehensive answers to each of the selected issues put for debate and the discussion on state responsibility was culminated with the Hague conference, which intensified the work and resulted in a number of studies and draft conventions, prepared by national research institutions and authorities – distinguished international scholars offered their positions on limits of state responsibility. It was e.g. Harvard’s Manley O. Hudson whose work strongly influenced the draft convention on state responsibility proposed in 1929 by Harvard faculty members. This work was later used also by the ilc for its Draft convention on responsibility of states for damage done in their territory to aliens and their property, which covered the issues of diplomatic protection and denial of justice.16 Each of its articles was accompanied by a commentary including references to treaty provisions, court decisions and international practice on the individual issues discussed.17 At the same time similar questions were addressed by the Institute of International Law (iil), whose members adopted Draft articles on international responsibility of states for damage caused in their territory with respect to aliens and their property.18 The iil covered issues of international responsibility, principles of attribution and harmful consequences of non-compliance with international law.19 In 1926 a Draft code of international law was also submitted by Japan covering “the principles of State responsibility for the life, person and property of aliens” and including a brief description of rules governing state responsibility for a breach of duties towards foreigners.20

15 16 17

18 19

20

Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 93, 107. Ago’s first report, u.n. Doc. A/CN.4/217, 142. Ago’s first report, u.n. Doc. A/CN.4/217, 128. Authorized by the ilc, the team updated and substantially modified the project before its publication as the Draft Convention on International Responsibility of states for damages incurred by foreigners. See: Harvard Law School, Draft Convention on the International Responsibility of States for Injuries to Aliens [reprinted in:] Ago’s first report, u.n. Doc. A/CN.4/217, 128, att. vii. pp. 548–584. Ago’s first report, u.n. Doc. A/CN.4/217, 128, att. iii. iil abandoned the issue shortly after, only to reengage in the responsibility debate in 1956 with a resolution on the principle of exhaustion of local means and again in 1965 with one on the national nature of international claims and the question of individual damage caused by a state. See: Ago’s first report, u.n. Doc. A/CN.4/217, 128, att. v. K. Gakkawi, ‘Rules Concerinng the Responsibility of a State in Relation to the Life, Person and Property of Aliens’ (1926), reprinted in the International Law Association, Report of the Thirty-Fourth Conference, 1927, 382–383.

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All those documents recognized the notion of state responsibility and strongly tied it to the acts and omissions of states, yet perceived it as limited to damages done to foreigners, lacking any more in-depth perspective on the issue, including any analysis of the very question of state responsibility for omissions. Predictably, due diligence was also not in focus of the early state responsibility debates. As already mentioned, the League of Nations expert committee relied in its work on the responses received from states to the “Bases of Discussion”. The document covered, among other, questions on the scope of state responsibility for damage caused to foreigners by individuals as a result of states failing to show due care in protecting the individual and property as expected from a civilized state in given circumstances or required by their unique status, e.g. a diplomatic one.21 This assumption brought with it the questions of measures required from a state in order to identify and punish the culprit, with little attention given to prevention or compensation.22 The committee made suggestions regarding the intention of the individual causing the damage and pointed out that the scope of state responsibility depended in particular on whether the harmful action was directed against the foreigner. The majority of states confirmed that the legal status of the injured foreigner impacted state responsibility, with higher standards required for protecting particular categories of individuals or commodities, as specified in international treaty and custom. A state was therefore to bear international responsibility only when it had failed to fulfill this unique duty of care.23 Some states claimed that the attack on the representative of the sending state cannot determine the responsibility of the host country. They did comply with the majority view that a state holds international responsibility for individual actions performed within its territory when it had failed to take appropriate steps to prevent such harm and thwart the efforts of the perpetrators while acting in good faith and having been informed of such harmful activities. These dissenting few found however that state should not bear responsibility as an “accomplice” to the harmful deed even if it failed to show “all the appropriate diligence”.24 A state was therefore not to be held responsible for the actions of individuals, but 21

22 23 24

Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 94, 107; See also: First Report of Special Rapporteur F.V. García Amador, 1956, u.n. Doc. A/CN.4/96, att. 2 (hereinafter cited as: García Amador’s first report, u.n. Doc. A/CN.4/96). Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 94, 107; See also: García Amador’s first report, u.n. Doc. A/CN.4/96. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 95, 108. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 95, 108.

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rather only for its own omissions or negligence, which in a given situation can be considered contrary to the content of its international obligation. When summarizing the positions of the parties, the expert committee pointed out that a state is responsible for damages suffered by a foreigner only if those are a result of state organs failing to show such diligence in protecting his interests, which in given circumstances and having taking into account the status of the protected persons could have been expected of a civilized state. This particular duty of “vigilance” originated from the special public status of the foreign individual, appointed as a formal representative of his country.25 This observation put the issue of due diligence on the agenda of the League of Nations expert committee, yet its scope and practical application were narrowed down to a limited category of damages and particular circumstances in which such damage could occur. The Hague conference covered also the questions on the burden of proof when it came to state responsibility for harm inflicted onto foreigners. Only six states spoke in favour of the inverted burden of proof as applicable in cases where individuals are members of a revolutionary movement or when the injury occurs during riots. In such situations the government needs to prove that its authorities showed due diligence in preventing the damage rather than to expect from the victim to prove the violating state’s role in the occurrence of harm. Some parties proposed that in such unique circumstances the state ought to be liable regardless of the type of action taken by its governing bodies, while others argued for the opposite, finding the reversed proof of fault not necessary even in the case of internal unrest, claiming general principles of state responsibility for the actions of private individuals applicable.26 Based on the comments received, the expert committee found that a state was to be held responsible for damage caused to foreigners or their property by rioters, if their actions were aimed directly at foreigners or persons of a particular nationality, unless the authorities of the state prove that their bodies were not negligent in preventing such harm.27 The discussions were summarized to indicate that a state should be held responsible for damages caused to aliens and their property by private individuals if it had failed to take preventive measures or i­ mpose criminal penalties, which under the circumstances would be expected.28 This 25 26 27 28

Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 96, 108; García Amador’s first report, u.n. Doc. A/CN.4/96. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 98, 108. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 98, 108. García Amador’s first report, u.n. Doc. A/CN.4/96, 124, 126. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 99, 108.

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observation set due diligence in preventing alien damage as an important criterion for responsibility attribution. In the course of the League of Nations’ debates two divergent approaches to state responsibility emerged. One of them, based on the findings of the expert commission, indicated that in certain circumstances states are required to provide foreigners with protection more effective than one granted to own nationals. Those opting for the opposite view argued for equal protection of foreigners and own citizens, with some of the conference participants clearly shunning the observations of the committee. Proponents of the first understanding of state responsibility argued for introducing a “minimum standard”, a notion still subject to a lively discussion today, one focused on the status quo of international relations and a bone of contention in the Hague, deeming any compromise unattainable at that time. The minimum standard of care was to introduce a level of protection granted to all foreigners against having their rights violated within the state of their domicile. The minimum standard has been an eagerly debated element of the human rights discourse with regard to the rights of citizens and nationals. As explained by Shelton: “the international minimum standard only applies to foreign nationals and gives rise to international responsibility when breached”, while also observing that this rule, implying states not being internationally responsible for the treatment of own nationals, has now been largely abandoned.29 Shying away from a broad consensus, the League of Nations participants rejected even the moderate Italian proposal, suggesting states ought to be held responsible for damages done to foreigners and their property by private individuals only if their authorities had manifestly failed to take preventive measures considered required under particular circumstances.30 Also other narrow approaches to state responsibility principles were rejected, including one proposing to hold states responsible for damage caused to aliens and their property by individuals only when such damage resulted from a state failure to take such steps as normally taken in given circumstances in order to prevent injury, ensure compensation or punishment of the perpetrators.31 Effectively, the first international conference on state responsibility proved to be a failure. This was due to a set of circumstances. First and foremost, the work of the Hague Conference was confined to investigate the nature and content of the duties of states with respect to aliens and their property. Its focus did not reach beyond this narrow perception of international responsibility. Likely it was this 29 30 31

Dinah Shelton, The Oxford Handbook of International Human Rights Law, oup 2013, 255. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 99, 109. Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 99, 109.

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particular issue – the too narrow of a research – that was the reason behind its failure. A task that was specified too precisely and thus too difficult to implement. Moreover, any proposed compromise failed to justly reflect the majority view presented in the room.32 The conference fiasco was followed by a continuing standstill in this area of international relations: a committee on state responsibility called to life after the Hague conference met 17 times between March and April 1930 and despite the support provided to representatives of 42 countries by the conventions committee and three subcommittees, the meetings ended with a declaration of inability to achieve consensus on a state responsibility treaty.33 The only substantial document achieved by the League of Nations in its extensive work on the issue at hand was a set of ten draft articles adopted at the end of its 1930 meeting. Regardless of this modest progress in international legal scholarship, the League of Nations’ efforts constitute the first ever attempt to identify the rules of state responsibility and adopt a treaty on the subject – a goal still out of reach for international law scholars and diplomats today. Yet significantly to the argument made here, even these first deliberations on state responsibility made by the League of Nations covered due diligence as a primary prerequisite for attributing state responsible for the omissions of state bodies. Due diligence has therefore always been a notion crucial to the contemporary concept of state responsibility in international law and it was the work of the League of Nations that had marked its place on the state responsibility agenda. Even though it had failed in completing its task, the attempt at codification reflected the approach of states on the issue of international responsibility. The prospected treaty was meant as descriptive of the rules on state responsibility for damage caused to foreigners reflected by the well documented practice and jurisprudence in international law. This narrow approach to state responsibility – one focused on a single, controversial and versatile issue of damage to aliens – contributed to the fiasco of the conference, as participants sought to resolve general issues of responsibility by referring to the detailed rules on damages caused to foreigners, yet was a learning experience for its followers. While this perspective was deemed to fail, the League of Nations committee covered also questions on e.g. the appropriate measures taken by states to avoid international responsibility for lack of due diligence in protecting the interests of foreigners present within their territories.34 Those lessons proved invaluable to the work of the ilc under the United Nations as observed by Roberto Ago in 1969. He argued that the Hague drafters 32 33 34

Edwin M. Borchard, Responsibility of States…, (Chapter i, n 473) 517. Edwin M. Borchard, Responsibility of States…, (Chapter i, n 473) 517. Ago’s fourth report, u.n. Doc. A/CN.4/264, 100.

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made a crucial error by excessively focusing on a s­ econdary issue of alien damage, which made it impossible to identify the general rules on state responsibility, a subject reaching far beyond the initial narrow scope discussed in the Hague. Roberto Ago suspected that if the conference participants had given up on a detailed compromise and focused on general principles, compromise would have been at hand.35

The International Law Commission on State Responsibility Principles

The United Nations took over from the League of Nations in identifying and codifying the rules of international responsibility. As soon as 1949, during its first meeting, the ilc recorded the issue of state responsibility among its priorities. The ilc inherited League of Nations’ legacy of research on the rules of international responsibility of states and managed to stay clear of the mistakes of its predecessor. At the stage of identifying its research topic it distinguished between the general issue of state responsibility for violations of international law and the particular question of alien damage, defining the latter as one of many elements in international practice on state responsibility.36 In 1953 a Cuban ilc member, F.V. Garcia-Amador, was first to indicate the need for research on and possible future codification of the rules of international state responsibility. Following his statement the ilc was mandated to investigate the subject matter which proved to be no easy task – it took over 30 reports by six Special Rapporteurs over 48 years to development draft rules on state responsibility formulated in a way acceptable to the majority of countries represented in the Sixth (legal) Committee of the un General Assembly.37 Aware of the caliber of the challenge the ilc, once mandated to investigate state responsibility, initially decided to postpone its work, claiming other pressing issues. It was only two years later that García-Amador was appointed the Special Rapporteur on state responsibility. During the following six ilc meetings, between 1956 and 1961, F.V. García-Amador presented six successive reports, repeatedly summarizing the status quo on state responsibility for alien damage.38 He chose this section of the researched s­ubject 35 36 37 38

Ago’s fourth report, u.n. Doc. A/CN.4/264, pt. 100, 109. Summary Records and Documents of the First Session, 1949, u.n. Doc. A/CN.4/Ser.A/194, 49–50. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 777. García Amador’s first report, u.n. Doc. A/CN.4/96, García Amador’s second report, u.n. Doc. A/CN.4/106; García Amador’s third report, u.n. Doc. A/CN.4/111; García Amador’s

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as it was the best documented work of the League of Nations and gave a good starting ground for further work.39 Even with such head start, relying on the background provided by the League of Nations, the Special Rapporteur initially failed to present a draft acceptable to all, possibly due to both: the increasing role of human rights law and his strong inspiration with Grotius’ theory of fault. His detailed references to varying regimes on state responsibility were scarcely incorporated in the final project of the ilc draft articles. What is more, F.V. García-Amador put much emphasis on state responsibility originated by the law of diplomatic relations, which led to certain disputes within the ilc itself.40 It was in 1957 that he presented his second report, which contained the original draft of the Articles of state responsibility for damage caused to foreign individuals and interests.41 Its Article 10 covered state responsibility for lack of due diligence, as it introduced state responsibility for damage caused to foreigners by “ordinary individuals” if state representatives have shown “blatant negligence” in applying measures normally taken by authorities to prevent particular harmful acts or to punish them.42 It detailed the general principles of state responsibility for acts of individuals, including cases of internal unrest.43 Although the due diligence rule was inferred from the undisputed principle of state responsibility for omissions of its organs, i.e. for their failure to take steps to prevent damage, its wording showed too precise and it was long before the ilc devoted much attention to this part of the draft. In 1961 the un General Assembly upheld the ilc mandate to further examine the rules

39

40 41 42 43

fourth report, u.n. Doc. A/CN.4/119; García Amador’s fifth report, u.n. Doc. A/CN.4/125; García Amador’s sixth report, u.n. Doc. A/CN.4/134. See: Report by Mr. Roberto Ago, Chairman of the Sub-Committee on State Responsibility (hereinafter cited as: Ago’s sub-committee report), u.n. Doc. A/CN.4/152, 228, where the Rapporteur critiqued García Amador’s methodology. In 1963 the sub-committee advised the ilc to focus on the general principles of state responsibility Rather than one particular regime that included state responsibility stipulations. Too detailed of an analysis was deemed too abstract from the general principles shared among various treaty regimes providing for state responsibility and thus applicable in all circumstances. Report of the International Law Comission on the work of its Fifteenth Session, 1963, u.n. Doc. A/CN.4/163, 1963, u.n. Doc. A/CN.4/163, pt. 5, 228. This practical recommendation was put into practice by Special Rapporteur James Crawford, whose work is discussed further herein. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 777. García Amador’s second report, u.n. Doc. A/CN.4/106, 1957, 128. García Amador’s second report, u.n. Doc. A/CN.4/106, 1957, Article 10, 121. It included an elaborate explanation of the ‘principle of due diligence’, covered in more detail herein below. See: García Amador’s second report, u.n. Doc. A/CN.4/106, 121–123.

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of state responsibility, although urged it to take a different course of action. The focus on foreign harm again showed futile and so the experts requested a newly created subcommittee to support the work of the ilc on this issue. It was headed by an Italian, Roberto Ago, who was to replace F.V. García-Amador as the Special Rapporteur on state responsibility. His task was to provide the Commission with suggestions as to the scope and manner of conducting further research on the responsibility of states. Roberto Ago suggested departing from the detailed analysis of responsibility for damage to foreigners and focusing on general rules of state responsibility as applicable in all areas of international relations. It was this focus that was presented in his 1963 report. With it the ilc departed from the detailed focus on state responsibility as originated by alien damage and instead began drafting a general regime for state responsibility – a course the ilc was to follow for the next five decades. Effectively, examples from different areas of international law were analyzed and summarized in a sequence of comprehensive, generally formulated rules.44 Particular attention was given to the effects that the development of specific areas of international law had on state responsibility.45 To narrow the scope of research, initially the questions of international responsibility of non-state actors were abandoned. During the 1963 session the General Assembly mandated the ilc to follow the subcommittee report, with particular reference to the objectives and principles of the un Charter.46 But also these changes in the ilc agenda failed to bring prompt results, with the un General Assembly requesting the ilc to promptly take “every effort to begin substantive work” in 1967.47 It took nearly 20 years for the ilc to set up their state responsibility enquiry, indicating just how challenging this area of international law and international relations is – even setting the research approach was a difficult exercise in consensus seeking. The ilc, by that time led by Roberto Ago’s introduced a novel and ground breaking distinction between primary and secondary rules of international law, where the principles of state responsibility were to be considered general, secondary rules of international law with respect to those identified in treaties or customary international law in all its areas. There latter were to be considered primary rules of international law with their detailed stipulations on e.g. the protection of foreigners, diplomatic relations or the law of treaties. A breach of an obligation set within a primary rule of international law would trigger the application of secondary rules on state responsibility for the breach 44 45 46 47

Ago’s sub-committee report, u.n. Doc. A/CN.4/152, 227–228. Ago’s sub-committee report, u.n. Doc. A/CN.4/152, 234. Resolution 1902 (xviii) of Nov. 18, 1963, Report of the International Law Comission, 69. Resolution 2400 (xxiii) of Dec. 11, 1968, Report of the International Law Comission, 87.

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of an international obligation – a distinction inspired by the nineteenth-­ century writings of Oppenheim.48 Effectively, the ilc decided to focus on the secondary rules on state responsibility and abandon the time-consuming and cumbersome analysis of individual regimes in international law with their specific stipulations on state responsibility – a task that had doomed the efforts of the League of Nations.49 This methodology was reflected in Ago’s suggestion to produce a document comprising of two parts: first on the sources of possible breaches of international law, defining “international obligations of states” and attribution of responsibility; and a second one, describing consequences of such breaches, i.e. notions of liability and retaliation.50 This methodology shaped the final outcome of the ilc document – the 2001 Draft Articles on State Responsibility, with its individual stipulations often reflecting political compromise and pragmatism rather than a purely dogmatic analysis.51 In 1969 the ilc entrusted Roberto Ago with providing background documents for its draft of state responsibility rules.52 Those were to include preliminary findings on the matter, enabling the drafting of the final document and tracing out a potential compromise.53 With that in mind the first report covered only the general principles of state responsibility, starting with the notion of a breach of an international obligation. Roberto Ago’s later work was to cover responsibility for actions not prohibited by international law, a plan that was eventually altered, with liability for actions not prohibited by international law becoming the theme for a different ilc working group.54 It was however initially agreed that the ilc would not cover at this point the questions on the mechanisms behind the formation of responsibility principles, focusing on their origins, evolution and current content, including questions of state responsibility for omissions.55

48 49 50 51

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53 54 55

Ago’s second report, u.n. Doc. A/CN.4/233, ftn. 67, 191; for a summary of the ilc work thus far see: Ago’s eighth, att. 5, u.n. Doc. A/CN.4/318, 44. Ago’s second report, u.n. Doc. A/CN.4/233, 179. Daniel M. Bodansky, John R. Crook, ­‘Symposium…’ (Chapter i, n 476) 777. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 778. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 778. The majority of the 35 articles proposed during this 10 year term was included in the final version of the draft articles. Ago’s first report, u.n. Doc. A/CN.4/217, u.n. Doc. A/CN.4/217, 136–137. Ago’s second report included a draft of the first Tyree articles, Ago’s second report, u.n. Doc. A/CN.4/233, 179–197. ilc Report, 1969, u.n. Doc. A/7610/Rev.l, para. 80, 233. ilc Report, 1969, u.n. Doc. A/7610/Rev.l, 233, 235. ilc Report, 1969, u.n. Doc. A/7610/Rev.l, 235.

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The ilc identified a set of criteria for attributing a breach of international law to a state. Initially Roberto Ago was to explain the consequences of an internationally wrongful act as they arise in different factual situations, following various norms of international law. This exercise was to allow the ilc to identify the content, forms and degrees of state responsibility.56 Eventually however it was to identify the challenges in implementing the primary rules and address the disputes on state responsibility. The 1970 report on the origins of state responsibility principles covered the fundamental norms of the state responsibility regime.57 It indicated an internationally unlawful act as the source of state responsibility as well as the criteria for recognizing a state act as internationally unlawful. Also the question of attribution was discussed. Relying on these basic principles of state responsibility, Roberto Ago went on to propose the first draft articles on state responsibility. In his description of attribution the Special Rapporteur observed that, historically, states were more frequently held responsible for the omissions of their bodies than for their actions. This historical perspective emphasized the role of due diligence in international law, as it is due diligence that lies at the heart of state responsibility for omissions of its organs, once they neglect the performance of their duties. Due diligence serves therefore as the criteria for assessing state responsibility for omissions. States were effectively to be held responsible for the actions of private individuals, yet state responsibility originated from the inaction of states organs entrusted to prevent the harm caused by the private individual, not from the very individual action. State responsibility for both: actions and omissions had at that point been well recognized as a principle of international law, acknowledged by e.g. state responses to the League of Nations 1924 report discussed above.58 The perplexity of this principle meant that attributing responsibility to a state required more than just identifying the omission of a state body in e.g. protecting diplomats or foreign interests. Such negligence needed to be accompanied by an “external event”, such as an attack on an embassy performed by private individuals or depriving foreigners of life by members of insurgent forces.59 Only when the negligence of state authorities was accompanied by such an external event, with both these events remaining in a causal relationship, the state could be held accountable. A state is therefore to be held internationally responsible only when the failure of its organs can 56 57 58 59

ilc Report, 1969, u.n. Doc. A/7610/Rev.l, 233. The report was significantly entitled: ‘the origin of international responsibility’; see: Ago’s second report, u.n. Doc. A/CN.4/233. Ago’s second report, u.n. Doc. A/CN.4/233, 188. Ago’s second report, u.n. Doc. A/CN.4/233, 194.

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be regarded as the direct or indirect cause of another, external event, contrary to the content of an international obligation of that state. This relationship could be physical or normative, with the latter occurring when a given effect is caused by a given act originated by the provisions of law. This happens for example when a state fails to adopt preventive measures which could have prevented a harmful “external” event. Individual situations where this causal relationship occurs need to be considered on case by case basis, taking into account their specific additional criteria. Responsibility of a state may however originate in equal measure from state acts as well as from the acts of private parties, if those accompany and are causally linked to the omission of state bodies. Moreover, such an “external event” needs to be distinguished from the actual evidence of a damage occurred, although the latter is being at times evoked as a prerequisite for the international responsibility of state. Yet as Roberto Ago rightfully pointed out those arguing for the recognition of occurred damage as a condition of state responsibility unduly and unnecessarily use the analogy to the rules of national law, where actual property damage serves as basis for liability.60 He rightfully argued that, formally speaking, international responsibility of a state arises also when no material damage occurs, yet there was a violation of other state’s interests. Roberto Ago claimed it sufficient for state responsibility to arise if this external event occurs, regardless of the accompanying material damage. This may be, for example, an act of discrimination against a foreigner, even if it does not cause material injury to that individual. The nature of the primary obligation of states to respect the status of foreigners implies an obligation of state organs to refrain from inflicting any harm on foreign individuals. This implication means also that while an infringement in foreign individual’s interest is a necessary prerequisite for state responsibility, the occurrence of material damage is not – a logical view easily justified with legal dogmatic, yet still not reflected in international policies and court practice. While actual damage is fundamental to the general principles of national civil law regimes, for state responsibility to be attributed, the breach of its international obligation together with an infraction to legally protected interests are sufficient, regardless whether those interests are represented in tangible property.61 Roberto Ago rightfully saw it a mistake to directly apply national law concepts in the regime of international law, as for every violation of an international treaty constitutes damage to another contracting party, be it material or moral.62 State responsibility stems from the violation of 60 61 62

Ago’s second report, u.n. Doc. A/CN.4/233, 194. Ago’s second report, u.n. Doc. A/CN.4/233, 194. Ago’s second report, u.n. Doc. A/CN.4/233, 194.

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an international obligation and the breach of that obligation constitutes damage to legally protected interests of the victim. The size of possible physical harm caused by the breach could be of importance only when estimating the amount of compensation, while not prejudge of international responsibility.63 Roberto Ago’s arguments remain particularly valid with regard to the duty of due diligence, argued for in this book, as the very violation of an international obligation of prevention can easily be considered the dogmatic ground for state responsibility. While this reasoning hold no fault, it has not yet been reflected in international jurisprudence. With the ilc aiming for introducing a treaty on state responsibility, the documents they had produced complied with the formal conditions usually met by an international written accord. This was done to enable an easy transformation of the commission draft into a multilateral treaty. As such they contained only a description of state responsibility principles, including state responsibility for the omissions of state authorities, as well as questions of reparations or restitution. The latter meant that issues not originally entrusted to it, such as acts not prohibited by international law, in particular transboundary harm liability, became also of interest to the ilc. They seemed – at least at the beginning of its work – inextricably related to the leading subject. This was so not solely because the commission failed to see the problems with codifying such a vast area of international practice – quite to the contrary, the ilc was well aware of the diversity of topics covered by both: state responsibility and international liability, yet had justified difficulties in delimiting the scope of its enquiry into state responsibility issues, leaving the questions on international liability aside. Only in 1970 was the ilc able to identify the questions of acts contrary to international law, covering also compensatory obligations, as different in their character and scope from those compensatory obligations ­originated by acts nor prohibited within the primary rules of international law. The commission found a combined study of those two circumstances impossible and suggested the need for separate research on the latter. With this observation in mind, Roberto Ago clearly stated in his second report that the term “state responsibility” meant only “responsibility of a state for an internationally wrongful act”.64 This shift later proved to be decisive for the final ilc conclusion on the topic, rising strong and substantiated criticism, going back to the original distinction between primary and secondary norms, viewed as artificial and unpractical. Due diligence lies at the heart of this problem – it is present in both regimes as their necessary link and an undesired shared criterion for 63 64

Ago’s second report, u.n. Doc. A/CN.4/233, 194. This issue is discussed in the further part of this chapter.

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a­ ssessing state efforts in preventing harmful transboundary effects. The same principle is therefore used for primary rules, requiring e.g. the enforcement of preventive measures and then again, for assessing state efforts in meeting its international, primary, obligation. This clearly emphasizes the u ­ niformity of international accountability rules and the necessarily non-­exclusive character of the responsibility/liability distinction. The ilc 1970 report relied on the distinction of primary and secondary rules of international law, discussed above. This was the result of the projected aim of the document – it was not to define the particular obligations of states to act or refrain from action, but rather to go above the individual, primary obligations and identify the general principles of state responsibility, applicable universally, the so-called secondary rules. When describing them, the ilc laid down the consequences of states’ failure to meet their primary obligations, regardless of the nature of any such obligation. It did however recognize primary rules as crucial to the application of state responsibility principles, as it was only with reference to primary norms that identifying the breach of an international obligation and applying secondary norms was possible. Determining the content of a primary obligation should be however distinguished from identifying its breach and consequences.65 The principles of international responsibility of states are to be applied in a separate, new legal relationship, arising from the breach of a primary rule. They refer solely to the consequences of international law violations, without reference to the breach itself. It is therefore regardless of the content of primary norms that the state responsibility rules are to be applied. As already indicated, due diligence can serve as the shared element of the two regimes. These general, secondary rules were described in the first ilc draft articles in 1973, dealing, among others, with the question of state responsibility for lack of due diligence of state bodies.66 Their negligence was discussed as an element of an internationally wrongful act of state.67 With that in mind the primary prerequisite of state responsibility – the breach of an international obligation – was considered to be met with a wrongful omission of a state body, not only its direct action. This is the case when, e.g. state fails to grant adequate police protection to a diplomatic mission against attacks. Under such circumstances a state may be held internationally responsible if negligence of its bodies, contrary to international obligations, resulted in damage to 65 66 67

ilc Report, 1980, u.n. Doc. A/35/10, 27–28. ilc Report, 1973, u.n. Doc. A/9010/Rev.1, para. 42, 170. For a description of the interrelationship of primary and secondary norms see: paras. 36–57, 169–173. ilc Report, 1973, u.n. Doc. A/9010/Rev.1, 179.

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diplomatic staff or the sending state. The ilc argued, contrary to initial observations made by Roberto Ago, that in the case of international duties to protect, a failure to provide it is insufficient to attribute responsibility to a state, unless it is accompanied by “supplementary element” – an external event, which the state was obliged to try and prevent, yet not necessarily material damage.68 The General Assembly adopted the ilc report in 1973 and appointed it with a mandate to work further on the issue, aiming to identify the principles of state responsibility.69 It was within this mandate that the General Assembly for the first time clearly indicated the need to address the question of international liability for acts not prohibited by international law as a separate issue. During the next two sessions: in 1973 and 1978, the ilc adopted first three parts of the draft articles on state responsibility and in 1978 referred back to the Member States with a request for comments.70 The next Special Rapporteur, Willem Riphagen, built upon Roberto Ago’s ideas by putting them into more detail. Working further on the notion of primary and secondary rules, he observed that some primary standards in themselves prescribe the consequences of violating them. Those rules should be perceived as lex specialis with regard to the general rules of state responsibility formulated by ilc, making the application of such secondary rules redundant.71 In his view, the diversity of primary rules necessarily affects the scope and nature of secondary rules on state responsibility. With that in mind the ilc should focus only on the consequences of acts breaching international law, not those arising from the acts or omissions not prohibited by its norms.72 Referring to the distinction between primary and secondary rules, Riphagen was particularly critical of the broadly viewed notion of state sovereignty. Sovereignty, when perceived in a

68 69 70

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ilc Report, 1973, u.n. Doc. A/9010/Rev.1, 182; the report included drafts of Chapters i and ii of the Draft articles on state responsibility; see: pp. 173–198. un General Assembly Resolution of Nov. 30th, 1973, Report of the International Law Comission, u.n. Doc. A/RES/3071(xxviii), 139–140. un General Assembly Resolution of Dec. 19th, 1978, Report of the International Law Comission, u.n. Doc. A/RES/33/139, 1–2; ilc Report, 1978, u.n. Doc. A/33/10, a draft of 27 articles with commentaries, 78–106. It was that same year that Roberto Ago left the ilc and successors, Willem Riphagen was appointed the following year, to be replaced by Gaetano Arangio-Ruiz in 1987 and James Crawford in 1997. Second report on the content, forms and degrees of international responsibility (Part two of the draft articles), by Mr. Willem Riphagen, Special Rapporteur, 1981, u.n. Doc. A/CN.4/344 (hereinafter cited as: Riphagen’s second report, u.n. Doc. A/CN.4/344), paras 145–160, 82, pt. 31. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 778.

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“primitive” way and “without limitation”, as total freedom to act, was not to be considered a right of a state, as per international standards.73 Its limitations were due to both: states adopting primary rules, whether through a treaty or international custom, as well as through violating international law, instigating the application of secondary norms. With that in mind it was a primary obligation of states to prevent their international commitments from being violated. It is irrelevant whether this obligation is perceived as a consequence of adopting the primary norm or its breach as they are the “two sides of the same coin”.74 State’s commitment to prevent breaches of international law includes not only an obligation to refrain from actions considered contrary to that obligation, but also its duty to remove ex nunc the effects arising from the breach, which would not be fixed if it remained passive. Such commitment to put an end to an infringement is however applicable only to long lasting violations.75 This observation supports the position of due diligence as a principle of international law, requiring states to refrain from violations of international law as well as to prevent them. The ilc argued that identifying a breach of international law requires also the consideration of qualitative factors such as state’s position against the harmful infringement and the severity of the violation for the affected state. Depending on state position a breach may be considered either as intentional act committed with the involvement of state bodies or as an unfortunate accident, resulting in the violation. Similarly, the assessment of state responsibility depends on the number of violations of a kind. A state is more likely to be attributed with responsibility for a breach of international law when there is proof of a lasting policy allowing harmful activities directed against aliens or foreign territories. The originating compensatory obligation will therefore depend also on the character of the primary norm that was breached. Depending on whether there was a breach of an obligation to act, i.e. to achieve a given aim or to mitigate a particular threat, the place of operation of the wrongdoers serves as primary criterion. A state may be held responsible if the harmful actions were originated within its territory, jurisdiction or under its control. Secondary rules imply states’ commitment to provide satisfaction to the victim, one originating from the breach of state’s international obligation. This obligation has been recognized to also include a repeated acknowledgment of the violated obligation by the violating state as well as a declaration to

73 74 75

Riphagen’s second report, u.n. Doc. A/CN.4/344, 85. Riphagen’s second report, u.n. Doc. A/CN.4/344, 85. Riphagen’s second report, u.n. Doc. A/CN.4/344, 89.

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­undertake preventive measures against similar violations in the future.76 This last element represents the duty to show due diligence in ensuring the performance of an international obligation. The 1997 second reading of the draft articles reflected the recommendations of the new Special Rapporteur, James Crawford and the comments from Member States.77 James Crawford, rushed by the Commission for results, took a practical approach to his task, seeking compromise among the members of the United Nations General Assembly Sixth Committee on the general principles wording.78 As he later admitted he wanted the draft to achieve such a level of generality as to allow for its adoption by the required two-thirds majority of un member states, represented in the Committee. This is a good reflection of the controversy the topic arose, given that the resolutions of the Sixth Committee usually were adopted unanimously.79 In 2001 the ilc concluded the second reading of the draft. Truncated of the most controversial provisions, such as those relating to “state crime”, the content of the project was handed over to the General Assembly, with the suggestion to take into account adopting it as a Resolution. In its form and wording, ilc designed the draft as a possible future international treaty on the principles of state responsibility. It stressed the dichotomy between state responsibility for acts prohibited by international law and international liability, reaching beyond the scope of its mandate. The final version of the draft covered state responsibility for acts prohibited under international law and consisted of 59 articles with extensive comments.80 The ilc organized its coverage of international responsibility principles into four parts. The first part of the draft articles contains a description of an internationally wrongful act, i.e. the breach of a primary norm, of which subjects states to the application of secondary norms state responsibility. The ilc described three basic principles of responsibility, which inferred the remaining content of the articles. Chapter ii covers the circumstances when a particular act is attributable to a state, whereas Chapter iii describes the prerequisites for recognizing an act of a state as a breach of international law. Chapter iv contains a description of the circumstances when one state can be held responsible for the actions of another, with Chapter v describing the circumstances precluding lawfulness of the state act inconsistent with its 76 77 78 79 80

Riphagen’s second report, u.n. Doc. A/CN.4/344, 90–91. ilc, Report of the Working Group, State responsibility, 1997, u.n. Doc. A/CN.4/L.538. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 779. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 779. 2001 ilc Draft Articles on State Responsibility, u.n. Doc. A/56/10.

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international obligations. The consequences of a breach of an international obligation, and therefore the content of secondary norms, are described in the second part of the draft. The third part is a description of the rights originating from a breach of an international obligation, while in the fourth part general rules for the application of the document are covered, including for example the issue of responsibility of international organizations. The provisions of the draft reflect the current, adopted rules of customary international law on the responsibility of states. Their significance for the question of due diligence, as a consequence of the principle of state responsibility, is discussed in detail further in this chapter.81 Despite ilc plans, the 2001 adoption of the draft has so far not resulted in the adoption of a treaty and any significant shift in international policies on state responsibility seems unlikely. Between 2001 and 2010 the un General Assembly resolutions covered subsequent requests for comments to the Member States, which have thus far failed to produce the expected consensus, necessary for the adoption of a treaty.82 In 2013, during its session devoted to the question of state responsibility the Sixth Committee establish a new working group on responsibility of states, chaired by Nikolas Stuerchler.83 The latest observations made by Members States in response to his first report were mixed. Some states favored treaty negotiations and a subsequent adoption of a treaty on state responsibility as a mean of enhancing legal stability, while others argued that “negotiation of a convention would threaten the delicate balance established in the articles” and that “it would be premature to consider the articles in their entirety as settled customary international law”.84 The question of a state responsibility 81 2001 ilc Draft Articles on State Responsibility, u.n. Doc. A/56/10, 32. 82 The un General Assembly in its Resolution 56/83 of Dec. 12, 2001 presented the member states with the draft articles, yet did not conclude its work on the topic. The notion of international liability for acts not prohibited by international law was placed on the agenda of the un 59th session planned for 2004. In its Resolution 59/35 of Dec. 2nd, 2004 the General Assembly again approached the member states with questions on the adoption of the draft articles. Also the 62nd session in 2007 was devoted to the issue, with the Resolution 62/61 of Dec. 6th, 2007 again advising the states to consider comments to the draft articles. See also: un General Assembly Resolution, Report of the Sixth Committee, Responsibility of States for internationally wrongful acts, Dec. 6th, 2010, u.n. Doc. A/65/463, pt. 4, 2. 83 un General Assembly Resolution 68/104 of Dec. 16th, 2013, Responsibility of States for internationally wrongful acts, u.n. Doc. A/RES/68/104. 84 Annotated preliminary list of items to be included in the provisional agenda of the 68th regular session of the General Assembly, u.n. Doc. A/68/100.

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treaty remains therefore open, with the provisional agenda of the seventy-first session planned for 2016 again including the item entitled “Responsibility of States for internationally wrongful acts”. The apparent stand still on state responsibility is by far not an expression of lack of interest in the area, quite the opposite. In the era of international terrorism and attempts to legally asses the activity of countries tolerating terrorist acts, the complex structure of state responsibility, drafted by F.V. GarcíaAmador and his successors, is subject to constant reinterpretation. The most important element in the ongoing discussion is the question of state responsibility for omissions, which can be attributed by showing lack of due diligence by a state in preventing a given harmful event. It is the discussion on due diligence and the consequences of its lack that is the bone of contention among states deliberating international responsibility. With that in mind, a detailed look at due diligence and the criteria for assessing state responsibility for omissions is presented below.

Due Diligence and State Responsibility

The question of due diligence appeared the ilc work on state responsibility in  the context of attribution. Due diligence was discussed when describing both: the concept of state “acts” contrary to international law, where the term covered alternatively actions and omissions of state bodies. There were also due diligence references made to describe the content of an international obligation of prevention, requiring states to take certain measures to prevent a given event, the violation of which could result in the international responsibility of states failing to take the needed precautions.85 The reference to preventive obligations was intended to introduce two categories of international obligations of states: the so called “obligations of conduct” and the “obligations of result”.86 The former require states to present a certain kind 85

86

Christian Tomuschat, Gegenwartsprobleme der Staatenverantwortlichkeit in der Arbeit der Völkerrechtskomission der Vereinten Nationen, Vortraege, Reden und Berichte aus dem Europa-Institut 1994, No 311, 6–7. The obligations are ascribed in Article 20 and 21 of the 2001 ilc Draft articles on state responsibility, respectively. See also: Christian Tomuschat, Gegenwartsprobleme der Staatenverantwortlichkeit in der Arbeit der Völkerrechtskomission der Vereinten Nationen, Vortraege, Reden und Berichte aus dem Europa-Institut 1994, No 311, 6–7; ilc, Sixth report on State responsibility by Mr. Roberto Ago, Special Rapporteur – the internationally wrong-

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of conduct in ­given circumstances, described in the individual primary norm of international law, while the latter disregard the conduct of a state and focus on an effect a state is obliged to produce, regardless of the measures or efforts taken. One might easily assume that due diligence obligations arise primarily in the former category, where it is usually not the result that is required but rather certain, detailed preventive measures taken to prevent a harmful event. Yet this distinction is not an exclusive one. While obligations of result cover situations when state parties enjoy freedom in choosing the means of their implementation, they may also refer to due diligence as a measure of state efforts. As an example, Roberto Ago referred to the law of diplomatic relations, concerning the need to take “all necessary measures” to ensure the safety of diplomatic staff, where it was the result: the safety of diplomatic staff that was the desired effect, yet the means to achieve it were to be measured with reference to common good practice.87 Robert Quentin-Baxter, un Special Rapporteur in international liability for acts not prohibited by international law, linked obligations of result with due diligence only to indicate that to fulfill them states are required to provide a higher standard of duly diligent action, but the responsibility for their breach is not absolute.88 At the same time however obligations of result may include a general indication on their proper implementation as well as recommendations of specific measures deemed most appropriate to achieve the result, subjecting failure to use them to state responsibility. As an example of such an obligation, Roberto Ago pointed to the International Covenant on Economic, Social and Cultural Rights and the need for member states to take steps to ensure the effective protection of the rights recognized within the treaty, including the adoption of the provisions within applicable law.89 Attempting to categorize international obligations according to this pattern Riphagen claimed that responsibility for the breach

87

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ful act of the State, source of international responsibility (continued), 1977, u.n. Doc. A/CN.4/302 (hereinafter cited as: Ago’s sixth report), 4–20. Ago’s sixth report, 9. See also: Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter i, n 304) Protection of Officials of Foreign States According to International Law (brill 1983) 166. Details of the state duty to grant foreign officials sufficient protection are discussed further, in Chapter iv. Preliminary report on international liability for injurious consequences arising out of acts not prohibited by international law, by Mr. Robert Q. Quentin-Baxter, Special Rapporteur, 1980, u.n. Doc. A/CN.4/334 (hereinafter cited as: Quentin-Baxter’s preliminary report), 253–254. International Covenant on Economic, Social and Cultural Rights (hereinafter: icescr), 1966, unts 993, 3; Ago’s sixth report, u.n. Doc. A/CN.4/302, 8–9.

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of an ­international obligation of either category depended on state jurisdiction.90 Due to its practical shortcomings, the distinction of the obligations of conduct and result was only briefly reflected in the wording of Article 12 of the 2001 Draft Articles on Responsibility of States, which states that a state is liable for a breach of an international obligation, regardless of its nature. In its comment the ilc made it clear however that the distinction was not an exclusive one.91 In its work on the principles of state responsibility the ilc widely referred to the “the principle” of due diligence when discussing state responsibility for damage caused to foreigners on its territory. This was done by a reference to actions and omissions originating state responsibility, including the those of state bodies and local residents.92 When referring to state responsibility for the acts of individuals and during internal turmoil “the rule of due diligence” was discussed. It was presented as a question of attributing state responsibility for omissions in the absence of a normative commitment to take active measures.93 Recalling the cases of the Bikini Atoll94 and the Trail smelter dispute, F.V. García-Amador reiterated the opinions of arbitrators recognizing state obligation to act also in situations when there was no direct stipulation to that effect in the norms of international law.95 As indicated by the us-Canadian arbitration on the smelter in Trail, in the light of the principles of international law, no country has the right to use its territory or allow its use in such a way as to cause damage in the territory of another State. This obligation becomes valid, if the circumstances of a particular activity show that it carries serious consequences and the threat of causing damage can be foreseen based on “clear and convincing evidence”.96 Following the reasoning of the Trail smelter case, this kind of situations clearly results in state responsibility, even when it is impossible to identify the particular international law norm that has been infringed. Such infringements follow a breach of an obligation to take action, one that could be expected of the negligent party in a given case. State duty to protect the safety of persons 90 91 92

93 94 95 96

Riphagen’s second report, u.n. Doc. A/CN.4/344, 89. 2001 ilc Draft Articles on State Responsibility, u.n. Doc. A/56/10, 57. The report covered also the questions on the character and scope of state ­responsibility in the context of its treaty-based obligations as well as the role of state responsibility principles in ensuring human rights. See: García Amador’s second report, u.n. Doc. A/CN.4/106, 107, 112–114, 115. García Amador’s second report, u.n. Doc. A/CN.4/106, 122–123. The People of Bikini v. the United States of America (Chapter i, n 427). García Amador’s second report, u.n. Doc. A/CN.4/106, 106. García Amador’s second report, u.n. Doc. A/CN.4/106, 106.

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and objects within its jurisdiction is implied by both: private and public laws. The principle of due diligence is a reflection of this idea and, as such, is an integral part of the rules of international responsibility of states. It must be observed however that such broad interpretation of due diligence could be perceived as the ability to hold accountable those states which have not actually violated any norm of international law, giving rise to unjustified claims and significantly hindering the work of international courts. Noting these practical difficulties the ilc ruled out attributing responsibility to states when there is no breach of an international obligation to be identified. This removed the threat of unjustified injunction, keeping the path open to holding states responsible for the negligence of their bodies and added to the development of international liability rules.97 And so Article 10 of the 2001 ilc Draft Articles on State Responsibility refers to state responsibility for the actions of individuals performed within state borders. As per its stipulations, a state is to be held responsible for damage caused to foreigners due to the behavior of “ordinary private individuals” if the authorities of the state or its officials behaved in a manner clearly negligent, failing to take action normally taken to prevent such behaviors or punish them.98 These stipulations cover actions harmful to foreigners yet not triggered by state authorities or its officials, but by an individual or a private group. Attributing state responsibility in such cases should be considered an exception – as a rule the state is responsible only for “its own” actions.99 State responsibility in such cases is not a direct consequence of a harmful act, but rather of the behavior of the authorities towards it. Attribution of responsibility to a state necessarily depends on the circumstances external to the harmful action itself. Those circumstances, whether aggravating or exonerating, have always been subject to disputes in the doctrine and practice of international law. With this approach to due diligence, the question that has become obsolete was the one on the legitimacy of objective responsibility, relative to state fault in oversight or selection, i.e. with regard to an individual acting on behalf of or with the authorization of a state, when his actions cause injury. The issue under debate is not so much the direct relationship between that individual and the harmful effects, as it is the act of an individual authorized by the state or to be more precise, about their omission. If this omission was “culpable”, the state is to bear responsibility for the harmful effect resulting from the act of a private individual. The a­ ttribution of responsibility to the 97 98 99

García Amador’s second report, u.n. Doc. A/CN.4/106, 106. García Amador’s second report, u.n. Doc. A/CN.4/106, 121. García Amador’s second report, u.n. Doc. A/CN.4/106, 121.

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state is in this case done indirectly, by holding it responsible for its failure to fulfill its international obligation, one that might be difficult to define in detail, yet whose breach resulted in damage done to a foreign entity.100 This notion of due diligence and international responsibility was discussed in e.g. the 1929 draft articles on state responsibility prepared by Harvard academics, partially adopted by the ilc.101 The original document presupposed the responsibility of a state for damage caused to a foreigner as a consequence of lack of due diligence in preventing its occurrence, assuming that compensatory claims available under national law have been exhausted and no adequate compensation was paid. The content of a due diligence obligation differs depending on the facts of the case and should be determined taking into account the particular circumstances of the victim. Such a formulation of the principle of due diligence implies two alleged powers of the state: that it had jurisdiction and, secondly, an actual opportunity to take action.102 Due diligence is therefore a matter of a certain standard of operation, not the content of a legal definition.103 It needs to be distinguished from the ability to act in that it relates more to the effectiveness and use of resources at state disposal than it is about their availability.104 It is also something other than enforcing justice – in its essence it is not the question of exercising state remedial functions, but rather one on its obligation to protect.105 Such an understanding of the principle of due diligence can also be found within the content of the League of Nations 1929 report, where a state is to be held responsible for damage caused to a foreigner as a result of its executive bodies having failed to provide

100 García Amador’s second report, u.n. Doc. A/CN.4/106, 121: ‘For not only must there be a harmful act committed by an individual, but, in addition, it must be possible to attribute to the State some conduct with respect to the act that implies a specific attitude willfully adopted by the organ or official (fault, culpa)’. 101 Harvard Law School, Research in International Law: Responsibility of States, Cambridge 1929, 187; reprinted in García Amador’s second report, u.n. Doc. A/CN.4/106, 122. 102 García Amador’s second report, u.n. Doc. A/CN.4/106, 122. The reference to due diligence implies a presumption that in a given case there were appropriate resources available to state bodies and the actual capability of deploying them. 103 García Amador’s second report, u.n. Doc. A/CN.4/106, 122. 104 García Amador’s second report, u.n. Doc. A/CN.4/106, 122. Juxtaposing “due diligence” with the “means at the disposal” of the government i.e. a criteria referred to in Article 8 of the Convention Concerning the Rights and Duties of Neutral Powers in Naval War (Hague xiii) was, according to the Special Rapporteur aimed at emphasizing the significance of effective state care rather than just any measure deployed to prevent harm. 105 García Amador’s second report, u.n. Doc. A/CN.4/106, 122.

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them with protection, which, in the given circumstances, could be expected of “a civilized state”.106 The already mentioned comments to the 2001 ilc Draft Articles on State Responsibility, coming from Member States, included details on identifying criteria helpful in determining a standard of care in a particular case. Higher diligence would therefore be required in ensuring protection of e.g. a diplomatic representative or the head of state, although it would be different for e.g. developed and developing countries. Contemporary jurisprudence and doctrine show that due diligence cannot be understood as clear and precisely described definition, serving as an objectively existing model, used for mechanical verification of state activities as “duly diligent”.107 It is rather to the opposite – the actions of state authorities must be verified with respect to the circumstances of each case, to determine the content of the standard of due diligence. There are however certain criteria, derived from international practice and discussed in detail in the following chapters, that allow to characterize state efforts as “dully diligent”. While due diligence can be applied as a set of objective criteria of assessing state efforts in preventing harm or damage to others, it may also be viewed as a unique reflection of “objective” fault, possibly when fault has been identified as a precondition of responsibility in the content of the violated primary norm. Despite the fact that due diligence is by its nature flexible and effectively vague, ambiguous and imprecise, it is particularly for this reason that it must be the fundament of state responsibility for omissions, at least until the practice and doctrine do not work out a better solution. Searching for clues to the application of this principle, F.V. García-Amador referred to two prerequisites that needed to be taken into account when assessing the lack of due diligence on the part of a state. The first one was intended to complement the above-mentioned criterion of a “civilized state”, which is a point of reference when assessing due behavior of authorities. Following Eagleton he referred to the criterion of “an international standard of justice” and argued that state action should be assessed relative to international standards, as generally understood.108 Yet originally Eagleton claimed that the recognition of the level of due diligence paid by a state to its citizens does not necessarily imply that state has met its due diligence obligation in respect of foreigners. It is possible that the international general standard requires the 106 League of Nations publication, V. Legal, 1929.V.3 (C.75.M.69.1929.v), 67.; García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 5, 122. 107 García Amador’s second report, u.n. Doc. A/CN.4/106, 122. 108 García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 8, 122. According to the Special Rapporteur, the principle of due diligence ought to be perceived an element of the ­“international standard of justice”.

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state to show a higher level of care in respect of the latter than it does vis-à-vis its own citizens.109 Effectively, another essential criterion of assessing the level of state due diligence should be the evaluation of state’s implementation of the principle of equality with respect to citizens and foreigners.110 Thus, while the standard of due diligence with respect to a foreign citizen may be higher than for own citizens, surely it cannot be lower – it must be at least equal. Determining the content of this standard does not prejudge the responsibility of state, quite to the contrary – there is a general presumption of lack of state responsibility which must be overturned by showing state omission that resulted in harm.111 As a general rule therefore a state is not to be held responsible for damages resulting from the activities of individuals within its territory, unless those are permitted by the action of state bodies or their “patent or manifest negligence” in undertaking “measures normally taken in the circumstances” to prevent harmful actions or punish them.112 The general characteristics of due diligence so defined reflect the methodology adopted by the ilc in its research on state responsibility. It proposed most general principles, trying to avoid the mistakes of its predecessor, seeking an extensively broad description of state responsibility rules, with reference to numerous exceptions present in individual treaty regimes or customary practice. The aim of ilc work was to find principles suitable in any event of state breach of international obligations, if only responsibility could be attributed.113 Interestingly, while he originally argued that states held indirect responsibility for their failure to prevent damage caused by individuals, in his next report F.V. García-Amador made a reference to “aggravating” failure to show due ­diligence, resulting in direct responsibility of a state.114 Without specifying the details of this concept, he referred to situations when state failure is so ostentatious and blatant that the state is actually giving its consent for the damage or is to be considered an accomplice there to.115 Fully aware of the impropriety of using criminal law terminology for the consideration of international responsibility of states which, f­ollowing the comments of the ilc, were to be based 109 C. Eagleton, The Responsibility of States in International Law, New York 1928, 130–131. 110 García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 8, 122. 111 García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 9, 122 where the Special Rapporteur observes that “there is a presumption against responsibility”. 112 García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 9, 122. 113 García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 9, 122. 114 Third Report on International Responsibility by Mr. F.V. García Amador, 1958, u.n. Doc. A/CN.4/111 (hereinafter cited as: García Amador’s third report, u.n. Doc. A/CN.4/111), Chapter iv(i), para. 54, pt. 22. 115 García Amador’s third report, u.n. Doc. A/CN.4/111, Chapter iv(i), para. 54, pt. 23.

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on the rules of civil law, F.V. G ­ arcía-Amador pointed to the serious problem of states tolerating violations committed in their jurisdiction – a point highly valid in the era of global war on terrorism.116 F.V. García-Amador took on the difficult question of state fault, viewing it as a possible prerequisite of state responsibility for omissions.117 State responsibility for failure to take preventive actions, he argued, could be directly linked to the fault of the acting state agent – an argument that is no longer possible to sustain. Equally controversially, lack of state due diligence was to be recognized as the fault of its officer, making so-perceived state fault a prerequisite of state responsibility.118 Realizing however how difficult this line of reasoning would be to defend in the context of contemporary international law, he complied with the majority view, renouncing state fault as an element of attributing responsibility. Analyzing the international law debate unfolding thus far, one could argue that fault perceived as the mental attitude of state officer (animus) plays no part in attributing responsibility for state actions. It has however been evoked in the discussions on state omissions, where it would become an additional element of the causal link between the damage occurred and the state omission having caused it, making attribution more complex, significantly hampering the practical application of the existing due diligence standards. At the same time, however, the attribution of state responsibility always depends on the character of the violated primary norm and its interpretation by the court. Proponents of the fault-based responsibility theory argue, that depending on the purpose and object of the primary norm, the court may consider the attribution of responsibility as dependent on the fault of state officer or another subjective element.119 The ilc analyzed also whether, rather than in risk or fault, state responsibility could be logically rooted in a model similar to the French “system of evidence” (systeme des preuves) applicable to established “cases in which the State is prima facie responsible and in which it can exonerate itself by ­invoking

116 García Amador’s third report, u.n. Doc. A/CN.4/111, Chapter iv(i), para. 54, pt. 22. 117 García Amador’s fifth report, u.n. Doc. A/CN.4/125. 118 F.V. García Amador implied that in cases of responsibility attributed following the negligence of state authority or official it is the neglect shown by that individual, the very manifestation of their will, that constitutes state conduct contrary to international law and gives ground to international responsibility of state. García Amador’s fifth report, u.n. Doc. A/CN.4/125, 63. See also: F.V. García Amador, The changing law of international claims (Oceana Publications 1984) 120–121. 119 García Amador’s fifth report, u.n. Doc. A/CN.4/125, 63.

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certain circumstances”.120 The Special Rapporteur rightfully argued in the early 1960s that this concept would be particularly useful for new areas of state activity involving the use of advanced technology, in particular nuclear energy, which was bound to put to a test the applicability of state responsibility rules.121 Referring to the then emerging branch of international law that, following the Trail smelter case, became international environmental law, F.V. García-Amador argued that environmental damages were to become the first category of risk-generating endeavors that entail “objective” state responsibility regardless of its officials fault. While so far it has only been the damage caused by space objects where states agreed to hold risk responsibility, the Special Rapporteur was right when saying that new categories “objective responsibility” will have to be constructed to meet the increasing number of dangerous activities, originating from the rapid technological development. States are in fact facing a growing demand to bear responsibility for damages resulting from various new uses of technology, considered new source of risk, such as cybersecurity, discussed further herein or, more generally speaking, the so-called asymmetric threats. Roberto Ago, who followed as un Special Rapporteur on state responsibility, departed from entailing fault in responsibility considerations. He rather implied that due diligence was among the most difficult problems the ilc would

120 García Amador felt the dispute was much exaggerated and purely dogmatic, without any practical significance, see: García Amador’s fifth report, u.n. Doc. A/CN.4/125, 64. For other arguments see e.g.: Resolution V. La Responsabilidad del Estado por Daiios Causados a los Extranjeros, Congreso Hispano-Luso-Americano de Derecho International, Boletin de Information, 15, 106 reprinted in García Amador’s fifth report, u.n. Doc. A/CN.4/125, 64. See also: F.V. García Amador, Louis B. Sohn, R.R. Baxter, Recent codification of the law of state responsibility for injuries to aliens (brill 1974) 17, where the authors elaborate on this point. 121 García Amador’s fifth report, u.n. Doc. A/CN.4/125, 64. The problem of nuclear damages gained public attention in the aftermath of the nuclear tests performed by the us in the open sea. White House representatives as well as us legal scholars argued that the right to perform such trials is the necessary and direct consequence of the right to self defence and is a preparatory measure within “State’s reasonable competence”, performed outside its territorial waters. Exercising this right is subject to temporary and spacial restraints as it may not interfere with the freedom of navigation and fishery on the open seas. Simultaneously legal writers outside the us countered those arguments by claiming that from the legal perspective nuclear tests that directly influence the condition of the open sea are without a doubt a violation of international law, subjecting the state performing them to international responsibility and a compensatory obligation, regardless of preventive measures taken.

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have to face during its work on international responsibility of states.122 Regardless however how difficult it might be to identify the scope of the due diligence obligation, there is no doubt about the duty of states to prevent actions of individuals, which may result in harm to aliens or other states. The state bears international responsibility for the damage caused by an act or omission of an individual, if it does not demonstrate due diligence in preventing such activity. It can be reasonably expected of authorities to present a degree of due diligence required from a “civilized state”.123 The consequences of such a breach cover compensatory obligations, in accordance with the principles of law recognized by civilized states. Proper application of this principle was, according to Roberto Ago, one of the biggest challenges for the Commission, given that private law compensation is dependent on fault, a notion considered undesired in international law. State responsibility for the failure to show due diligence was perceived as not conditioned by a proof of fault, but rather by actual damage – a position maintained today by the majority of state representatives and courts. Although in some cases responsibility for harm to the rights of a foreign state can be considered objective, it was up to the ilc to identify situations when that was the case.124 The first half of 1960s saw international legal scholars take varying positions on the notion of state responsibility.125 Significantly, 1961 saw the Harvard report on the principles of state responsibility for damage caused to foreigners.126 Recognizing that a state failure to act may constitute a violation of international law, Harvard scholars abandoned the premise of fault as necessary for 122 Report of the International Law Comission on the work of its Fifteenth Session, 1963, u.n. Doc. A/CN.4/163, pt. 12–14, 249–250. The focus of this report was on three particular issues: the legal character of the responsibility of states, their constitutive elements and the role of fault in attributing responsibility. 123 Report of the International Law Comission on the work of its Fifteenth Session, 1963, u.n. Doc. A/CN.4/163, pt. 12, 249. According to the report it is beyond doubt that a state is, “to a certain degree”, obliged to prevent such private activities, whether performed individually or collectively, which are likely to cause harm to aliens present within state territory. As a consequence the state is to carry the responsibility for the damages done to private individuals when it fails to show due diligence in preventing such harmful events. The level of diligence required in a given circumstance can be identified with a reference to the theoretical model of a civilized state. 124 Report of the International Law Comission on the work of its Fifteenth Session, 1963, u.n. Doc. A/CN.4/163, 249–250. 125 A detailed summary of those advances can be fund it: Ago’s first report, u.n. Doc. A/CN.4/217. 126 Harvard Law School, Draft convention… (Chapter i, n 489) 142.

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state responsibility and acknowledged the failure to implement international commitments in national laws or their improper implementation as sufficient ground for state responsibility.127 The obligation of due diligence was defined as a failure to provide protection to a foreigner, resulting from lack of preventive or deterring measures against individuals who committed criminal offenses under domestic law or acts commonly recognized as such in most legal systems of the world. Such attributable omission would also be constituted by a state failure to capture and arrest the offender. A failure to meet this obligation was to result in state responsibility. Moreover, it was not only actual damage that was to inflict state responsibility, but also the potential harm – a risk of damage, originating from a state failure to meet its international duty, yet only when the risk followed a state licensed activity, could state accountability be mitigated. Foreign companies or individuals running a risk-originating activity could be granted a state license if they vowed to resign of any future compensation, even if their damage was in fact caused by state action. Only if state authorized, “willful” act or omission caused damage, could compensation be successfully claimed.128 Also the 1962 Inter-American Juridical Committee report indicated state representative’s fault per negligence i.e. acting without due diligence when ensuring protection to foreigners, as grounds for state responsibility, yet only in situations of internal turmoil, such as coup d’état, riots or acts of organized crime.129 If as a result of such occurrences a foreigner was to suffer damage, state would bear international responsibility in cases when the damage resulted from state representative’s negligence or “connivance”.130 Neither of the two proposals was ever fully reflected in the ilc drafts or court practice, yet they offer a good representation of the differing perceptions of due diligence and the limits to state responsibility for omissions. As indicated above state responsibility for the acts of individuals plays a central role in the evolution of due diligence standards. State responsibility for damages

127 Article 3 of the draft covered the categories of wrongful acts and omissions. It indicated that an omission can be attributed to a state if, without sufficient justification, it is intended to cause, or to facilitate the causing of, injury; if it creates an unreasonable risk of injury through a failure to exercise due care or if it violates a treaty. Moreover, the draft included a detailed catalogue of possible state acts and omissions that were prohibited as harmful to aliens (Articles 5 to 12). Ago’s first report, u.n. Doc. A/CN.4/217, 143. 128 Reprinted in Ago’s first report, u.n. Doc. A/CN.4/217, 137. 129 Inter–American Juridical Committee, ‘Contribution of the American Continent to the principles of international law that govern the responsibility of the State’ in Recent… F.V. García Amador, Louis B. Sohn, Richard R. Baxter (eds.), (n 120) 359 ff. 130 Recent… F.V. García Amador, Louis B. Sohn, Richard R. Baxter (eds.), (n 120) 365.

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originated by actions of individuals within state jurisdiction has been referred to as direct responsibility. It is not the case of state taking over the responsibility for the culprit but rather bearing the consequences of its own, direct, omissions, efforts insufficient to prevent the damage. The ilc dogmatic presented throughout its work is focused on the presumption that states bear responsibility for their own acts actions: or omissions, including ones resulting in damage to foreign interests.131 With that in mind, the notion of “indirect state responsibility”, gaining in popularity in recent years, calling for state responsibility for the actions of private parties, ought to be considered contrary to contemporary international law, which is focused on states rather than individuals. Indirect responsibility, common to national laws, is based on the assumption that one entity can take over the responsibility for the acts of another as its equal. The assumption that a state could bear responsibility for an individual would imply equating them in their international legal status and as such be contrary to the very substance of international law.132 A state can therefore bear responsibility for own actions or omissions, contrary to its international obligation of due diligence in preventing foreign damage, but not for those of private individuals, acting outside authorization or state control. Moreover, state omission is subject to an objective verification, independent of the will or knowledge of the authority acting on behalf of the state.133 Following this reasoning the notion of state fault was never explicitly included in the 2001 ilc Draft Articles on State Responsibility, regardless of the important role it had played in academic writing and reports of Special Rapporteurs.134 Also the size of actual damage as a criterion for state responsibility in cases of omissions was never featured in the draft, as since the state was to bear responsibility for its own omission the size of actual damage remains irrelevant, unlike the significance of its actual failure, as even a slight failure can lead to a significant damage, as in the Rhine pollution case discussed in the previous chapter.135 Also the notion of absolute responsibility has been criticized by the ilc as outdated, specific of medieval times and tribal solidarity.136 A state is to be held responsible solely for its own 131 132 133 134

Ago’s fourth report, u.n. Doc. A/CN.4/264, 97. Idem, 100. Idem, 97. Just to mention F.V. García Amador, who referred to it as the “theory of complicity”, but also the more conservative “theory of condonation”, proposed by Brierly and Hyde, referring to state fault solely for the purpose of estimating due compensation. See the reasoning behind this argument in Ago’s fourth report, u.n. Doc. A/CN.4/264, 122. 135 Idem, 98. 136 Idem, 120–121.

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acts or omission, where the latter may constitute failure to prohibit individuals from acts harmful to others, denial of justice or failure to take action against the violators.137 While putting the perpetrators to justice does not substitute state responsibility, it is a situation where the state meets its international obligations.138 What is more, state failure to show due diligence in preventing harmful behavior of individuals may be their actual reason, a specific catalyst, encouraging the wrongdoer.139 Willem Riphagen, who followed Roberto Ago as the ilc Rapporteur, also opted against introducing fault as an element of state responsibility for lack of due diligence.140 A consensus was reached through the interpretation of the provision on “violation of an international obligation” as covering also the notion of fault.141 Fault was to be understood as a breach of an international obligation if the content of the original obligation imposed on states included the duty to present due diligence in a way that can reasonably be required. In such a case fault is to be understood as an omission, especially if the breached obligation was a due diligence one. This most general perception of state responsibility allowed for far going flexibility of the principles.142 As a sign of consensus seeking, fault was therefore not completely eliminated from the reasoning of the ilc but rather interpreted into the basic prerequisite of state responsibility – the breach of an international obligation. A primary norm may consist of a duty of due diligence, which, if failed, can be viewed as fault of the violating state.143 The obligation of due diligence is therefore a “negative ­obligation of 137 In such circumstances the punishment of the culprits is not the effect of state responsibility, but rather part of the reason why the state is attributed with one; see: Dionizio Anzilotti, ‘La responsabilite internationale des Etats a raison des dommages soufferts par des etrangers’ (1906) 2(1) Revue generate de droit international public 122–123, reprinted in Ago’s fourth report, u.n. Doc. A/CN.4/264. 138 Dionizio Anzilotti, ‘La responsabilite internationale des Etats a raison des dommages soufferts par des etrangers’ (1906) 2(1) Revue generate de droit international public 195, reprinted in Ago’s fourth report, u.n. Doc. A/CN.4/264. 139 Ago’s fourth report, u.n. Doc. A/CN.4/264, 123–124; see also: . Seventh report on State Responsibility by Mr. Roberto Ago, Special Rapporteur – the internationally wrongful act of the state and the origins of state responsibility, 1978, u.n. Doc. A/CN.4/307 (hereinafter cited as: Ago’s seventh, u.n. Doc. A/CN.4/307), 34, pt. 8. 140 Despite protests from e.g. Austria and Czechoslovakia, see: Riphagen’s seventh, u.n. Doc. A/CN.4/397, 8. 141 Riphagen’s seventh, u.n. Doc. A/CN.4/397, 8. 142 Riphagen’s seventh, u.n. Doc. A/CN.4/397, Chapter iv(B), 8 as discussed in the context of Article 2 of the 2001 ilc Draft Articles on State Responsibility. 143 In this context fault can be perceived as a breach of an international obligation, as per Article 15 of the 2001 ilc Draft Articles on State Responsibility, when the primary norm

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result”.144 Its purpose is to thwart violations, not to compensate damage. Similarly, due diligence is an element of risk based responsibility rather than the psychological representation of fault.145 The concept of state responsibility so perceived gave rise to the aforementioned 2001 ilc Draft Articles on State Responsibility.146 Although non-binding and not uncontroversial, the document is considered to be an accurate representation of the rules of international responsibility and is cited frequently by international courts. For the purpose of discussing state responsibility for the lack of due diligence, the ilc principles on state responsibility enshrined in the draft are briefly discussed below.

Principles of State Responsibility

The ilc based its work on two fundamental presumptions. The first recognized a breach of an international obligation, i.e. of a primary norm as ground to state being subjected to secondary norms, determining its responsibility in so far as not specified within the primary norm that has been violated.147 With

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endows a state with a duty to perform in a manner to be rationally expected from it, that is with an obligation of due diligence. The details of this obligation are the necessary result of interpreting primary norm in the context of its scope and meaning. Analogically, the element of fault may be derived from the possibility of attributing the state with the acts off private individuals acting as its organs, but performing beyond the scope of the authority granted to them. See: Riphagen’s seventh, u.n. Doc. A/CN.4/397, 8. James Crawford as the Special Rapporteur covered the content of the duty of due diligence by referring to it as an obligation to achieve a negative result. The aim of this duty is not the achievement of a given factual circumstance, but avoiding it. The assessment of an international obligation as a part of one of the two categories depends on the interpretation of the primary norm introducing it. ilc, Second report on State responsibility, by Mr. James Crawford, Special Rapporteur, 1998, u.n. Doc. A/CN.4/498,, 37 (hereinafter cited as: Crawford’s second report, u.n. Doc. A/CN.4/498). Crawford’s second report, u.n. Doc. A/CN.4/498, 37. 2001 ilc Draft Articles on State Responsibility. Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 779. What is meant here are the so-called self-contained regimes, beyond the scope of the intended application of the ilc 2001 Draft Articles on State Responsibility as per its Article 55, see pp. ­589–590. For a discussion on self-contained regimes and their intrinsic liability mechanisms see e.g.: B. Simma, D. Pulkowski, Of Planets and the Universe: Self-contained Regimes in ­International Law, European Journal of International Law 2006, No 3(17), ­483–529; B. Simma, Self-Contained Regimes, Netherlands Yearbook of International Law 1985, No 16, 111–136.

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that in mind the draft was not intended to actually identify primary norms, the breach of which results in responsibility. This was left to the various areas of international law and the primary norms they consist of, such as international environmental law or the body of rules on diplomatic relations. With that in mind the ilc left open the catalogue of primary norms, the breach of which may initiate the application of secondary principles of state responsibility, to be applied in all cases of a violations, regardless of the character of the primary norm. Secondary norms are therefore to be perceived as independent of primary regimes and as such can be subject to an independent analysis and possible codification.148 Another assumption adopted by the ilc was to draw up the articles at a high level of generality, so that they can be applicable to the widest possible range of situations.149 Those two basic presumptions have since determined the interpretation and application of the ilc document and its subsequent work in other areas of international law. The basic rule of international responsibility was warded in Article 1 of the draft. It confirmed that every internationally wrongful act of the state entails its international responsibility.150 This basic presumption leaves all non-state parties beyond the scope of the proposed state responsibility treaty, although it might be argued that the draft serves as evidence for international custom, applicable also to other categories of international law subjects.151 Moreover, the draft confirms that an internationally wrongful act of state can be either a state action or its omission.152 Determining whether the state has committed an internationally wrongful act requires the application of two c­ riteria. First, the content of the violated obligation needs to be examined. Secondly, state responsibility depends on the overall circumstances of its act, described in the first part of the draft. Some of state acts can in fact be in violation of not only their bilateral obligations, but infringe the interests of several states or the entire international community (so-called erga omnes

148 Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 780. A detailed critique of the ilc methodology can be found in Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 1–26. 149 Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 779–780. 2001 ilc Draft Articles on State Responsibility, comment on Article 12, 55. 150 2001 ilc Draft Articles on State Responsibility, 32. 151 2001 ilc Draft Articles on State Responsibility, pt. (7), 34, but see also the introductory remarks that cover the ilc work on the responsibility of international organizations started in 2003. 152 2001 ilc Draft Articles on State Responsibility, 32.

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obligations).153 Moreover, one internationally unlawful act can be attributed to more than one state. A state can also be held responsible for the acts of another state, if it operated under its direction and control, although as a rule states bear international responsibility for own failure to comply with own obligations.154 The second of the three main principles of international responsibility of states defines the elements of state act. An internationally wrongful act of a state consists of any actionn or omission that can be attributed to that state as long as that act constitutes a breach of its international obligation.155 Attribution so defined has been referred to as the subjective element of state responsibility, while the breach of an international obligation – its objective criterion.156 Generally speaking, an act can be attributed to a state, if it is either an action or an omission of state bodies, with both: actions and omissions granted equal footing when it comes to attributing responsibility. Attribution requires however identifying the body responsible for the act. With a state perceived as an existing, internally organized entity (a “real organized entity”), i.e. a legal person with full authority to act in accordance with norms of international law, it can act only through its authorities.157 An “act of state” is therefore an action or omission of an individual or a group acting on state’s behalf.158 Attributing responsibility requires therefore establishing a relationship between the individual(s) and the state, one demonstrating a sufficient causal link between the attributable act and the event constituting a breach of its international obligation.159 Moreover, attribution of a breach of an international obligation to a 153 The Barcelona Traction case introduce the distinction between international obligations enforceable against all members of the international community and those applicable only against its particular members. The duty to abide by the obligations in the first category – the erga omnes obligations – necessitates states to introduce appropriate national regulations on genocide or grave human rights violations. 154 2001 ilc Draft Articles on State Responsibility, 33–34. 155 Article 2, 2001 ilc Draft Articles on State Responsibility. 156 The ilc distances itself however from this nomenclature, indicating that the occurrence of a breach can also be considered “subjective” as dependant on the will or the knowledge of state representative. 2001 ilc Draft Articles on State Responsibility, 34–35. 157 2001 ilc Draft Articles on State Responsibility, 34–35. 158 2001 ilc Draft Articles on State Responsibility 35, discussing the pcij German Settlers in Poland Advisory Opinion of 10 September 1923 (pcij, ‘German Settlers in Poland Advisory Opinion of 10 September’ (1923) Publications of the Permanent Court of International Justice (1922–1946) Series B: Collection of Advisory Opinions 22), where the court indicated that states may only operate through their bodies and representatives. 159 2001 ilc Draft Articles on State Responsibility, pt. (6), 35. An act attributable to a state must be “sufficiently connected” with that state as a subject to international law, according to

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state requires the qualification of a particular event as contrary to the contents of state’s international commitments or, more generally, as contrary to the legally protected interests of other countries.160 The identification of a breach of an international obligation arising from an omission attributable to a state depends on primary norms, defining the content of the violated international commitment. It is the analysis of this content in specific factual circumstances which allows to determine whether the breach itself allows for attributing state responsibility, or whether the damaging results of such violation must also occur.161 It is in the notion of attribution that the particular role of damage appears in secondary norms on state responsibility. Damage can therefore be a precondition for attributing responsibility to a state for an internationally wrongful omission described within a primary norm. Similarly, the primary norm may indicate that the breach suffices for attributing state responsibility, regardless of possible damage following its action or omission.162 The difficult issue of state fault is reflected in the draft in a similar way, with fault considered also a possible element of a primary norm. If the content of a primary norm indicates that only a culpable omission (negligence) on behalf of the state subjects it to responsibility, than fault is to be perceived as a legitimate premise of state responsibility.163 This flexible solution was proposed by the Special Rapporteur James Crawford with the sole aim to find consensus also among states insisting on state fault as a prerequisite of responsibility. The ilc

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the principles of state responsibility in the 2001 ilc Draft Articles on State Responsibility, Chapter ii. 2001 ilc Draft Articles on State Responsibility, 35. A state can be attributed with a violation of a treaty-based or a customary obligation, the origin of its duties has no significance for the attribution of responsibility. The pcij observed that for an act to be attributable to a state it need to be “contrary to the treaty right of another state”; see the pcij 1938 decision in the Phosphates in Morocco case, Italy v France, pcij Series A/B No 74, icgj 326 (pcij 1938), June 14th, 1938, 28. 2001 ilc Draft Articles on State Responsibility, pt. (9), 35. Varying consequences of state omissions result from the nature of the obligation that has been breached, as per the distinction between obligations of conduct and obligations of result, discussed herein above. 2001 ilc Draft Articles on State Responsibility, pt. (10), 35. The moderate approach adopted in the final version of the draft does not directly recognize fault as an element of state responsibility, at least not one perceived as harmful intent. However the compromise reflected in the draft indicates that when fault is to be recognized as an element of the primary obligation that has been breached resulting in state responsibility, it may be considered a criterion for attribution. If however the primary obligation remains silent on the question of fault, it is not implied as an element of responsibility, regardless of the circumstances of the breach.

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emphasized however that identifying a state act as internationally wrongful can only be done based on international law standards, regardless of national regulations and domestic practice – a primary principle well recognized in numerous international law regimes, just to mention Article 27 vclt.164 Respectively, a state act cannot be regarded as internationally wrongful if it does not constitute a breach of an international obligation, even if it is inconsistent with the provisions of national law.165 Attribution of an Internationally Wrongful Act The general principle of attributing state responsibility relies on acts of state bodies, including but not limited to national legislative, administrative, judicial and law enforcement bodies and individual acts following their direction, performed on their behalf or under their control (“agents of the State”).166 The second, complimentary principle of attribution is the presumed lack of state responsibility for the acts of individuals, as in the Janina incident case discussed in the previous chapter.167 Yet the notion of due diligence goes beyond the scope of those two principles. Although attributing an act of a private individual to a state does not by itself imply the unlawfulness of such act, it may be the result of state breaching its international obligation by failing to prevent such harmful private act, be it by not introducing appropriate national laws or coming short on their enforcement. A state may therefore be held responsible for the private act itself, if permissible by secondary norms on attributing state responsibility, identified in the ilc draft, implying a close causal relationship between the two basic prerequisites of state responsibility: that of the breach of an international obligation and the possibility to attribute that breach to a state.168 164 Article 27 vclt explicitly notes that a state party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. For the ilc commentary see: 2001 ilc Draft Articles on State Responsibility, Article 3, 36. 165 2001 ilc Draft Articles on State Responsibility, 36, pt. (1). 166 2001 ilc Draft Articles on State Responsibility, 36. But see: Colin Yeo, ‘Agents of the State: When is an Official of the State an Agent of the State?’ (2002) 14(4) ijrl 509–533, where the difficulties with précising the notion of a “state agent” are discussed. 167 2001 ilc Draft Articles on State Responsibility, 38. The Janina incident discussed in Chapter i implied state responsibility based on its lack of due care in preventing harm done to a foreign diplomatic envoy operating within state territory, an obligation requiring a particularly high level of diligence. 168 2001 ilc Draft Articles on State Responsibility, 39. All the prerequisites of attribution ought to occur jointly, a state can therefore be held responsible for the harmful results of individual activities if it had failed to take all necessary measures to prevent those results.

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So defined attribution of state responsibility brings a few challenges, starting with that of identifying actors whose actions may be recognized as those of a state. While a detailed discussion on this complex issue goes beyond the scope of this chapter, it needs to be mentioned in the context of state responsibility with a direct reference to the specific perception of the issue recommended by the ilc. The ilc draft recommends relying solely on the criteria named therein for identifying authorized state representatives whose actions may result in state responsibility, while abstracting from individual criteria present in various areas of international law, such as the detailed stipulations of the law of treaties, describing e.g. bodies authorized to make commitments on behalf of a state.169 The state responsibility principles are to be applied every time a state is in violation of international law, regardless of the rank or category of the authorized official acting on its behalf.170 The ilc draft includes therefore detailed description of attributing to a state acts of various categories of its officials, ranging from state authorities (Article 5), including those within the jurisdiction of other countries ­(Article 6), as well as those acting beyond their powers or against orders (ultra vires acts described in Article 7). It also covers the acts of entities other than state authorities, but acting under their direction or control (Article 8) or taking advantage of lacking effective state power (Article 9), especially with regard to insurrectional movements (Article 10). A state may also be held responsible for other actions, if it approves them or deems them its own post factum (Article 11). With regard to due diligence issues, a state is generally not to be held responsible for the actions of individuals, unless such responsibility results from specific provisions of individual regimes.171 Those last considerations are of particular importance for the questions of due diligence and state responsibility. Identifying the criteria allowing to distinguish between state organs and private entities, whose actions, as a rule, are not attributable to a state allows to outline the contemporary principle of due diligence, determining the limits of state responsibility for failure in carrying out international obligations. Identifying this group of bodies allows to indicate cases where a state is to be held responsible for its failure to show due diligence in preventing damage done by private individuals acting within its jurisdiction.

169 2001 ilc Draft Articles on State Responsibility, pt. (5), 39. 170 2001 ilc Draft Articles on State Responsibility, pt. (7), 39. 171 2001 ilc Draft Articles on State Responsibility, pt. (9), 40.

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Responsibility for State Bodies As already indicated, state responsibility relies on the acts of state bodies: legislative, executive or judiciary – it is their actions or omissions that result in the application of secondary norms identified by the ilc in its 2001 draft. For attributing responsibility it is irrelevant what function the state body performs or where it is located in the structure of state administration – acts of central and territorial authorities hold equal importance, regardless of their shared competence or any other potential relationship.172 Any individual or legal entity can be recognized as a state body as long as they are granted the appropriate status under domestic law. Also an entity without such status can perform state functions, when such status is granted to it in administrative practice, not necessarily following a specific provision of statutory law. Moreover, statutory law may come short to specify the criteria for identification or a list of state bodies. In such cases an entity can be considered a state body solely on the basis of its powers and its relationship with other state authorities, as indicated by national practice, regardless of the provisions of national laws.173 The term “state body” or “state authority” is to be construed broadly and include all stakeholders, whether individual or collective, which are a part of the state apparatus and act on behalf of the state. Because, as a rule, a state is to be perceived as a uniform entity when fulfilling its international obligations, all actions or omissions of its organs are to be considered as possible grounds of its international responsibility, regardless of their specifics or position of the entity actually taking action of abstaining from it on behalf of the state.174 Recognizing an entity as a state body is the first step towards attributing responsibility for their acts to a state. Private motivations of individuals performing authority functions are irrelevant to this assessment. What matters is whether the act or omission falls within their official powers or authority (“under color of authority”), although even when a state authority reaches beyond the power it was granted in domestic law, a state may be held responsible.175 That will not be the case however when their actions were of clearly private character (e.g. a state will not be responsible for an off-duty police officer committing a violent crime with the use of their police weapon). While the general provisions should be applied to a case-specific scenario, the line between state action and a purely private individual act or omission is usually determined by arbitration 172 173 174 175

2001 ilc Draft Articles on State Responsibility, Article 4, 40. 2001 ilc Draft Articles on State Responsibility, 42. 2001 ilc Draft Articles on State Responsibility, 40. 2001 ilc Draft Articles on State Responsibility, pt. (13), 40.

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courts. With all this in mind, a state can be held responsible for the acts of its organs contrary to its international obligations, regardless of the specific function those bodies play in the national hierarchy of authority and of personal qualities of the individual performing it, even if that person exceeds the powers assigned to their function in domestic law.176 Responsibility for State Actors As already mentioned, it is not only the actions of state bodies that can be attributed to a state, although they are the primary factors behind potential state responsibility.177 In particular circumstances however acts of private individuals and non-state bodies carrying out certain elements of state power may be attributed to the state. Those circumstances may arise when those individuals or bodies have been authorized by the state, under the provisions of domestic law, to perform its certain functions and have acted upon such authorization. These entities are not to be considered state authorities as such, yet are entitled to carry out certain elements of state power.178 The concept of an “entity”, introduced by the ilc, covers a broad spectrum of potential contractors for state functions, such as private enterprises, entities lacking legal personality or public agencies, provided they have been dully authorized to act on behalf of the state.179 It is without merit here what kind of competence they have been delegated with or in what form, as those factors are not relevant for attributing state responsibility. Neither are details of the entity, such as its legal character or form, sources of funding or governmental oversight, as they remain subject to national laws. The only criterion significant for attributing state responsible for such acts is the fact of granting authority to exercise state power, be it only of a limited scope. Defining the limits of “state power”, a key criterion for attributing state responsibility for entities performing on state behalf, may prove difficult. Apart from few obvious situations, such as an official authorization for a private body to e.g. provide security or administrative services on behalf of the state, identifying what can be considered as state power “depends on the specific society, its history and traditions”.180 What matters here is not only the nature of the delegated competences, but also the way and the manner of their delegation as well as the financial and administrative arrangement behind it. 176 177 178 179

2001 ilc Draft Articles on State Responsibility, Article 7, 45–46. 2001 ilc Draft Articles on State Responsibility, pt. (2), 40. 2001 ilc Draft Articles on State Responsibility, Article 5, 42. 2001 ilc Draft Articles on State Responsibility, 43; see also Chia Lehnardt, Private Militarfirmen… (Chapter i, n 20) 154–163. 180 2001 ilc Draft Articles on State Responsibility, 43.

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The act of authorization itself is to be verified according to relevant national law, but assessing the scope of the delegated “state authority” is to be carried out following objective criteria, different from those performed on behalf and under the control of a state or for the acts of revolutionary forces.181 While all these notions are broadly discussed in literature, the only indication provided by the ilc as to refining the definition of “state power” is an implication for it to be applied solely to entities legally empowered to carry out g­ overnmental functions.182 If it can be established that the entity was officially authorized to act on behalf of the state, the latter is to bear responsibility for actions or omissions of the former even when the authorization granted the entity some discretionary power or otherwise allowed for its independence in the performance of authorized functions. There is no need to prove that the harmful act or omission itself occurred under state control. This is not to imply that the state is responsible for all the activities of bodies it had authorized as per the provisions of domestic law, including e.g. self-defense or self-help. It is to indicate a rather narrow range of situations in which the entity is authorized to perform specific functions of the authorizing state, when the state can be held responsible.183 .

Responsibility for Private Individuals A different category of entities whose acts may be attributed to the state, are those operating under its direction or control. The behavior of individuals or groups may be considered as acts of the state, if that person or group performs state orders, works under its direction or control. These three forms of providing state legitimization of individual actions should be perceived and analyzed separately, yet following one of them suffices to attribute state responsibility for the individual act. The performance of one of the three forms of state authorization must however be directly linked to the breach of an ­international obligation of a state.184 Individual activities performed with the direction or control of the state can be attributed to it because of the principle of ­efficiency, which implies a “unique, real relationship” between the state and the individual participating in the exercise of state functions.185 Such a unique ­relationship appears when individuals under state direction or command 181 182 183 184 185

2001 ilc Draft Articles on State Responsibility, Article 8 and 9, 43. 2001 ilc Draft Articles on State Responsibility, Article 5. 2001 ilc Draft Articles on State Responsibility, 43. 2001 ilc Draft Articles on State Responsibility, 48. 2001 ilc Draft Articles on State Responsibility, 48. On the principle of effectiveness see e.g.: H. Kelsen, Principles of International Law, Rinehart & Company, Inc. 1952, 215 ff.; H. Kelsen, General Theory of Law And State, Rinehart & Company, Inc. 2007, 121 ff.

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commit an ­unlawful act or, more generally, when they follow state directions or commands, also when their act reaches beyond state power. This provision relates primarily to situations in which state authorities rely on private “auxiliaries”, who are never officially introduced into state structures, regardless of their official form.186 With those general observations, one needs to turn to the fundamental definition of “acts carried out under the direction or control of the state”, which ought to be perceived narrowly. A state can be attributed with responsibility only “if it directed or controlled the specific operations” which resulted in the breach of a primary norm and when the act essential for committing the violation was an integral part of such a state-controlled behavior.187 Therefore conduct only incidentally or collaterally accompanying harmful acts or one which is not subject to control or direction of the state falls outside this category. The judicial practice discussed in the previous chapter clarifies this general notion well present also in the ilc 2001 Draft Articles on State Responsibility, in particular with reference to the ilc decision on the Condras case or the icty Tadic case.188

The Question of Indirect (Vicarious) Responsibility of States

The ilc draft remains silent on state responsibility for acts outside any of the categories discussed above. When no delegation of state functions, authorization, control or direction from a state is to be proven, a state is not to be held responsible for the acts of individuals.189 The 2001 ilc draft makes only an indirect reference to such cases, discussing the rules of allocating responsibility for the actions of entities other than state organs, reiterated above. Yet this category of individual acts performed without state participation remains crucial to all due diligence issues, because state failure to show due diligence in preventing harmful acts of individuals is most often invoked with reference to 186 2001 ilc Draft Articles on State Responsibility, pt. (1), 48, but see Article 17 which differentiates between those and the activities performed by the state under the control or on the authority of another state. 187 2001 ilc Draft Articles on State Responsibility, pt. (3), 48, see also. The Contras case, cited in Chapter i above. 188 2001 ilc Draft Articles on State Responsibility, 47. Both cases have been discussed herein above, in Chapter i. 189 The question of international liability, its detailed provisions and consequences is discussed further in this chapter.

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individuals acts harmful to third parties and, arguably, resulting in a breach of an international preventive obligation of the negligent state. Let us repeat once again: as a general rule, the acts of private individuals are not ground for state responsibility. Exception to this rule can arise only when individual acts constitute a violation of an international obligation of a state and such a violation can be attribute to it through, e.g. showing its lack of due diligence in preventing that harmful act. Despite the fact that the ilc never took on the question of state responsibility for acts of individuals other than in the cases discussed above, there is a growing trend among international legal scholars to argue for the recognition of states’ “indirect” or “vicarious” responsibility as a distinct, autonomous category in international law, referring to the early works of Oppenheim, discussed here in Chapter i.190 The popularity of this notion has been rapidly increasing in the 21st century especially in the context of the global “war on terrorism” and the pressing issues of international responsibility of states “sponsoring terrorism” and “harboring terrorists”, i.e. those states whose authorities remain passive despite knowledge of terrorist activity being planned, originated or initiated from their territories.191 Among the many writers arguing for the recognition of indirect responsibility of states the icj decision in the case of American hostages in Teheran seems to be the leading example.192 The icj attributed responsibility to Iran for the actions of private attackers on American diplomats for failing to provide them with protection and publicly praising their actions a few days after the attacks.193 Many contemporary writers view this case as similar to that of the 9/11 us attacks originated from Afghan soil, not prevented by local authorities and their passive permission of Al-Qaeda to keep on operating from state territory, creating a global threat. It is usually state reluctance to introduce effective antiterrorist measures that is being interpreted as their consent for effecting terrorist crimes. It is however difficult to equate state obligation to provide a particularly high level of care for foreign diplomats complemented by official affirmation of trespass against them, as with the Teheran hostages case, with the arguable general obligation to protect world peace, usually derived from 190 See e.g. Vincent-Joel Proulx, ‘Babysitting Terrorists: Should States Be Strictly Liable for Failing to Prevent Transborder Attacks’ (2005) 3(23) bjil 624; Davies Brown, ‘Use Of Force Against Terrorism After September 11th: State Responsibility, Self – Defense And Other Responses’ (2003–2004) 11 Cardozo jicl 13. 191 Anthony Aust, Handbook of International Law (cup 2011) 265; Vincent-Joel Proulx, ‘Babysitting…’ (n 190) 643–659. 192 Davies Brown, ‘Use of Force…’ (n 190) 13–15. 193 See Chapter i for a discussion on the details of the case.

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Article 2 para. 4 un Charter. While the particular obligation vis-à-vis diplomats requires specific measures, such as enhanced police protection or relocation to a safer quarter, there are no distinct measures nor detailed intentional accords on how to prevent terrorist acts. The existing antiterrorist treaties, discussed in detail further herein, remain weak on both: the definition of terrorism, a notion continuously perceived as controversial, as well as the measures each state needs and is able to employ to prevent terrorist acts. Even the fundamental obligation of intentional cooperation to prevent terrorist attacks seems vague in the face of the obvious need to protect state secrets and ensure local peace. Moreover, while Khomeini publicly affirmed of the attack on the diplomatic mission in Teheran, authorities in Afghanistan or other middle-East countries clearly state their anti-terrorist policy. It is therefore a far going overstatement to equate those two cases in their significance. The seeming reluctance of local authorities to eliminate Al-Qaeda from social and political life together with their limited practical capabilities to do so are fundamentally different from the detention of diplomatic staff hostage at the seat of a diplomatic mission, despite the awareness and with the consent of state authorities. Yet as the global terrorist threat increases, the vicarious responsibility concept gains in popularity. It was in his 1920 treatise that Oppenheim argued for a vicarious responsibility to be attributed to states not only in cases of private actions of their authorities: monarchs, ministers, parliaments or armies, but also for the acts of private individuals, as “international law imposes the duty upon every state to prevent as far as possible its own subjects, and such foreign subjects as live within its territory, from committing injurious acts against other States. A state which either intentionally and maliciously or through culpable negligence does not comply with this duty commits an international delinquency for which it has to bear original responsibility”.194 Yet even when proposing such far going concept of state responsibility, Oppenheim indicated that while “in practice it is impossible to prevent all injurious acts” of private persons, a state is to “bear vicarious responsibility for such injurious acts of private individuals as are incapable of prevention”.195 Oppenheim promptly links his concept of “vicarious responsibility” with due diligence: while the “sole duty” of states is to “exercise due diligence to prevent internationally injurious acts on the part of private persons” and should those occur, a state is to identify and punish the culprit. Oppenheim clearly states that “Beyond this limit a state is not responsible for the acts of private persons”. Should however a state have

194 Lassa Oppenheim, International law: a treatise (Longmans Green & Co 1920) 258. 195 Idem, 259.

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failed to exercise due diligence, it may be held responsible to pay damages.196 While in 1920 Oppenheim did suggest state responsibility for the harmful acts of private individuals, rather than for the omissions of state bodies who had failed to prevent such harm, he clearly pointed to the criterion of due diligence as a limit for state responsibility. Long before the internationally recognized duty of prevention, Oppenheim indicated due diligence as a yardstick for measuring state efforts in preventing transboundary harm. When harm occurred despite diligent state efforts, it could be held to no responsibility. This position granted due diligence a steady place in the state responsibility regime and is well reflected also in contemporary international law. The concept of indirect responsibility has been subject to discussion and criticism.197 In the present state of international law states may only be subjected to direct responsibility, as the notion proposed by Oppenheim of state ​​ responsibility for “acts other than their own” neither helps to explain the issue or does it contribute to systematizing its principles.198 In particular, it is unreasonable to use it in context of the acts of individuals, as including those who are not subjects of international law in the complex matrix of state responsibility enhances the confusion. Surprisingly however some contemporary writers use the concept of “vicarious responsibility” to argue against the very notion of attribution, suggesting that tolerating individuals’ crimes ought to give ground to direct state responsibility for their acts.199 A state whose authorities are aware of a terrorist attack being prepared and are failing to prevent it are to be held responsible for such an attack.200 While it is easily understood that states are under a general obligation to prevent harm to third parties, the details of this obligation, as explained thoroughly further in this book, remain intentionally flexible to the point of ambiguity, particularly when it comes to technicalities of implementing them, be it preventing environmental pollution or securing a telecommunications network. As already discussed herein, the river Sandoz incident showed that even with the most detailed, advanced and well executed procedures effective prevention of transboundary threats is never a given. This task seems even more challenging with respect to the fight on global terrorism, where not only 196 Idem, 259. 197 Ago’s fourth report, u.n. Doc. A/CN.4/264, 100, pt. 72. 198 Idem. 199 Davies Brown, ‘Use of Force…’ (n 190) 13. 200 Davis Brown argues that by giving shelter to Al Qaeda, Afghanistan participated in activities, which it should prevent under its international obligations, holding Afghanistan vicariously responsible for terrorist attacks. Davies Brown, ‘Use of Force…’ (n 190) 13–15.

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the notion, and, as a result, the scope of activities to be perceived threatening is ambiguous, but so are the particular measures to be implemented. Without a detailed analysis of a particular case, the sole assumption of a general obligation to prevent terrorist attacks shows insufficient to attribute state responsibility.201 On the other hand for states to be held directly responsible for individual crimes, they need to engage in a direct relationship with those committing harmful acts, which may show impossible to prove in the complex case of sponsoring international terrorism.202 So perceived indirect responsibility fails to reflect the current status quo on state responsibility. Only exceptionally are states to be held strictly responsible for all transboundary harm, as is the case with space exploration and damages caused by space objects, yet such responsibility always needs to be rooted in a treaty. Strict responsibility is an exception to the rule of attribution. With regards to all other harm, the link between state act and occurred damage must be proven, a contrary scenario would violate the fundamental presumption of innocence. With that in mind any perception of indirect responsibility that calls for striking attribution from the list of state responsibility criteria seems obscure.203 While the authors arguing for “indirect” or “vicarious” responsibility of a terrorist acts originated within state territory deem attribution unnecessary,204 they seem to reflect the “bellum Americanum” idea of Michael M.N. Schmidt, the notion of military self defence in the era of global terrorism, although Schmidt himself refrains from using the indirect responsibility concept, relying on state failure to meets its obligation of prevention as per e.g. the cases of Lotus and Caroline.205 In the context of contemporary international law the notion of indirect or vicarious responsibility, as presented above, is difficult to defend. Discarding the prerequisite of attributability tears down the logical structure of state responsibility as carefully weaved by the ilc through over 60 years of its work and reflected in the accompanying caselaw. The presumption of state 201 As argued by Davies Brown, ‘Use of Force…’ (n 190) 31. 202 As argued by Davies Brown, ‘Use of Force…’ (n 190) 15–17. For the direct attribution criteria see the already discussed Tadic case and the Srebrenica massacre opinion. 203 Vincent-Joel Proulx, ‘Babysitting…’ (n 190) 654–656. 204 Using the alleged international community’s tacit support for the us military campaign in Afghanistan against the Taliban in response to the 911 attacks as confirmation of the developing recognition of indirect state responsibility for terrorist acts, see: Vincent-Joel Proulx, ‘Babysitting…’ (n 190) 626–630. 205 Michael N. Schmitt, Bellum Americanum: The u.s. View of Twenty-First Century War and Its Possible Implications for the Law of Armed Conflict (1998) 19 mjil 1051 ff; Michael N. Schmitt, Bellum Americanum Revisited: u.s. Security Strategy and the Jus Ad Bellum (2003) 176 mlr 391 ff.

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­responsibility for damage originated from its territory is contrary to the principle of presumption of innocence, widely recognized by civilized nations in their internal orders, and so recognized by the international community. What is more, it seems that the goals pursued by its proponents can be relatively easily achieved without a revolution in the system of international responsibility.206 A similar role can be played by state responsibility for omissions, as it allows to introduce a broad concept of state responsibility for the failure of its organs, as in the Teheran hostages case. It can be therefore easily applied to states “sponsoring” terrorism, which act in breach of their international obligations to prevent terrorist acts. One element that would be needed to more effectively enforce this legal concept in the fight against international terrorism is a set of detailed guidelines and procedures on measures necessary to show due diligence in preventing this particular threat.207 The notion and background of international liability are used to fill this legal void. International liability covers the acts of individuals and links them to certain duties of states, in particular state duty of prevention. The international liability regime allows however states to also carry responsibility for individual acts. This is a reflection of national laws, where vicarious responsibility of one subject for the acts of another is instituted in civil law under particular circumstances. As already explained, state responsibility for the omissions of its organs as identified by the ilc allows to hold responsible those states who fail in diligently protecting the interests of others. Attributing such responsibility always relies on the facts of the case. The criteria for attribution largely depend on the standard of due diligence applicable in given circumstances. With that in mind, due diligence is crucial for establishing the rules on state responsibility for the omissions of its organs. Primary norms of individual customary or treaty-based regimes allow to identify such criteria. Yet there is a general due diligence standard for evaluating the measures taken by states to meet their primary obligation of preventions, identifiable through the analysis of particular regimes and international practice. To define it, a reference to those regimes which define measures necessary to prevent third party damage should be discussed. This will be done with reference to the ilc work on international liability for acts not prohibited by international law, introducing the common duty of prevention from transboundary harm.

206 Vincent-Joel Proulx, ‘Babysitting…’ (n 190) 625. 207 Elements of a due diligence obligation, common to all areas of international law and practice, are discussed in detail further in this book, see Chapter 3.

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Circumstances Precluding Lawfulness

Although state responsibility can be attributed when state authorities fail to act with due diligence, the general rules on mitigating accountability apply. Reflecting national laws, also the law of state responsibility provides for a series of circumstances which deem a state free from responsibility, although it had violated international law. While this broad area of international law together with the questions on countermeasures and self help falls beyond the narrow scope of this thesis, a brief reference to the particular ilc stipulations needs to be made in the context of the broader state responsibility debate. There are six factors precluding legal consequences of an otherwise illicit activity which include consent, self-defence, countermeasures, force majeure, distress and necessity, yet none of these circumstances are to be considered valid if applying them would conflict with a peremptory norm of international law. And so a “valid consent” is granted by a state with regard to a given harmful act performed by another state, precluding the wrongfulness of that act within the limits of the consent given. Consent may be granted in advance or at the time when the hamrful act occurrs. A consent granted post factum is considered a waiver or an acquiescence and leads to the loss of the responsibility claims by the consenting party. Secondly, the wrongfulness of a state act will not result in its responsibility if that state is acting in self-defence, as understood under the United Nations Charter regime.208 Similarly, as per Article 22, the wrongfulness of a state act is precluded “if and to the extent that the act constitutes a countermeasure” as per the criteria indicated by the ilc in Chapter ii of part three of the document cited. As per Article 23 the illicity of a state act is precluded if the act is the result of force majeure, that is “the occurrence of an irresistible force or of an unforeseen event, beyond the control of the state, making it materially impossible in the circumstances to perform the obligation”. Force majeure may however not be invoked in situations where the very force or event is due to the conduct of the acting state or the state assumed the risk of that situation occurring. Article 24 of the ilc 2001, dealing with distress as a criteria precluding lawfulness, covers a unique situation draft articles of an act of an individual rather than that of a state. When the life of that individual is at stake or those in his care they are permitted to perform an 208 As indicated in the introductory remarks to this volume, the questions on the definition of self-defence and the use of armed force in international law belong to some of the most controversial ones in contemporary scholarship. Should however a given circumstance meet the criteria of Article 51 unc, measures taken in self defence, with particular regard to their proportionality, will not result in state responsibility.

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otherwise illicit act on behalf of the state without causing its responsibility. As the ilc explains, this is a “specific case” dealing with individuals whose acts can be attributed to the state and find themselves in danger, “either personally or in relation to persons under his or her care”. If his or her act is the only possible way of saving life, it shall not be considered unlawful. Distress may not however be called upon to free a state from responsibility in cases when the situation of distress is due to the conduct of that state or “the act in question is likely to create a comparable or greater peril”.209 Eventually, necessity may not be invoked by a state when a given act is the only way for the performing state to preserve its “essential interest” against “a grave and imminent peril” and that act “does not seriously impair an essential interest” of other states bound by the violated obligation or of the international community as a whole.210 Under no circumstances can a state however invoke necessity if the potentially violated obligation excludes this possibility or the state has itself caused or contributed to the situation of necessity.

State Responsibility vs International Liability

Following the rapid advancements in space and energy research of the 1950s, especially new technologies based on nuclear energy and the swift development of maritime transport, made pressing the question of international liability for transboundary harm resulting from a lawful, state-authorized activity conducted within state territory. This was the case despite the work of the ilc on state responsibility – it was not always possible to attribute state responsibility for unlawful omissions of state bodies, resulting in transboundary harm, as the majority of harmful activities was done in accordance with international law and the subsequent harm was a result of an unforeseeable accident.211 At the same time the question of liability for such harm and compensation for subsequent damage reached far beyond the questions already dealt with by the ilc within its work on state responsibility for illegal state acts. It was for this reason that in 1970 the ilc decided to expressly limit the scope of 209 Article 24, 2001 ilc Draft Articles on State Responsibility. 210 Article 25, 2001 ilc Draft Articles on State Responsibility. 211 The arguments behind identifying the need for separate research into the questions of international liability have appeared in ilc report from 1973 onwards, see: General Assembly Resolution, No 3071 (xxviii) of 1973, General Assembly Resolution, No 3315 (xxix) of 1974, General Assembly Resolution, 3495 (xxx) of 1975, General Assembly Resolution, 31/97 of 1976, General Assembly Resolution, 32/151 of 1977.

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research on state responsibility to the consequences of acts contrary to international law, assuming, however that when defining the general principles of state responsibility for acts contrary to international law, they will make sure to include provisions keeping a path open to applying state responsibility rules for acts not prohibited by international law.212 This was to be the case when a state omission resulted from its failure to meet its due diligence obligations, resulting in a breach of international law. In 1973 the ilc traced a path for its future work on “risk liability”, once the research on state responsibility was to be completed. The ilc traced the distinction of international liability issues along the criterion of legality of a harmful act, whereas state responsibility covered only acts prohibited by international law.213 The initial plan to look into the risk liability issues at “convenient time” was soon replaced with the 1976 General Assembly recommendation to commence appropriate research “as soon as possible”.214 In 1977 the ilc placed “risk liability” on its agenda, taking state responsibility research as the starting point for further deliberations and creating a Commission on international liability for harmful consequences of acts not prohibited by international law.215 In 1978 the ilc commissioned a special report on the principles of international liability for injurious consequences of acts not prohibited by international law as a new area of ​​potential codification.216 The working group was led by a New Zealander, Robert Q. QuentinBaxter, who was to later become the Special Rapporteur on the issue.217 After three meetings members of the working group agreed on the contents of the preliminary report, to be submitted to the ilc. With this working plan the work on international accountability: state responsibility and international liability was conducted simultaneously yet independently by two working groups: that chaired by Roberto Ago, whose task was to examine the consequences of actions prohibited by international law, and one chaired by Robert QuentinBaxter, dealing with the consequences of activities not prohibited by international law, although carrying a threat of transboundary harm. To determine the new field of study different terms were used. Originally, it was referred to as “responsibility for risk arising out of certain activities 212 ilc Report, 1978, u.n. Doc. A/33/10, 149. 213 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 3. 214 ilc Report, 1978, u.n. Doc. A/33/10, 150. 215 Idem. 216 ilc Report, 1978, u.n. Doc. A/33/10, Chapter viii (C), 176 ff. The work of the group resulted in the adoption of the 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10. 217 ilc Report, 1978, u.n. Doc. A/33/10, 150 pt. 171.

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­ ermitted by law, such as research on space and nuclear energy” or “a form of p state responsibility, protecting against the risk of the consequences of certain actions consistent with international law”. At the same time there were particular terms used to distinguish the new subject of analysis from earlier findings of the ilc, describing them as “research on this other form of accountability, providing protection against the dangers inherent to certain activities, not prohibited in international law”. It’s worth noting that the choice to introduce this dichotomy in the research on accountability was not anonymous. During the discussions in the Sixth Committee other approaches to the methodology were introduced. There was a minority request to include a third category of acts, “which, because of their perilous nature are located between those prohibited by international law and those not conflicting with its the norms”.218 This view was however not reflected in the future work of the ilc, which in 1978 started its work on international liability for acts not prohibited by international law.

Due Diligence and the Principle of Good Neighborliness

Contemporary international law perceives due diligence as a necessary consequence of the principle of good neighborliness, often viewed as one of the guarantees for the peaceful coexistence of states. This principle stems directly from the obligation of states to prevent the use of their territory to the detriment of others, confirmed by international courts and legal writer as discussed in detail in previous chapters. The principle of good neighborliness should be recognized as a primary norm of international law, within the meaning of the 2001 ilc Draft Articles on State Responsibility and has been directly expressed in numerous treaties on international environmental law. Its origins can be traced back to Roman times, when the duty to refrain from the use of own territory to the detriment of others was expressed as “sic utere tuo, ut aluenum non laedus”.219 The contemporary question about the limits of unrestrained use of own territory has been present in the discourse on international law primarily in the context of the use of shared resources, such as water, air and soil since 218 ilc Report, 1978, u.n. Doc. A/33/10, 150. 219 Johan G. Lammers claims that the Roman origins of this principle are doubtful and argues that it is also difficult to find its direct representation in contemporary national laws, as it appears only in some Anglo-Saxon court decisions and in writings of common law legal scholars; see: Johan G. Lammers, Pollution of International Watercourses. A search for substantive rules and principles of law. (brill 1984) 570.

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1970s.220 The limits of sovereignty of a state exploiting natural resources within its jurisdiction or control are traced along the meaning of the principle of good neighborliness and standards of due diligence complementing it. Their applicability to contemporary international relations is confirmed by international case law with treaties, such as the Stockholm Declaration, reflecting its content and confirming customary practice.221 As already mentioned, Principle 21 of the Stockholm Declaration confirms that states are under an obligation, originated by the un Charter and principles of international law, to ensure that activities carried out within their jurisdiction or under their control do not cause damage to the environment of other states or to areas beyond state jurisdiction. This principle was confirmed 20 years later in the text of the Rio de Janeiro Declaration on Environment and Development.222 Its Principle 2 reaffirms the duty of each state to exercise their sovereign rights of exploitation of natural resources with due respect for the interests of others, expanding on Principle 21 from Stockholm to include also the need to take into account the principle of sustainable development. The principle of good neighborliness also served as the basis for a series of treaties of international environmental law, including the 1979 Convention on transboundary air pollution over long distances, the 1982 Convention on the Law of the Sea and the 1985 Vienna Convention for the Protection of the Ozone Layer, to name the most influential ones.223 Next to its recognition in international treaties, the international obligation to respect good neighborly relations can also be seen as part of general customary law.224 Some authors include the principle of due diligence when discussing the principle of good neighborliness, perceiving them both as necessary elements of Principle 21 of the Stockholm Declaration. This view can be well supported with reference to international case law on the protection of environment, with two leading cases already discussed herein above: the 220 Eyal Benvenisti, Sharing Transboundary Resources: International Law and Optimal Resource Use (cup 2002) 201–232, where the author defines and discusses the notion of “­international shared resources”. 221 Lisa Viikari, The Environmental Element in Space Law (introduction, n 18) 150; ila Conference Report (1990) 168 available at: accessed 14 March 2016, 168. 222 Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment And Development (1992) u.n. Doc A/CONF.151/26, vol. i, att. 1. (hereinafter cited as: Rio Declaration). 223 un Convention on the Law of the Sea (1982) unts 1833, 3 (hereinafter cited as: unclos). 224 Lisa Viikari, The Environmental Element in Space Law (introduction, n 18) 152.

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­arbitral tribunal award on the smelter in Trail and the icj decision concerning the straits of Corfu.225 The principle of good-neighborliness has been adopted by states primarily because of its inherent flexibility, the same element that has originated its severe criticism from some legal scholars. This principle covers both: respect for the sovereign rights of states to use natural resources under their jurisdiction or control and the respect for the legally protected interests of third parties, i.e. an obligation to use them in a way that is harmless to others. This correlation of a right and an obligation allows for a wide margin of appreciation, while making it extremely difficult to determine the actual content of the principle of good neighborliness in a case specific situation.226 Already in 1963 Winfield and Jolowicz pointed out that for this reason the principle “unhelpful and misleading”, because it is to be understood as a limitation on lawful use of one’s resources as long as such use may bring harm to others. As a result it is impossible to determine the limits of permitted use.227 Its critics have referred to the principle of good neighborliness as an “empty formulation”, criticizing it for being “unhelpful in making decisions” or “completely useless as a principle of law”.228 Even as recently as 1980s the Roman principle of sic Uter tuo ut aluenym non laedas was criticized as alien to the system of international law.229 Specifying the meaning of the principle in 1990s by adding reference to “significant” harm as the one to be prevented, hence limiting the free use of state resources only to situation threatening of significant damaged, helped to limits its criticisms and clarify its scope.230 Regardless of this specificity however the principle of good neighborliness, while carrying with it the obligation to prevent significant transboundary harm, fails to impose any specific obligations on the state. Its content is to be verified against the circumstances of each case, based on the principle of due diligence. As such the principle of due diligence is key to determining the international responsibility of states for transboundary harm, consequent of that state breaching the principle of good-neighborliness. 225 Nathalia Schrijver, Development… (introduction, n 22) 50; Nathalia Schrijver, Sovereignty… (introduction, n 22) 127, Johan G. Lammers, Pollution… (n 219) 286. 226 Lisa Viikari, The Environmental Element in Space Law (introduction, n 18) 152. 227 Johan G. Lammers, Pollution… (n 219) 571. 228 Johan G. Lammers, Pollution… (n 219) 571. 229 Idem. 230 Nuclear trials case (Chapter i, n 428) 241, para. 29; Roda Verheyen, Climate Change ­(Chapter i, n 32) 147; Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 69 ff.

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Principles of International Liability for Harmful Consequences of Acts Not Prohibited by International Law

All international liability research needs to continuously reflect the evolution of international policy and cooperation on the peaceful use of atomic energy, exploration of outer space, use of environment and natural resources, marine pollution and the risks posed by oil transportation by sea. With the scope of future research so defined, there are three common features of the relevant regimes, i.e. characteristics shared by the law of the sea, space law and environmental law. First, each of the regimes specified the manner in which a state was to use or allow the use of the resources by its subject. Secondly, each of them specified undesired consequences of the use of these resources, harmful to third parties. Finally, each of the legal systems covered legal consequences of activities which proved to be harmful, yet were not prohibited by international law.231 These shared elements of the three basic regimes of international liability reflected prior un work on international environmental law.232 The already mentioned Principle 21 of the Stockholm Declaration, while recognizing the sovereign right of states to exploit natural resources at their disposal, recognized also it consonant with those countries’ commitment to ensure that actions taken in their jurisdiction or under their control would not result in damage to the environment of other states or shared spaces. It was understood that with international liability, unlike with state responsibility, there is no presumed consent of the state to take upon itself the risk of dangerous acts or responsibility for their harmful consequences. Moreover, unlike with national civil law regimes, there is no legal obligation for states to ensure effective compensation for the victims, unless there is an international agreement, contractual or customary, obliging them to do so. When determining the standard of care, the minimal level of damage which is to result in 231 Idem, 151. 232 Other shared elements of contemporary international liability regimes include: (a) clear stipulations on operator’s liability, with activities run by more than one operator resulting in their joint and several liability; (b) the operator’s obligation to take insurance or provide other financial guarantee; (c) establishment of compensation funds; (d) the principle of nondiscrimination, applied by the State of origin in its domestic courts to non-nationals being granted the same protection as one accorded to nationals; (e) national laws being applicable in all matters not directly covered by the convention, as long as such laws are consistent with the relevant treaty; (f) judgments of national courts being enforceable in all other jurisdictions of states party to the convention, unless states agreed differently; (g) monetary compensations awarded in the currency preferred by the beneficiary of the award. Barboza’s first report, A/49/10, 157.

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international liability is not reached by minor, accidental “inconvenience” resulting from normal and rational use of territory. Should states fail to explicitly identify the threshold of nuisance which is to impose international liability, their tacit consent should serve as such criteria, i.e. when all states involved tacitly assume that the nuisance did not exceed the acceptable threshold, there is no ground for legal claims. International practice shows that in the absence of tacit consent the assessment of arguments presented by parties to the dispute is to be based on rationality. Applying rational criteria requires the courts and tribunals to strike a balance between the rational purpose behind the state using its territory, and the harmful consequences of such use to other countries. Consequentially, the ensuing “obligation of moderation”, care or diligence in exercising state power with regard to the harmful activity within its jurisdiction or under its control, can be identified. This commitment however does not directly imply liability for the consequences of such potentially harmful actions, which are an inherent part of numerous endeavors, made possible by the latest technological developments. Damage resulting from an accident which was impossible to predict and prevent is a necessary element of technological advancement. Regardless of previous efforts and achievements in its prevention, damage originating from risk carried by new technologies is likely to be of great size. What is more, the assessment of the size of such damage may in many cases depend directly and exclusively on the relative criteria adopted for its evaluation.233 With that in mind it must be observed that state practice usually opts for introducing contractual regulation on specific, dangerous areas of activity, with the resulting regimes significantly different from one another. Those differences are the result of the varying needs and specifics of each area of activity, rather than of differing opinions. Thus, depending on the subject of regulation, states would at times take on harm liability, though more often they would be inclined to lay it on those entities which were directly responsible for the generated risk, even though acting under state authorisation. Specific legal remedies were usually an element of national law.234 At times however states introduce intermediate solutions, which even though laying direct liability for the damages on the entity performing the risk-generating activity, provide for states ensuring with their authority and resources for the private entity to meet its obligations or directly taking on compensation duties, should the private entity fail to meet them.

233 ilc Report, 1978, u.n. Doc. A/33/10, 151. 234 ilc Report, 1978, u.n. Doc. A/33/10, 151.

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Absolute liability for damage originated by risky activities was an element of some of such contractual regimes. They imposed state responsibility based on the harmful consequences of risky activities alone, regardless of the nature of the acts leading to their occurrence and the acts of state bodies. This construct, inferred from the Anglo-Saxon legal system, providing for “absolute liability for dangerous things” was often complemented by additional contractual provisions limiting the actual scope of state responsibility. Depending on the subject of regulation, the introduction of the principle of absolute liability was constrained with a particular standard of due diligence, limiting the scope of actual state responsibility.235 Absolute liability could therefore arise only from situations provided for in a treaty, and could not be recognized as a principle of customary law.236 With regard of the ilc work on state responsibility, largely based on customary international law, a clear distinction in terminology and scope between “state responsibility” and “international liability” seems necessary. It is also crucial to determine the interrelationship between treaty-based liability rules and their representation in customary international law. The notion of “international liability” does not imply a scope of research limited solely to treaty standards, what is more, it necessitates a reference to secondary rules on state responsibility, based largely on custom. Only under those conditions can international liability be perceived as a possible subject for future codification.237 Any such codification must represent a fair balance between state freedom in the use own territory and protecting rights of neighboring countries potentially affected by the exercise of that freedom. With this goal in mind the ilc identified a set of prevention and compensation duties related to risky activity operated within neighboring countries. The ilc adopted the principle of balancing interests of all parties involved in a potentially harmful activity, giving them flexibility and equal stance in defending their interests.238 This treaty-based approach to international liability secured the need to identify the sources of the obligation of prevention as well as compensation duties, as the parties were to directly acknowledge it in the content of the agreement. With a treaty in place, there would also be no need for reference to primary norms of international law or demonstrating their violation as a

235 ilc Report, 1978, u.n. Doc. A/33/10, 151. 236 Carl Zemanek, Responsibility of States: General Principles in R. Bernhard (ed.) Encyclopedia of Public International Law (Max Planck Institute 1987) 365. 237 ilc Report, 1978, u.n. Doc. A/33/10, 151. 238 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 94.

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condition for state responsibility as per secondary norms.239 This approach allowed the ilc to focus on identifying the content of primary norms of liability, prevention and compensation rather than on the interrelationship between liability and responsibility.240 A treaty-based compromise was to solve the issue of identifying affected and compensating entities and states, reaching out to two most significant challenges of the international liability question. First, usually the state in whose territory the harmful event took place was the one to suffer greatest damage. More importantly however, especially in the case of environmental law, the victims were usually engaged in risk-originating activities themselves, causing a transboundary threat.241 Identifying compensation rules alone is therefore not the answer to the liability challenge, it is necessary to take into account the interests of all parties involved. This can be done only with continued international cooperation based on well-specified principles.242 Such cooperation should be targeted at preventing damage and mitigating risks. With all this in mind, the first draft of a treaty on international liability for transboundary harm was to cover only procedural guidelines that were to allow countries to further develop particular regimes for specific activities.243 To be able to later meet this goal, the ilc needed to determine the details of riskgenerating activities at the beginning of its work and so the “schematic outline” of a prospective regulation was based on three groups of provisions: security, exchange of information and compensation, reaching beyond the original ilc authorization limited solely to liability, without the questions of compensation.244 However, seeking a compromise acceptable to most c­ ountries, the 239 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 94. 240 Third report on international liability for injurious consequences arising out of acts not prohibited by international law by Mr. Robert Q. Quentin-Baxter, Special Rapporteur, 1982, u.n. Doc. A/CN.4/360 (hereinafter cited as: Quentin-Baxter’s third report), 52–53. 241 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 95. 242 Quentin-Baxter’s third report, u.n. Doc. A/CN.4/360, 62. It was within this report that Quentin-Baxter proposed the very first draft of the articles on international liability, 62–64. 243 ilc, Fourth report on international liability for injurious consequences arising out of acts not prohibited by international law, by Mr. Robert Q. Quentin-Baxter, Special Rapporteur; International liability for injurious consequences arising out of acts not prohibited by international law, 1983, u.n. Doc. A/CN.4/373, 203, 204–205 (hereinafter: Quentin-Baxter’s fourth report). 244 Quentin-Baxter’s fourth report, 223–225; Quentin-Baxter’s third report, u.n. Doc. A/CN.4/360, 53, where the author refers to the distinction between primary and secondary norms, discussed herein above.

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proposed ilc draft limited compensation issues to a general commitment of disputing parties to engage in negotiations, should there be no previous agreement in place.245 A new approach to compensatory duties was adopted by the ilc with the arrival of its new Special Rapporteur, Julio Barboza in 1985.246 He emphasized a fundamental difference between the principle of prevention and the duty of reparation, with the latter covering only internationally wrongful acts.247 While he found it easy to justify customary international duty of prevention and cooperation, it was far more difficult to prove the existence of any compensatory duties with regard to acts not prohibited by international law.248 A combination of these three commitments in a liability treaty might weaken its power, making a satisfactory compromise difficult.249 At the same time recognizing the duty of prevention and cooperation as primary norms of international law allowed for the application of secondary norms on state responsibility for their violation. However, applying this most logical and plausible legal mechanism was contrary to the dichotomy of accountability regimes, identified by the ilc in 1970s, one resulting in the mandate of the liability working group. It is the obligation of prevention, which includes a duty to demonstrate due diligence in the implementation of international commitments, next to the obligation of cooperation and exchange of information that is the necessary link between the two accountability regimes identified by the ilc.250 245 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 95. 246 As the Special Rapporteur since the 36th session in 1985 Barboza presented 12 reports, with the last one filed in 1996. It was this very last report that included the first draft of 20 articles on international liability; Twelfth report on international liability for injurious consequences arising out of acts not prohibited by international law by Mr. Julio Barboza, Special Rapporteur, 1996, u.n. Doc. A/CN.4/475. A slightly modified version of this draft was the starting point for ilc work on liability between 1996 and 1998, leading directly to the 1998 ilc Draft Articles on international liability, u.n. Doc. A/53/10. 247 Barboza’s second report, u.n. Doc. A/CN.4/402, 147. 248 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 96. See also: Fourth report on international liability for injurious consequences arising out of acts not prohibited by International Law, by Mr. Julio Barboza, Special Rapporteur; International liability for injurious consequences arising out of acts not prohibited by international law, 1988, u.n. Doc. A/CN.4/413 (hereinafter cited as: Barboza’s fourth report), 266–267, with a detailed description of the duty of prevention in Article 9 and the compensatory obligation reiterated in Article 10. 249 Barboza’s second report, u.n. Doc. A/CN.4/402, 258–259. 250 Nathalie Louisa Johanna Theodor Horbach ‘The Confusion about State Responsibility and International Liability’ (1991) 4 ljil 72. Similar arguments can be found in Alan

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Due diligence serves as a criterion for verifying state compliance with those obligations. The new direction of ilc work covered also the intended shift of burdening economic consequences of transboundary harm onto the state which initiated or authorized the risky activity. With this approach it was the risk liability of the authorising state that served as justification for compensatory claims of the victim.251 Following this assumption, treaty negotiations were to focus on identifying those exceptional situations when a state could free itself from strict liability, although they could be different for various areas of activity, depending on their specificity.252 The focus of this new approach was to enhance liability for acts not covered by specific regimes, with the general rules serving an additional role in those areas where a specific regime was in place. This allowed to identify two crucial areas of inter­ national liability research: issues related to the way in which states perform their international obligation of prevention and the question of allocation of losses.253 Seeking substantial legal grounds for international liability for acts not ­prohibited by international law and decoding the course of the relevant historical debate some authors refer to four main theories justifying it: (1) the ­concept of limited territorial sovereignty, (2) the dogmatic of absolute territorial sovereignty, (3) the notion of territorial integrity and (4) the absolute social theory.254 The concept of limited territorial sovereignty is based on the assumption that there is a positive obligation of states not to allow for significant

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E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 10, arguing that adopting the notion of international liability seems “redundant”. Barboza’s fourth report, 256; Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 96. This would imply a departure from the soft law approach proposed by QuentinBaxter. This departure from the original methodology was met with criticism, see e.g. the arguments raised by Constance O’Keefe ‘Transboundary Pollution and the Strict Liability Issue, The Work of the International Law Comission on the Topic of International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law’ (1989–1990) 18 djilp 207–208. Barboza’s fourth report, 258–259; Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 96; ilc Report, 1991, u.n. Doc. A/46/10, para. 236, 115. Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 96; Barboza’s seventh report, 1991, u.n. Doc. A/CN.4/437, Article 9 and Article 21, 84–85. Johan G. Lammers, Pollution… (n 219) 557–578. Arno Boos-Hersberger ‘Transboundary Water Pollution’ (Chapter i, n 349) 111–112.

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­transboundary harm.255 The existence of this commitment has been confirmed by case law and doctrine as well as in stipulations of various soft law documents, including Principle 21 of the Stockholm Declaration.256 Also, with regard to international waters, the 1966 Helsinki Principles on the use of international waters and rivers recognize the restrictions of territorial sovereignty of states necessary for the protection of shared water resources.257 The principle of limited territorial sovereignty finds its reflection also in the contents of the principle of good neighborliness and as such is to be considered a part of customary international law. The theory of absolute territorial sovereignty was most frequently invoked in the context of international liability for transboundary harm to be borne by states in whose territory the harmful events occurred or, in the context of the protection of water flows, upstream countries.258 For example the American Harmon doctrine of the late nineteenth century saw the United States argue that in light of international law they are not to be held liable to Mexico for draining water from the Rio Grande, as it is their sovereign right to dispose of their territory as the government considers just.259 This concept may however be perceived as self-contradictory, because the unrestrained use of territory by one state actually prevents the unlimited use of territories by others.260 Despite its common and well justified criticism, including arguments made in the course of the discussion on state responsibility, also by the United States,261 some governments still apply it in practice, not only in the field of international environmental law.262 The principle of absolute territorial integrity is inferred from the prohibited use of national territory in a way harmful to others and implies that the ­exercise 255 Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 65–66. 256 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (Chapter i, n 349) 111–112. 257 Helsinki Rules on the Use of the Waters and International Rivers, 1967, International Law Association, Report of the Committee on the Uses of the Waters of International Rivers, available at: accessed 14 March 2016, Article iv, ix, x, 477, 484. 258 Johan G. Lammers, Pollution… (n 219) 557. 259 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (Chapter i, n 349) 112. 260 Johan G. Lammers, Pollution… (n 219) 557. 261 S.C. McCaffrey, The Harmon Doctrine One Hundred Years Later: Buried, Not Praised, Natural Resources Journal 1996, No 36, 549–590. 262 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (Chapter i, n 401) 112, Johan G. Lammers, Pollution… (n 219) 570.

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of sovereign powers over own territory is possible only in so far as it does not bring harm to other states or violate their territorial sovereignty.263 This principle was confirmed by the Institute of International Law in its 1979 Athens Resolution, whose preamble urges states to respect the sovereignty of each state within its territory. This duty of respect results in a positive obligation to refrain from allowing such use of own territory, which could result in damage to the territory of other states.264 When applied to international watercourses this principle means that downstream countries may demand access to undiminished and not worsened water resources than those enjoyed by upstream states.265 Absolute territorial integrity principles is usually used by states threatened by potentially harmful activities, carried out beyond their borders. The social theory is more of a policy statement than universal legal practice, identifiable in the jurisprudence of tribunals or soft law documents. It stipulates that all shared resources should be managed uniformly, regardless of territorial boundaries. Everyone benefiting from those resource should act jointly to protect them and share the benefits they offer.266 This concept, present in e.g. the 1927 judgment of the Court of State of the German Reich (Staatsgerichtshof für das Deutsche Reich) on the backwaters of the Danube, is a reflection of Wildhaber’s “the spirit of international solidarity” or Huber’s “theory of solidarity”.267 Social theory is therefore more of a description for the a proposed legal structure, based on a presumption of joint legal instruments, procedures and rules, aimed at securing and expanding the catalog of common interests of countries rather than a justification of existing practice. Just as the idea of i​​ nternational solidarity, it is a dogmatic postulate, yet devoid of legal force.268 Regardless of its theoretical justification, the no-harm principle, rooted in equal sovereignty of states, is a well recognized element of international law.

Applying International Liability Norms

While working on international liability norms state representatives were reluctant to accept a general obligation of liability for transboundary harm 263 Johan G. Lammers, Pollution… (n 219) 562. 264 Athens Resolution, Yearbook of the Institute of International Law 1979, No 58, part ii, 196–203. 265 Johan G. Lammers, Pollution… (n 219) 563–564. 266 Arno Boos-Hersberger ‘Transboundary Water Pollution’ (Chapter i, n 349) 112, Johan G. Lammers, Pollution… (n 219) 578. 267 Der Donauversinkungsfall. 268 Johan G. Lammers, Pollution… (n 219) 578.

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originated from state territory.269 Therefore, the content of the first draft articles on international liability covered only a set of private-law measures, aimed at mitigating the effects of cross-border damage. It was not aimed at substituting international liability for transboundary harm and states’ obligations related thereto, but only meant as a first step in that direction.270 When the Sixth Committee began its meetings to discuss the specific rules of international liability, it turned out that states are ready to accept stipulations aggravating the responsibility of private bodies carrying out dangerous activities, while admitting to only minor, “residual” duties of states.271 This modest consensus was put into the wording of the 1991 draft.272 It was agreed that a decision on the actual measures for implementing compensatory obligations would be postponed. The overriding aim was to construct a flexible framework convention that describes the general principles of international liability, covering eight key issues. First of all, the ilc’s task was to describe the circumstances when international liability norms were applicable and, secondly, the role and contents of an applicable due diligence standard. It was also important for negotiators to define situations when states were free from any liability and, consequentially, responsibility in case of them breaching an international obligation of prevention. Finally, they wished to define criteria relevant to determining the amount of possible reparations. Furthermore, the ilc aimed to identify the role of equity in this new regime of international liability and confirmed states’ duty to peacefully settle international disputes. This was to be done by looking into the practice of non-state actors such as international organizations and ngos that shape international law in this respect. The last element of the potential future treaty regulation was to be an indication of methods which, transposed into national law, would allow the operation of monitoring agencies tasked with identifying potential threats and developing effective standards for international cooperation on risk management. With regard to the question of unilateral preventive measures the negotiating parties opted for the introduction of a state obligation of due diligence. This ­obligation would rest on a state within whose territory a potentially harmful activity was carried out, requiring it to take all necessary measures to prevent transboundary harm and/or punish negligence leading thereto, in a­ ccordance 269 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 96. Barboza’s sixth report, u.n. Doc. A/CN.4/428, Article 28–33, 99–100; ilc Report. 1990, u.n. Doc. A/45/10, 102–103. 270 Barboza’s sixth report, u.n. Doc. A/CN.4/428, 98. 271 Barboza’s seventh report, u.n. Doc. A/CN.4/437, 78. 272 ilc Report, 1991, u.n. Doc. A/46/10, 111.

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with ­international law. With such a definition of due diligence, states would remain free to choose the methods by which to implement their duty of care. Critics claimed that this aim-oriented approach failed to enrich the discussion on the means in which to achieve it. There was also an argument being made that measures taken to mitigate harmful effects that had already arisen should not be considered preventive and accounted for due diligence of the originating state.273 This observation was to indicate a future challenging direction of ilc’s work on post-factum preventive measures.274 Literally understood preventive measures are only those which are undertaken before the onset of damage in order to prevent it.275 Moreover, if the obligation to exercise due diligence is to be regarded as resulting from the applicable rules of international law, it would be necessary to introduce an accompanying mandatory regime of peaceful settlement of disputes, a necessary element of any contractual regime. Facing those difficult issues meant that all mediation procedures applicable to states ought to be considered recommendations, rather than binding legal norms. This observation expanded the original ilc plan forcing it to introduce two separate yet coherent accountability regimes. It was at this point of the work on international liability that the experts identified the need it to introduce a further distinction. The international liability issues were to fall into one of two categories: those referring to preventive measures granted a legally binding character, and the non-binding recommendations on mediation, applicable only once actual damage occurred. The ilc decided also to simplify international liability procedures by allowing, among others, authorization of risky activity conducted within state territory without the prior consent of potential victim states.276 For further research on international liability in general and compensation in particular it showed significant that there was no legal regime that would allow for the one causing damage, to pay compensation – an assumption to ilc had to face when seeking justification for compensatory obligations within the international liability framework. This particular issue emphasized the existence of two distinct, though closely linked, research areas. Although the ilc was mandated solely with the question of international liability, its work covered also the international duty of prevention and the verification of an international obligation to prevent transboundary harm resting upon states. If such an obligation to prevent was indeed present in international law, it would 273 274 275 276

ilc Report, 1991, u.n. Doc. A/46/10, 111. ilc Report, 1993, u.n. Doc. A/48/10, 21–34. ilc Report, 1991, u.n. Doc. A/46/10, 111. ilc Report, 1991, u.n. Doc. A/46/10, 111.

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require states to show due diligence in exercising their sovereign powers, to eliminate the risk of cross-border damage. Meanwhile, the existing international regimes of liability for transboundary harm usually did not cover procedures of prevention. Moreover, it was unclear whether the liability for transboundary harm stems from the fact of creating a threat thereof or if it arises when such risk materializes, i.e. when actual damage appears.277 Another problem was a methodological one, as per numerous national legal regimes there was no distinction between international liability for acts not prohibited by international law and state responsibility, often referred to in national laws with the same term.278 All those ambiguities led some ilc members to oppose the introduction of a legally binding liability regime, as putting it in an international treaty would imply strict responsibility based on broad and vague standards. If the regime of international liability for transboundary harm was be put in writing, its formula should be flexible, based on criteria such as rationality, due diligence, balance of interests of market participants and the principle of equity, taking into account the needs of scientific progress and economic development. At the same time, however, it should provide compensation to victims of transboundary harm, as well as cover cases of sabotage or the consequences of war, when the risk operating entity would be exempt from liability.279 In discussing an appropriate compensation model for transboundary harm the appropriateness of reflecting national civil liability of operators was raised. The discussion resulted in confirming the well-known international environmental law “polluter pays” principle.280 The proposed liability regime was to apply only to the operators of risk originating enterprises, because it was considered that transferring the least amount of duties onto public authorities would disadvantage developing countries. The creation of a system of compulsory insurance for entities engaged in activities open to risk of transboundary harm showed a practical solution to this challenge.281 All those elements added to the identification of a due diligence standard for cases of transboundary harm caused by a dangerous activity operated from within state territory. The assessment of due diligence in a particular case covers the verification of “adequate” insurance of the operator against cases of any possible damage. Moreover, this obligatory insurance should be accompanied

277 278 279 280 281

ilc Report, 1992, u.n. Doc. A/47/10, 43. See: introductory remarks on terminology. ilc Report, 1992, u.n. Doc. A/47/10, 43. ilc Report, 1992, u.n. Doc. A/47/10, 43, pt. 290. ilc Report, 1992, u.n. Doc. A/47/10, 43, pt. 290.

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by a compensatory obligation of the authorizing state, although the amount of compensation depends on the result of the negotiations, carried out in good faith by the parties concerned. Following good practice from the transport industry, the introduction of compensatory financial mechanisms, covering whole industrial sectors that generate the risk of cross-border damage and ensure compensation to victims of transboundary harm, was recommended.282

Due Diligence, Risk and Harm in the Regime of International Liability

As described above, due diligence is an imminent element of international liability. This observation is of particular significance in the twenty first century as it risk-generating activities operated by private bodies rather than direct actions of state bodies that usually generate significant transboundary harm. With that in mind the ilc work on the principles of international liability for actions that are not prohibited by international law was continued by the Special Rapporteur, Julio Barboza. The draft articles on international liability for acts not prohibited by international law proved to be an important step towards identifying the principles of prevention and compensation for risk generating activities. The ilc work covered the consequences of risk-generating activities, relying on the assumption that it is not always possible to identify the element of risk in a given activity. It recommended that the risk assessment of significant transboundary harm for particular activities should be carried out based on the analysis of materials and substances used for those activities, covering also their particular circumstances as well as the used technologies. Applying these criteria allows to identify risk of transboundary damages in most cases.283 Due diligence is to be perceived as the content of the duty of prevention, i.e. it introduces the obligations of states to take all necessary measures to prevent significant transboundary harm. ilc devoted much work to putting the obligation of prevention and the following duty of care into details and it confirmed the duty of states to demonstrate due diligence in implementing their international commitments, regardless of their source or nature.284 This duty applies not only to treaty obligations, but to any obligation 282 ilc Report, 1993, u.n. Doc. A/48/10, 24. 283 ilc Report, 1993, u.n. Doc. A/48/10, 24. 284 ilc Report, 1993, 22–24; u.n. Doc. A/48/10, ilc Report, 1994, u.n. Doc. A/49/10, 155–156, 169–172; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110–120; Rao’s first report, u.n. Doc. A/ CN.4/487, 8–23; 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, 19–24;

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of state, imposed on it by the power of international law. The ilc summarized the work of doctrine and jurisprudence with regard to international liability and the duty of prevention and offered a definition of due diligence perceived as a manifestation of “reasonable state efforts”, taken to obtain information on the legal and factual circumstances, to predict harmful results of activities and take timely and appropriate measures to prevent them.285 The 1996 Draft articles on international liability for damage resulting from acts not prohibited by international law covered the actions and omissions not prohibited by international law, which contained an element of risk of significant transboundary harm.286 Mirroring the majority of treaty-based stipulations the ilc draft introduced risk liability as the basic regime behind international liability, yet indicated only a moderate set of state duties, ones introducing an “international element of insurance”, i.e. risk liability of states covering their compensatory obligation for transboundary harm in particular circumstances, regardless of their fault or the possibility of assigning a malicious act or omission to their bodies.287 Originally, the ilc project covered also activities not prohibited by international law and not embodying an element of risk of significant transboundary harm, introducing international liability for such activities as far as they actually showed harmful. Ultimately, however, states did not accept such absolute liability as one of the principles of the negotiated regime.288 Another difficult issue was that of compensation for transboundary damage, which quickly proved the need to include it as a separate issue in ilc work, distinguishing current research on liability, including compensation, from the questions of prevention. It was since 1997 that the ilc work on international liability followed two paths: the first, original one of identifying the principles of international liability for significant transboundary harm and the second one focused on identifying measures and procedures a state needed to introduce

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Rao’s second report, u.n. Doc. A/CN.4/501, 22–23; Rao’s third report, u.n. Doc. A/CN.4/510, 5–10, 17, 2001 ilc Draft articles on prevention; Report of the working group, 2004, u.n. Doc. A/CN.4/L.661, Chapter vii, paras 170–171. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, comment (9), 111. Barboza’s twelfth, (1996), u.n. Doc. A/51/10. Maria Magdalena Kenig-Witkowska, ‘Prawnomiędzynarodowa odpowiedzialność za szkody transgraniczne w środowisku’ (introduction, n 31) 314–315, points to the leading role of risk liability in the international liability regime, notes however also the presence of fault based provisions. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 1.

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when assessing risk and preventing such damage.289 The rules of international liability would therefore be applicable when the circumstances of a given case were assessed through the prism of prevention rules. Since 1997 the ilc work on international liability covered both: the rules of prevention of transboundary harm originated by dangerous activity and the rules of allocation of the resulting losses.290 Due diligence appears in the context of the rules of prevention. 1998 saw the first report on the rules of prevention by the Special Rapporteur, appointed to research this question, Pemmaraju Sreenivasa Rao of India, who confirmed the duty of prevention as a well recognized principle of international law with the obligation of due diligence at its core. Individual elements of the duty of prevention consisted also of the precautionary principle, the “polluter pays” principle as well as principles of equity, good governance and capacity building.291 In this context the obligation to exercise due diligence is to be perceived not only in the context of generally accepted international rules and regulations, but also with reference to an objective, theoretical model of a “good government”, which needs to be reflected in the actions of national authorities implementing international law. Only when this abstract standard is met, can a state be considered free from liability, unless there is an international law norm deeming its liability absolute in a given circumstance.292 This perception of international liability and the duty of prevention was included in the 1998 ilc draft articles on international liability.293 It covered the principle of prevention and the individual duties it implies, covering the need to prevent significant transboundary harm by taking “all appropriate measures” designed to prevent damage and minimize its risk.294 The details of the duty of prevention have been discussed by the Special Rapporteur in 289 In 1997 the ilc decided to divide the subject of international liability for the harmful consequences of activities not prohibited by international law into two separate research areas: the question of preventing transboundary harm i.e. the principle of prevention and the question of allocation of losses resulting from failure to engage effective preventive measures. Report of the International Law Comission, 1997, u.n. Doc. g.a. Res. 52/156. For a detailed discussion on the reasons behind this decision and its consequences see e.g.: Francisco Orrego Vicuna, ‘Responsibility and Liability for Environmental Damage under International Law: Issues and Trends’ (1997–1998) 10 gielr 279–308. 290 The duty of prevention is included in e.g. Article 3 of the 2001 ilc Draft articles on prevention, un Doc. A/61/10. 291 Rao’s first report, u.n. Doc. A/CN.4/487, 8. 292 Rao’s first report, u.n. Doc. A/CN.4/487, 23. 293 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, 19. 294 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, Article 3, 21.

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his reports, together with recommendations of the most suitable form of an international consensus and procedures for the peaceful settlement of international disputes relating to international liability.295 The rules of prevention were given particular focus, as their identification was deemed fundamental for further work on international liability.296 For this reason the 2001 ilc draft refers no longer only to the question of liability but also directly names prevention as crucial for the legal framework behind significant transboundary harm. The ilc devoted much attention to the duty of prevention, detailing due diligence required in international law. It appears in the context of individual preventive duties and as such is described below. The precautionary principle has been defined through definitions relevant to the evaluation of the actions and omissions of states, with the most important one being that of the “risk of causing significant transboundary harm”. The occurrence of such risk results in state obligation of prevention. This term, crucial for international liability, was intentionally left with a relatively flexible definition, describing it as “low probability of catastrophic harm and high probability of other significant harm”.297 Regardless this ambiguous definition the obligation of prevention can be better identified with reference to the catalogue of “dangerous activities”, the scope and meaning of which shape the amount and content of preventive measures. Yet taking into account the diverse nature of actions taken within state borders, it is impossible to draw up an exhaustive list of those activities that cause risk of significant transboundary harm. With that in mind the ilc list of activities to be considered as triggering the duty of prevention was intentionally left open, containing examples of such activities yet referring to other areas of human activity where prevention would also be required. Moreover, when defining “dangerous activities”, it is necessary to take into account the fact that some of the projects turn out to be risky only when carried out jointly with other.298 Also, in the case of such combined activities a state may

295 Rao’s second report, u.n. Doc. A/CN.4/501, 20–22; Rao’s third report, u.n. Doc. A/CN.4/510, 11. During the debates on transboundary harm it was agreed that the qualification of “transboundary harm” as “significant” brings with it the necessary risk of irresolvable disputes, in particular since there was no obligatory mediation included in the draft. The is why the 1998 draft on the principles of prevention covered transboundary harm, regardless of its size. See: Rao’s first report, u.n. Doc. A/CN.4/487, 8. 296 Rao’s second report, u.n. Doc. A/CN.4/501, pt. 67, lit. (b), 22. 297 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 2 (a). 298 Rao’s first report, u.n. Doc. A/CN.4/487, pt. 16, 8.

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be under an obligation to prevent the significant transboundary harm they can originate. The duty of due diligence rests upon the state of “origin” of the risk and it is this state that needs to satisfy its obligation of prevention.299 The “country of origin” is the state in whose territory the risk-originating activities are carried out or one that in any other way holds effective jurisdiction over such activities, possibly exercises effective control over them. The “affected state” is the one which experiences significant transboundary damage or which holds jurisdiction or control over the area where the damage occurred.300 “Potential transboundary harm”, a term also significant for the definition of due diligence, is to be perceived as the risk of harm to state territory or another area under jurisdiction or control of a state other than the state of origin, regardless of whether it shares a border with the originating state.301 When describing the preventive obligations of states, the ilc also determined the scope of entities over actions whose a state should exercise control. Drawing from the provisions of the 1993 Lugano Convention on civil liability for damage caused to a hazardous activity to the environment, it introduced the notion of the “operator” perceived as “a person who exercises control over the activities” generating risk.302 It is the operator who is to carry liability for significant transboundary harm caused by its operations at the time when they exercised control over the activity. If the control was exercised by several operators in a given period of time, their liability is joint and several, if one of them will not be able to prove that they was responsible only for a certain part of the injury, in which case only they will bear responsibility for this part.303 The burden of proof in proving due diligence by the originating state should be perceived territorially, although the term “transboundary harm” reaches beyond the immediate physical proximity of the originating state, to all those who directly suffered foreseeable damage.304 The state should take all necessary efforts to prevent actions or omissions which can reasonably be foreseen as potentially harmful to the “affected states”, i.e. those that can reasonably be considered to be potentially directly affected by the predictable damaging effects.305 The duty of due diligence has 299 Rao’s third report, u.n. Doc. A/CN.4/510, Article 3, 17. 300 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 2 (d). 301 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 2 (b). 302 ilc Report, 1994, u.n. Doc. A/49/10, 156. 303 Idem. 304 ilc Report, 1993, u.n. Doc. A/48/10, 22. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 111. 305 Rao’s first report, u.n. Doc. A/CN.4/487, 23.

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only been described by the ilc in the context applicable to its research that is with reference to the obligation of prevention and international liability, without direct relevance to sovereign state powers, referred to in other documents and principles of international law. The principles described in the draft were merely a starting point for negotiations over the details of a future treaty, covering one or more potentially harmful activities.306 When identifying the principle of due diligence as an auxiliary principle of the law on state responsibility and international liability, the most complex was its relationship with the principle of sovereign equality of states, considered a foundation of the United Nations Charter. The obligation to show due diligence was considered in the context of the sovereign state’s right to use natural resources at its disposal.307 The principle of “equitable and reasonable utilization” of state territory was to counterweight the threat of a “significant” or “substantial” harm, as a condition for international responsibility, allowing states to identify a standard of diligence required of them in the context of international liability. States are therefore to utilize their territories in such an “equitable and reasonable” way as to prevent “significant transboundary harm”, both terms described in detail by the ilc. The obligation to prevent significant transboundary harm is then to be perceived as a key limitation of states’ sovereign rights to use their territories and natural resources. The right to an “equitable and reasonable utilization” of state territory is one of the cornerstones of international liability, yet the way it has been described by the ilc, gives ground to radically different interpretations. While some ilc members implied from its meaning a complementary right to inflict some transboundary damage, as long as that damage was not significant, ­others argued that any use which inflicts damage has to be considered nonequitable and in reasonable. To avoid misinterpretations of the vague criteria of “appreciable or significant harm” as legally misleading, it was substituted with the commitment of states to show due diligence in the implementation of their international obligations.308 Consequently, if the use of state territory was to be considered balanced and rational, it was permissible for a state to inflict certain damage. With that the primary objective of the emerging law on international liability was the rational and sustainable use of state territory, rather than full and effective prevention of harm.309 This hierarchy of principles rose controversies since its creation and has been opposed by ilc 306 307 308 309

Rao’s third report, u.n. Doc. A/CN.4/510, 12. Rao’s third report, u.n. Doc. A/CN.4/510, 5. ilc Report, 1993, u.n. Doc. A/48/10, 22. ilc Report, 1993, u.n. Doc. A/48/10, 22.

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members, ready to concede only to a due diligence reference as the content of the obligation of prevention, without the implied permission to inflict nonsignificant harm.310 As some argued the obligation to introduce preventive measures needs to be perceived with account of states’ sovereign right to use their territories for ensuring the economic welfare of society. Proponents of such a hierarchy of rules pointed out that the principle of state sovereignty and the right to development limit the due diligence obligation. To help developing countries in reaching this balance it was advisable to place greater emphasis on sustainable development an introduce a system of financial or other support to countries pursuing a dangerous project.311 Developing countries signaled the need for an international fund to support them in working out technical standards preventing damage and helping with technology transfers, necessary for their implementation. A notion complimentary of the principle of sustainable development, which meant avoiding a situation where standards applied by developed countries would be impossible to implement by developing countries, both for economic reasons and social reasons.312 The implementation of the sustainable development principle in the context-of adding obligation of due diligence in preventing significant transboundary harm-allowed for the identification of common, but differentiated responsibilities of each individual state. The scope of these responsibilities is dependent on the economic and technological status of countries. Effectively, the ilc found it not necessary to refer to “all necessary measures” states needed to take to prevent transboundary harm, settling for a direct reference to the due diligence obligation. With that in mind however, it should be observed that every time the reference to “all necessary measures” appears in international treaties it is to be considered an allusion to the duty of due diligence in preventing harmful results of the activity subjected to the contract.313 Some also argue that the obligation of prevention, by its nature, contains a commitment of due diligence, while its standard cannot be the same for all countries. Standard for developed countries may not be possible to reach by states in a difficult economic situation. According to them there need to be procedures for cooperation and incentives for development rather than sanctions for lack of due diligence.314

310 311 312 313 314

ilc Report, 1993, u.n. Doc. A/48/10, 22, 92. Rao’s third report, u.n. Doc. A/CN.4/510, 5. Rao’s third report, u.n. Doc. A/CN.4/510, 11. Rao’s third report, u.n. Doc. A/CN.4/510, 6. Rao’s third report, u.n. Doc. A/CN.4/510, 7.

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The reasonable counter argument is, that as far as states are free to choose ways of using or allowing for the use of territories under their jurisdiction or control, they need to take into account the universal obligation to prevent the risk of significant transboundary harm.315 Their freedom can only be exercised when considering other international obligations, such as those originated by the principle of equitable ­balance of interests, which complements the obligation of due diligence. Assessment of the balance of interests between the country of origin and the affected states can only be done when taking into account case-specific factors and circumstances, such as the degree of risk of significant transboundary harm and the availability of preventive measures, ones minimizing the threat and the actual possibility of repairing the damage. When seeking a fair balance of interests the significance of a given activity for the country of origin should be taken into account. Such assessment can be made with regard to social, economic and technical values significant to the country of origin and the size and the likelihood of damage to others. The danger of significant transboundary harm should be examined in the context of the availability of measures to prevent or minimize it or to restore the damage. Weighing the interests of the country of origin and affected parties should also take into account the profitability of the dangerous activity, calculated based on the costs of preventing the harmful effects with the use of methods required by the potentially affected states. The possibility to carry out risky activity elsewhere or in another way as well as the likelihood to replace it with other activities needs to be accounted for. The principle of equitable balance of interests covers also the extent to which individual, potentially affected states are ready to contribute to the costs of preventive measures as well as the comparison between preventive measures implemented by the state of origin and measures used for comparable activities in the region and at international level.316 The duty to seek an equitable balance of interests covers therefore primarily the obligation to engage in international cooperation in seeking equitable procedures, rather than directly the obligation to show due diligence in implementing preventive measures. This design for the equitable balance of interests was intended to allow for the implementation of the duty of prevention in a manner satisfactory to all parties involved.317 The principle of good faith was another guideline for seeking an equitable balance of interests. The obligation of prevention was to not only be met with 315 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 119. 316 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 19, 119. 317 Rao’s third report, u.n. Doc. A/CN.4/510, 11.

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regard to an equitable balance of interests, but also to be perceived with a commitment to undertake all preventive measures in good faith. Good faith should be understood, among others, as the obligation to address international organizations for assistance in either preventing damage and minimizing its risk or curtailing its effects.318 The obligation of due diligence can be understood therefore as the implementation of the principle of good faith in the goodneighborly relations – the commitment to take preventive measures is complemented by the explicit premise of good faith.319 320 Even though the duty of prevention is to be considered a principle of international law, the obligation it generates is not absolute.321 It applies only to such activities within state jurisdiction, which carry the risk of significant transboundary harm. Therefore, as a rule, a state is not responsible for the unpredictable effects of acts not prohibited by international law, carried out under its jurisdiction or control. At the same time a state is not obliged to take preventive measures against “clandestine activities” – ones of which it had no opportunity to learn, despite having shown due diligence. With that the obligation of prevention limits itself to risky activities commonly known as carrying potential transboundary harm.322 State should therefore take all necessary measures to identify sources of potential harm, yet are not to be held liable for any infringement of their duty of prevention, when not having taken “all appropriate measures to prevent or minimize” the risk of serious harm. Consequently, the obligation to prevent significant transboundary harm can be described as states’ commitment to undertake all appropriate measures to prevent significant transboundary harm or minimize the risk thereof, or, if prevention showed impossible to minimize the harmful results.323 With this in mind, it is clear that the duty of prevention contains the duty to show due diligence, with the notion of “all appropriate measures” covering the obligation to apply best available technology to identify and minimize the risk of harm.324,325 Moreover, conducting hazardous activity is subject to the obligation to provide insurance commensurate with the risks taken.326 318 319 320 321 322 323 324 325 326

Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 6, 110. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, 119. Rao’s first report, u.n. Doc. A/CN.4/487, 9. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, 119, 110. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 4, 110. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110. ilc Report, 1993, u.n. Doc. A/48/10, 22. ilc Report, 1993, u.n. Doc. A/48/10, 22. Rüdiger Wolfrum, ‘International Environmental Law: Purposes, Principles and Means of Ensuring Compliance’ in F. L. Morrison,

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If the country of origin was offered help in neutralizing the resulting damage by an international organization or a third party and rejected such offer, whether as a result of negligence or carelessness, it is to be considered having failed to show due diligence. The same assessment is to be made for states whose authorities refused to accept the assistance offered by a third party or an international organization in minimizing the damage. If however a state took the help it was offered, future damages should cover only the actual damage incurred, without elements already accounted for or prevented.327 Due diligence should therefore be perceived in the context of international rather than domestic standards of conduct, as the type and scope of preventive measures is to be determined by the country of origin and potentially affected countries together, while covering international preventive measures in specific circumstances.328 This cooperation should commence with the country of origin meeting its due diligence obligations: taking all necessary legislative, administrative or other measures to prevent transboundary harm, whereas national law should reflect the national policies on the particular issue.329 The duty of prevention, including the obligation to demonstrate due diligence covers therefore the obligation of states to refrain from inflicting significant transboundary harm with all necessary measures available to them.330 This obligation includes the need to take action to identify new activities, generating cross-border threats, making the obligation of prevention and with it – the need to demonstrate due diligence of continuous nature. States are therefore obliged to continuously take unilateral actions to prevent or minimize the risk of significant transboundary harm. These measures include state’s commitment to develop and implement policies to prevent or minimize transboundary harm. Failure to meet that obligation is to be viewed as a breach of the obligation of due diligence and can be identified when a state fails to take any rational efforts to introduce preventive measures so perceived. The obligation to exercise due diligence cannot therefore be considered a commitment to achieve a certain objective, i.e. to prevent injury, but rather an attempt to prevent certain consequences, being often referred to as a best efforts R. ­Wolfrum (eds) International, Regional and National Environmental Law (brill 2000) 15; ilc Report, 1993, u.n. Doc. A/48/10, 22. 327 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, 119. 328 Rao’s first report, u.n. Doc. A/CN.4/487, 8, 23. 329 2001 ilc Draft articles on prevention, Article 5, 3; Rao’s first report, u.n. Doc. A/CN.4/487, 23. 330 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110–111.

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­obligation.331 The steady place of the principle of due diligence in the international legal order can be easily justified with reference to decisions such as those in the Rhine pollution case or the Alabama case. In their context due diligence is to be interpreted not only as actions taken by states, but also a certain level of vigilance shown by the state and measures taken to prevent damage.332 The obligation of prevention, based on the principle of due diligence is therefore a commitment to take particular measures, not a commitment to achieve a specific goal and can be referred to as an obligation of conduct and not one of result.333 The details of measures required from states as per the duty of prevention allow to identify a due diligence standard in international law. Among those measures key role is given to states obligation to take legislative, administrative and any other necessary action to prevent or minimize the risk of transboundary harm.334 The obligation to “take all necessary measures” is to be interpreted as a non-absolute one, hence aimed at individuals and resulting in state obligation to introduce legislation and procedures that forward the preventive duties to private entities carrying out risk-generating activities demanding of them to take all necessary measures to prevent harm. The duty of prevention is therefore not directed at state authorities, but rather at private entities engaged in riskgenerating activities upon state authorization.335 State authorities are to exercise control over those private bodies and are to be considered having failed to meet their duty once they do not take reasonable efforts to supervise risk-generating activities, i.e. fail to introduce relevant legislation, administrative procedures or to comply with enforcement procedures applicable to the activity carried out within state territory, leading to e.g. denial of justice to foreigners.336 The details of a due diligence standard covered by the ilc include state authorization of activities holding a significant risk of transboundary harm, granted following scrupulous national administrative procedures, applied prior to issuing authorization for operating the risky activity within state territory. If the authorized entity was to introduce significant changes in its procedures of prevention for activities already authorized, such changes can be affected 331 ilc Report, 1993, u.n. Doc. A/48/10, 24. Sixth report of Mr. Roberto Ago, Special Rapporteur, ilc, 1977, u.n. Doc. A/CN.4/302 (hereinafter cited as: Ago’s sixth report), 4–20; 2001 ilc Draft Articles on State Responsibility, u.n. Doc. A/56/10, 57. 332 Barboza’s twelfth report, u.n. Doc. A/51/10, 110–111. 333 Rao’s first report, u.n. Doc. A/CN.4/487, 23. 334 Idem. 335 ilc Report, 1993, u.n. Doc. A/48/10, 22. 336 For a detailed coverage of relevant case law see Chapter i above.

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only after obtaining the consent of the competent state authority.337 Consent can be granted only after verification of the planned changes with respect to the national procedures, which are to reflect the current international consensus in the particular area of business practice. The obligation of due diligence manifests itself also by the need to evaluate the risks associated with the implementation of a given activity and monitor ongoing actions for any risks of significant transboundary harm, even if these are carried out without regard to national regulations and/or without state authorization. State is also obliged to make entities operating the risk-generating activity obtain authorization, and thereby, to adapt the procedures introduced in national law to international standards, unless this was not possible despite having exercised due diligence and the hazardous activity was kept secret.338 As already mentioned, this obligation applies only to activities holding a potential risk that is well known.339 The due diligence obligation arises for the state upon it obtaining knowledge of an unauthorized, risky activity carried out within state territory, under its jurisdiction or control. At own risk a state is entitled to allow for the dangerous activity to be carried on until authorization is granted, taking over the responsibility for any possible damages it causes. The obligation to monitor a risky activity raises at the time of state obtaining knowledge thereof rather than the initiation of the activity itself. Only then could states stay free from liability for breach of their duty of prevention by tolerating unauthorized actions carried out at the time of entry into force of a perspective treaty on international liability, although, as already mentioned, the lack of knowledge about such activities cannot justify state negligence in obtaining information about them or its passive reliance on potential third party information. With this in mind the obligation of due diligence requires states to take in good faith continuous, reasonable efforts to obtain information about potentially hazardous activities.340 The obligation of due diligence covers also the need to promptly engage in cooperation, meaning that states need to ­compel the operators of potentially hazardous activities to promptly obtain authorization, before any potential international liability treaty comes into force.341 337 338 339 340

Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 117–118. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 11, 119. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 11, 119. The prerequisite of good faith  has been included in 1998 within Articles 9 and 11 of Rao’s first report, u.n. Doc. A/CN.4/487, pt. 20, 9. See also: First report on the legal regime for allocation of loss in case of transboundary harm arising out of hazardous activities by Mr. Pemmaraju Sreenivasa Rao, Special Rapporteur, 2003, (hereinafter cited as: Rao’s first report on the allocation of loss), u.n. Doc. A/CN.4/531. 341 Rao’s first report, u.n. Doc. A/CN.4/487, 9.

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In light of the considerations made above states’ duty to take preventive measures can be identified with their general obligation to exercise due diligence, meaning that states need to take certain unilateral measures aimed at preventing the emergence or minimizing the risk of significant transboundary harm, although this obligation is a best efforts obligation, not one of result.342 State responsibility for its breach is therefore to be assessed based on state efforts rather than their possible undesired, harmful effect.343 States need therefore to take certain unilateral measures to prevent or reduce the risk of significant transboundary harm, with the obligation to exercise due diligence deriving its content from provisions of international treaties covering transboundary harm and international damage issues, a number of soft law documents, including conference proceedings and internal acts of international organizations regarding environmental protection as well as court judgments fundamental to international liability issues, such as those discussed in the previous chapter.344 States’ duty to exercise due diligence is met when a state had shown reasonable efforts aimed at obtaining information on the factual and legal possibilities of introducing preventive procedures and taken steps necessary for their implementation in due time.345 Due diligence is therefore the identification and implementation of administrative or enforcement measures necessary to execute laws, administrative decisions and policies adopted by the state to prevent significant transboundary harm or minimize its effects. State efforts of due diligence are to be assessed with regard to the standard of case applicable in given circumstances.346 The ilc in their work gave no explicit answer on possible responsibility of a state, which introduced preventive regulations and administrative procedures for hazardous activities and their operators, aiming to reduce the risk of transboundary harm, yet failed to ensure their compliance, which resulted in damage to neighboring states.347 What can be ascertained however is that the duty of due diligence requires states to enforce all relevant procedures and ensure the compliance of private bodies operating potentially harmful activities with a particularly high level of care. This obligation means that states need 342 Rao’s first report, u.n. Doc. A/CN.4/487, 9. 343 ilc Report, 1994, u.n. Doc. A/49/10, 169; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110. 344 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110; ilc Report, 1994, u.n. Doc. A/49/10, 169. ilc Report, 1994, u.n. Doc. A/49/10. 345 ilc Report, 1994, u.n. Doc. A/49/10, 169; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 7, 110. 346 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 110. 347 ilc Report, 1993, u.n. Doc. A/48/10, 22.

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to ­carefully design and consistently implement all preventive procedures, including the use of latest technology available in the field of a given economic or scientific activity, which confirms the continuous character of the due diligence obligation, adding to it the need to continuously verify and possibly revise already existing preventive procedures.348 The obligation of updating national legislation on preventing transboundary harm is confirmed by e.g. the provisions of Article 11 of the Rio Declaration, which makes a reference to safety standards and national “management objectives and priorities”, which “should reflect the environmental and developmental context” of their application. Similar language can be found in Principle 23 of the Stockholm Declaration, stating that existing national standards cannot prejudice the criteria agreed upon by the international community.349 Thus, prevention standards should reflect the context to which they apply and be evaluated with regard to current developments in a given area of activity. Should that not be the case, individual standards applied by states could lead to undesired environmental or economic consequences for other countries.350 With this in mind the obligation to implement appropriate procedures is to be viewed as requiring continuous international cooperation. State duty of due diligence in implementing its international obligations covers also the prohibition of discrimination of entities engaged in risk-­ originating activities. Should they be subject to damage liability, the state of origin is to treat them equally, regardless of the nationality of their representatives, location of headquarters or place of registration and irrespective of the place where the damage occurred. This obligation reflects the basic principle of equality before the law, covering equal access to courts or administrative bodies, particularly in compensation proceedings. These general rules may be put into more detail in international agreements between the states concerned, covering scrupulous arrangements for protecting victims of transboundary harm.351 The obligation of non-discrimination applies also to other actors, including all victims of a risk-originating activity.352 Standard of due care covers therefore what is widely considered appropriate and proportionate in a given situation and depends on the degree of risk of transboundary harm. Activities regarded as introducing a high probability of such harm require substantially higher standards of care in the development 348 349 350 351 352

ilc Report, 1994, u.n. Doc. A/49/10, 169; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 111. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 111. ilc Report, 1994, u.n. Doc. A/49/10, 169. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 20 para. 2, 119. Rao’s first report, u.n. Doc. A/CN.4/487, 13.

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of policies regarding them and a higher level of state activity in implementing such policies than those which do not contain such a high risk.353 With that the standard of due diligence is to be considered directly proportional to the threat of transboundary harm, associated with a given activity.354 When assessing the level of care exercised by a state in a given situation, key criteria include: the scale of undertaken activities, their location, particular climatic conditions, materials and resources used for those activities and their possible consequences. The due diligence assessment covers also the rationality and consistency of consecutive preventive measures implemented in a given case.355 The standard of due diligence should also reflect the significance of a given activity for the state, its policies and economics and take into account available resources as compared to those used by other countries in the region and in the world in similar circumstances.356 The standard of due diligence is therefore subject to change over time, as the content of relevant and rational procedures, standards or rules evolves.357 With this state obligations and the subsequent potential burden of proof of due diligence cover also the commitment to keep track of state of the art and technical progress in a given area. Authorities need to ensure that the equipment necessary to carry out risky activities meets common, contemporary safety standards, yet that assessment must rely on latest technical knowledge and verification criteria in a given area of activity.358 National prevention policy, as an element of state due diligence obligation, needs to reflect current practices in a given business sector, including state-supported dissemination of knowledge on preventive measures and private parties’ cooperation. These activities should be carried out on a scale and at a level commensurate to the technological, scientific and economic level of state development.359 This is not to imply that states are under an absolute obligation to implement the newest, often costly technologies for preventing and/or minimizing transboundary harm to their national law and practice. They are however expected to have information about the current state of the art and national standards need to reflect state’s commitment to due diligence, as verified per reference to 353 ilc Report, 1994, u.n. Doc. A/49/10, 169; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 111; Rao’s first report, u.n. Doc. A/CN.4/487, 21. 354 Rao’s first report, u.n. Doc. A/CN.4/487, 23. 355 ilc Report, 1994, u.n. Doc. A/49/10, 169. Rao’s first report, u.n. Doc. A/CN.4/487, 23. 356 Rao’s first report, u.n. Doc. A/CN.4/487, 21. 357 ilc Report, 1994, u.n. Doc. A/49/10, 169. 358 ilc Report, 1994, u.n. Doc. A/49/10, 169; Rao’s first report, u.n. Doc. A/CN.4/487, 23. 359 Rao’s first report, u.n. Doc. A/CN.4/487, 8.

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international community c­ onsensus in a particular area. This is to imply that state’s economic condition cannot serve as the sole condition for precluding its liability for lack of due care, yet and is one of the factors taken into account when determining whether the country met its international obligations of due diligence.360 The duty of the state is therefore, above all, to implement a policy aimed at preventing significant transboundary harm and if this proves not possible, then it is to try and aim for the maximum reduction of the possible damage.361 Due diligence is to be associated with the implementation of the principle of sustainable development, especially with regard to the needs of developing countries and states undergoing economic transition.362 Each state may therefore decide on their own economic priorities and appropriate use of resources, where as the obligation of due diligence should be performed in compliance with the state’s right to development, just as the principles of sustainable development and environmental protection are complementary to one another.363 Moreover, states obligation of due diligence is intrinsically linked to the obligation of effective international cooperation. It covers not only the exchange of information about current technological developments but also the obligation to share information about risks of significant transboundary harm and potential threats as well as to consult risky activities with potentially affected parties.364 Due diligence therefore requires states to meet their obligation of exchanging information twofold: the exchange of technological information with international organizations and specialized agencies as well as immediate exchange of information with parties potentially affected by developing risks. Within states’ duty to perform risk analysis lies their obligation to identify possible threats of significant transboundary harm and inform potentially affected parties thereof. Such information should cover technical data and other relevant information on which the risk analysis was based, including current information on prevention or minimization of the risk of significant transboundary harm. The notifying state should determine a reasonable period of time within which it expects a response from the potentially affected parties. If, after the notification the state becomes aware of potential risks to other parties, it is also obliged to immediately inform them. This obligation applies 360 ilc Report, 1994, u.n. Doc. A/49/10, 169. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, comment (12), 111. Rao’s third report, u.n. Doc. A/CN.4/510, 11. 361 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 111. 362 Rao’s third report, u.n. Doc. A/CN.4/510, 11–12. 363 Rao’s third report, u.n. Doc. A/CN.4/510, 12. 364 ilc Report, 1993, u.n. Doc. A/48/10, 24.

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to all activities carried out within a risk-originating enterprise, reaffirming the continuous character of states’ due diligence obligation.365 The obligation of due diligence is therefore not met with a one-time endeavor, but rather i­ mplies state’s commitment to continuous efforts aimed at preventing or minimizing the risk of transboundary harm, in particular the obligation to monitor authorized activities throughout the lifetime of their implementation and share information on potential threats they generate with possible victims.366 The fact that some activities prove dangerous only when carried out together with other endeavors extends the obligation to share information on potential threats onto other areas of state activity, beyond the area where the original authorization was needed, also onto actions originally free from transboundary harm. If the threat of transboundary harm originates only when activities are performed together, it is necessary to exchange information on all risk factors and introduce a broader risk analysis, covering the effects of risky activities to other countries, as well as the scope and content of the dangerous activities themselves. The circumstances of the case may require that the risk analysis covers more than one state, as is the case with e.g. potentially harmful activities implemented jointly or simultaneously by several entities acting on behalf or under the authority of different countries.367 The information that needs to be exchanged between countries covers all that may prove “useful” in preventing the risk of harm, going beyond “necessary” or “needed” information, to cover any information that can be used to reduce the risk of harm if its disclosure does not threaten the interests of the state.368 The broadly perceived obligation of information sharing does not cover information crucial to national defense and security interests nor trade secrets. The obligation to provide information in respect of such data is limited to the need to cooperate in good faith and share information which in a given information can be shared.369 With that the duty of sharing information is limited by the interests of state security and free trade. While the information about potential threats rests usually with the originating state, should the potential victim state also be in disposition of data allowing to identify the threat and prevent damage, the obligation of sharing

365 ilc Report, 1994, u.n. Doc. A/49/10, 172. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 119. 366 ilc Report, 1994, u.n. Doc. A/49/10, 172. ilc Report, 1994, u.n. Doc. A/49/10, 172; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 14, 119. 367 Rao’s first report, u.n. Doc. A/CN.4/487, 8. 368 ilc Report, 1994, u.n. Doc. A/49/10, 172. 369 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 16, 119.

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information with the originating state and others under threat applies equally. Based on the information at hand the state should strive to identify the measures which will allow to avoid transboundary harm or minimize its size.370 The obligation to share information on potential threats applies not only the authorities of potentially affected states, but also to the residents of both: the originating state and the potential victim. The information provided to the public should cover a description of the imminent danger and potential injury, while the state should learn of public opinions and suggestions regarding the risk.371 As already mentioned, the notifying state may specify a reasonable period of time within which the potentially affected may issue a response to the notification of threats, which is to be considered a starting point for negotiations on the appropriate way to reduce the threat.372 In this context due diligence is the obligation to start consultations with the potentially affected, to determine appropriate methods of prevention or minimization of harm. While the ­originating state and the potential victim or victims need to participate in such negotiations, third parties may join them as “interested” states. The aim of the negotiations is to identify the appropriate preventive measures and set deadlines for their implementation. The principle of balanced interests, discussed in detail herein above, as applicable to the negotiating states should serve as a negotiation guideline. Should the negotiations fail, the notifying state may proceed with the risky activity at its own risk, is however obliged to take into account the interests of other countries.373 While the engagement of the riskoriginating activities is not subject to approval by other states, the risk liability and potential responsibility of the originating state is subject to general principles of international law. The rights of the potentially affected state cover a broad variety of prerogatives and apply also to states which have not been notified of the potential threats they are subjected to.374 Any potentially affected state may therefore initiate consultations with the originating state, based on a reasonable technical assessment of the dangerous activity, believed to be carried out in its territory.375 The state initiating negotiations should provide the technical 370 ilc Report, 1994, u.n. Doc. A/49/10, 172. Barboza’s twelfth, (1996), u.n. Doc. A/51/10,­ Article 14, 119. 371 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 15, 119. 372 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 13, 119. 373 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 17, 119. 374 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 18, 119. 375 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 18 para. 1, 119.

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assessment, upon which it is basing its claim. If there is a risk of significant transboundary harm, the party initiating the consultation procedure may require the country of origin to reimburse the costs of the technical evaluation.376 While the specific negotiation procedures are left to the parties, they need to follow the aim of peaceful dispute resolution and the principle of prevention with reference to the general principles of international law.377 Due diligence confirms those guidelines as it is rooted in the principle of good-neighborly relations, obliging states to avoid reasonably foreseeable harm to others.378 International liability covers some particularly contentious issues, which include the question of the responsibility of the state of origin when significant transboundary damage arises, so the question of the already mentioned here post factum measures, by some considered measures of prevention, and the due diligence obligations it brings.379 It is safe to consider preventive measures to cover only those enacted before the damage occurs, while the measures taken after the risk materializes need to be analyzed in the context of allocation of losses. With this in mind the obligation of due diligence for preventive measures covers only activities required by international law and practice before the actual occurrence of damage and include the supervision of riskoriginating activities conducted within state jurisdiction. State authorities are therefore to introduce appropriate legislation, including administrative and other procedures.380 When seeking details of the due diligence standard, one needs to discuss the consequences of the failure to meet it, including the issue of subsidiary liability of states for actions of private entities conducted within state territory, jurisdiction or control. While there is no consent from states for such liability, should it be at all considered, it would need to be limited by at least two criteria. Firstly, a state could bear subsidiary liability if the damage resulted from state failure to meet its treaty-based obligations. Secondly, the amount of potential damages to be paid would be complementary to the amount compensated by the operator when compared to the entire amount of the actual damage. The operator would be to compensate the damage to the maximum level possible as per their economic capabilities. State liability would then be

376 377 378 379 380

Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 18 para. 2, 119. Rao’s first report, u.n. Doc. A/CN.4/487, 13. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 111. ilc Report, 1994, u.n. Doc. A/49/10, 153–179. ilc Report, 1993, u.n. Doc. A/48/10, 22.

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invoked only in cases of operator insolvency. Such a solution has been adopted in several treaties on international environmental law, however not reflected in the ilc draft principles on international liability for acts not prohibited by international law, as it has not enjoyed sufficient support from the international community. Another option for subsidiary liability of states, one more plausible from the perspective of contemporary international political consensus, is transferring damage liability onto operators through national civil laws, introducing a risk liability for the operation of their enterprise.381 In case of transboundary damage, the operator would be to bear liability in accordance with national law, while the state could be held to international responsibility for its breach of the duty of prevention. Any violation of the treaty-based, primary norm introducing the duty of prevention could engage the application of secondary norms on state responsibility, if no circumstances precluding lawfulness arose. A state could therefore bear international responsibility for its breach of primary norms, obliging it to demonstrate due diligence in the implementation of its international obligations. It could therefore be held responsible for failing to take preventive measures and the harmful consequences of such an omission.382 The affected state could than file for compensation, restitution or satisfaction from the state failing to meet its obligation of prevention, requesting it to e.g. refrain from further similar infringements.383 Effectively lack of due diligence on behalf of the originating state could be ascertained if it failed to introduce authorization or notification procedures, tolerated unauthorized hazardous activity it was well aware of or could have obtained such knowledge had it been diligent. The content of the duty of prevention is increasingly easier to identify as the awareness of transboundary risk originating activities or processes enhances. This ease and certainty of identifying the causal link between specific actions and their harmful consequences results in the duty of prevention manifested through a requirement to engage in particular, easily identifiable actions. Only if a state can demonstrate diligence in performing such activities, can it reasonably expect to be free from responsibility for a breach of the international duty of prevention and the subsequent requirement to show due diligence in the performance of its obligations.384 381 ilc Report, 1994, u.n. Doc. A/49/10, 155. 382 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 5, 113. 383 ilc Report, 1994, u.n. Doc. A/49/10, 155; Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 5, 112. 384 Rao’s first report, u.n. Doc. A/CN.4/487, 12.

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A state is obliged to take action once it obtains information of a potentially risk-generating activity undertaken within its territory. The moment of obtaining knowledge as the timeline for the preventive obligation to rise is not to be understood as a permission for states to remain passive before such information is granted to them by third parties. As already mentioned, states need to be active and vigilant in monitoring transboundary threats within their territories, jurisdiction or control, acting in good faith while trying to perform their obligation of prevention.385 This dogmatic approach although plausible, rose some controversy, as state representatives argued before the ilc it was impossible to determine the content of the principle of prevention without knowing the consequences of its breach, with the most important consequence – transboundary damage – remaining beyond the scope of the proposed regulation. Even assuming that the breach of the obligation to show due diligence was to result in state responsibility and the application of secondary norms, the question of international liability for acts not prohibited by international law, so the focal point of the ilc’s mandate, remained unresolved.386 Those arguments are not legitimate however as the ilc’s work was aimed at supplementing the rules of international liability by identifying general principles applicable in cases when there is no contract in place and the solution to a compensation case is to be identified based solely on a test of rationality.387 This aim was achieved with the 2001 Draft articles on prevention, which focused on the obligation of demonstrating due diligence in the implementation of international obligations and the subsequent ilc work on risk-generating activities not prohibited by international law as well as research on the principles of the allocation of loss. This research allowed to e.g. confirm that strict liability may only be inferred through a treaty which introduces the obligation to take preventive measures with due diligence. The ilc report on the principles of international liability was ready by 2004 and covered issues of “international liability for injurious consequences of acts not prohibited by international law”. It relied upon eight general principles governing the matter in question.388 The ilc produced also a separate document covering the question of the allocation of loss and presented it in 385 386 387 388

ilc Report, 1994, u.n. Doc. A/49/10, 156. Rao’s third report, u.n. Doc. A/CN.4/510, pt. 17, 10. Rao’s third report, u.n. Doc. A/CN.4/510, pt. 31, 15. Report of the working group, 2004, u.n. Doc. A/CN.4/L.661, 1–6. The report is focused on international liability for the failure to prevent transboundary harm caused by riskgenerating operations, with that it was primarily devoted to the issues of compensation.

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2006. It covered the content of the international obligation of due compensation. The combination of those three regimes presents a complete picture of international liability for acts not prohibited by international law. Despite this comprehensive coverage of the issue at stake, critics argue that the fundamental distinction between primary and secondary norms of international law deprives the liability regime of practical significance. Those arguments do hold some value and are discussed in more detail at the end of this chapter. Due diligence was well present in the ilc work on international liability. It explained the content of the precautionary principle, but was also important in determining the existence or extent of state responsibility for its breach. While at times it is impossible to assess state knowledge of the origin of damage, due diligence serves as a criteria for assessing state activities or omissions that led to transboundary harm and possibly helps attributing its responsibility. A state is to be held responsible for the breach of its international obligation of prevention in cases where it had no knowledge of the threat, but could have prevented the transboundary harm or at least freed itself from responsibility for the breach of its international obligation had it acted with due diligence.389 In other words, a state can free itself from responsibility for the breach of a rule requiring due diligence in applying preventive measures by demonstrating that despite having taken certain actions it was not able to learn of a risk generated within its jurisdiction. Such due diligence measures include, for example, continuous monitoring of dangerous activity as well as other precautionary measures the state deems necessary and feasible to protect the interests of the affected state. The assessment of preventive measures occurs however no sooner than actual damage arises.390 And so, failure to enact legislation on prevention procedures does not by itself equal a breach of an international obligation, but may result in state responsibility, if it causes third party damage, in particular when such damage originates from private actions in the jurisdiction of the negligent state.391 State responsibility seems attributable also when there was no primary contractbased norm obliging the state to introduce preventive procedures within 389 Rao’s first report, u.n. Doc. A/CN.4/487, 12. Rao emphasized that the criteria of actual state awareness of the potential harm can be well substituted with an assessment of its diligence exercised in obtaining such knowledge – a state may be held responsible only when it knew of the potential damage but also when in the given circumstances it could have learnt about it had it acted diligently by taking all rational measures to identify the threat. Idem, 263. 390 Rao’s first report, u.n. Doc. A/CN.4/487, 19. 391 Rao’s first report, u.n. Doc. A/CN.4/487, 23.

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­national law, yet its lack resulted in damage to the victim state. State responsibility for the lack of preventive measures in national laws can be derived from the obligation of due diligence, understood as a commitment to take preventive action expected of a “good government” if its omission would result in transboundary damage.392 The ilc rules on damage compensation followed the overriding objective to identify the principles of civil liability for transboundary harm. The leading assumption was that authorization of hazardous activity, which resulted in transboundary harm, carries with it the obligation of the authorizing state to compensate the victims.393 It remains debatable whether actual damage is a precondition for such claims, especially when the harmful result was not materialized but rather aimed at the reputation or policies of the victim, not accompanied by physical damage. Undoubtedly however the duty of compensation was recognized by the ilc as an element of international liability and the actual amount of compensation was to be agreed by states through negotiations.394 The negotiations on the amount of compensation between the originating state and the victim or victims can be requested by either party and determine the type and extent of monetary or other compensation for the transboundary damage.395 Criteria to be taken into account during negotiations include 392 This notion was reflected in Article 4 of the 1997 Institute of International Law (iil) resolution on Responsibility and liability under international law for environmental damage, where it indicated that a state can hold risk liability originated by the damage alone. iil goes further than the ilc in attributing environmental responsibility to states when it suggests that the very failure to transpose international consensus onto national laws can be regarded as subject of state responsibility, should such omission result in damage, regardless whether international law was violated. Article 4 states that “Failure of the State to enact appropriate rules and controls in accordance with environmental regimes, even if not amounting as such to a breach of an obligation, may result in its responsibility if harm ensues as a consequence, including damage caused by operators within its jurisdiction or control”. Francisco Orrego Vicuña, ‘Responsibility…’ (Chapter 2, n 289) 279. See also: Xue Hanquin, Transboundary Damage in International Law (Chapter i, n 219) 163. 393 Rao’s first report, u.n. Doc. A/CN.4/487, 8. 394 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, 119. 395 The ilc covered them in the original Article 22, later removed from the final version of the draft, see: Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, 102. The criteria included, inter alia, the extent to which the state of origin has complied with its obligations of prevention, the extent to which it has exercised due diligence in preventing or minimizing the damage, the extent to which the state knew or had means of knowing that the risk generating activity was being or was about to be carried out in its territory, under its jurisdiction or control; the extent to which the state benefits from the activity or to which it shares the benefits of the activity; the extend of help offered to the state of origin by

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the scope of state responsibility as dependent on its due diligence and preventive measures taken, whereas due diligence is an element of good faith in the good-neighborly relations. Due diligence efforts impact the assessment of state responsibility for the originating state and are considered for the purpose of verifying its compliance with the precautionary principle.396 The obligation of prevention takes precedence over compensation duties, as full restitution of damage is impossible.397 Failure to show due diligence thus implies legal consequences, first and foremost in the form of duties of compensation but does not include the possibility of applying economic or other sanctions.398 Although the duty of prevention supersedes questions of liability and compensation, absolute liability, based on specific provisions of treaties, may be applicable to compensation duties. In theory, as argued by the ilc, the latter may arise also in cases when the originating “vigilant” state was dully diligent yet the reasons of fairness may dictate its restitution or compensation duties, although those same reasons may require for a non-diligent state to be freed from any compensation obligations.399 This reasoning on non-contractual absolute liability, although legally justified, is not reflected in contemporary state practice and international jurisprudence. State due diligence can be ascertained when the four following elements have been identified. They include: (1) meeting the “good government” standard, (2) efficient administration, (3) predicting possible transboundary damage through risk assessment and (4) bearing the burden of proof. And so due diligence as the level of care in preventing transboundary harm, is required from a model “good government”.400 When the state authorities in a given case follow this standard model, due diligence on their behalf can be ascertained. Due diligence means also the need to introduce stable legal guarantees and provide material resources to implement international obligations of the state. Meeting this goal is possible only if the state ensures efficient administrative apparatus, with the degree of diligence required of the developed countries being different from that expected from developing countries. With this ­criteria

396 397 398 399 400

other states or organisations, the extent of compensation reasonably available to the victims, the local or regional standards of protection in similar cases as well as the measures taken by the state of origin to assist the victim state. Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, 119. Rao’s first report, u.n. Doc. A/CN.4/487, 12. Rao’s first report, u.n. Doc. A/CN.4/487, 8. Rao’s first report, u.n. Doc. A/CN.4/487, 12. Xue Hanquin, Transboundary Damage in International Law (Chapter i, n 219) 163.

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being relative, state bodies must represent a minimum level of vigilance to ensure an efficient monitoring of infrastructure and hazardous activities within state jurisdiction. The required level of due diligence is proportionate to the level of risk attached to a given activity. It is the duty of state to predict the level of potential damage, generated by a dangerous activity. The more likely significant transboundary harm is the wider range of preventive measures is required from the state to prevent it. In particular, this obligation covers the necessity of prior state authorization granted to the risk operator, prior eia as well as introduction of all necessary and reasonable precautions to prevent transboundary harm. The more dangerous are the implemented activities, the higher must be the quality of preventive procedures and care in their observance. Due diligence also means that the burden of proof to demonstrate it rests with the country of origin – it must prove that its authorities acted diligently in carrying out their tasks.401 The Concept of Significant Transboundary Harm The terminology used by the ilc in their work on international liability is crucial to the considerations made in this book. In particular the notions of “harm” and “damage” are fundamental for differentiating the primary and secondary norms and, subsequently, the notions of responsibility and liability in international law. “Harm” is the term used by the ilc to describe the threat of damage but not its actual occurrence, with “harm” denoting “potential damage”, where as “damage” was the term used to distinguish actual infringement in the interests of a victim party, done to people, property or the environment.402 “Damage” covers therefore the loss of life or personal injury, loss of property, damage to the environment, the costs incurred in relation to the rational means employed for the purposes of restitution, natural resources and the costs taken by reasonable response measures. Other notions, crucial to the understanding of the concepts of international liability, are the “country of origin”, “potentially endangered state”, “interested countries” or “originating state” and “the necessary measures to restore the previous situation”.403 The aim of the ilc work was to ensure prompt and adequate compensation for victims of transboundary damages, including but not limited to those done to the natural environment.404 401 Rao’s third report, u.n. Doc. A/CN.4/510, 10. 402 2006 ilc Draft principles on the allocation of loss, 120 and the terminological issues discussed in the introduction to this volume. 403 Report of the working group, 2004, u.n. Doc. A/CN.4/L.661, 2–3. 404 Report of the working group, 2004, u.n. Doc. A/CN.4/L.661, 3.

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The ilc identified the individual obligations of states aimed at ensuring prompt and adequate compensation to victims of transboundary harm if the resulting damage was caused by a dangerous activity performed within state territory or in places under state jurisdiction or control. The catalog of “necessary measures” required from a state included the imposition of liability on the operator or, where appropriate, other persons or entities, by the power of domestic law. The liability of these entities was not to rely on fault, but could be conditioned by several factors as long as they were consistent with the ilc principles. “The necessary measures” required from a state include the duty to ensure that the operator warrants financial security to cover any potential claims for compensation through compulsory insurance or other financial instrument. In justified cases, the authorities may introduce mandatory compensation funds fueled by all the representatives of the risk-generating industries or entities performing a particular dangerous activity. Complimentarily, there is the commitment of state to ensure additional funding if the resources so gathered show insufficient. States are also obliged to take prompt and effective action in response to any potentially dangerous endeavors. Such actions may require assisting the operator and are designed to minimize damage resulting from a possible incident. They may cover also prompt exchange of information, consultations and cooperation with all potentially affected parties. The remedies applicable in case of transboundary damage cover enactment of domestic law introducing effective compensation procedures, ones with reference to the existing international regimes in the relevant area of practice. These procedures should be followed by national judicial and administrative bodies who ought to be granted respective authority. Access to procedures and information about them should be equal for all victims, regardless of their place of residence, seat or legal form.405 Implementation of these procedures can be supported by parallel development of specialized international cooperation aimed at cross-border redress. It is therefore left to individual states to introduce international agreements on the rules of prevention and damage compensation for various categories of hazardous activities as well as systems of compensation and insurance. Such treaties should be open not only to states but also to industry or institutions representing national compensation funds. This is of almost important at a time of privatised global policies. Such structure of treaty-based compensation regimes is to provide supplementary compensation to victims when the financial resources, including insurance, provided by the operator, prove insufficient to cover the damage caused by the accident. 405 Report of the working group, 2004, u.n. Doc. A/CN.4/L.661, 4–5.

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State compensatory obligations cover also the need to adopt regulations and administrative provisions enabling the implementation of the ilc principles.406 State responsibility for lack of due diligence resulting in significant transboundary damage is derived from customary law, while introducing a particular treaty on the issue could solely help make the general obligation more precise, while amending the existing consensus.407 Moreover, state subsidiary liability was to be regarded solely as a complimentary measure, as it is not the states who derive direct profit from risk-generating activities. As a rule, damages should be compensated primarily by the operator of the hazardous activity or other, cooperating entities. This form of risk liability for entrepreneurs operating risk-generating activities dominates the treaty regimes on liability for transboundary damage. Some argue however that if strict liability is the guiding principle, states should be required to develop rules for the allocation of loss and compensation mechanisms themselves. Following would be a combined risk liability of the operator and partial liability of originating states, as laying the entire burden of compensation on entrepreneurs might not be sufficient to cover the resulting losses. Including states in the liability regime seemed justified given that states authorized potentially dangerous activities and were granted indirect benefits from their operation. For this reason the principle of priority for victim compensation was introduced – as per this rule no victim should be left uncompensated, regardless how the compensation was to be sourced. Effectively, the authorising state was to do its utmost to introduce legislation aimed at preventing uncompensated damages and ensure effective execution of compensation.408 In the final version of the ilc draft the redress procedures require states to ensure the availability of prompt, adequate and effective remedies to all victims to transboundary damage caused by hazardous activities as well as access to information about the threats and risks, regardless of the origin or the status of the victim. States obligations cover also attributing national courts with powers necessary to decide over compensation claims.409 Effectively, in 2006 the ilc adopted the draft principles on the allocation of loss, a document complementary to the 2001 draft articles on prevention, fulfilling its 1997

406 Report of the working group, 2004, u.n. Doc. A/CN.4/L.661, 5. 407 Rao’s second report, u.n. Doc. A/CN.4/501, 9. 408 Rao’s second report, u.n. Doc. A/CN.4/501, 10–11. This principle was reflected in Article 3 of the 2006 ilc Draft principles on the allocation of loss. 409 Rao’s second report, u.n. Doc. A/CN.4/501, 30.

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­ andate and the General Assembly “urged” states to implement the provisions m of the draft.410

On Liability and Responsibility – Assessing ilc Methodology

The dualism of accountability intended by the ilc was based on the concept of primary and secondary norms in international law. This elaborate yet somewhat artificial classification has been subject to justified criticism, pointing to its vagueness and difficulties with consistent implementation. This distinction determined the work of the ilc, first focused on state responsibility for a breach of international law and identification of secondary norms, applicable to states attributed with a breach of their international obligation as prescribed by primary norms only later did it focus on questions of acts not prohibited by international law, yet harmful to third parties and thus resulting in international liability, derived from national civil law concepts. The latter usually require state intervention and result in international liability of private operators, but at times also of state authorities as subsidiary compensators. Research on state responsibility was summarized by the ilc in the 2001 Draft Articles on State Responsibility. Principles of international liability for acts not prohibited by international law were identified five years later in the 2006 Draft principles of allocation of loss. These two documents provide a current summary of the debate on international accountability initiated in 1949 and try to pinpoint its limits in international law. International accountability as described in the ilc reports includes two groups of norms: the regime of state responsibility for acts contrary to their international obligations and international liability for acts not prohibited by international law. Neither of the ilc findings were confirmed by states as an internationally binding, treaty-based consensus. Even though the principles of state responsibility were issued as a General Assembly resolution, there are still some critics who claim the 2001 draft articles fail to fully reflect contemporary state practice, which is not uniform and far from a consistent customary regime. What is more, any consensus on international liability seems even more distant, as not only is its distinction subject to criticism of the doctrine, but it also lacks support from un members. Reasons for this discrepancy are numerous, including the practical impossibility to always distinguish primary from secondary norms and the disaccord on the content of the former, but most of all, the vagueness of the principle of 410 The General Assembly followed the suggestion and adopted Resolution 61/36 on Dec. 4th, 2006.

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precaution, f­ undamental to the liability regime, and the due diligence obligation it endows. The general and flexible coverage of the compensatory regime applicable to transboundary damages adds to the problem. Critics of the ilc distinction between the two accountability regimes question the rationality of the criteria followed by the ilc, arguing for the coherence rather than opposability of international liability and state responsibility. For example Boyle follows Oppenheim, in recognizing international liability for acts not prohibited by international law as a set of “primary” norms, covering i.e. international environmental law and the principles of precaution and prevention.411 State responsibility as based on “secondary” norms can be invoked only if a state fails to meet its obligations described in primary norms.412 In other words, contemporary, customary consensus on international liability for acts not prohibited by international law as described by the ilc is based on the principle of risk as reflected by numerous treaties the ilc had analyzed. It covers the primary obligation of states to compensate transboundary damage, arising from their breach of the principle of prevention or their obligation to engage in effective international cooperation in the prevention of such damage.413 At the same time the ilc proposed rules on international liability lack direct reference to state responsibility, in particular measures of retaliation or sanctions for the breach of international obligations of prevention, despite them being referred to in multilateral and bilateral agreements, yet rarely applied.414 Following the voice of critics and drawing on international soft law, the ilc did make a brief reference to those in its 2006 Draft principles on allocation of loss with enumerating three instruments to discipline states failing to meet their treaty-based obligations.415 As per the 2006 draft such states need 411 See also: Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 83–84. 412 Alan E. Boyle, State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?, International and Comparative Law Quarterly 1990, No 39, 15–16. 413 2001 ilc Draft articles on prevention, principle 3. 414 The originally proposed Article 21 dealt with the “nature and scope” of compensation and was eventually left out of the final text of the 1998 ilc Draft articles on prevention. See also: Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (Chapter i, n 23) 104–107, who pinpoint the shortcomings of the existing treaty regimes and the problems with their execution. 415 Francisco Orrego Vicuña, ‘Responsibility…’ (Chapter 2, n 289) 356. The ilc used the iil proposed solutions for its own drafts, just to refer to Article 1 of the iil resolution, which states that “The breach of an obligation of environmental protection established under international aw engages responsibility of the State (international responsibility),

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to compensate the transboundary damage and take attempts to remedy it or at the least – limit its size.416 The third instrument left at the disposal of victims of transboundary harm was the direct reference to the “secondary” regime of international responsibility of states.417 The regime of “secondary” responsibility of states is to be applied to those states that fail to comply with “primary” obligations to prevent or remedy the harmful effects of transboundary harm, as described by the ilc respective drafts from 2001 to 2006. The ilc analysis and the comments it originated clearly show that the two accountability regimes cannot be discussed independently from one another and by their nature are closely related.418 There is no need to distinguish separate regimes of accountability in international law as state responsibility for breaches of international law, as described in the “secondary” norms, can only be evoked when a breach of a “primary” norm occurs.419 Such a breach can be assessed only when a “primary” norm can be identified, whether customary or treaty-based. At the same time the regime of international liability for acts not prohibited by international law is a lex imperfecta – a law without a sanction as the existing treaty-based regimes do not impose on states a general obligation of prevention, although one may be implied from the practice of ­customary law. The ilc long refrained from inserting state responsibility for failures to show due diligence in preventing transboundary harm, d­ espite having elaborated on consequences of a breach of rules of prevention, in particular risk analysis or authorization, as well as the rise of transboundary harm relate directly to questions of state responsibility. As rightly pointed out by Boyle and Dupuy, the rules of international responsibility for acts not prohibited by international law describe certain international obligations of states regarding both the obligation of prevention with regard to ­transboundary harm, as well as compensation for damage a state failed to prevent. This set of obligations and principles can be referred to as the “primary” norms the breach of which may result in state responsibility.

e­ ntailing as a consequence the obligation to reestablish the original position or to pay compensation”. As already indicated however, the ilc was far more moderate when it came to the iil proposed “responsibility for harm alone”. 416 2006 ilc Draft principles on the allocation of loss, Principle 3 and Principle 5. 417 2006 ilc Draft principles on the allocation of loss, 118. The Draft covers primary norms of international law. Failing to meet the duty of prevention may result in state responsibility as per secondary norms, regardless of the civil liability of the operator. 418 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 21–24. 419 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 1.

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The meticulous distinction introduced by the ilc was to be based on the criterion of the nature of the act of the state, which is the basis of accountability. If a state was to be attributed420 a breach of its international obligation, it may be held responsible and become the addressee of retaliatory measures, described in the 2001 Draft Articles on Responsibility of States, while the ilc wording does not specify what types of violations are in mind.421 It only refers to the existing universal principles applied by the international community, based on custom or treaty, in response to a breach of international obligations. With that in mind it should be observed that the ilc report did confirm the customary character of the international obligations of prevention and compensation, whose failure may result in state responsibility as per the articles. Thus, with the Commission’s work on international liability confirming the existence and clarifying the content of customary rules of prevention and compensation, it does not seem necessary to require their confirmation in an international treaty, such as that based on the 2006 Draft articles on prevention, as they are already to be regarded fully enforceable customary norms of international law. A violation of the customary obligation of prevention, mainly through lack of due diligence in its implementation, manifested by the omissions of state authorities, results in state responsibility as per the “secondary” norms, intrinsically connecting the two accountability regimes distinguished by the ilc.422 Alan Boyle rightfully argues, supporting Ian Brownlie that the ilc adopted distinction between acts “forbidden” by international law and ones “not prohibited” is “fundamentally wrong”, as it is only the content of the obligation itself that allows to decide on identifying state act as illegal. As  Boyle points out, a general distinction between internationally wrongful acts and those in accordance with international law is useless.423 The two accountability regimes, as described by the ilc, are intrinsically related and the 1997 separation of research threads made the identification of coherent general principles more challenging. State responsibility for violations of international law can ­therefore be invoked always when a breach of “primary” norms 420 The questions of attribution, jurisdiction and recognizing individual actions as state’s own are discussed below. 421 2001 ilc Draft Articles on State Responsibility, Article 28 ff. This issue is discussed in more detail further in the book. 422 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 11. 423 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 13. Dupuy rightfully observes that what is perceived legal today may not be legal tomorrow or become illegal upon its performance; P. Dupuy, ‘The International Law of State Responsibility: Revolution or Evolution’ (Chapter i, n 372) 116.

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occurs, including the breach of norms described by the ilc as the principle of international liability. What’s more, the ilc distinction contains two elements shared by the two, intended as exclusive, sets of accountability principles. One element present in the two regimes simultaneously is the question of state responsibility for transboundary harm and the other, the question of attribution. Damage or harm is crucial for attributing state responsibility, although neither of those notions has been included in the ilc 2001 Draft Articles on State Responsibility.424 Responsibility may be attributed to a state in case of its breach of an international obligation, irrespective of whether the violation caused damage to the legally protected interests of other parties.425 Damage has however been mentioned by the ilc as a necessary element of responsibility attribution in cases of breach of an international obligation identified in a primary norm, however only when such norm explicitly recognizes damage as a necessary element for state responsibility. Typically, the element of damage as a prerequisite for responsibility can be found in obligations of prevention as opposed to those of effect. A breach of an obligation of prevention can usually be attributed to a negligent state for the omissions of its bodies. This means that if the “primary” obligation is an obligation to prevent certain harmful effects, by e.g. taking particular legislative and preventive measures, the subsequent harm or damage is a necessary prerequisite for state responsibility, as per the “secondary” norms. Omitting damage as a prerequisite of state responsibility, while including the broad and ambiguous customary obligation of prevention, can be considered a significant fault in the Commission’s draft principles on state responsibility and, subsequently, it the entire responsibility regime it has drafted, as a clear distinction between responsibility and liability cannot be identified and enforced.426 While generally states are not to be held responsible for 424 2001 ilc Draft Articles on State Responsibility, Article 2, 36. 425 2001 ilc Draft Articles on State Responsibility, Article 31, 92, where the ilc explains that damage can be perceived as a necessary element of a violation of international law if so indicated in the content of the primary norm that has been violated. If however no such stipulation can be derived from the content of the primary obligation that covers solely the duty of prevention, a failure to adopt those in national laws can be perceived as a violation of international law despite the lack of actual damage. 426 2001 ilc Draft Articles on State Responsibility, 38, where the ilc refers to the Judgment in the United States Diplomatic and Consular Staff in Tehran case. See also: Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 21, where the author argues that in this context the notion of attribution known to state responsibility law is sufficient.

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t­ ransboundary damages caused by private entities, the principles on liability and prevention, identified in the respective 2001 and 2006 ilc drafts are to be considered a broad exception to this general principle. State failure to prevent a given harmful result may be subject to responsibility if the originating state failed to show due diligence in preventing it. The liability principles allow to identify a customary universal obligation of prevention against significant transboundary harm resting on all states. Therefore if significant transboundary harm was a result of state failure to show due diligence in preventing it, that state is to be held internationally responsible, unless any of the circumstances precluding lawfulness occurred. With reference to the question of state responsibility for damage rather than harm it may be easily observed that contemporary state practice leans towards recognizing actual damage rather than potential harm as ground for state responsibility. Therefore while theoretically international responsibility could be attributed for the failure to show due diligence, contrary to the universal obligation of prevention, state practice shows that attributing such responsibility could be enforced only if the potential risk of harm materializes in the form of significant transboundary damage. The strong interrelationship between the two ilc regimes is well exposed in the rules of international environmental law, covering the consequences of acts not prohibited by international law. According to these principles, transboundary harm can give ground to treaty-based state responsibility “for risk created” if such risk is not the consequence of exceptional circumstances, exempting the state from the obligation of compensation, as described in subsequent treaties.427 Although the ilc stressed the dichotomous nature of the two regimes, their interdependence as present in the norms of international environmental law is an important drawback to this dogmatic proposal.428 The second practical problem with the application of the two ilc regimes lies in the questions of attribution as per the 2001 rules of state responsibility when confronted with the question of ascertaining the country of origin as per the 2006 principles of allocation of loss, international liability and ­prevention. 427 2006 ilc Draft principles on the allocation of loss, 155, where the ilc points to the French notion of “responsabilité pour risqué crée”, describing risk liability as equal to “liability without fault”. This very same situation is described with different terminology that includes negligence without fault (fr. responsabilité sans faute), presumed responsibility, fault per se or objective liability (fr. responsabilité objective). 428 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 13, but see also:: Rao’s third report, u.n. Doc. A/CN.4/510, 14 where the Special Rapporteur addresses the critiques.

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Attributing state responsibility for the breach of its international obligation of prevention must rely on the notions of state “territory”, “jurisdiction” and ­“control” as included in the 2006 ilc Draft articleson allocation of loss. The ilc deliberately avoided reference to the notion of “attribution”, fundamental for state responsibility, to emphasize the distinction of the two legal systems it proposed. However comparing the two regimes provokes questions of state responsibility for the failure to meet its “primary” duty of prevention and failure to comply with treaty-based compensatory duties for occurred damage. The avoidance of the term “attribution” in the work on liability fails to solve this issue and the sole reference to alternative criteria such as “jurisdiction”, “territory” and “control” only confirm the strong and necessary interrelationship between the two regimes.429 The rules of international liability cannot be effectively enforced without the reference to state responsibility and attribution of state unlawful omissions. To be able to apply the principles of responsibility for state failure to show due diligence in preventing significant transboundary harm the 2001 ilc Draft Articles on State Responsibility notion of attribution needs to be set against the scope of state “territory”, “jurisdiction” and “control”, as defined in the 2006 ilc Draft articles on the allocation of loss. Crucial for this analysis is the identification of the content of the due diligence obligation, expected of the “country of origin” in preventing significant transboundary harm and perfermed by a state “attributed” with responsibility for the omission of its organs. The ilc defines the “country of origin” as a state within whose territory, jurisdiction or under whose control hazardous activities are carried out.430 This reference may serve to indicate state responsibility for acts not prohibited by international law, performed under at least one of these three forms of exercising state powers.431 International liability is therefore bore not only for acts performed under state jurisdiction, but also under its control or solely within its territory, e.g. within diplomatic premises or by foreign entities, including military personnel. The broadest notion of control is to be used when the state factually exercises its powers over a given territory, yet any other international

429 Alan E. Boyle, ‘State Responsibility and International Liability’ (Chapter i, n 7) 21. Boyle emphasizes however that this very distinction in terminology was identified following the criticism of the 1998 ilc Draft Articles on State Responsibility. 430 2006 ilc Draft principles on the allocation of loss, Article 2 (d). Principle 2. 431 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10; See also: 2001 ilc Draft articles on preventions. 151.

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law justification is not applicable, as the exercise of power necessarily follows an armed intervention, occupation and unlawful seizure of territory.432 At the same time the nature of the liability regime and the duty of ­prevention relies on state omissions, rather than its actions. Subsequently, state responsibility may occur in cases of state failure to meet its obligation of prevention through non-diligent exercise of state powers, insufficient supervision of private bodies or exercise of jurisdiction over private operators. For states to be able to effectively supervise private operators, international law obliges them to introduce mandatory authorization of hazardous activities performed within their territory, jurisdiction or control.433 The assessment of state performance must be made on case-by-case basis with reference to the due diligence criteria described by the ilc in its work on prevention and the subsequent “good government” model. The criteria of “jurisdiction” or “control” are thus useful in determining the content of the duty of prevention in a particular case, the violation of which can be attributed to the state. The content of the duty of prevention is, as indicated, the commitment to demonstrate due diligence in the prevention of transboundary harm. Assessing state responsibility resulting from transboundary damage originated by hazardous activities performed within its territory, jurisdiction or control relies on a test of due diligence requiring certain measures to be undertaken to protect the interests of third parties. A state may be held responsible for its failure to show due diligence in implementing those measures. Particular, case-specific measures can be identified based on international theory and practice. If individual regimes of international law, such as that on environmental protection or diplomatic relations, provide for particular legal consequences of the lack of due diligence, which is rare, those are to be applied. If however no such consequences are to be identified within a given regime or they are indicated in an ambiguous or overbroad manner, the general principles of state responsibility are to be enforced. Omission contrary to international obligations requiring introduction of particular preventive 432 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, where the ilc indicated the territorial link as most important for ascertaining international liability. But see also: 2001 ilc Draft articles on prevention, 150 and 2006 ilc Draft principles on the allocation of loss, comment (10), 120, which confirm ilc departure from the supremacy of territorial jurisdiction in state responsibility law. The ilc went on to emphasize that all three criteria of exercising state jurisdiction are equally significant. See also: 2001 ilc Draft articles on prevention, 151. 433 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10 Article 7 and 2001 ilc Draft articles on prevention, Article 6.

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measures may be deemed a violation of international law, resulting in state ­responsibility under the terms of the ilc 2001 Draft Articles on Responsibility of States. Identifying a state omission as grounds for its responsibility depends on the possibility to assign particular failure to act in accordance with the contemporary ­jurisprudence of international tribunals, in particular the leading cases of Tadic and Contras. Although the principle of due diligence can be applied to verify international liability for acts not prohibited by international law, it also allows to identify the elements of specific commitments and to establish state responsibility for acts violating them. Failure to meet the obligation of prevention by lack of due diligence in preventing significant transboundary damage may result in both: international liability as per the treaty norms and state responsibility for the breach of its customary duty of prevention, if a state omission which resulted in the damage can be shown. The same facts of a given case need to be analyzed as potentially both: proof of a breach of state obligation to monitor hazardous activities in state territory, jurisdiction or under its control, and grounds for state responsibility as per the general secondary rules based on attribution. Attribution can be ascertained when the harmful activity was performed in state territory, under its jurisdiction or control and the state failed to perform due diligence in preventing the damage it had originated. For state responsibility to be assigned to a state the international obligation binding upon it must be identified, as only a failure to meet it may be deemed a violation of international law. Only if the content of such norm allows to establish the details of the individual duties of a state, which have been violated, can state responsibility be attributed. However, even general obligations of prevention present in “primary” regimes can be put into detail by reference to the general principles of international liability identified by the ilc as consistent of all international obligations of prevention. If pursuant to the provisions constituting state obligation to introduce preventive measures a violation of an international obligation can be ascertained, state responsibility is to be attributed, unless any of the circumstances precluding lawfulness occur. This is to imply that if the existence or particular elements of a preventive obligation and a due diligence standard cannot be established or failing to meet those in particular circumstances is clearly identified as not constituting a breach of international law, as in e.g. cases of force majeure, the norms of state responsibility are not applicable. It could be however possible to implement certain measures provided for in the “primary” regime, regarding e.g. compensation or restitution. Therefore, as per the 2006 ilc Draft articles on the allocation of loss, the prerequisite of attribution is supplemented by the requirements of monitoring activities within state

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­territory, jurisdiction or control. In cases of harmful consequences of acts not prohibited by international law state responsibility can only be attributed when it is possible to show omissions of state bodies that failed to reflect the details of the obligation of prevention resting upon that state. Effectively, the jurisdiction and control criteria on international liability for acts not prohibited by international law are closely interrelated, that is amend the scope of the criteria for attribution of state responsibility as per Article 2 of the 2001 ILC Draft Articles on Responsibility of States. This observation implies that significant transboundary harm may result from two kinds of situations. Firstly it may be the result of omissions attributable to a state failing to meet its international obligation. If a harmful omission of state bodies is contrary to international law, the state is to be held responsible for a violation of international law. Transboundary harm can however also be a consequence of acts not contrary to international law that is arise despite a state meeting its obligations of prevention. In such cases individual treaty stipulations on consequences of such harm are to be applied or the norms of customary law, as described in the 2001 ilc Draft articles on prevention, including a state obligation to engage in negotiations or compensate the damages. The assessment of events in both categories relies on a uniform standard of due diligence, yet carries with it different consequences, depending on whether a breach of an international obligation of state can be identified. In case of a harmful transboundary event, resulting from a hazardous activity performed within the state of origin and authorized and controlled by its bodies, a state may be held to a “residual” or absolute liability, the latter only if stipulations constituting it can be found within an international agreement.434 If however a state can be attributed with a failure to meet an obligation instituted by such a “primary” treaty-based regime, it can be held internationally responsible for an internationally wrongful act as per the “secondary” norms on state responsibility.435 This is to imply that although the ­obligation of prevention can be recognized as universal and customary, its 434 While many authors argue that environmental risk liability may be difficult to enforce, environmental law writers refer to the principle of risk-creation liability; see e.g.: Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 212; Gerhard Hafner and Isabelle Buffard, ‘Obligations of Prevention and the Precautionary Principle’ in James Crawford, Allan Pellet, Simon Olleson, Kate Parlett (eds.), The Law of International Responsibility (Chapter i, n 108) 521. 435 Such correlation seems confirmed in the text of the 2001 ilc Draft articles on prevention, commentary to Principle 1, 118. It can be also identified in Article 4 of the iil 1997 resolution covering the “responsibility for harm alone”, discussed above. See: Francisco Orrego Vicuña, ‘Responsibility…’ (Chapter 2, n 289) 3.

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details need to be reflected in a particular treaty for effective enforcement of state responsibility rules. In both cases the duty of prevention against transboundary harm relies on the same standard of due diligence, crucial for the attribution of state responsibility. Although the content of the due diligence standard is always case specific, the basic features of this flexible instrument of international law have been identified by the ilc for the purposes of its international liability research. This unique consistent due diligence standard adds to the arguments of the critics of the “primary” and “secondary” norms dichotomy. The ilc arguments, pointing out to the narrow scope of state responsibility, which may be broadened with reference to the particularities of primary norms, seem vague, as the two regimes seem closely intertwined.436 So do its arguments that the prerequisite of damage is a counterweight to that of attribution, and as such neither damage or harm appear in the 2001 ILC Draft Articles on State responsibility, as they are to be identified as elements of primary norms.437 As shown above, transboundary damage as an element of a primary norm violated by a state shows a necessary element of attribution as per the “secondary” norms. This close interdependence of the regimes did not escape the attention of the ilc, with the Special Rapporteur Pemmaraju Sreenivasa Rao explaining that it did have to face the difficult challenge of legally categorizing state responsibility for its omissions resulting in transboundary harm.438 The ilc clearly voiced doubt on whether such an omission constituted a violation of international law. It had therefore decided to leave this issue as part of separate research on compensation for activities within state discretion or performed in places under its control.439 This challenge proved difficult to the ilc for two reasons: state responsibility alleges an infringement of an “international subjective right” of another state, even if the violation does not result in damage while, at the same time, international liability results from the occurrence of significant harm or damage, rather than from the breach of an international obligation or its interference with the “subjective international right of a state”.440 Those arguments seem vague in light of the points made herein above: the violation of international law relies on the content of primary obligations identified within 436 Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 780. 437 Daniel M. Bodansky, John R. Crook, ‘Symposium…’ (Chapter i, n 476) 781. 438 Rao’s third report, u.n. Doc. A/CN.4/510, 11, pt. 25; James Crawford, ‘The ilc’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96 ajil 876 ff. 439 ilc Report, 2000, u.n. Doc. A/55/10, 11, pt. 25. 440 ilc Report, 2000, u.n. Doc. A/55/10, 12, pt. 27 ftn. 44; Rao’s first report, u.n. Doc. A/CN.4/487, paras. 41–44, 16.

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a liability regime and only if an attributable failure to meet it can be shown, is a state to be held responsible, irrespective of an “international subjective right” of another state, but solely for the breach of its own obligation. This confusion is a result of the terminology applied by the ilc, referring to either: acts not prohibited by international law or those constituting a violation of an international obligation, while there are numerous activities in the field of international law and relations which are neither prohibited nor imposed. International liability in general and the duty of prevention in particular are therefore not so much about a breach of an international obligation but rather a risk management issue.441 It may include certain activities that are not at all referred to in the content of international law norms.442 The methodology of research on either acts: prohibited by international law or compensating for damage fails to recognize this observation. It is not the activity itself that is to be qualified as “prohibited” or lawful but in many cases it is its result that determines the question of legality, as there are few activities that are actually “prohibited” by international law norms. Such distinction can be made by states themselves, based on common treaty or customary practice, creating primary norms.443 In this context, the distinction of state activity as lawful or unlawful seems unfounded.444 As Ian Brownlie, a long time ilc member himself, observes when discussing the “alleged” distinction of responsibility for international law violations and liability for “legal” activities: The present writer (…) finds it depressing to express total opposition to this particular enterprise. It is fundamentally misconceived. (…) Much of state responsibility – as long accepted by states and tribunals – is concerned with lawful activities which have caused harm. (…) most cases of wrongdoing by states in practice involve the inadequacies, the negligent perversion, of the ordinary business administration.445

441 ilc Report, 2000, u.n. Doc. A/55/10, 12, pt. 27. 442 ilc Report, 2000, u.n. Doc. A/55/10, 12, pt. 27 ftn. 45. Numerous authors question the rationality of the distinction offered by the ilc. For those arguments see e.g.: Alan E. Boyle, State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: A necessary distinction?, International and Comparative Law Quarterly 1990, No 39, 1–25; Teresa A. Berwick, ‘Responsibility and Liability for Environmental Damage: A Roadmap for International Environmental Regimes’ (1988) 10 gielr 257; Sucharitkul S, ‘State Responsibility and International Liability under International Law’ (1996) 18 Loyola Los Angeles iclr 821–829. 443 ilc Report, 2000, u.n. Doc. A/55/10, 12, pt. 28. 444 ilc Report, 2000, u.n. Doc. A/55/10, 12. 445 Ian Brownlie, System of the Law of Nations (introduction, n 25) 50.

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The misconception that Brownlie opposes to is rooted in the ilc dichotomy between the narrow notion of state responsibility and the broadly perceived international liability, with the latter relying on the ambiguous precautionary principle. This distinction implies the diversity between “acts” and “activities”, whereas one activity can be composed of many individual acts, closely related. Some of those acts may be legal, but they do not determine the nature of the activity as illegal or not.446 The present international consensus recognizes therefore the prohibition of certain activities, such as nuclear tests in the atmosphere or acts of aggression, while it is a cause or a consequence of those activities that can serve as ground for state responsibility.447 Effectively, state responsibility based on a single act does not deem the entire activity contrary to international law. It only allows potentially affected countries to effectively demand the implementation of state duties, i.e. a performance of particular acts or abandoning ones particularly hazardous, if they are not accompanied by necessary precautionary measures.448 State responsibility may therefore be effectively enforced to execute international obligations of states, including the obligation of civil compensation incumbent on privately operated activities.449 State responsibility for an act contrary to international law cannot be recognized as a prohibition of certain activities as such or a presumption of responsibility for their engagement. As in the Trail smelter case, it was not the industrial activity performed by the smelter that subjected it to liability, but rather the undesired harmful effects of its production.450 Customary international liability regime, as described by the ilc, supplements the content of individual primary norms, including the obligation of prevention, but it is inextricably linked with the responsibility of states for acts contrary to international law, as shown in the next chapter, covering individual treaty regimes, combining the principles of international liability and state responsibility.

446 ilc Report, 2000, u.n. Doc. A/55/10, 12. 447 ilc Report, 2000, u.n. Doc. A/55/10, 12. D. Barstow Magraw, ‘Transboundary harm: The International Law Commission’s Study of International Liability’ (1986) 80 ajil 305–330. 448 ilc Report, 2000, u.n. Doc. A/55/10, 12. Rao’s second report, u.n. Doc. A/CN.4/501, 11. 449 Antonio Rosas, ‘State Responsibility and Liability under Civil Liability Regimes’ in O Bring, S Mahmoudi (eds.), Current International Law Issues: Nordic Perspectives (Essays in honour of Jerzy Sztucki) (Martinus Nijhoff 1994), 161–163. 450 ilc Report, 2000, u.n. Doc. A/55/10, 12.

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Due Diligence in Treaty Regimes

Introductory Remarks

As indicated in previous chapters, the obligation of due diligence gives meaning to the precautionary principle and can be easily inferred from the principle of good neighborliness, setting limits to state sovereignty in using natural resources within their disposal.1 Due diligence can be inferred from the wording of the principle of good neighborliness as expressed in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. Simultaneously, as per numerous contemporary treaties in many areas of international law, transboundary damage can result in strict liability of the originating state in cases when private entities operating in state jurisdiction or under state control are not able to carry compensation costs.2 Such a treaty-based liability scheme deliberately fails to address the potential breach of an international obligation of the originating state and its possible responsibility as per secondary norms Such treaty-based, subsidiary liability of the state remains independent of the acts or omissions of its organs. Yet it is only in exceptional circumstances that treaty regimes give ground to strict liability or even absolute state liability, as in the case of damage caused by a space object and absolute liability stipulations of space law. Failure to show due diligence may however indicate a breach of an international obligation of prevention by the originating state. As described in ­detail in the previous chapter, international law knows meticulous procedures on identifying the duty of prevention and précising its contents. The ilc has

1 Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 79. 2 2006 ilc Draft principles on the allocation of loss, Principle 4 provides for each state to take ‘all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage caused by hazardous activities located within its territory or otherwise under its jurisdiction or control’. These measures need to be directed also at the operator and, when appropriate, should include the requirement for the establishment of industry-wide funds at the national level. Significantly, should the measures named above show insufficient to provide adequate compensation, the state of origin is to ensure additional financial resources; Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 99.

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encouraged states to engage in negotiations or use other methods of ­peaceful resolution of international disputes, known to international law, to identify such an obligation and/or determine its content. It recommends committees of inquiry representing the contending parties and one neutral third party mediator as the primary mean for solving disputes on the duty of prevention. The work of such committee should result in a report, adopted by a majority of its members, with statement of facts and recommendations on a possible solution not binding to the parties in dispute. If however this method of peaceful settlement of disputes shows ineffective, i.e. the proposed solution is rejected by either party or impossible to implement due to e.g. lack of good will of the parties involved, other methods including arbitration or court proceedings, should be considered. Possible judicial proceedings should focus on assessing the level of due diligence shown by the state. Should this review show a lack of due diligence on behalf of the state, the court may decide on enforcing measures provided for in the law on state responsibility as per the 2001 ilc Draft Articles on State Responsibility. The evaluation of due diligence measures taken by a state should cover the level of potential risk of significant transboundary harm or the size of actual damage, whereas “significant” harm means “real, harmful consequences to human health, industry, property rights, the environment or agriculture of other countries” measurable by reference to actual, objective standards.3 This “harmful” nature of a given activity may be subject to expert disputes, a significant difficulty for the judicial review in a given case.4 The concept of “significant” harm, although comprehensively defined in a number of international law documents, encounters practical difficulties in implementation. Treaty practice often refers to the notions of “best available technology” used by a state showing due diligence in assessing risk or preventing harm or “latest technology” used to prevent and eliminate environmental pollution with due care.5 ilc however deliberately refrained from producing detailed definitions, giving them rather a flexible nature, leaving the decision as to the assessment of risk of significant harm in the hands of judges, deciding upon particular circumstances of a given case, as any due diligence assessment “must be made taking into account the specifics of each particular

3 2001 ilc Draft articles on prevention, comment (4) on Article 2, 152. 4 Arie Trouwborst, Precautionary Rights and Duties of States (brill 2006) 44–52, Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (­Chapter i, n 191) 152–153. 5 Convention for the protection of the marine environment of the North-East Atlantic (ospar Convention), 2354 unts 67, Article 3 pt. (a), 122.

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situation. This requires, above all, to take account of the facts, rather than a legal qualification”.6 Implementation of the due diligence obligation is essential for the enforcement of any standards requiring states to take certain actions, in other words for them to implement their positive obligations. Once the contents of the obligation can be identified in particular circumstances, it is easy to asses state actions or failures in meeting its international duties. As already mentioned, contemporary international law provides two mechanisms for determining state responsibility for its breach of an international obligation. The first possibility to asses consequences of lack of due diligence resulting in significant harm relies on the international liability work provided by the ilc, identifying common areas or treaty-based liability regimes, an attempt to find the principles of international liability. Within this work the ilc chose not to identify particular sanctions for lack of due diligence in preventing significant transboundary harm, referring national authorities, judges and scholars directly to individual primary regimes in as far as they provide regulations on state responsibility and applicable sanctions.7 While such treaties often provide for civil liability of private entities operating and profiting from risk-­generating undertakings, they rarely discuss state responsibility or international sanctions. The second option of assessing consequences for the lack of due diligence in preventing significant transboundary harm is therefore reference to the principles of state responsibility for the breach of its primary obligation of ­prevention against certain risks or damages, following the 2006 ilc Draft articles on prevention.8 Secondary norms on responsibility are therefore to be applied when primary norms fail to address the questions of attribution or sanctions. As already discussed, the ilc provided a summary on the duty of prevention in its work on international liability, relying on jurisprudence and contemporary treaty practice in various areas, including the protection of foreigners and 6 2001 ilc Draft articles on prevention, comment (4) to Article 2, 152. 7 Article 18 2001 ilc Draft articles on prevention, u.n. Doc. A/56/10 refers to other principles of international law, including customary norms as applicable in conjunction with the principle of prevention. Also Principle 7 of the 2001 ilc Draft articles on prevention, u.n. Doc. A/61/10, indicates the need for developing particular regional regimes on transboundary harm. 8 Comments (6) and (7) to the Preamble to the 2001 ilc Draft articles on prevention, u.n. Doc. A/61/10, which indicate the obligation to refer to the norms on state responsibility as identified in the 2001 ilc Draft Articles on State Responsibility in case of a violation of the obligation of prevention.

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diplomatic relations,9 yet the due diligence standard in preventing significant transboundary harm is still subject of an eager debate.10 This chapter aims to briefly summarize the status quo of the due diligence standard in various areas of international practice. The general observations made above, based on rich international practice as comprised by the ilc, have been set against treaty stipulations and customary regulations on international environmental law, law of the sea, law of diplomatic relations, the contemporary consensus on the protection of foreign nationals and states’ obligation to protect the sovereignty of other countries. Due diligence as described in those treaties emphasizes the significance of the principle of prevention.

Due Diligence in International Environmental Law

The above-mentioned principle of good neighborliness, included in the Stockholm Declaration as well as in the Rio Declaration, shaped the content of due diligence in the context of international environmental law. This obligation to prevent transboundary harm implies states’ duty to show due diligence in overseeing all risk-generating activities within their jurisdiction or control,11 except for cases providing for treaty-based absolute liability for environmental damage, as is the case with ultra-hazardous activities.12 The obligation to show due diligence does not however imply absolute or strict (risk) liability as such, although some authors have argued to the contrary.13 In environmental law the test of due diligence, with all its flexibility, is considered with state performance is a given case recognized as “the most appropriate one”. A state is considered to have acted with due diligence if it had introduced relevant legislation, administrative procedures and taken other appropriate steps to prevent significant transboundary harm, including implementing a system to monitor and authorize risk-generating activities.14 Such verification must be 9

Riccardo Pisillo-Mazzeschi, “The ‘Due Diligence’ Rule” (introduction, n 24) 22; also: Judgment in the United States Diplomatic and Consular Staff in Tehran case. 10 Vincent-Joel Proulx, ‘Babysitting…’ (Chapter 2, n 190) 659–666, Riccardo Pisillo-Mazzeschi, “The ‘Due Diligence’ Rule” (introduction, n 24) 31–32. 11 Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 110–12. 12 Maria Magdalena Kenig-Witkowska, ‘Prawnomiędzynarodowa odpowiedzialność za ­szkody transgraniczne w środowisku’ (introduction, n 31) 312–313. 13 It is only Article ii of the Convention on International Liability for Damage caused by Space Objects, 1972, 961 unts 187, introduces absolute liability. 14 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, Article 5 and 6.

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based on proper risk and environmental impact assessment.15 If such assessment shows the threat of significant transboundary harm, states at risk should be informed about the details of the threat and consulted on ways to minimize the harm or damage.16 As mentioned in the previous chapter, the 2001 ilc draft articles on prevention cover four types of activities required of diligent states. Those which identify the threat of significant transboundary harm need to take necessary measures to prevent the threat, engage in international cooperation with other states and competent international organizations to implement necessary administrative procedures and regulations, including ones on monitoring and assessing the environmental impact of risk-­originating activities, before authorising them. The flexible nature of so-formulated due diligence principles in international environmental law is best visualized in the last of its elements: the obligation to consider and balance the interests of all parties concerned, before engaging in potentially harmful activities.17 Okowa raises the obligation of eia to the rank of a principle of international environmental law,18 next to the principle of sustainable development and the precautionary principle.19 The former imposes on states the obligation to take into account the interests of environmental protection in all their endeavors, while the second requires state authorities to conduct all necessary research to prevent environmental harm, regardless of its cost. As a result of meeting their obligations countries do not need to actually prevent the engagement of the risk-generating activity, but only limit any threat that is inherent to it. This is a reflection of the de minimis test, which allows the application of the principle of prevention only to “appreciable, significant or substantial”20 harm, as per Principle 1 of the 2006 ilc Draft principles of allocation loss. The obligation of prevention does not therefore cover all threats to the environment, but restricts its scope to “cross border damage caused by hazardous activities not prohibited by international law”, where “dangerous activity” means an undertaking which “includes the risk of significant harm”.21 As already mentioned, the ilc decided 15 16 17 18

1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, Article 7. 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, Article 8 and 17. 1998 ilc Draft articles on international liability, u.n. Doc. A/53/10, Article 9. Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 87. 19 Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 83–84. 20 Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 87–88. 21 2006 ilc Draft principles on the allocation of loss, Principle 2, pt. (c).

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to not identify any particular list or category of such activities but rather rely on a more flexible set of circumstances that must be met for an activity to be considered risk-generating. A key term for determining the duty of prevention is the notion of potential damage.22 Therefore it is the notion of “significant harm” that is crucial to identifying the applicability of the duty of prevention in a particular case.23

State Responsibility in International Environmental Law

There are three treaty regimes which hold most significance in identifying the rules of international liability for transboundary environmental harm concerning respectively: marine oil transport, production and use of nuclear energy and space e­ xploration. Those regimes reflect states’ reluctance to cover for transboundary harm originated by these kind of undertakings and their willingness to shift the burden of liability onto private actors, profiting from hazardous activities.24 While a breach of an international obligation of due diligence may lead to state responsibility, specific treaties may endow states with liability for transboundary harm relying on the principle of risk or directly implying absolute liability.25 International liability principles presents in various treaties on international environmental law follow the provisions of the model used originally for harm originated by maritime oil transport, drawn up after the disaster of the Torey Canyon in 1967.26 It was then that the Intergovernmental Maritime Consultative Organisation (imco)27 was tasked to identify principles regarding damage caused by oil tankers failures and this work initiated the negotiations on the rules for compensation in other areas of international environmental law. During the negotiations of the imco Committee it became clear that states holding tanker registries were not willing to take over compensations for damage caused by private ships and their owners.28 Representatives of the negotiating countries agreed only to transfer the ­liability onto private ­maritime 22 2006 ilc Draft principles on the allocation of loss, 117. 23 See introductory remarks on the terminological issues. 24 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 97. 25 A.C. Kiss, D. Shelton, Guide to International Environmental Law, The Hague 2007, 92. 26 Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 97. 27 Since 1982 the International Maritime Organisation (imo). 28 The negotiations resulted in the Convention on Civil Liability for Oil Pollution Damage 1969 (9 ilm (1970) 45); Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 98.

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transport­enterprises in line with the “polluter pays” principle, because, as they reasoned, it were the entrepreneurs who gained profits generated by oil tankers and the risk to environment they create. At the same time littoral states, ones directly threatened by marine disasters, called for the establishment of a strict liability regime for states holding tanker registries as only in this case damage claims could always be covered.29 The reached compromised introduced strict liability of tanker owners and in the case of their insolvency claims damages were to be covered by a compensation fund, created to compensate for the damages caused by environmental pollution resulting from maritime oil transport. This compensation fund was to be fueled by representatives of the transport industry. States were to ensure that the industry meets their compensatory obligations and bear strict liability in cases of entrepreneurs’ insolvency or when the fund would run empty. The negotiators did not agree on subsidiary liability of the state under whose flag the ship was sailing or on states directly fueling the fund. Such a private compensation model for the maritime oil transport has been accepted by the industry, despite the disadvantageous position it put the private operators in.30 Consequently, a transport insurance sector quickly developed, offering financial assistance to oil transport operators, who were practically obliged to participate in this unique liability regime.31 Transferring strict liability for environmental damage onto private operators resulted in shifting the focus of the accountability debate from the inter-state­level, with private business given a secondary role, to the forum of international private law.32 Strict liability of the operators placed the burden of compensation directly on the industry. This shift is a reflection of current trends in globalization, with international companies at times disposing of greater financial and organizational resources as well as negotiating capacities than small countries. It does however also set states free from financial consequences of granting authorization for risk-generating activities.33 Such a complex mechanism of liability for damages, although in line with the 2006 ilc 29 30 31

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Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 98. X. Chen, Limitation of Liability for Maritime Claims: A Study of u.s. Law, Chinese Law, and International Conventions, The Hague 2001, 139. Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 99. H. Smets, The Oil Spill Risk: Economic Assessment and Compensation Limit, Journal of Maritime Law & Commerce 1983, No 14, 23. Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 97; Julio Barboza, The Environment, Risk and Liability in International Law, The Hague 2010, 3, who refers to ‘channeling’ responsibility onto private parties. Ruwantissa Abeyratne, ‘The Deepwater Horizon Disaster – Some Liability Issues’ (2010) 35 Tutlus Maritime lj 125 ff.

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draft, significantly impedes compensation claims. It leaves victim states to rely on state responsibility for lack of due diligence to issue compensation claims and private victims to seek compensation following complex stipulations of international private law, with particular regard to the complicated rules of international jurisdiction in civil cases. This model of liability, designed for maritime oil transport, has been used also for maritime and ground transport of other dangerous substances, as well as for the extraction of diesel fuels. It was also used for drafting the liability model regarding damages originating from the production of nuclear energy and space research, as described in brief below. International liability for nuclear damage is covered by the 1960 Paris Convention and relies on the principle of risk.34 As per its provisions, liability for transboundary harm is borne by the operator of the nuclear plant, who performed the damaging actions. Although the treaty does not establish compulsory insurance for the industry, it have become common practice in this business sector. Because states were still reluctant to take over any part of the compensation claims, Annex ii to the Paris Convention introduced a direct ­reference to the regimes of state responsibility as the appropriate redress mechanism for seeking compensation in cases of nuclear damage. Under its provisions, failure to show due diligence is to be regarded as a decisive factor in attributing state with responsibility for the failure of its organs. The text of the Paris Convention introduced two additional instruments to protect victims of transboundary nuclear damage, introducing a limited liability for damages against states authorising the risk-generating activity. In case of depletion of the private compensation fund, the state authorizing the dangerous activity was to bear shared responsibility. If however also the state was not able to meet the claims of the victims, they could rely on a “third layer” of compensation introduced within the treaty. It introduced a compensation fund fueled by states, similar to the maintine oil transport one, yet independent of private insurance funds, run by and for industry purposes.35 At the same time the treaty regime of liability for nuclear damages provided for the possibility of limiting the amount of damages that entrepreneurs were capable of covering and did not provide for an enforceable risk liability regime applicable to states. When referring to liability for transboundary harm in environmental law it is worth mentioning the respective regulations applicable to cases of space exploration. This area of activity has been subject to an exceptional treaty regime, 34 35

Vienna convention on civil liability for nuclear damage, 1963, unts 1063, No 16197; ­ homas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 100. T Thomas Gehring, Michael Jachtenfuchs, ‘Liability…’ (introduction, n 23) 101.

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introducing absolute state liability. This unique compromise resulted from the fact that this area of activity remained, at the time of its negotiations, the exclusive domain of states. Therefore, the Convention on International Liability for Damage Caused by Space Objects reflects the problem of transboundary harm liability differently from those previously discussed. It places absolute liability for any damage caused by a space object on states as until recently they were the only ones capable of placing objects in outer space and engaging in space explorations. Article 2 of the Convention on International Liability for Damage Caused by Space Objects provides that the launching state is liable for the damage, regardless whether to Earth’s surface or to an aircraft, by the space object it has launched. The space exploration regime is so far the only case where absolute state liability was adopted, yet with the rapidly increasing role of private business in space exploration, this compromise might be subject to revision. Except for the last two treaty regimes discussed above, reflective of a unique international compromise regarding specific areas of international activity, states are to be held to compensation duties only if proof of their negligence resulting in damage can be shown by presenting negligence of their bodies that was contrary to an international obligation of that state. International jurisprudence shows that any due diligence assessment can be done only with reference to recognized international standards.36 Such assessment largely relies on actual possibility to prevent the damage as identified within individual analysis provided by technical professionals. This is a reflection of the principle of prevention, well present in environmental law, requiring states to produce risk analysis for dangerous endeavors.37 With the ilc recognizing the principle of prevention as a principle of international liability there is no longer the need to demonstrate an individual obligation of a particular state to take all necessary measures to prevent transboundary harm.38 The precautionary principle in environmental law stems from the need to prevent irreversible damage to the environment. Despite it being put into wording within Principle 15 of the Rio Declaration and in numerous treaties, the applicability of the duty it originates still raises doubts. This is the case because any treaty that does not include a direct reference to the Rio 36 37 38

Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter i, n 227) 82. Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 152–154. Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 153.

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Declaration no includes a direct reference to the duty of prevention can be amended solely with reference to the general character of the principle at hand and the non-binding Rio Declaration.39 And so the threats which need to be prevented are referred to in different ways within individual treaties are rarely accompanied by a description of particular preventive measures. This practically reduces the possible application of state responsibility principles as the individual obligations to have been violated are difficult to identify and put into detail. As a result, national standards implementing those environmental obligations differ significantly. Only a few states apply the principle of prevention as a norm of domestic law, while in most cases it is one of the many factors which national legislature needs to consider in its work.40 As already mentioned due diligence relies, among other factors, on international cooperation aimed at minimizing the threat of transboundary harm, an element particularly important for providing environmental impact assessments. The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)41 defines an eia as a “national procedure for evaluating the likely impact of a proposed activity on the environment”.42 The aim of the assessment is to prevent, minimize and control significant adverse effects of particular activities.43 The way of executing this obligation depends on national law as well as on technological and financial resources at the disposal of the state. Therefore a state uses the best available resources in good faith, it should be considered to have met its international obligations.44 In the context of the previous chapter, it should be recognized that the eia should reflect good international, or at least regional, practice in accordance with Principle 11 of the Rio Declaration.45 Moreover, the obligation to carry out

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Marc Pallemaerts, International Legal Aspects of Long-Range Transboundary Air Pollution [in:] A.C. Kiss, Johan G. Lammers (eds.), Hague Yearbook of International Law, vol. 17–18, The Hague 1989, 214; Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 154–158. Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 153–154. Convention on Environmental Impact Assessment in a Transboundary Context, 10 September 1997, unts 1989, 309. (hereinafter cited as: Espoo Convention). Article 1 (vi) Espoo Convention. Article 2 (1) Espoo Convention. Xue Hanquin, Transboundary Damage in International Law (Chapter 1, n 219) 167–8. ilc confirmed this obligation in Article 11 of the 1998 ilc Draft articles on prevention.

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an eia can be found in national laws, jurisprudence,46 bilateral treaties47 and eu law. The duty to carry out an eia can also be inferred from the wording of Principle 17 of the Rio Declaration, confirming contemporary customary law on the issue. It states that an eia as an element of the national legal order, needs to be carried out with regard to activities that can have a significant impact on the environment and should be subject to the decision of the competent authority. Some authors claim that the verification of the way in which the assessment was made remains the sole responsibility of national authorities, without making reference to e.g. Principle 7 and Principle 9 of the Rio Declaration. The­­latter constitute however a complementary obligation of international cooperation for the purpose of protecting natural environment. Despite this obligation some argue that the absence of an impact assessment obligation in national law is not in itself a breach of international law as a representation of lack of due diligence on behalf of the state.48 This statements contradict the wording of Article 8 of the Espoo Convention, Article 20 and 21 of the Stockholm Declaration as well as Principle 17 of the Rio Declaration, which recognize the obligation to implement the principle of prevention into national law. This duty means the obligation to ensure eia for the risk generating a­ ctivities within state jurisdiction. It is reflected also the obligation of international ­cooperation in Article 11 of the 1998 ilc Draft articles on international liability. This ilc proposal is supported by those legal scholars who argue for recognizing the international obligation of assessing potential transboundary harm arising out of hazardous activities per environmental impact assessments.49 This obligation has also been confirmed by icj case law, in particular in the case of the nuclear tests in the Pacific. The obligation of prevention in environmental law consists of two other elements: the need to notify potential threats and consult with the countries potentially at risk of harm. The state under whose control the hazardous activities are carried out should notify states potentially threatened by the 46

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Gabčíkovo-Nagymaros case, para. 112 and 140; C.M. Kersten, Rethinking Transboundary Environmental Impact Assessment, Yale Journal of International Law 2009, No 34 (173), 174–185. See e.g. European Commission, How Successful Are Member States in Implementing the eia Directive, com (2003) 334 final, 2003, available at: accessed 14 March 2016, 80. Xue Hanquin, Transboundary Damage in International Law (Chapter 1, n 219) 167. Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Chapter i, n 191) 173.

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harmful consequences of those risk-originating activities. This obligation means that state authorities which learn of a threat of imminent transboundary harm originating from an activity conducted within their jurisdiction, power or control as a result of an eia are to share information on that threat and the planned or implemented measures of prevention with potentially affected countries. Notification of potential harm is to allow for the joint assessment of the situation and taking steps necessary to reduce the threat or minimize its harmful results.50 The notification of potential threat requires consultations between the originating state and those at risk of harm’ on the ways and means of reducing the threat, with the latter enjoying the right to object to the hazardous activities planned. In the event of a dispute as to the possibility of going through with the harmful activities or as to the appropriate ways of preventing damage, states should introduce peaceful methods of resolving disputes as per international law. As already mentioned, regardless of the running negotiations or mediations, the originating state can allow for the dangerous activities to be commenced, regardless of the consent or objection of the parties at potential harm.51 None of the standards of environmental law prohibit the engagement with a hazardous activity despite the objection of the potentially affected parties. This means that state responsibility may be invoked only after the risky activity was started and the harmful effect took place, as states are reluctant to recognize state responsibility in the absence of damage. Failure to conduct an eia or damage caused by such activities can serve post factum as proof of lacking due care on the side of state authorities. Next to legal provisions, requiring from states to demonstrate due diligence in preventing transboundary harm, there is also a great role played by international soft law and good practice, allowing for a relatively detailed identification of the content of the due diligence principle.52 It is incentives rather than sanctions that are used for encouraging developing countries in ­implementing their duty of prevention, providing them with assistance in implementing standards of care, also by providing support in making best use of new technologies and explaining the accompanying new social schemes.53 The possibility to provide more details on a particular obligation of due diligence results in higher enforceability of such an obligation – the more precise 50 51 52 53

Xue Hanquin, Transboundary Damage in International Law (Chapter 1, n 219) 168–170. Xue Hanquin, Transboundary Damage in International Law (Chapter 1, n 219) 173–5. Rao’s second report, u.n. Doc. A/CN.4/501, 11, Rao’s first report, u.n. Doc. A/CN.4/487, 18, where Rao confirms Barboza’s observations on prevention. Rao’s second report, u.n. Doc. A/CN.4/501, 12.

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the content, the more effective the enforcement. Another important factor is the efficiency of state apparatus, with particular regard to the quality of its administrative structures, financial resources and infrastructure used for the implementation of the obligation to monitor compliance with precautionary procedures provided by law. The amount of financial resources is reflected also in the economic factors considered for the due diligence analysis, including gdp, production technologies, participation in international trade, division of power between state regions as well as the decentralization of power. Complementary role is played by non-governmental organizations and the attitude of individuals who influence the shape of state policy. With all those in mind, it is the competence of state administration and the attitude of its leaders together with access to state of the art information obtained through international cooperation that play the key role in states meeting their due diligence obligations. Activities aimed at raising the level of due diligence should be tailored to the specific needs of a country and take into consideration the will as well as the ability of the individual state to fulfill the due diligence standard it is being confronted with.54 Both: the will and the ability allow for the identification of six permutations, characterizing the attitude of states towards their due diligence obligations.55 Consequently, depending on the specifics of the country bound to show due diligence, the practice of international environmental law identifies three methods to enforce due diligence obligations referred to as: the “sunshine” approach, the encouraging approach and the sanctioning approach. The first two methods are most often used for the purposes of environmental law, unlike in e.g. international trade law, enforced primarily through sanctions. And so the sunshine approach provides for the implementation of a number of activities aimed at exposing all parties and individuals whose acts or omissions condition the fulfillment of a given obligation of due diligence, hence the name: the sun shining on all actors and exposing their performance is to guarantee all the duties are met. Those activities include regular state reporting verified by other countries (peer scrutiny), the establishment of 54 55

Rao’s second report, u.n. Doc. A/CN.4/501, 11. Rao’s second report, u.n. Doc. A/CN.4/501, 11. According to the Special Rapporteur, states can be divided into six categories: ‘intends to comply and can comply; has not thought through the obligations of compliance, but could comply; does not intend to comply, but could comply; intends to comply, but cannot comply; has not thought through the obligations of compliance and could not comply; does not intend to comply and could not comply’.

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specialized organizations and their secretariats, regional and international, serving the aims of particular due diligence obligations and supervising the states. The “exposure” of state activities such as authorizing risk-generating activities allows not only for other states’ oversight over the potential threats within the state of origin, but also helps local community to shape national or regional policies, review or inspect official documents on the implementation of relevant procedures or verify private bodies’ compliance with legal requirements prescribed by professional bodies.56 Also, regular monitoring of risk-generating activities together with the exchange of information between states help enforce preventive measures. Insight into state authorized activities as a method of preventing transboundary harm has been recognized in Article 8 of the Montreal Protocol on Substances that Deplete the Ozone Layer57 of the ­Vienna Convention,58 which was the first document to include the relevant procedures for non-compliance. Similar stipulations were introduced in ­Article 5 of the Convention on Nuclear Safety,59 the Oslo Protocol 56 57

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Rao’s second report, u.n. Doc. A/CN.4/501, 11. Montreal Protocol on Substances that Deplete the Ozone Layer, 1987, in Article 8 devoted to non-compliance provides that state parties are to identify ‘procedures and institutional mechanisms’ for determining non-compliance with the provisions of the protocol as well as those applicable to non-compliant parties. To meet this aim Article 10 para. 5 provides for an Executive Committee established to ‘develop and monitor the implementation of specific operational policies, guidelines and administrative arrangements, including the disbursement of resources, for the purpose of achieving the objectives of the Multilateral Fund’. Article 6 provides for specified methods of assessment and review of control measures. Those include state party reports presented every four years, covering the applied control measures assessed ‘on the basis of available scientific, environmental, technical and economic information’. Also, one year before each assessment, states are to ‘convene appropriate panels of experts qualified in the fields mentioned and determine the composition and terms of reference of any such panels’. Vienna Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985, unts 1513, 293. Rao’s second report, u.n. Doc. A/CN.4/501, 11. Rao refers to the Convention on Nuclear Safety, 1994, unts 1963, 293, Article 5 which introduces a mechanism of mutual control based on reports on their performance of the treaty obligations (a peer review mechanism). The reports are to be presented in review meetings to take place not less frequently than every three years (Article 20, 22). Article 29 provides for a dispute settlement mechanism for disputes regarding the interpretation of the convention that also refers the states to the review meetings. In case of a dispute, the Parties are to consult within the framework of a meeting with a view to resolving the disagreement. Maria Magdalena Kenig-Witkowska, Międzynarodowe…, (chapter 1, n 346) 136, where the author argues that despite the rich variety of dispute settlement measures states rarely refer to them.

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on further reduction of sulfur emissions60 and in Article 13 of the United Nations Framework Convention on Climate Change.61 These examples show that a crucial element of this most popular mechanism for enforcing the principles of ­environmental law are the procedures of non-compliance, recognized as an element of enforcing treaties and derived from the overall principles of pacta sunt servanda. As noted by some authors, those procedures are usually quite general and little formalized, deeming their effectiveness significantly limited. The incentive approach aims to motivate countries to show due diligence in preventing transboundary harm. It covers a range of financial and technological incentives for countries that consistently implement prevention procedures.62 On the basis of the relevant international agreements numerous international funds supporting the implementation of preventive obligations have been created, such as the Montreal Protocol Fund, World Heritage Fund or the Bali Fund, created following the implementation of the International Tropical Timber Agreement,63 the Global Environment Fund, multilateral banking projects, bilateral agreements on mutual intergovernmental assistance or technical assistance measures offered by the private sector within e.g. the Montreal Protocol. When it comes to possible sanctions for lack of due diligence in preventing transboundary harm, they can be found only in a few treaty regimes, including e.g. a ban on trade with the offending party or the loss of a unique status granted by the power of a given treaty, as e.g. with Article 5 of the Montreal Protocol, allowing individual parties to apply for additional funds.64 Such sanctioning measures, even if provided for by a treaty, are rarely enforced.

Law of the Sea

A specific regime of liability for breach of the precautionary principle was introduced for the marine environment. The need to clarify the obligation of due diligence for this particular area of natural environment resulted primarily from the development of new technologies enabling for new uses of the 60 61 62 63 64

Maria Magdalena Kenig-Witkowska, Międzynarodowe…, (chapter 1, n 346) 136; Rao’s second report, u.n. Doc. A/CN.4/501, 11. Maria Magdalena Kenig-Witkowska, Międzynarodowe…, (chapter 1, n 346) 136–137; Rao’s second report, u.n. Doc. A/CN.4/501, 11. Rao’s second report, u.n. Doc. A/CN.4/501, 11. unts 2797, Doc. TD/TIMBER.3/12; Rao’s second report, u.n. Doc. A/CN.4/501, 11. Rao’s second report, u.n. Doc. A/CN.4/501, 11.

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seas.65 Effectively, the general obligation to show due diligence in preventing harm to the marine environment was directly expressed in the Convention on the Law of the Sea (unclos). The rules of prevention in Article 192 (unclos) require states “to protect and preserve the marine environment” which corresponds with the provisions of the preamble, calling upon states to ensure “peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, conservation of their living resources, and the study, protection and preservation the marine environment”. The provisions of Article 192 introduce a legally binding obligation of prevention, instrumenting the appropriate interpretation of various other treaty provisions, in particular its Part xii on “Protection and preservation of the marine environment”.66 The content of Article 193 reflects the already mentioned principle of good neighborliness expressed in Principle 21 of the Stockholm Declaration.67 Countries therefore have a sovereign right to “exploit their natural resources according to their policies in the field of environmental protection”, but must do so in accordance with the “duty to protect and preserve the marine environment”. What is more, when implementing measures aimed at preventing, reducing and controlling pollution of the marine environment, the state should not unduly interfere with activities carried out by other states aimed at the exploitation of their marine resources.68 Article 194 unclos reflects the principle of prevention by describing measures of prevention, reduction and control of pollution in the marine environment. Following these stipulations states need to use all measures necessary to prevent, reduce and control pollution of the marine environment, regardless of its source. They need to do so to the limits of their abilities and, depending on the circumstances, individually or jointly.69 So defined, the content­of the obligation of prevention imposed on all countries, not only on those which 65 66

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L. Juda, International Law and Ocean Use Management, The Evolution of Ocean Governance, London 1996, 285. Article 194 unclos concludes that ‘states shall take (…) all measures’, whereas as Nordquist explains that it was subject to state consensus that the term ‘shall’ is to be understood as indicating an obligation; M.H. Nordquist, United Nations Convention on The Law of the Sea 1982 A Commentary, Leiden 1991, xlv–xlvi. J. Brunee, Structure and Processes of International Environmental Law [in:] Stockholm P­ apers, M.H. Nordquist, J.N. Moore, Mahmoudi (eds.), The Hague 2003, 68–69. Article 194 para. 4. unclos; Birnie P., Impact on the Development of International Law on Cooperation: The un Law of the Sea, Straddling Stocks and Biodiversity Convention [in:] M.H. Nordquist (eds.), The Stockholm Declaration and Law of the Marine Environment, The Hague 2003, 92. P. Birnie, Impact…, (n 68) 92.

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have ratified the treaty, but also onto third countries, as the treaty is recognized to generate universal customary law regarding the maritime environment.70 In a particular situations countries need to engage in negotiations to identify the individual “necessary measures”, applicable to a given situation, local or universal.71 Reference to state capabilities as a measure for the standard of care applicable to a given situation is of great significance to developing countries, for which the content of their commitments should be construed more narrowly than in the case of developed states. Here due diligence refers to the use of “means best suited” to prevent the threat within the disposal of contracting states as well as their joint negotiations on shared policies and pollution control. State duties of due care cover also the necessity to monitor all activities within state jurisdiction or control.72 As such they reflect the ban on the use or permission of use of state territory in a manner harmful to others.73 States must therefore adopt all necessary measures for ensuring that activities within their jurisdiction or control do not cause transboundary harm to the marine environment, either directly, i.e. through emitted pollution or through industrial accidents resulting in such harm. Due diligence should be shown at preventing damage from any source, yet above all one resulting from introducing into the marine environment of toxic, harmful or dangerous substances, pollution from ships, pollution from installations and devices used in exploration or exploitation of natural resources from the sea bed as well as pollution from other installations and devices operating in the marine environment.74 Article 194 holding these stipulations specifies three elements of the due diligence principle in the law of the sea, which are: (1) the obligation of prevention, (2) harm reduction and (3) marine environment pollution control. The principle of prevention for the marine environment includes also the obligation not to transfer damage or threats or transform one type of pollution into another. This obligation requires states to ensure that the implementation of all projects within their jurisdiction or under their control follows this guideline.75 At the same time the convention defines technologies and knowhow to be used by states to fulfill their obligation of prevention. As per its stipulations states need to take all measures necessary to prevent, 70 71 72 73 74 75

J. Brunee, The Stockholm declaration and the Structure and Processes of International Environmental Law [in:] M.H. Nordquist (eds.), The Stockholm…, 76. J. Brunee, Structure…, 76–77. Article 194 para. 2 unclos. J. Brunee, Structure…, 77; see also the Trail smelter case discussed in detail herein above. Article 194 para. 3. unclos. Article 195 unclos.

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r­ educe and control pollution of the marine environment, resulting from the use of technology in the jurisdiction of the state or under its control, but also in the event of an intentional accidental or introduction of alien or new species into the maritime environment, whose presence may cause significant and harmful changes.76 This obligation consists therefore of two elements: the obligation to prevent, reduce and control environmental pollution resulting from the use of technology, combined with the obligation to care for the preservation of the natural marine resources. The latter obligation is not directly related to the problem of pollution of the marine environment, yet it can be assumed that its aim is to link the obligation of due care with the negative consequences of interference with its natural state.77 Article 145 unclos establishes also an obligation of member states to introduce “to ensure effective protection for the marine environment from harmful effects” which may arise from activates undertaken therein. Such harmful consequences may arise from activities affecting the seabed, ocean floor or subsoil thereof, beyond the limits of national jurisdiction. For this preventive purpose to be achieved the treaty introduced the International Seabed Authority, tasked with drafting “appropriate rules, regulations and procedures”, aimed at i.e. preventing, reducing and controlling marine pollution and other hazards to the environment, including the coastline.78 The obligation of prevention concerns any unwanted “pollution of the marine environment”, which is to be understood as the introduction by man of substances or energy into the marine environment if it causes or is likely to cause harmful consequences, e.g.: damage to living resources, human health risks, difficulties in shipping or fishing or lower quality for use of sea water.79 The perception of the high seas as a space taken care of by all states is a good reflection of the international community’s approach to the challenges of environmental protection. Maritime areas as are through of as an equal, shared concern for all countries, an approach well reflected by the numerous and detailed stipulations on the protection of the marine environment present in a number of conventions, accompanying the unclos. They all reiterate the general rules for the use of the open sea and its resources, identifying those principles as shared by all members of the international community and reflecting the general obligation of care regarding the marine environment by demonstrating due diligence in its implementation. 76 77 78 79

Article 196 unclos. J. Brunee, Structure…, 76. Article 145 pt. (a) unclos. Article 1 paragraph. 4 unclos.

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Maritime environment protection and the obligations it endows, described in e.g. Articles 194 and 196 unclos have been repeated in other treaties, as e.g. the 1972 International Convention for the Prevention of Pollution from Ships, obliging states to prevent pollution of the marine environment from harmful substances from ships.80 The precautionary principle present therein obliges states to cooperate in the detection of violations and ensuring compliance with the provisions of the Convention by using “all appropriate and available resources to detect and control the environment”.81 This obligation includes the duty to use appropriate means of sharing information and gathering evidence. The principle of prevention appears also in the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea. It introduces the obligation to protect nature and biodiversity, requiring states to take “individually and collectively, all appropriate measures” aimed at protect natural habitats, biodiversity and ecological processes in the Baltic Sea area and its ecosystems. The principle of good neighborliness is also reflected in its provisions stating the need to take all appropriate measures to ensure the sustainable use of natural resources in the Baltic Sea, based on the guidelines and criteria adopted by states. Similar provisions can be found in the Convention for the 1976 Protection of the Marine Environment and the Coastal Region of the Mediterranean (The Barcelona Convention) with its Article 4 obliging states to take “all appropriate measures” to prevent, reduce and control pollution of the Mediterranean Sea area as well as to protect and improve the marine environment in this area. It can therefore be assessed that the principle of due diligence is a steady element of the law of the Sea, present in the treaties and in its customary rules, originated by state practice.

Law of International Watercourses

When describing the principle of due diligence, the ilc strongly relied on the regulations regarding the law of international watercourses.82 For example, following the principles guiding the use of international watercourses, both Special Rapporteurs on international liability, Quentin-Baxter and Barboza, 80 81 82

Article 1 marpol. Article 6 marpol. Draft articles on the law of the non-navigational uses of international watercourses; Law of the non-navigational uses of international watercourses, ilc, 1993, u.n. Doc. A/ CN.4/L.489.

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when describing the content of the due diligence principle and the duty of prevention ascertained that it should be proportionate to the degree of risk of transboundary harm in particular circumstances.83 The due diligence standard can be ascertained by considering the significance and economic value of the dangerous activities and the resources at the disposal of the authorizing state.84 Identifying the content of the duty of care in a given situation should also rely on standards applied by the affected state and the relevant national and international practice. All of those are criteria originally present in the regimes on international watercourses.85 Following the ilc analysis of the law on international watercourses, the obligation of due diligence in international law can be complemented with three criteria allowing for the verification of state efforts. As per those observations, the obligation of due diligence is met when the state meets a level of care that can be expected from a good government. In other words, the state should be in disposition of a continuously functioning legal system and material resources sufficient to ensure compliance with its international obligations under normal conditions.86 In particular, states need to create and maintain an administrative apparatus that is sufficient to perform state obligations.87 As originally observed in the 1925 dispute between Morocco and Great Britain, no administrative system is perfect and certain margin of tolerance must be taken into account in assessing the efforts of countries, even those with extremely efficient governmental apparatuses.88 Those short­comings however should not lead to a situation in which the general protection of the interests of citizens falls below a certain level, becoming merely illusionary.89 The second criterion for verifying state diligence is the assessment of its use of infrastructure at its disposal, considering state needs in particular circumstances and the vigilance of state authorities.90 The third criteria for assessing due diligence considers the fulfillment of state obligation to run a risk assessment prior to allowing for a particular risk-generating activity that is its obligation to evaluate adverse effects of particular activities and determine potential harm 83 Rao’s second report, u.n. Doc. A/CN.4/501, 6. 84 Idem. 85 Idem. 86 Rao’s second report, u.n. Doc. A/CN.4/501, 6. Xue Hanquin, Transboundary Damage in International Law (Chapter 1, n 219) 163. 87 Rao’s second report, u.n. Doc. A/CN.4/501, 6. 88 British claims in Morocco case, 641–642. 89 Idem. 90 Rao’s second report, u.n. Doc. A/CN.4/501, 7.

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they might bring.91 As rightfully observed by Rao, the higher degree of unacceptable contamination, the greater the diligence required from state to prevent it.92 The use of risk-generating technologies or production methods carries with it an obligation to demonstrate more vigilance, regardless of the level of state development.93 Furthermore, the obligation to show due diligence should not be interpreted as a basis of strict liability of the state for damage caused to the environment, as such liability can only follow detailed treaty stipulations.94 As already mentioned, the law of environment is dominated by the concept of objective attribution of responsibility. Those criteria for assessing due diligence can be supplemented with additional elements, such as the need for state efforts in a given case to reflect the level of state development or direct reference to factual circumstances in identifying state duties.95 Those criteria would be of particular use in cases of predictable harm originating from a given activity. A state would therefore be required to demonstrate due diligence only if it knew or ought to have known that an activity could cause harm. Moreover, the criteria named above could be combined with an international minimum standard of behavior expected of a “good government” or a “civilized state”, although the latter refers to the controversial international minimum standard doctrine.96 The ilc Draft articles on the Law of the Non-navigational uses of International Watercourses define due diligence as “diligence proportioned to the magnitude of the subject and to the dignity and strength of the power which is to exercise it” and “such as governments ordinarily employ in their domestic concerns”.97 This standard does not mean that the use of an international watercourse may not result in significant damage.98 It is only to imply that the duty of care is breached when a state deliberately or negligently caused the harmful event, which should have been prevented.99 This same conclusion is to be drawn in cases of intentional or negligent failure to prevent such an event, originated by an activity undertaken by private or foreign entities within the state. This stipulation goes in line with previous ilc work, 91 Idem. 92 Idem. 93 Idem. 94 Rao’s second report, u.n. Doc. A/CN.4/501, 6. 95 Rao’s second report, u.n. Doc. A/CN.4/501, 7–8. 96 Idem. 97 Rao’s second report, u.n. Doc. A/CN.4/501, 8. 98 Rao’s second report, u.n. Doc. A/CN.4/501, 8. 99 Rao’s second report, u.n. Doc. A/CN.4/501, 8.

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which indicated that the state could be held liable for failing to implement relevant legislation, lacking its enforcement or failing to prevent or stop unlawful activity or individuals responsible for it. Breach of an obligation of due diligence can be found also when the state knew or ought to have known that a particular use of the watercourse can result in significant damage in other countries. The Corfu case adds to the ilc observations with confirming that the exercise of state power over a given area or reservoir is not to imply its ­authority’s awareness of any unlawful activity undertaken there or entities performing it. The practice of the 1997 Convention on the non-navigational use of international watercourses proved troublesome when the notion of “appropriate measures” was to be applied to assess state diligence in a given case.100 Originally, Canada and Switzerland, among others proposing this reference, argued that its ambiguity and imprecision were deliberate, allowing for adequate adaptation to the a case-specific standard, necessary for the precautionary principle to function. The standard of due diligence in reference to non-navigational water courses was perceived as proportionate to the degree of threat of transboundary harm in particular circumstances.101 Any standard of adequate protection should be identified with reference to the significance a given activity holds for the originating state’s economy as well as to the material resources at the disposal of the state, while it should also reflect regional and international practices.

Protection of Foreigners

As discussed in Chapter i, the concept of state responsibility has been derived from the original, widely recognized obligation to compensate the losses incurred by foreigners within state territory rather than from liability for damage to foreign interests or property.102 As such state duty to protect foreigners residing within its territory holds a significant place in international law. It is to derived from state prerogative to deny entry foreigners, yet once does a state allow foreign presence, it is obliged to treat them with respect as set by the international minimum standard of protection. This obligation results in 100 Convention on the Law of the Non-Navigational Uses of International Watercourses, un Doc. A/51/869. 101 Rao’s second report, u.n. Doc. A/CN.4/501, 8. 102 Oppenheim, International law…, (chapter 1, n 156) 495.

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state duty to ensure personal safety of foreigners and guarantee protection of their property.103 It is also demonstrated by a particular obligation towards foreign diplomatic staff, discussed above. Due diligence is of particular significance when it comes to state responsibility for damage to foreign interests or as Phillip Jessup rightfully put it, “state responsibility for damage caused to foreigners may be originated by a sin of omission or action”.104 The notion of an “international minimum standard” refers to fundamental rights of foreigners granted to them in the country of residence, regardless of the level of protection of rights granted to citizens in that country.105 Alternatively, foreigners could be granted a status that is “not inferior” to that of local residents, yet that would not ensure foreigners’ safety at territories facing violent internal conflicts or authoritarian rule.106 107 The latter was relatively popular among developing countries, perceiving the adoption of an international minimum standard as a threat to local perceptions of democracy. International practice adopted the international minimum standard for the protection of nationals in the twentieth century, as reflected in e.g. the 1926 Neer case before the US-Mexican bilateral commission.108 The ilc found that the legitimacy of government action needs to be verified against international standards, a principle reflected also in the Polish Upper Silesia case before the pcij. The Court found that there is a common and generally accepted set of standards of international law regarding the treatment of foreign nationals residing in a country, covering above all state obligation to protect their right to life and the need to treat all foreigners in accordance with the “usual civilized standards”, as argued by the bilateral commission in the Roberts case. Despite this observation, the international minimum standard has not been put into detail neither by legal writers nor by judges. Its elements can be identified based on international practice, as in e.g. the arbitration in the Neer case, which concluded that the treatment of foreigners can be considered a violation of international law 103 F.V. García Amador, ‘Draft Articles on the Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens’ in Recent… F.V. García Amador, Louis B. Sohn, Richard R. Baxter (eds.), (n. 593) 3–4. 104 Robert Jessup, ‘Responsibility of states for injuries to individuals’ (1946) 46 clr 912. 105 See generally: Martinis Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (oup 2013); Roland Kläger, ‘Fair and Equitable Treatment’ in International Investment Law (cup 2011) 48–61; Ian Brownlie, Principles… (introduction, n 20) 425–428. 106 F.V. García Amador, Draft Articles…, xviii–xix, 41, 51. 107 F.V. García Amador, Draft Articles…, 161. 108 L.F.H. Neer and Pauline Neer v. United States of Mexico, riaa 1926, 60–66 (hereinafter cited as: Neer case).

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when it is “scandalous” or a manifestation of bad faith, willful neglect of state duty or manifests itself through the lack of any action of state authorities that is so far distant from international standards that any impartial and reasonably thinking person would consider the measures taken insufficient.109 Many authors have attempted to sketch the elements of the minimum international standard when describing it as e.g. a “fairly high threshold”, which should satisfy the state in the protection of foreigners. Others refer to it as a result of the decision making process, applicable to a single case and identified based on its circumstances. Such process can lead to attributing state responsibility as a result of actual damage suffered by a foreigner, one that was caused by e.g. a denial of justice. Moreover, there are two principles which can help in identifying the meaning of an international minimum standard in a given case, and consequently – the rights guaranteed to foreigners in any country of their residence. First of all, this standard is intended to provide equal rights to citizens and foreigners, and the catalog of such rights needs to reflect the fundamental human rights recognized and described in international treaties.110 Moreover, this standard covers also the possibility of attributing international responsibility to a state in breach of such universally recognized human rights. Those elements are recognized as covered by the international minimal standard as they have been reflected in several international agreements and discussed in detail in the ilc documents. The general duty of states to protect the rights of foreigners includes two specific obligations: a negative obligation to abstain from violations of foreigners’ rights and a narrowly construed positive obligation to protect them. The former requires states to refrain from provoking threats to the security of foreigners residing within state territory or jurisdiction. The latter consists of a positive state duty to take active measures to grant safety to ­foreigners residing within its jurisdiction, in particular against attacks from private individuals or representatives of third countries.111 This obligation covers both: the need to prevent damaging incidents and punish those responsible, if it was not possible to prevent damage. A breach of state negative duty obliging it to prevent violations of aliens’ rights always covers actions and omissions of state bodies, although due diligence is not always invoked in court decisions on state responsibility in such situations. Due diligence was not considered an applicable criterion when assessing the use of weapons against foreigners 109 Neer case, 61–62. 110 García Amador’s first report, u.n. Doc. A/CN.4/96, 200. 111 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 22.

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by members of national armed forces or law enforcement in cases involving unjust and protracted detention of foreigners, nor in those dealing with their improper treatment during pre-trial detention.112 Due diligence was also not directly considered a criterion in cases dealing with violation of property rights by state agents, regardless of whether a violation occurred as a result of a judicial or an administrative decision.113 Due diligence seems therefore to be of less importance in cases dealing with negative obligations of states, as with regard to such duties demonstrating it would require proof of willful misconduct or negligence on the part of state authority or individuals acting on its behalf. That is why due diligence is usually invoked in the context of state failure to comply with its positive obligation to protect.114 Judicial decisions seem to confirm this observation, as numerous courts found a demonstration of due diligence on behalf of state authorities as an exonerating circumstance in cases when the international minimum standards of protection were violated.115 States are free from responsibility for damages done to foreigners by private individuals, yet may be held responsible for acts or omissions of state bodies or persons under state control when those were contrary to international law and resulted in the duty damages. State responsibility for the harmful results of actions of private individuals in such cases stems directly from its obligation of prevention, i.e to protect, one resting upon authorities within whose jurisdiction the foreigner resides. This is the case since the protection of the rights of foreigners covers two obligations: the obligation to prevent harmful activities of individuals and to punish those guilty of damage which could not be prevented.116 These two obligations are to be investigated independently as the state is not obliged to guarantee prevention of all damage to foreigners, but only to show due diligence in preventing it.117 The content of the individual obligation, facts of the violation and the role of due diligence in the evaluation of a particular breach can only be assessed with reference to particular 112 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 23, ftn. 41 and the case law quoted therein. 113 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 23. 114 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 24, ftn. 46 and the case law quoted therein. 115 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 24 ftn. 46 and the case law quoted therein. 116 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 25–26. 117 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 26.

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c­ ircumstances. It is the content of the individual obligation that determines the level of due diligence required on the part of the state. Due diligence can therefore be invoked only with regard to a breach of an obligation of diligent conduct, never in the case of breach of an obligation of result.118 The duty to show due diligence has been perceived as a an obligation of a continuous nature. As such it was reflected not only in the work of the ilc, referred to above, but also in academic discourse, just to mention the 1961 Harvard draft Convention on the International Responsibility of States for ­damages suffered by aliens.119 In its Article 13 the draft contains a description of what is meant by a lack of due diligence in ensuring the protection of foreigners, one that is to be considered a breach of an international obligation of the state. According to its stipulations failure to show due diligence can be manifested by a lack of preventive or deterrent measures against unlawful acts of persons acting individually or in groups, which violate international law. Acts which should be prevented or punished include those that constitute a crime under national law as well as ones widely recognized as criminal in major legal systems of the world.120 The draft covered also the consequences of lack of state due diligence, introducing its responsibility for failure to afford protection to foreigners or to capture or prosecute an offender, who has committed a crime to the detriment of foreigners.121 The consequences of such an attributable omission were to be assigned to a state if the resulting damage could be considered a direct consequence of state actions, in particular its omissions. State was therefore to bear responsibility for any damage caused by individuals, which could have been prevented with due diligence.122 Such situations, considered exceptions to the general rule of states being free from accountability for the acts of private individuals, refer to state failures to protect life and property of foreigners or to show due diligence in capturing and adjudging the infringer.123 118 Riccardo Pisillo-Mazzeschi, ‘The ‘Due Diligence’ Rule’ (introduction, n 24) 26; Ian Brownlie, System of the Law of Nations (introduction, n 25) 244–245. 119 Recent ..., F.V. García Amador, Louis B. Sohn, R.R. Baxter (Chapter 2, n 120) 230 ff. 120 Idem 234. 121 Idem 337. 122 Idem 337. Similar stipulations can be found in the Principles of International Law That Govern the Responsibility of State, developed by the Inter-American Juridical Committee, Principles of International Law That Govern the Responsibility of State, Caracas 1954 [in:] Recent F.V. García Amador, Louis B. Sohn, R.R. Baxter (eds.), (Chapter 2, n 120) 359 ff. 123 Inter-American Juridical Committee, Principles …, 364.

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The above analysis shows that broadly perceived duty of prevention in international law is of particular importance for enforcing obligations of states hosting foreigners within their jurisdiction. Due diligence allows to identify the content of the duty of care with regard to this particular category in international law and apply the rules of state responsibility in cases of failure to show it. The standard of due diligence applicable to foreigners provides a basis for considerations regarding a particular category of aliens residing within a state – ones designated by foreign authorities to represent them. Due diligence plays a particularly important role in diplomatic law, laying a higher standard of protection required from countries exercising their passive right of legation. This area of ​​international cooperation has often been subject to state responsibility considerations for failure to show diligence in protecting diplomatic or consular personnel, with the questions of attribution addressed through a due diligence assessment as provided by state bodies.

Law of Diplomatic Relations

As per the Foannina incident ruling, discussed in detail in the previous chapter, states are responsible for political crimes against foreigners committed within their territories, if they showed neglect in taking all reasonable measures to prevent the crime or to capture and punish the perpetrators.124 The obligation to show due care of a higher degree arises when a foreigner holds an ­official position, recognized by the sending state. Although states are not responsible for the actions of individuals, they may be held responsible for everything that happens within their territory and consequently be required to ensure absolute safety of diplomatic missions. Violations of privileges and immunities of diplomatic and consular missions, resulting from an act or omission of state bodies, may constitute a breach of its international obligations. Attributing such breach to a state may be done following the criteria on state responsibility as per the 2001 ilc Draft Articles on Responsibility of States, arguably a reflection of binding international customary law. The importance of due diligence in assessing the protection of diplomatic staff has been directly cited in the judgment handed down in the American hostages case in Tehran. The icj identified there a positive ­obligation of states to protect diplomatic personnel stationed in their territory as originated by 124 Case Tellini, 114.

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the wording of Article 22 para. 2 vcdr.125 The Court pointed out in its ruling that the idle conduct of Iranian authorities in the case of us hostages being detained at the mission buildings was “a clear violation of Iran’s obligations to the United States and the Vienna Convention on Diplomatic Relations”.126 This lack of action has led directly to a violation of the immunity of the United States diplomatic mission in Tehran, and consequently a violation of personal immunity of mission employees by private individuals not acting on the instructions or under the control of the government.127 As a result, the icj held Iran responsible for the breach of its treaty obligation to ensure respect for diplomatic immunities and staff, observing that the violation was based on lack of due diligence. The icj stressed that “there is no more basic condition for mutual relations between states, than respect for the inviolability of diplomats and missions, which confirms the mutual commitment to this effect, padded over the centuries by the peoples of all backgrounds and cultures”.128 The court recognized the existence of an obligation to show due diligence by the state as an element of attributing it with responsibility for the consequences of the actions of individuals.129 The immunity described in Article 22 vcdr covers the immunity of a diplomatic mission and as per its provisions “premises of the mission shall be inviolable” with officials of the host state being disallowed from entering them without previously obtained consent of the head of a diplomatic mission. Paragraph 2 of the abovementioned provision establishes a “special duty” of the host country “to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”. The treaty does not provide for exceptions to these principles – the inviolability of the mission premises is absolute. It applies even in cases of the sending state using the diplomatic premises contrary to the purpose they were provided for, as per Article 41 para. 3 vcdr.130 The practice of diplomatic relations noted several exceptions from this rule in an e­ mergency cases regarding threats to internal security of the host country or serious breach of diplomatic immunity, but these incidents failed to alter the interpretation of the immunity rule. It is being interpreted 125 Case of United States Diplomatic and Consular Staff in Tehran, 29. 126 Idem. 127 Judgment in the United States Diplomatic and Consular Staff in Tehran case, 29. 128 Case of United States Diplomatic and Consular Staff in Tehran, 42. 129 Rebeca M. Bratspies, Russel A. Miller (eds), Transboundary harm in international law (introduction, n 25) 233. 130 Article 41 vcdr.

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primarily as a commitment of the host country to take reasonable care to ensure safety of the mission, especially against intrusion by unauthorized persons or damage done by them as well as against any intrusion of the peace of the facility or “impairment of its dignity”. Only in a few instances have the authorities of the host country felt obliged to intervene to maintain the security of the mission.131 Breach of the peace of the mission is closely related to the violation of its dignity, but not vice versa – violating the dignity does not necessarily mean a breach of its peace. As submitted by the representative of France at the appeal hearing before an Australian court in the Magno case any offensive or insulting behavior neighboring the mission or one addressed at it may be classified as a violation of its dignity, including the burning of its flag or puppets representing its officials in the immediate vicinity of the mission.132 Ensuring respect for personal immunities of diplomatic staff is one of the duties of the host country, enshrined in Article 29 vcdr. As per its stipulations, the person of a diplomatic agent is inviolable, which, among others, means that a diplomat is not subject to an arrest or detention. What is more, the receiving State is to treat them with due respect, including taking “all appropriate steps to prevent any attack on his person, freedom or dignity”.133 This obligation of the host country includes the need to protect diplomats against acts posing a direct threat to their security. The receiving state is also to provide additional protection, i.e. take all necessary measures to prevent any violation of the bodily integrity of a diplomat.134 This provision is interpreted as c­ onstituting an obligation of prevention, recognized in the rulings of national courts, the practice of states, treaty law and the doctrine as discussed in previous chapters. Responsibility of the state for a breach of this commitment is originated by actual damage, though its attribution relies on case-specific circumstances. States can be freed from responsibility in cases of force majeure, i.e. following an exceptional occurrence, which could not be foreseen or which could not be prevented, as the responsibility for damage to a diplomatic mission or staff is not absolute. To successfully invoke force majeure as an exonerating circumstance, the state must provide clear evidence of its 131 Ivor Roberts, Satow’s Diplomatic Practice (oup 2009) 105. 132 Minister for Foreign Affairs and Trade and Others v. Magno and Another 101 International Review of Law 202 cited in Jean D’Aspremont, ‘Diplomatic Premises in International Law’ in Rudiger Wolfrum (ed.), Max Planck Encyclopedia of International Law, available at: accessed 14 March 2016. 133 Article 29 vcdr. 134 Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter 1, n 304) 39.

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o­ ccurrence and the occurrence may not result from any state act or omission, including the lack of due diligence. A state will also be free from responsibility if the damage was solely provoked by the victim. If however the reason for a breach of the preventive obligation at hand is the protection of “vital interests” of the host country, in particular cases it can also be considered an exonerating circumstance. The use of retaliatory measures against the sending state addressed at diplomats, such as reducing the level of protection granted to them, may be considered also a breach of state obligations resulting in responsibility, as with any use of retaliatory measures, also in this case it must remain proportionate. Other circumstances limiting the scope of state responsibility include situations where it is the diplomat who puts themselves at risk, is interfering in the internal affairs of the host country, performs commercial activity as a private person or ignores recommendations and warnings addressed at them. It is particularly difficult to determine the extent of state responsibility in case of riots, insurrection or civil war. The decisive element in the assessment of state responsibility for the breach of personal immunities in a given situation is the assessment whether state authorities acted in good faith and manifested reasonable care in ensuring the protection of diplomats.135 Even though the obligation of prevention against attacks on diplomatic staff and missions is included in all four treaties on diplomatic and consular relations, none of them defines what actions are to be considered as falling within the content of this duty, neither do they indicate the entities authorized to make such an interpretation, leaving the question open to the assessment of receiving states. Such an assessment is to be made by a court based on particular circumstances, taking into account the specificities of the host country, including e.g. revolutionary groups or armed bands operating within state territory. In the latter case, the level of care required from the state will be higher than one applied to countries enjoying relative internal security.136 There is no doubt however that the scope of the obligation to protect diplomatic missions covers e.g. sharing information about threats and dangers directly with the individuals concerned. Other preventive measures may include police searches of the area neighboring the mission as well as, with the consent of head of the mission, the mission seat itself, granting protection to diplomats traveling or checking incoming packages for harmful substances.137 More generally, within 135 See Chapter 1 for the relevant caselaw. 136 Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter 1, n 304) 50. 137 Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter 1, n 304) 52.

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the limits of due diligence required by international law, the hosting state is to always provide assistance requested by the head of mission or the sending state and the failure to provide it is to be considered grounds for responsibility of the host. Attributing responsibility depends on the practical capability to attribute particular act or omission to hosting state authorities. Therefore if the threat to the diplomatic mission or personnel could not be avoided, the obligation of the host state requires for it to take all necessary steps to bring the perpetrators to justice.138 The receiving state should also have a national system of law allowing for the perpetrator to be put on trial for a violation of the inviolability of the diplomatic mission or staff and have the proper administration of justice, allowing for immediate and legitimate judicial verdict over such behavior.139 If the state fails to take these steps, it can be held internationally responsible for an omission contrary to its international obligations regarding diplomatic relations. Protection of the members of the diplomatic staff has become the subject of increased treaty-making activity – a number of international agreements introduced specific rules which should be implemented to protect diplomats and their seat. The existing principles of international law allow to imply that states are obliged to cooperate to prevent such prohibited acts, directed against diplomatic envoys and punish those responsible.140 The obligation of due diligence is therefore also easily identifiable in the content of diplomatic law standards. Protection of Aliens and the Obligations of the Sending State The duty to protect foreigners implies one more duty of the host – its obligation to enable the sending state the exercise of diplomatic protection over its citizens. The essence of any diplomatic relation is therefore an intrinsic conflict of jurisdictions – that of the host, exercised territorially and that of the sending state, exercised over persons. As far as the legal rules of engaging in diplomatic relations have been put into much detail in both: the relevant treaties and in centuries-long customary practice, there is one question that still lacks a sufficient answer. That is the issue of diplomatic protection of the sending state over branches of companies seated within its territory and operating within that of the host. There is significant doubt in both: academia and legal

138 Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter 1, n 304) 73. 139 Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter 1, n 304) 65–69. 140 Franciszek Przetacznik, Protection of Officials of Foreign States (Chapter 1, n 304) 87–98.

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practice as to the legitimacy of diplomatic aid being granted to legal persons.141 One argument that does seem noncontroversial is that such persons cannot enjoy the diplomatic status, and thus – any diplomatic immunity. As noted by the icj in the Barcelona Traction case, for a state to be able to provide diplomatic assistance to a company there must be a genuine link between the country and the enterprise, one provided in particular by the company operating within the territory of the sending state or operating under its laws.142 The icj provided guidance also as to the question about bodies entitled to enjoy diplomatic protection by pointing out that it is the legal entity itself who may be subject to aid rather than its shareholders or individual employees. In a case of unlawful conduct against a company representing foreign capital, the general principle of international law authorizes only “the national State of the company” to issue claims.143 Shareholders’ interests can be protected only in the context of diplomatic protection granted by the state of company’s registration, unless the shareholders are also citizens of the sending state.144 In the latter case they can benefit from the diplomatic protection of their country of citizenship, but only when they are victims themselves, not when the victim is the company they hold shares of.145 Providing special protection to diplomatic envoys by the host country falls within the obligation to respect the sovereignty of other countries, the foundation of all international relations. This obligation finds its more direct expression in the content of the duty to protect the sovereignty of other countries from the threats caused by individuals residing within state jurisdiction or under state control. The content and scope of this obligation is described below.

141 Finn Seyersted, Common Law of International Organizations, The Hague 2008, 81; Anthony Aust, Handbook… (Chapter 2, n 191) 168–169. 142 icj, Belgium v. Spain, Barcelona Traction, Light and Power Company, Limited, Judgment of 5 February 1970 (hereinafter cited as: Barcelona Traction Case), 3, 42. This case, concerning the abuse of rights, dealt with claims of Belgian private shareholders to the Canadian based Barcelona Traction, Light, and Power Company, Ltd that offered its services in Spain. When the shareholders attempted to liquidate their shares, Spain prevented them in doing so by declaring the company insolvent and distributing its assets among Spanish bondholders. The claims, filed by Belgium, were considered illegitimate by the icj as Belgium had no legal interest in filing its own claim. The court did however confirm that the state needs to offer equal legal protection to foreign investments and nationals as granted to own citizens and other individuals within state territory. 143 Barcelona Traction Case, 46. 144 Ian Brownlie, Principles… (introduction, n 20) 477. 145 Barcelona Traction Case, 36.

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Due Diligence Principle as the Shared Element of Treaty-based Regimes

The review of customary and treaty-based international law and practice allows to draw analogies among and between particular circumstances when due diligence is a crucial factor in attributing state responsibility. Based on those characteristics an international law obligation of due diligence can be specified. Its definition can be derived from the 2001 ilc Draft Articles on Prevention and the terminology they rely on. The duty of prevention, measured by diligent efforts of a state, is triggered by risk of significant transboundary harm, as per the terms defined within the ilc draft. According to the ilc considerations, the “risk of causing significant transboundary harm” encompasses “a high probability of causing significant transboundary harm or a low probability of causing disastrous transboundary harm”.146 This phrasing allows to draw a clear distinction for all activities triggering the duty to take preventive measures at the point of them entailing “a high probability of causing significant transboundary harm”, with actions provoking a risk that is probable, yet not “highly”, remaining beyond the scope of the duty of prevention. Only against such actions are states obliged to enact measures identified in the 2001 ilc Draft Articles on Prevention. The ilc also paid much attention to the notion of “significant” harm, identifying it as “more” than “detectable” but “serious” or “substantial”.147 While this English terminology might be considered vague, in practical terms the level of threat is usually assessed by technical experts working with different languages when assisting judges in making decisions. As such it is rarely non-controversial or objectively measurable.148 The resulting “significant” harm generates the duty of prevention only in cases when it leads to “a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States”, as measured by factual and objective standards.149 146 ilc Draft Articles on Prevention, Article 2 (a), 151–152; International Law Comission (2006). Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, u.n. Doc. A/61/10, commentary (2) to Principle 1, 116–117. 147 ilc Draft Articles on Prevention, commentary (4) to Article 2, 152. 148 Mary Clifford, Environmental Crime: Enforcement Policy And Social Responsibility (Jones & Bartlett Learning 1998) 24, where the author describes the polarization of ‘scientific experts’ and ‘community activist’ in juxtaposing groups when faced with assessing impact of certain activities. 149 2001 ilc Draft Articles on Prevention, commentary (4) to Article 2, 152.

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This vague criteria was introduced to ensure the flexibility of the scope of obligatory prevention. With the diverse nature of activities within state borders, an exhaustive list of risk-generating activities is unfeasible. Moreover, some undertakings prove to be risk-generating only when carried out jointly so determining an exhaustive list of such activities is not possible.150 Their open catalogue results in a flexible character of the preventive obligation, with the exercise of any such activities within state territory requiring authorities to introduce and enforce appropriate preventive measures. The duty of prevention, resulting in an obligation of due diligence, is to be perceived territorially – it rests upon the country where the risk originating activity physically takes place.151 Therefore the “country of origin” is the one where the risk-originating activities are conducted or which in any other manner exercises control or jurisdiction over them.152 Respectively, the “victim state” is any state within whose territory significant transboundary harm  occurred or one that holds jurisdiction or control over the territory inflicted with such harm,153 with “transboundary harm” covering all “harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin”, regardless whether the states share a common border.154 With the flexible character of the obligation, the preventive duty covers varied actions and omissions of states aimed at different entities and actors. Deriving from the 1993 Lugano Convention on civil liability for environmental damage and the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment,155 the term “operator” is usually used to refer to the one who controls the risk-originating activity.156 Usually it is states who need to identify particular measures or at least a general obligation of prevention within national laws, ensuring national compliance with international preventive duty. In individual sectors however private “operators”

150 151 152 153

Rao’s first report, u.n. Doc. A/CN.4/487, 8. Rao’s third report, u.n. Doc. A/CN.4/510, 17. Barboza’s twelfth report, u.n. Doc. A/51/10, Article 2 (c). Barboza’s twelfth report, u.n. Doc. A/51/10, Article 2 (d). On the distinction made by the ilc between ‘harm’ and ‘damage’ International Law Comission (2006). Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, u.n. Doc. A/61/10, 120. 154 Barboza’s twelfth report, u.n. Doc. A/51/10, Article 2 (b). 155 CoE, Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 1993, ets no. 150. Not yet (2016) in force. 156 Barboza’s tenth report, u.n. Doc. A/49/10, 156.

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have been invited to the negotiating table and taken upon themselves direct liability for significant transboundary harm originated by dangerous activities. Their liability occurs regardless of whether they were still in control of the riskgenerating activity at the time when the harmful consequences occurred. In cases of a joint cooperation generating risk of significant transboundary harm, all operators share joint and several liability, unless any of them can prove that they were responsible only for partial damage. In such cases they are to be liable solely for that part. The duty of due diligence in preventing significant transboundary harm is therefore a territorial obligation, one covering events undertaken within state territory. That is not to indicate that potentially harmed states are only those within physical proximity, but rather that the potential victims include all those suffering directly or indirectly from damages which could have been ­rationally foreseen.157 With that in mind a state needs to take all necessary measures to prevent actions or omissions which can be rationally foreseen as holding potential harm to foreign victims, including all potentially affected by the predictably harmful activity.158 Therefore the interesting questions of attributing any significant damage to the natural environment to states producing considerable amounts of harmful substances remains open, as there seems to lack a convincing justification supporting their responsibility for “activities which harmed the global commons per se” but remain “without any harm to any other State”.159 In this context the obligation of due diligence needs to be viewed as a facet of the principle of sustainable development and interpreted accordingly.160 The latter principle of international law necessitates diligent efforts of states aimed at preventing significant transboundary harm while performing a joint, yet differentiated set of obligations. The differences in individual obligations of states result from their varying economic and technological capabilities. States ought to therefore take “all necessary steps” to prevent transboundary harm, yet act through measures appropriate in given circumstances as well as individually enforceable.161 With that the duty of prevention is not an absolute one.162 It covers only activities generating the risk of “significant transboundary harm”, as per current state of 157 ilc Report, 1993, u.n. Doc. A/48/10, 22. 158 Rao’s first report, u.n. Doc. A/CN.4/487, 197. 159 The ilc left them outside the scope of the draft, Rao’s first report, u.n. Doc. A/CN.4/487, 198, pt. 110. 160 Rao’s third report, u.n. Doc. A/CN.4/510, 11. 161 Rao’s third report, u.n. Doc. A/CN.4/510, 6. 162 Barboza’s twelfth report, u.n. Doc. A/51/10, 110.

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technical knowledge in a given field163 and does not apply to “clandestine” activities. The latter include endeavors performed intentionally in secrecy, so that even a diligent state would be unable to gain knowledge of their undertaking. Moreover, while states do need to take active steps to identify potential sources of harm, they cannot be held responsible for failing to “undertake all appropriate measures to prevent or minimize” the risk of transboundary harm arising from activities they were not able to identify, although having acted diligently. The obligation to prevent transboundary harm is therefore described as a state duty to undertake “all appropriate measures” aimed at preventing significant transboundary harm or to minimize the risk thereof, while when such prevention is impossible, states are obliged to minimize the harmful effects.164 The phrase that is crucial to the due diligence obligation: “all appropriate measures”, imputes the obligation to use best available technology to identify and minimize the risk of significant transboundary harm.165 Some of the burden of this duty is taken off of states by the obligatory insurance required from operators, one proportionate to the generated risk.166 This flexible nature of the duty of prevention, reflected in the level of diligence required from an individual state in a given case, is a facet of the principle of sustainable development.167 Additionally if the state of origin was offered assistance by another state or an international organization in neutralizing the damage before it materialized or in minimizing the affected harm and recklessly or negligently declined it, it is to be deemed as having failed to show due diligence. If it accepts such aid however, any future compensation to the victims will only cover actual damages, not those repaired or prevented.168 Despite its individualized character however, the necessary level of due diligence is set by international rather than local or national standards of conduct.169 Effectively, the kind and scope of individual preventive measures ought to be assessed jointly by the originating state and the potential victims, covering all preventive procedures to

163 164 165 166 167 168 169

Barboza’s twelfth report, u.n. Doc. A/51/10, 119. Barboza’s twelfth report, u.n. Doc. A/51/10, 110. ilc Report, 1993, u.n. Doc. A/48/10, 22. ilc Report, 1993, u.n. Doc. A/48/10, 22. Barboza’s twelfth report, u.n. Doc. A/51/10, 110. Barboza’s twelfth report, u.n. Doc. A/51/10, Article 22, 119. Rao’s first report, u.n. Doc. A/CN.4/487, 23.

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be implemented in a given case,170 which does not discard its primary duty to undertake all necessary legislative, administrative and other measures aimed to ­prevent transboundary damage.171 National laws and regulations need therefore to ensure not only prompt and adequate reply to emerging threats, but also the enforcement of decisions on applicable means made together with potential victim states.172 Even due diligence does not require absolute awareness of all risks within state territory, jurisdiction or control, it does introduce the obligation to undertake all measures aimed at identifying new categories of threats. Therefore the obligation to undertake preventive measures and the ensuing duty of due diligence are of continuous character, obliging states to undertake constant unilateral measures aimed at preventing or minimizing the risk of significant transboundary harm by introducing and enforcing appropriate policies.173 Where no reasonable effort to draft and implement such policies is made, a failure to meet the duty of due diligence follows. The duty of due diligence is therefore not an obligation of results that is one to ensure actual prevention of any damage, but rather an obligation of conduct, aimed at continuous monitoring and preventing certain undesired results, in other words – a “best efforts obligation”.174 Both: the Rhine pollution case and the fundamental Alabama case introduce the duty of state vigilance in introducing all appropriate measures to prevent foreign damage,175 making the obligation of prevention, based on the principle of due diligence, an “obligation of conduct and not of result”.176 Some authors go as far as to identify the duty of prevention as the obligation of due diligence,177 perceiving the duty of due diligence as the need to take certain unilateral measures aimed at preventing or minimizing the risk of significant transboundary harm.178 Due diligence on the part of state bodies allows for acquitting it of international responsibility, regardless of actual transboundary damage.179 Due 170 Rao’s first report, u.n. Doc. A/CN.4/487, 8. 171 2001 ilc Draft articles on prevention, 3. 172 Rao’s first report, u.n. Doc. A/CN.4/487, 23. 173 Barboza’s twelfth report, u.n. Doc. A/51/10, 110–111. 174 ilc Report, 1993, u.n. Doc. A/48/10, p.24. 175 Barboza’s twelfth report, u.n. Doc. A/51/10, 110–111. 176 Rao’s first report, u.n. Doc. A/CN.4/487, 23. 177 Barboza’s twelfth report, u.n. Doc. A/51/10, 110. 178 Rao’s first report, u.n. Doc. A/CN.4/487, 9. 179 Barboza’s twelfth report, u.n. Doc. A/51/10, 110.

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diligence introduces therefore the need for unilateral acts on behalf of state organs, aimed at preventing significant damage,180 regardless of actual damage occurring.181 The obligation of due diligence implies therefore the need to undertake all reasonable measures, including the enforcement of administrative and executive procedures and policies, aimed at obtaining information on factual and legal options for introducing preventive procedures and executing them in due time.182

Internationally Recognized Preventive Measures

Despite the rich detail in which the duty of due diligence has been elaborated on in legal scholarship, the question of state responsibility for damage which occurred despite appropriate measures and procedures having been applied remains open.183 Some authors have argued that the obligation to enforce certain procedures against risk operators endows states with a particularly high level of due diligence, requiring states to carefully draft and enforce them using up-to-date technologies. Regarding the continuous character of the due diligence obligation, it introduces the need for continuous verification and possible modifications of executable procedures, as per Principle 11 of the 1992 Rio Declaration, requiring states to introduce “effective” legislation,184 through the management of “objectives and priorities”, which “should reflect the environmental and developmental context to which they apply”.185 Similar language is used in Principle 23 of the 1972 Stockholm Declaration, referring to regional or national criteria to be applied “without prejudice” to preventive measures agreed upon by the international community.186 180 181 182 183 184

Barboza’s twelfth report, u.n. Doc. A/51/10, 110. Julio Barboza (1994) u.n. Doc. A/49/10, 169. Barboza’s twelfth report, u.n. Doc. A/51/10, 110. ilc Report, 1993, u.n. Doc. A/48/10, p.22. United Nations Conference On Environment And Development (1992). Report of the United Nations Conference On Environment And Development, Annex i, u.n. Doc. A/CONF.151/26 (Vol. i). Julio Barboza (1996) u.n. Doc. A/51/10, 111. 185 United Nations Conference on Environment and Development (1992). Rio Declaration on Environment and Development. Report of The United Nations Conference on Environment and Development. Annex i. 186 Principle 23 reads: ‘Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced

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Due diligence covers also non-discrimination of operators, who are to be treated equally by state bodies, regardless of their origin, state of incorporation, nationality of employees, managers or the location of damage when it comes to law enforcement, access to courts or administrative bodies.187 The obligation of non-discrimination applies also to the victims.188 The due diligence standard refers to measures considered appropriate and proportional in a given situation, depending on the degree of risk of transboundary harm in a given situation. Therefore activities entailing a greater likelihood of significant transboundary harm result in a higher standard of care in designing and enforcing laws and policies than ones covering activities not originating such risk.189 Effectively, the level of due diligence is directly proportionate to the risk of damage originated by a given activity.190 When assessing the level of due diligence exercised by the state, the risky activities, their localization and materials and tools used for prevention are assessed with reference to rationality, logical causality of the procedures applied and state of art knowledge, available to the state.191 Moreover, the role that the risky operations play in state’s economy and innovation as well as its resources measured against those used in the region and worldwide are of issue for the due diligence assessment.192 Effectively, the obligation of due diligence is one proportional to the resources at hand and international good practice. The obligation of due diligence is a flexible one, as its contents change with time, reflecting the meaning of applicable and adequate procedures, standards and norms.193 Due diligence calls for states to keep up to date with “technological changes and scientific developments” as well as with “current specifications and standards”.194 As already stated, the implementation of the due diligence obligation ought to be “directly proportional to the scientific, technical and economic capacities” of states and necessitates “an expanded exchange of

187 188 189 190 191 192 193 194

­countries but which may be inappropriate and of unwarranted social cost for the developing countries’. Barboza’s twelfth report, u.n. Doc. A/51/10, 111. Barboza’s twelfth report, u.n. Doc. A/51/10, 119. Rao’s first report, u.n. Doc. A/CN.4/487, 13. Julio Barboza (1994) u.n. Doc. A/49/10, 169; Barboza’s twelfth report, u.n. Doc. A/51/10, 111; Rao’s first report, u.n. Doc. A/CN.4/487, 21. Rao’s first report, u.n. Doc. A/CN.4/487, 23. Julio Barboza (1994) u.n. Doc. A/49/10, 170. Rao’s first report, u.n. Doc. A/CN.4/487, 23. Rao’s first report, u.n. Doc. A/CN.4/487, 21. Julio Barboza (1994) u.n. Doc. A/49/10, 170. Julio Barboza (1994) u.n. Doc. A/49/10, 170. Rao’s first report, u.n. Doc. A/CN.4/487, 23.

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information” together with broad international consultations and triggers risk assessment.195 While the economic capacity of a state is one of the criteria for evaluating its diligence, lack of resources is not an effective justification for deficient preventive mechanisms.196 States aiming at preventing transboundary harm are to minimize the risk thereof that is to reduce the possibility of harm to the “lowest point” and their failure to do so solely for economic reasons cannot be justified,197 even when the decline in quality of prevention occurs over time. With the continuous character of the duty of prevention and, effectively, the obligation of due diligence, states need to ensure resources to review and update their preventive procedures. The duty of transboundary harm prevention covers also the obligation to engage in effective international cooperation, one including the exchange of ­up-to-date technological information and threatening risks of significant transboundary harm. The individual duty of international cooperation entails the need to share with potentially effected states all useful information on existing and rising threats as well as on the measures undertaken to combat them.198 The obligation to share information covers all data on the riskoriginating activities and needs to reflect the continuous character of the due diligence obligation by undertaking efforts aimed at preventing or minimizing transboundary harm.199 In particular it implies the need to continuously monitor state authorized activities as well as to control and share with neighboring states information on potential new threats.200 The information shared ought to include all data considered useful in a given case that is those practical in preventing the damage or minimizing its results, not just those necessary or needed for effective prevention.201 As already mentioned due diligence can also be derived from the principle of good neighborliness, which includes the obligation of each state to undertake appropriate measures aimed at mitigating risks to third ­parties and refrain from activities resulting in rationally predicable harm to other international subjects.202 Moreover, while states do hold the right to 195 196 197 198 199 200 201 202

Rao’s first report, u.n. Doc. A/CN.4/487, 8. Julio Barboza (1994) u.n. Doc. A/49/10, 169. Barboza’s twelfth report, u.n. Doc. A/51/10, 111. Barboza’s twelfth report, u.n. Doc. A/51/10, 111. ilc Report, 1993, u.n. Doc. A/48/10, p.24. Julio Barboza (1994) u.n. Doc. A/49/10, 172. Barboza’s twelfth report, u.n. Doc. A/51/10, 119. Julio Barboza (1994) u.n. Doc. A/49/10, 172; Barboza’s twelfth report, u.n. Doc. A/51/10, 119. Julio Barboza (1994) u.n. Doc. A/49/10, 172. Barboza’s twelfth report, u.n. Doc. A/51/10, 111.

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­economic self-determination, one particularly significant to developing nations, every state has the right to decide about its specific economic priorities and the use of its natural resources, although those decisions need to respect the rights and freedoms of other members of the international community, in particular may not significantly impact lawfully protected rights of others.203 203 Rao’s third report, u.n. Doc. A/CN.4/510, 11–12.

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The Principle of Due Diligence in International Law

The Principle of Due Diligence

International law covers a vast array of due diligence terminology, yet its legally binding definition is nowhere to be found. In the Corfu case the icj pointed out that due diligence is the source of the customary principle of prevention.1 In academic writing various terms are used to refer to due diligence, with the “doctrine”, “requirement”, “duty” or “obligation” of due diligence to speak of. Significantly, some authors omit in their argumentation the question of due diligence perceiving it solely as an element of other international law notions.2 Others mention due diligence only with reference to particular regimes in international law. i.e. with reference to omissions of state bodies, inconsistent with international legal standards regarding foreigners.3 The ilc usually referred to due diligence as a “standard”,4 yet while discussing the principle of prevention it pointed out the particular significance of the “due diligence principle” in environmental law and its treaties.5 The “principle of due diligence” was also one of the main reference in the 1957 report of F.V. García-Amador, the  ilc Special Rapporteur on international liability.6 Expanding the perspective on due diligence, the second half of the twentieth century saw it as a part of the principle of good faith in the good neighborly relations.7 In the 1 Corfu Channel case, 22, Pulp Mills on the River Uruguay case, 38. 2 Peter Malanczuk refers to due diligence solely as an implication of ‘reasonable care’ when discussing the duty granting protection to aliens; P. Malanczuk, Aukhurst’s Modern introduction…, 259. He fails to mention it when discussing the principle of good neighborliness (p. 245) or international liability (p. 241). 3 Antonio Cassese, International Law (Chapter 1, n 204) 250. 4 Ian Brownlie, Principles… (introduction, n 20) 440, 455; Kimberly N. Trapp, State Responsibility for International Terrorism. Problems and Prospects (oup 2011) 64; Francisco Forrest Martin, International Human Rights (n 18) 72; Boleslaw Adam Boczek, International Law (introduction, n 18) 235; Anne T. Gallagher, The International Law… (n 18) 241. 5 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, comment (5), 110. 6 García Amador’s second report report, u.n. Doc. A/CN.4/106, comment on Article 10 and 11, pt. 15, 122–123. 7 Barboza’s twelfth, (1996), u.n. Doc. A/51/10, Article 22, pt. (3), 119.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004325197_006

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twenty-first century studies on international law, in particular dealing with international environmental law, there is often a reference to the “principle” of due diligence.8 The 1992 paper by Riccardo Pisillo-Mazzeschi, extensively dealing with the principle of due diligence as a principle of international law identifies four key challenges to its application.9 First, to apply this principle it must be determined what level of due diligence is required of states in their activities on the ­international arena. It must be determined whether that level should be determined based on the universally understood principle of due diligence, or rather in reference to individual state practice. Moreover, it needs to be decided whether the obligation originated by the due diligence principle its subjective or objective. To do so it must be determined whether state responsibility for the lack of due diligence depends on the fault of its organs, or rather stems from an objective assessment of these actions or omissions or their consequences. It should also be determined whether the content of the commitments it endows is fixed or flexible, depending on the factual circumstances where the duty applies. ­Finally, the limits of due diligence required from states need to be identified.10 The due diligence standard needs to be identified with respect of the theoretical model of “good government” rather than relative of state activity in own matters. The objective model of due diligence takes over the subjective one, initially proposed by some states, as in the Corfu channel case. The ilc work confirms this assertion, yet emphasizing that assessing state efforts of due diligence needs to take into account its economic and social development, although not as a decisive element of its responsibility. The principle of due diligence constitutes therefore an objective standard, while applying this objective standard to a particular case necessitates reference to the economic and social condition of the state in question. Effectively, the duty of due care, implied by the due diligence principle, is an objective one with the content of its commitments identified as an objective standard of behavior. Subjective, individual attitudes of persons acting on behalf or under the authority of a state may show helpful in attributing responsibility, yet only as evidence confirming the breach of state duty of due diligence. It is not the subjective attitude of an individual but rather the actual breach of an objective standard of behavior required from a state, perceived as a uniform entity that is decisive for attributing responsibility. International 8 9 10

See the references in (n 20) in Chapter 1. Robert P. Barnidge Jr., ‘The Due Diligence Principle Under International Law’ (introduction, n 22) 81 ff. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 40.

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practice indicates that responsibility can be attributed based on general insufficiency of government action in meeting state obligations or “general lack of diligence on behalf of state authorities taken as a whole”, in meeting the objective international standard named above.11 Demonstrating such failure does not require showing individual fault of a person acting on behalf of the state, as the obligation to demonstrate due diligence is an objective one. The standard of due diligence is also flexible and relative. The needed level of state diligence depends largely on the circumstances of a case and therefore it is impossible to describe the elements of the principle in much detail, all that can be ascertained are its general traits, discussed further in this book.12 Those can be identified based on international practice and rely on three broad, objective criteria. Assessing state diligence relies on examining the effectiveness of state control over its territory, with the state being required to take all necessary steps to ensure its effectiveness. The second criterion is the weighing in of interests the state was required to protect. Finally, the principle of due diligence requires assessing the predictability of the damage, having considered all possible and reasonable state efforts aimed at obtaining ­necessary knowledge on the risks and threats.13 The flexibility of the due diligence principle determines varying level of care required from states in individual circumstances, depending on the character of a particular international obligation. As a rule the “average general standard” of diligence is expected from “civilized” and “well-organized” states.14 This standard of diligence expected of a “good” government is derived from a corresponding model of a “good” citizen recognized in some national civil law systems.15 In some areas of international law this standard will be higher, obliging states to perform “well” or even at an “excellent” level, rather than referring to just their “average” performance. This is the case with the obligation of states to show “average” efforts to protect foreigners from damages caused within state territory set against the higher standard applicable to a particular category of foreigners that is those officially representing foreign 11 12

13 14 15

Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 43. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 44; Xue Hanquin, Transboundary Damage in International Law (Chapter 1, n 219) 162–165; Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter 1, n 227) 83. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 44. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 45; T. Honoré, Responsibility and Fault, (Bloomsbury Publishing 1999) 34. Tony Honoré, Responsibility and Fault (introduction, n 31) 17–18.

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states. International law foresees a specific, more effective protection of representatives of foreign diplomatic services. Such a particular, higher level of care can be implied from international treaties, as is the case with diplomatic law and the particular duty of care assigned for diplomatic staff. It may also however originate from the nature of a given international obligation, in particular those referring to the supervision over the use of potentially harmful technologies. In those cases the higher level of care is justified by the higher risk of significant potential damages or particular value of the protected resource, as in the case of environmental law. In the case of supervising technological processes the need to show particular care is usually put into much detail, with reference to the technical data based on current scientific knowledge. It is in those cases that the content of the obligation to show due diligence can be identified in much detail.16 The general character of the duty to show due diligence necessitates indicating those circumstances where it cannot be enforced that is setting the limits of the principle of due diligence. States are exempted from responsibility for the breach of any international obligation when they can show that one of the circumstances precluding lawfulness, such as the inability to meet the obligations or force majeure, was met. These circumstances must be taken into account also in the case of states breaching their duty of due diligence.17 These circumstances gain crucial significance when e.g. the question of international peace and security is being discussed. The limits of the duty of due diligence are therefore set by the actual possibility of initiating state action to prevent a predictable event, as indicated in the contras case. With this in mind a dichotomy of international obligations can be introduced, identifying those international commitments to which the due diligence duty can be applied, and those where it is abundant. This is the case since the duty of due diligence can only be applied to certain obligations within particular areas of international law. Moreover, the due diligence obligation can only be applicable to positive duties of state, i.e. ones consisting of a need to protect the interests of third parties, rather than those dealing with negative obligations of states that is ones requiring states to refrain from violations of legally protected interests of others. Moreover, even the positive obligations of states are complemented with the duty of care only in as far as they include state commitment to the appropriate use of state apparatus in preventing harm or bringing the perpetrators to justice, not the duty to 16 17

Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 45. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 45; 2001 ilc Draft Articles on State Responsibility, Chapter 5.

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introduce such a state apparatus or prevent the infringement. The principle of diligence is therefore applicable only to a limited category of positive obligations, those whose breach may result in state responsibility.18 Due diligence remains therefore one of the criteria for attributing state responsibility. The duty to show due diligence is to be viewed as part of a given international obligation, violated when a state fails to manifest due diligence. Therefore not always does an internationally unlawful omission of a state follow its failure to show due diligence, yet whenever a state fails to act with due diligence in performing its international obligation to do so, its responsibility for internationally wrongful omission may be attributed.19 Moreover, due diligence does not necessarily imply negligence in preventing transboundary harm caused by private individuals by a state failure in taking preventive measures, but also, as already indicted, it may be a sign of state apparatus taking insufficient efforts to identify the culprits and put them to justice. Some authors claim therefore that not all preventive measures are ones of due diligence. They propose adopting for international law purposes a distinction of international state duties known in some national legal systems and the recognition of obligations of diligent conduct and, complementarily, obligations of result. Such a distinction allows to apply the principle of due diligence only in the case of states breaching their obligations to conduct, granting the duty of care a unique character. The principle of due diligence applied to the obligations of conduct serves as criteria for assessing state compliance with a given duty, regardless of the consequences of a particular state action or omission. Unlike with obligations of result, here only the verification of the way in which states are fulfilling their duties is of issue, based on procedures implemented by state authorities. Failing to introduce or enforce preventive measures can be considered an infringement of the standard of due diligence. Therefore states are required to “take all measures necessary” to prevent harmful effects, yet not obliged to guarantee those effects will not arise. Dogmatically speaking damage itself is not to be considered a necessary prerequisite of state responsibility, as it arises at the time when the actual threat of injury appears. As already mentioned, this last dogmatic concept is generally rejected in state practice. While states do agree that state

18

19

Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 46. See also: Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter 1, n 227) 79. Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 46, Ian Brownlie, Principles… (introduction, n 20) 440.

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responsibility arises with state failure to show due diligence, it is conditional of actual damage. Accepting such distinction would result in the need to change the evaluation of evidence on state responsibility, as state responsibility for lack of due diligence may result from the risk intrinsic to a given activity or event. While the threat of harm to third parties is not decisive for state responsibility for failing to prevent their damage, as responsibility is to be attributed solely when the potential harm turns into actual damage, in the case of obligations of due care the threat of harm determines the content of a given obligation, decisive for the measures a “diligent” state needs to introduce. The principle of due diligence recognized in customary law reflects this distinction of obligations, known to national legal systems, determining varying content of particular commitments for each of the two groups. Thus, while in the case of a duty of result, i.e. those to actually prevent certain consequences it is relatively easy to identify the measures needed from a state to ensure compliance with its commitments, in other cases, especially in the case of protection of the environment or the safety of other states, the particular international commitment involves too many factors to identify such individual measures and a reference to “best efforts” must suffice. It is only with reference to the obligations of conduct that the standard of due diligence may be effectively invoked, with their implementation subject to a threat of significant harm and difficult to predict in detail. Reference to a flexible and versatile standard such as due diligence allows for leaving the content of a particular obligation open to further debate and involvement of other contracting partners. The contents of these obligations are determined by the specifics of facts they relate to. The principle of due diligence introduces therefore the option of applying state responsibility according to the needs of a given situation, requiring preventive measures. This element of any preventive obligation – the need to show due diligence – conditions attribution of responsibility to a state and requires the victims to prove lack of sufficient care on behalf of the country of origin, required in certain factual circumstances. The responsibility of the state of origin can only be ascertained based on the case-specific analysis of a series of abstract obligations, compound of the original duty of diligence and setting the result of such an analysis against actual measures taken in a particular situation by state authorities or persons acting under their authority or on their behalf. Attributing state responsibility for a breach of an obligation of conduct demonstrating due diligence will therefore be always more demanding when it comes to evidence.20 20

Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 49–50.

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The principle of due diligence is also to be perceived in the context of state responsibility for the actions of private individuals. Also here, in particular in the context of threats to international peace and stability, the flexible formula of due diligence serves its purpose particularly well, as it can be successfully applied in a variety of circumstances. Yet in the midst of the ongoing heated debate on the international measures to prevent transnational terrorism, the threat of an over-extensive or narrow interpretation of this flexible measure needs to be mentioned, making it susceptible to political influence.21 Applying the terminology proposed by Schwarzenberger, due diligence is an “auxiliary” principle of international law, applicable in the context of the primary principle of state responsibility.22 It is also to be recognized as a principle of international soft law, leaving a mark on judicature and treaty practice.23 Due diligence is also a well recognized principle of international environmental law, derived from common law and customary practice,24 with its significance and content well recognized in all other areas of international law, including the protection of aliens, diplomatic relations and most recently, antiterrorist policies.25 Due diligence as a principle derived from customary law relies on other fundamental norms, such as the principle of good neighborliness, recognized in e.g. Principle 21 of the Stockholm Declaration.26 In this context due diligence conditions the practical application of state responsibility for transboundary harm, particularly in respect of natural environment, although Principle 21 applies to those cases where transboundary harm has already resolved to actual damage. This way of applying the due diligence standard reflects current international consensus, with states willing to apply it solely for cases of state negligence, not all forms of international responsibility for transboundary harm. With this in mind damage to natural environment can result in state responsibility only following a violation of a primary international obligation of due diligence through state negligence. In this context due diligence serves its 21 22

23 24 25 26

Robert P. Barnidge Jr., ‘The Due Diligence Principle Under International Law’ (introduction, n 22) 81 and 121. Robert P. Barnidge Jr., ‘The Due Diligence Principle Under International Law’ (introduction, n 22) 82–83, Georg Schwarzenberger ‘The fundamental principles of international law’ (Chapter 1, n 21) 204. Alan E. Boyle ‘Soft Law in International Lawmaking’ (n 47) 133; Phoebe Okowa, State Responsibility For Transboundary Air Pollution In International Law (Chapter 1, n 227) 83–84. Philippe Sands, Principles of International Environmental Law (cup 2003) 882. Chia Lehnardt, Private Militarfirmen (n 20) 87. Osamu Yoshida, The Environmental Element in Space Law…’ (introduction, n 22) 64–65.

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purpose well – it is a flexible formula applicable to the varying circumstances behind state responsibility or strict liability. This intended flexibility of the due diligence principle can however also be viewed as its fault, as it enhances the unpredictability of court proceedings in case of a dispute regarding its criteria. This risk of unpredictability is minimized by the content of numerous documents produced by international organizations such as the International Standardization Organization, World Health Organization or the International Maritime Organization, describing the content a “minimum international environmental standards” or other technical criteria for assessing state efforts of prevention. Those criteria for setting diligence standards are a necessary condition for the practical application of the principle of prevention and of due diligence.27 The universal recognition of Stockholm Declaration Principle 21 in treaties of international environmental law is evidence of the customary duty of prevention, relying on due diligence. Due diligence implies here a commitment to take all “necessary and practicable measures” or in other words a commitment to “good environmental conduct”.28 Sates are therefore not to be held responsible for environmental damage, unless it is a result of their lack of due diligence. The principle of due diligence, as recognized by customary law, requires states only to take all necessary measures and make every effort within their resources and capabilities. The details of its performance are identified through international cooperation and exchange of information with other countries.29 Stockholm Declaration and its Principle 21 project due diligence as a practical and well-grounded alternative to the controversial “indirect” responsibility of state for the actions of private individuals. It allows to exempt state from absolute liability for transboundary damage, making it applicable solely when state authorities have not taken actions required of a “good government” to prevent it.30 As such the principle of due diligence is closely related to the principle of common but differentiated responsibility (cbdr), an element of sustainable development, yet unlike the latter it does not include any joint and several liability of states or responsibilities conditioned by the occurrence of particular circumstances. This observation seems confirmed by the ilc identifying the binding character of the principle of due 27 28 29 30

Osamu Yoshida, The Environmental Element in Space Law…’ (introduction, n 22) 66. Osamu Yoshida, The International Legal Régime… (introduction, n 22) 65, citing the Alabama case and the Judgment in the United States Diplomatic and Consular Staff in Tehran case. Osamu Yoshida, The International Legal Régime… (introduction, n 22) 67–68. Lisa Viikari, The Environmental Element in Space Law… (introduction, n 18) 155.

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diligence in its work on transboundary harm.31 The principle of due diligence as identified by the ilc consists of four elements. Firstly, it includes state obligation to take all appropriate measures to prevent or minimize the risk of significant transboundary harm. Secondly, it requires states to engage in international cooperation aimed at preventing such harm and introducing due diligence measures. It also requires the legal implementation of the due diligence standard identified in ilc drafts and reports through legal, administrative and other means, including the introduction of appropriate monitoring mechanisms. Finally, the principle of due diligence implies the necessity of prior authorization of activities potentially carrying a risk of significant transboundary harm.32 As some authors rightfully observe, there is a tendency supporting objective liability for transboundary harm, resulting from negligence or lack of due diligence in violation of a treaty.33 Others point out that duty to show due diligence reaches far beyond environmental law, rightfully observing its strong presence in diplomatic law or international security measures.34

Consequences of Violating the Due Diligence Principle

Depriving international liability law of sanction or any other legal consequences applicable to those in violation of its norms would mean bringing it down to the level of “international morality” rather than law. Therefore, the assessment of international liability is followed by a compensation duty regarding the occurred damage as well as a number of other consequences provided for in customary law and treaties.35 According to the icj in the Chorzow Factory case, violations of international law carry with them the obligation to remove the consequences of the violation and restore the situation that would exist if the infringement had not taken place. Generally speaking, if the state of origin fails to provide compensation, the affected country has the right to seek justice through the courts or through other methods of peaceful settlement of international disputes. If these fail to bring the desired effect, the victim state may

31 32 33 34 35

Lisa Viikari, The Environmental Element in Space Law… (introduction, n 18) 156. Lisa Viikari, The Environmental Element in Space Law (introduction, n 18) 156–157; A.C. Kiss, D. Shelton, Guide to International Environmental Law (Wolters Kluwer 2007) 92. Maria Magdalena Kenig-Witkowska, Międzynarodowe (chapter 1, n 346) 141–142. Chia Lehnardt, Private Militarfirmen (n 20) 87. Georg Schwarzenberger ‘The fundamental principles of international law’ (Chapter 1, n 21) 533.

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resolve to retaliatory measures.36 These general rules applicable to all international obligations can be used also in cases of violations of the duty of due diligence in the implementation of international commitments. Treaties formulating primary obligations of prevention rarely include provisions on the consequences of their violations, although such can be found in a number of international environmental law treaties. Their shared feature is the shift of responsibility from the state to private parties profiting from the risk-generating activity. State duties are usually limited to preventing damage and exercising control over such activities and are seldom accompanied by direct state liability, except for the stipulations regarding space damages, a regimes introducing absolute state liability. The 2001 ilc Draft Articles on Prevention, reiterating the contemporary consensus on international liability, includes a broad reference to peaceful dispute resolution measures known to international law.37 Those serve as a remedy to the varying interpretations of the state duty of prevention. This document fails however to identify the legal link between a state failure to show due diligence in preventing significant transboundary harm and retaliatory measures known to international law. It lacks a description of sanctions, applicable to states in violation of their preventive duty. While there is no doubt that a state is not to be held responsible for foreign damages caused by individuals within its territory, jurisdiction or control, as already explained a state may be held responsible for the failure of its organs to show due diligence in preventing such damage in cases when it was bound to introduce appropriate preventive measures.38 Treaties and customary norms provide for responsibility for state failure to show due diligence in preventing transboundary harm or monitoring potentially harmful activities, carried out within state territory by private entities. This duty of prevention should be performed, as already mentioned, through the implementation and execution of the relevant provisions of internal law and accompanying technological procedures. Attributing responsibility to the state within whose territory the transboundary harm was generated for its violation the duty of prevention has been put into much detail in the 2006 ilc Draft articles on the allocation of loss. Next to the primary duty of compensation for the damage caused, the draft reiterates a direct reference to the secondary norms on state responsibility summarized by the ilc in the 2001 Draft Articles on State Responsibility.39 Although 36

Georg Schwarzenberger ‘The fundamental principles of international law’ (Chapter 1, n 21) 534. 37 2001 ilc Draft articles on prevention, Article 19. 38 Malgosia Fitzmaurice, International protection of the environment (2002) RdC 233. 39 2006 ilc Draft principles on the allocation of loss, 111.

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rooted in soft law and thus non-binding the draft is perceived as a summary of contemporary customary practice and as such recognizes the lack of due diligence on behalf of the state as a violation of the primary duty of prevention present in international treaties on environmental law. Effectively, states failing to meet it can be held responsible following the general, secondary norms on state responsibility. As per Article 30 of the 2001 ilc Draft Articles on State Responsibility in case of a violation of an original duty of a state that is of a primary norm of international law, such as the duty of prevention rooted in a treaty or custom, requiring states to monitor potentially harmful activity omissions, the basic claim of the potential victim is for the state of origin to seize the violation and refrain from any further infringements. This claim is applicable also to violations committed by omission and in such a case means a claim for the state to initiate and carry out all necessary measures to remedy the violation, as described in individual treaty regimes. If the harmful activity continues, the country of origin is required to have it cease and, where appropriate, to ensure that such violations will not occur in the future.40 The persistence of the violation does not deem the claim expired or void.41 It remains unclear however how such claim should be enforced, when the potentially harmful activities cause no actual damage. The ilc clearly and intentionally failed to identify the failure in introducing preventive measures as direct grounds for state responsibility with the majority of treaties on the issue subjecting state responsibility to the rise of actual damage.42 Such implication appears in legal writing yet is not recognized in state practice. Some authors go even further and refer to environmental damage opting for maximizing the scope of victims. They argue that in the case of harm to “the fundamental interests of the international community” all states are entitled to reparation.43 If the violation of the due diligence obligation results in damage, the country of origin must meet its reparatory duties. Those can take the shape of restitution, endowing the state of origin with the duty to restore the damaged good to the state from before the violation.44 If restitution shows not possible, as e.g. in the event of environmental damage, the country of origin is to provide compensation. The latter consists of the need to cover the costs 40 41 42 43 44

2001 ilc Draft Articles on State Responsibility, Article 30. 2001 ilc Draft Articles on State Responsibility, Article 29. Alan E. Boyle, ‘State Responsibility and International Liability’ (n 7) 3–4. Pierre Dupuy, ‘The International Law of State Responsibility: Revolution or Evolution’ (n 372) 119. 2001 ilc Draft Articles on State Responsibility, Article 35.

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incurred by the victim state following with the damage.45 The compensatory claim covers the costs resulting directly from the injury, not subject to restitution, as well as future benefits, lost due to the occurred damage.46 Each of these two forms of reparation may be accompanied by satisfaction that is admitting to having committed the violation, express regret, apology or another proper form agreed upon by the parties. If states are in a dispute as to the fact of the violation, its scope or character, and the peaceful methods of dispute resolution have failed, international law foresees for retaliatory measures aimed at making the violating state comply with its international duties. The 2001 ilc Draft Articles on State Responsibility in Article 49 refer to retaliatory measures, describing their subject and content as well as the limits, which the victim state needs to respect. And so retaliatory measures can only be engaged to coerce the state of origin to meet its international duties47 and need to be of peaceful character.48 Retaliatory measures complying with those criteria are not to be considered a violation of international law49 despite the fact that by their nature they contradict the pacta sunt servanda principle.50 Although international law does without a definition of retaliatory measures, and the term itself was not in common use until 1970s, its content, as many other in international law, may be well defined by reference to common practice.51 With reference to state practice some authors define retaliatory measures as “pacific unilateral reactions” illegal by their nature, adopted and applied by one state against another in cases when the latter had committed a violation of international law justifying such measures.52 ilc has emphasized a clear distinction between “retaliatory measures” and “sanctions” describing the latter as measures taken in accordance with Chapter 7 of the un Charter,53 whereas retaliatory measures are to be perceived as means of self-protection or self help.54 With that the ilc opposes the notion of reprisals

45 46 47 48 49 50 51 52 53 54

2001 ilc Draft Articles on State Responsibility, Article 31. 2001 ilc Draft Articles on State Responsibility, Article 36; Ago’s fourth report, u.n. Doc. A/CN.4/264, 109. 2001 ilc Draft Articles on State Responsibility, Article 37. Denis Alland “The Definition of Countermeasures’ in James Crawford, Allan Pellet, Simon Olleson, Kate Parlett (eds.) The Law of International Responsibility (Chapter 1, n 108) 1130. 2001 ilc Draft Articles on State Responsibility, Article 22. Anthony Aust, Handbook… (Chapter 2, n 191) 390. Denis Alland, The Definition…, (n 48) 1126. Idem, 1135. 2001 ilc Draft Articles on State Responsibility, comment on Article 22, 75. 2001 ilc Draft Articles on State Responsibility, comment on Article 22, 75.

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as synonymous of retaliatory measures, pointing to the former term as one closely related to the law of war and armed conflicts.55 Also some scholar respect the distinction between retaliatory measures and retorsions, with the latter signifying allowed by international law, although undesired reactions to the activities of another state.56 Retaliatory measures need to be defined by reference to the scope of their application, regarding the fact that this scope is strictly limited to particular circumstances. With that in mind, retaliatory measures can only be applied when they are necessary to meet the aim of a legal norm, that is when such aim cannot be achieved through any other means. They are not to be applied as sanctions that is perceived as a punishment for the infringing state and are to be seized as soon as the undesired state of violation of international law is removed. The victim state is free to chose ways of communicating its discontent with the activities of the state of origin, as retaliatory measures need not be in-kind,57 even though some reactions can never be applied as retaliatory measures.58 Their application, as an exception in international practice, is limited by a series of formalities regarding their engagement or exercise.59 The basic criteria for the exercise of retaliatory measures is the principle of proportionality recognized within international customary law.60 The principle of proportionality was reflected in Article 51 of the 2001 ilc Draft Articles on State Responsibility referring to proportionality as a condition for applying such retaliatory measures which are proportionate to the actual damage, reflect the significance of the violation and the interests of the victim state.61 If the criteria of proportionality is not met, the retaliatory measures are to be considered illegal and the state applying them is in violation of international law.62 A proportionality assessment is done with regard to many factors, among which the most significant include: the size of damage, immaterial damages, the weight of the alleged violation, including state negligence. Proportionality is therefore

55 56 57 58 59 60 61 62

2001 ilc Draft Articles on State Responsibility, comment on Article 22, 75 as: ‘belligerent reprisals involving the use of force’; Anthony Aust, Handbook… (Chapter 2, n 191) 391. Anthony Aust, Handbook… (Chapter 2, n 191) 391. Anthony Aust, Handbook… (Chapter 2, n 191) 392. 2001 ilc Draft Articles on State Responsibility, Article 50. 2001 ilc Draft Articles on State Responsibility, Article 52–53, Anthony Aust, Handbook… (Chapter 2, n 191) 392–393. Constance O’Keefe, Proportionality, [in:] James Crawford, Allan Pellet, Simon Olleson, Kate Parlett, The Law of International Responsibility (Chapter 1, n 108) 1157. 2001 ilc Draft Articles on State Responsibility, Article 51. Anthony Aust, Handbook… (Chapter 2, n 191) 392.

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not only a combination of quantitive elements comprising the damage but also qualitative ones, such as the significance of infringed state interests or the infringement itself. All those measures have proven sufficient to identify the content of the principle of proportionality on numerous occasions regarding environmental harm.63 Retaliatory measures may therefore be applied in cases where the violation of an international obligation of a state results solely in a threat of harm, regardless of actual damage. The violation of the due diligence principle resulting in damage attributable to a state in the absence of circumstances precluding lawfulness results in compensatory claims as per the general principles of international law, including the principle of proportionality. 63

Constance O’Keefe, Proportionality... (n 60) 1161.

chapter 5

Applying the Due Diligence Principle – Cybersecurity and National Security Issues

International Security and Due Diligence

International law aims to ensure the peaceful coexistence of the international community. Its dogmatic foundation is the concept of state sovereignty. ­Although not stated explicitly in the text of the UN Charter, the obligation to respect the sovereignty of other states includes the principle of nonintervention, i.e. the prohibition of the use of force or its threat in international relations, as per the interpretations of Article 2 paragraph 4 of the un Charter.1 The use of force against another state in violation of the peremptory norm embodied in that provision is a breach of an international obligation of state, leading to its responsibility for the use of force in international relations. If in a given case the use of force can be considered an “armed attack” the un Charter foresees for the attached state to act in self defence, also using armed force. The general principle is however for the un Security Council to decide upon the use of armed force in international relations in a strictly limited number of cases, as per Chapter 7 of the un Charter. Cases when armed force may be applied in international relations come down to narrowly construed exceptions, as the prohibition of force is a basic principle of contemporary international law, aiming to amicably settle all international disputes. In this context any “use of force” or its “threat” is to be considered a violation of the peremptory norm in Article 2 para. 4 un Charter, unless authorized under the provisions of Chapter 7. Although the un Charter is missing a definition of “force”, numerous attempts at one have been made by academia and diplomats, although those attempts significantly vary as to their substance.2 And so the Principles of International Law concerning Friendly 1 K. Nowrot, E.W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ecowas Intervention in Sierra Leone, American University International Law Review 1998, No 2(14), 373; C. Harding, Renegotiating Westphalia, The Hague 1999, 369; F.K. Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (BRILL 1999) 64–65; Lassa Oppenheim, International Law: A Treatise, London 1920, 211. 2 The meaning and scope of the notion of ‘force’ as present in Article 2 para. 4 United Nations Charter set against the notion of an ‘armed aggression’ fundamental to the right of

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Relations and Co-operation among States provide a broad definition, considering all forms of interference or threats with statehood as well as its political, economic or cultural components as violations of international law.3 According to the stipulations of this document no state may use or encourage the use of economic, political, or “any other type of coercive measures” if its use is to subdue another state in the exercise of its sovereign rights and provide any kind of benefit for the state using such measures.4 A similar premise is contained in the Charter of Economic Rights and Duties of States, which in Article 32 emphasizes that no state may use or encourage the use of economic, political, or “any other measures” aiming to subjugate another state in the exercise of its sovereign rights.5 Those documents reflect a conviction of the states parties that all forms of interference in the functioning of another state, also with its political, economic or cultural components through the use of “other means” may constitute a violation of international law, if that interference is aimed at “forcing another country to subordinate the exercise of its sovereign rights” and “secure advantages of any kind” to the performing country. Yet those two documents fail to reflect the international jurisprudence on state responsibility, discussed in detail in this book. States have always been reluctant to perceive state responsibility – the necessary consequence of violating international law – broadly. Quite to the contrary: as indicated above, in the case of state responsibility for the actions of individuals attribution follows acts or omissions of individuals acting as state bodies, “under the control” of the state. The limits of this form responsibility followed the narrow lines set through the already mentioned concepts of “effective control” exercised by a self defence has been subject to numerous legal disputes and rich scholarly work, including: Ian Brownlie ‘The Use of Force in Self-Defense’ (1961) 37 byil 183 ff.; Rosalyn Higgins ‘Legal Limits to the Use of Force by Sovereign States United Nations Practice’ (1961) 37 byil 269 ff; Michael W. Reisman ‘Criteria for the Lawful Use of Force in International Law’ (1984–1985) 10 yjil 279–285; E.V. Rostow ‘Legality of the International Use of Force by and from States’ (1984–1985) 10 yjil 286–290; William Elliott Butler, The Non-Use of Force in International Law (BRILL 1989); Anthony Arend and Robert J. Beck, International Law and the Use of Force: Beyond the un Charter Paradigm (Routledge 1993); Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (BRILL 2005); Christine D. Gray, International Law and the Use of Force (oup 2008). 3 un General Assembly Resolution, 24 October 1970, 2625 (xxv). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, u.n. Doc., A/RES/25/2625. 4 un General Assembly Resolution, 24 October 1970, 2625 (xxv). 5 General Assembly Resolution, No 3281 (xxix), 1974.

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state over the activities of a group, as in the Condras case and then even more narrowly as in the “overall control” test, introduced in the Tadic case, significantly limiting the scope of situations when countries are to be held responsible for the actions of private individuals. As already discussed in detail, while the 1986 icj approach allowed for attributing responsibility for the actions of an armed group if a state keeps effective control over its activities violating international law, the 1999 Tadic decision went even further and limited state responsibility attribution to cases where a state maintained the “overall control” of the group, i.e. control of all the actions of all members of that group, which violated international law.6 Yet those narrowly perceived limits of state responsibility for the actions of individuals fail to reflect the growing role private bodies play in international relations. Contemporary threats to peaceful international relations come forever more often from informal groups rather than regular armies. It is for that reason that in the context of the debate on the contemporary war on terror forever more academics turn to the controversial notions of “indirect” or “vicarious” responsibility of states for the actions of private actors causing a threat to international security through acts carried out within state territory or with its support, often referred to as terrorist “sponsoring”. The avant-guard notion of indirect state responsibility claim to reflect the pressing need for international law to reflect the pressing challenges of asymmetric warfare. Proponents of vicarious responsibility claim the need to introduce state responsibility for the actions of individuals acting within state jurisdiction to organize terrorist attacks or engage them from within state territory. States allowing for such use of their territory or locations within their jurisdiction or control need to be held internationally responsible for the violation of an international obligation to respect international peace and security. These dogmatic proposals disregard the precise mechanism of responsibility attribution detailed in a series of international law documents, discussed in detail herein above and as such must be perceived critically. State responsibility for the actions of individuals can be attributed not only for those acting under the control of a state, but also follow omissions of state bodies, who had failed to introduce preventive measures required from a state by international law. This approach to responsibility attribution was confirmed in the Tehran case where state res­ponsibility  was attributed in case of lack of state action aimed at thwarting the attacks of private individuals, taking on the form of state tolerance for their harmful actions. Such tolerance resulting in state responsibility can be assessed when those 6 The Contras case, para. 115, 65.

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individual actions are in violation of an international obligation of the state, as was with diplomatic relations law in the Tehran case. The individual duties falling within the international obligation to protect international peace and respect the sovereignty of other countries could be identified based on the peremptory norm of Article 2 para. 4 un Charter and individual treaty stipulations detailing it, yet this tasks usually proves to be challenging as opinions on its meaning are usually shaped by individual state interests in given circumstances. A particular, individual obligation to take all necessary measures to prevent individuals within state territory, jurisdiction or control from taking actions aimed at the interests of a foreign state has however been inferred from the content and context of Article 2 paragraph 4 of the un Charter, just to refer to the Alabama case or the Corfu Channel case.7 In the latter judgment the icj pointed out the positive obligation of a state, which knew or ought to have known of potentially harmful use of its territory to take all appropriate measures to prevent damage to other states. The icj referred to the “elementary considerations of humanity” and the obligation of every state to knowingly divulge its territory for acts threatening the legally protected interests of other countries.8 What is adding to the confusion on responsibility attribution with regard to foreign damage might be the ilc reluctance to clearly link the two ­accountability regimes it has been working on for the last 70 years. As already indicated, the ilc refers to attributing state responsibility for acts violating ­international law, yet with reference to international liability speaks of “the country of origin”, potentially liable for transboundary harm. The ilc remains careful not to unintentionally link the two accountability regimes, although their interdependency is unavoidable, as already discussed in the context of the academic critique of the parallel perceptions of accountability regimes introduced by the ilc.9 The country of origin is perceived differently from that of attribution with the ilc referring to three criteria used for identifying the former that include state territory jurisdiction and, most broadly perceived, “control”.10 State “control” refers to circumstances where the state has effective 7

Rebecca M. Bratspies, Russel A. Miller (eds), Transboundary harm in international law (introduction, n 25) 233; Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 34; Corfu Channel case, where the court indicated the duty of due care in preventing threats bringing risks which the state is aware of. 8 Corfu Channel case, 22. 9 2006 ilc Draft principles on the allocation of loss,Article 2 (d), where a risk generating activity is defined as one that brings the threat of significant transboundary harm. 10 In the commentaries to the 2006 ilc Draft principles on the allocation of loss the ilc decided against introducing a recommended sequence of applicable jurisdictional principles.

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power over a certain territory or people without exercising legitimate jurisdiction that is hold authority over a given territory as a result of an occupation, a military intervention or unlawful seizure.11 Such a list of prerequisites allows to attribute state responsibility not only for the actions of state bodies, but also for their omissions, ones relating to state failure to introduce measures aimed at preventing significant transboundary harm. States may also be held responsible for failing to minimize the threat of transboundary harm, if it was due to lack of diligence of their organs operating within state territory, under its jurisdiction or control. The duty of prevention was put into much detail by the ilc within its 2001 Draft principles of prevention.12 As already mentioned, for states to meet their duty of prevention they need to introduce ­appropriate authorization procedures and ensure their enforcement in cases of risk-­originating activities.13 Evaluation of the implemented measures is to rely on a due diligence assessment expected of a well functioning government in given circumstances. The primary obligation of states to respect the sovereignty of other countries, contained in Article 2 paragraph 4 of the un Charter can therefore be violated not only by the actions of state authorities but also through their failures. In the case of threats to the security or sovereignty of other countries, caused by actions of private individuals there is a need for assessing the measures introduced by sates, not just the actions of state authorities, but in particular their omission. By applying the principle of prevention in conjunction with the rules on state responsibility the assessment of possible violations

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It only pointed to the notion of transboundary harm as one relative of state authority against its territory and jurisdiction as well as activities and individuals within its control. For a state to be attributed with responsibility for a given action that has brought significant transboundary harm, those actions need to be performed within state territory or within other territories that are under state jurisdiction or control; 2001 ilc Draft articles on prevention, 120. 1998 ilc Draft articles on international liability, 25, pt. (10). See also: 2001 ilc Draft articles on prevention, 151, where the ilc refers to Principle 2 of the 2001 ilc Draft articles on prevention to define the country of origin as the one within whose territory, jurisdiction or control the risk generating activity has been performed. The duty of prevention Has been reaffirmed in e.g. Article 3 of the 1998 ilc Draft articles on prevention to cover the obligation to Take All necessary measures to prezent or minimize the risk of significant transboundary harm. The content of the duty of prevention has been put into much detal in the 2001 ilc Draft Articles on prevention. 1998 ilc Draft articles on international liability, Article 7; 2001 ilc Draft articles on prevention, Article 6.

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of Article 2 paragraph 4 un Charter should be based on the principle of due diligence.14 In the era of the fight against international terrorism, the significance of state responsibility for failure to take preventive measures is easily confused with tolerating malicious activity on own territory, often referred to as harboring terrorists or even sponsoring terrorist activities. In terms of responsibility, the failure of state authorities may qualify as a lack of due diligence in preventing malicious actions of individuals operating from within state territory.15 Such legal reasoning is permitted by numerous stipulations of international documents on international terrorism.16 They endow states with the duty to not only to actively combat this crime, but also show due diligence in preventing acts of terrorism. This issue is discussed in detail below.

Due Diligence in Preventing Terrorist Offenses

As rightfully observed by Rosalyn Higgins, terrorism is a term without legal significance, but rather a shorthand allusion to a series of problems with common elements and a way to express disapproval of the issues they represent.17 It is probably for this reason that international law knows no definition of “terrorism” despite rich body of law and jurisprudence on the prevention and combating of international terrorism, referring to barely all its manifestations.18 14 15

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See also: Riccardo Pisillo-Mazzeschi, ‘The “Due Diligence” Rule’ (introduction, n 24) 34–36. Scott M. Malzahn, ‘State Sponsorship and Support of International Terrorism: Customary Norms of State Responsibility’ (2002–2003) 26 Hastings iclr 83; Vincent-Joel Proulx, ‘Babysitting…’ (Chapter 2, n 190) 615–668; S.A. Barbour, Z.A. Salzman, ‘Tangled Web: The Right of Self-Defense against Non-State Actors in the Armed Activities Case’ (2008) 40 nyujilp 53–106. Just to menton the un General Assembly resolution 56/1 of 12 September 2001, the un Security Council resolutions 1368 (2001) of 12 September 2001, 1373 (2001) of 28 September 2001 and 1377 (2001) of 12 November 2001 and the source documents cited therein. Rosalyn Higgins, The General International Law of Terrorism ‘The General International Law of Terrorism’ in R Higgins, M Flory (eds) Terrorism and International Law (Routledge 1999) 28 ff. Also Lambert questions the rationality of defining the term that is intrinsically negative, indicating it is rather a description of its social perception than of the activity itself; see: Joseph J. Lambert, Terrorism and Hostages in International Law (CUP1990) 13. The list of United Nations conventions deposited with the Secretary-General of the United Nations as for the beginning of 2016 includes: the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973; the  International Convention against the Taking of Hostages, adopted by the General

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Among those the most versatile approach to the problem has been reflected in the body of the 1996 un Comprehensive Convention on International Terrorism (ccit) and the fact that the negotiations on its adoption are at a stale mate is a good reflection of the contemporary debate on the problem of terrorism and acceptable methods of solving it.19 The pertinent lack of consensus as to

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Assembly of the United Nations on 17 December 1979; the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997; the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999 and the International Convention for the Suppression of Acts of Nuclear Terrorism New York, adopted by the General Assembly of the United Nations on 13 April 2005 as well as various multilateral conventions that include: the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963; the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16 December 1970; the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; the Convention on the Physical Protection of Nuclear Material, signed at Vienna on 3 March 1980; the Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 24 February 1988; the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988; the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988; the Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991. There are also various regional and numerous bilateral conventions serving the same aim that most notably include: the Arab Convention on the Suppression of Terrorism, signed at a meeting held at the General Secretariat of the League of Arab States in Cairo on 22 April 1998; the Convention of the Organization of the Islamic Conference on Combating International Terrorism, adopted at Ouagadougou on 1 July 1999; the European Convention on the Suppression of Terrorism, done at Strasbourg on 27 January 1977; the Organization of American States Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance, done at Washington, d.c. on 2 February 1971; the Organization of African Unity Convention on the Prevention and Combating of Terrorism, adopted at Algiers on 14 July 1999; the South Asian Association for Regional Cooperation Regional Convention on Suppression of Terrorism, signed at Kathmandu on 4 November 1987 and the Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism, done at Minsk on 4 June 1999. One should also note the 2010 United Nations Global Counter-Terrorism Strategy; (gcts), un General Assembly Resolution of October 13, 2010, u.n. Doc. A/RES/64/297. See also: Anthony Aust, Handbook… (Chapter 2, n 191) 265 discussing the problems with the definition of terrorism. Indian draft was attached to the 2000 Report of the working group, u.n. Doc. A/C.6/55/L.2. A review of its progress has been covered in the Report of the working group, 2002, u.n.

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the possibility of its adoption is a result of differing perception of the problem and different interpretations of the concept of terrorism, varying depending on national, regional and universal cultural differences.20 What some states view as a struggle for independence or defense of state sovereignty, others ­perceive as a terrorist act.21 States perceive as legitimate and subsequently accept different ways of achieving their objectives with their legal qualifications and interpretations resulting from a wide array of international law principles. A reflection of these definitional difficulties on the concept of terrorism is the lack of an adoptable definition, yet a rough consensus on detailed definitions of crimes deemed terrorist offenses. Reflecting those conceptual challenges some academics oppose the notion of “terrorism” as a legal category and argue against a separate category of “­anti-terrorist law”.22 Depending on circumstances, individual events should be qualified following the principles of state responsibility and jurisdiction, relying on international cooperation in criminal matters. The so-called terrorist crimes are to be perceived as regular offences, even if committed for ideological or political reasons and prosecuted with reference to national criminal laws applied as indicated by the existing consensus on state jurisdiction, including contractual norms of universal jurisdiction.23 Some authors however rely on the un work on terrorism and refer to the 1994 un Resolution 49/60 where acts causing or intended to cause fear of the general public, groups of people or individuals while being politically motivated are referred to as lacking justification in the body of international law, seeking there an international law description of terrorism.24

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Doc. A/C.6/57/L.4, 1–2. See also: A. Conte, Security In The 21st Century: The United Nations, Afghanistan And Iraq, Aldershot 2005, 19. Antonio Cassese, International Law (Chapter 1, n 204) 449; Anthony Aust, Handbook… (Chapter 2, n 191) 266, 269. Rosalyn Higgins, The General International…, 16, where the author rightfully points out that the western states were reluctant to find compromise worried that any definition of terrorism might cover also ‘state terrorism’, while the developing countries were worried that any other definition would deem illegal any national or liberation movements. Ian Brownlie, Principles... (introduction, n 20) 745. Anthony Aust, Handbook… (Chapter 2, n 191) 264–265. Antonio Cassese, International Law (Chapter 1, n 204) 449; General Assembly Resolution, Measures to eliminate international terrorism, u.n. Doc. A/RES/49/60. Malcolm N. Shaw, International law (6th ed., cup 2008) 1159–1166. Terrorism has been extensivly defined by Ben Saul in a series of publications, including: B. Saul, Defining Terrorism in International Law, Oxford 2008; Ben Saul, ‘Definition of “Terrorism” in the un Security Council: 1985–2004’ (2005) 4(1) ChineseJIL 141–166 and most recently: Research Handbook on International

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The ccit, so far to be considered a soft law document and proof of contemporary consensus seeking process, does contain what is intended as a legal definition of terrorism.25 Drawn largely from the 1997 International Convention for the Suppression of Terrorist Bombings it refers to acts of terrorism as acts of individuals that intentionally or unintentionally cause death or bodily injury to another person or substantial damage to property, private or public, including a place of public use, a state or government facility, a public transportation system or an infrastructure facility or the environment.26 According to the treaty, acts that cause extensive destruction of such property, place or facility, where such destruction results in or is likely to result in major economic loss or, what is important for bringing about the foregoing considerations, causing the probability of its occurrence are to be prohibited as manifestations of terrorism. Decisive for the qualification of an offence as a terrorist act is the purpose of it being committed. A terrorist act occurs when a given behavior meets these criteria as per its nature or context that is when it is intended to raise fear of the public or compel a government or an international organization to act or refrain from any action, causes damage to property, places, facilities or systems resulting or likely to result in major economic loss and involves more than one country.27 The ciit follows other antiterrorist treaties in requiring states to introduce criminal punishment not only for those committing such crimes, but also ones threatening or attempting to commit them.28 As already mentioned, the duty of prevention against threats to the security and sovereignty of other states does not stem directly from the peremptory norm of Article 2 paragraph 4 un Charter, prohibiting the use of force in international relations. A duty of preventing terrorist threats has however been ­explicitly included in the majority of treaties relating to terrorism and reflected in Article 9 of the ccit draft. The latter stipulates that states parties need to “cooperate in the prevention of the offences” named in the treaty “by taking all practicable measures, including, if necessary and where

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Law and Terrorism B. Saul (ed.), (Edward Elgar 2014). A good variety of attempted definitions has been provided by Diaz-Barrado: Castor Miguel Diaz-Barrado, ‘The Definition of Terrorism and International Law’ in Antonio F Sánchez (ed.), International Legal Dimension of Terrorism (BRILL 2009) 27–28. Draft comprehensive convention against international terrorism: Consolidated text prepared by the coordinator for discussion, un Doc. A/59/284 (2005), Appendix ii. Article 2, ccit. Article 3, ccit. Article 2, pt. 2–3, ccit.

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appropriate, adapting their domestic legislation, to prevent and counter preparations in their respective territories for the commission, within or outside their territories, of those offences”.29 The recommended measures aimed at terrorist prevention include those aimed at prohibiting illegal activities of persons, groups and organizations “that encourage, instigate, organize, knowingly finance or engage” in the commission of those offences, and in particular include measures aimed at prohibiting the “establishment and operation of installations and training camps” supporting the commission of such crimes. Due diligence in preventing terrorist crimes as reflected in the versatile ccit covers also state duty to “further cooperate in the prevention” of the terrorist offences “by exchanging accurate and verified information and coordinating administrative and other measures taken as appropriate” to achieve the aims of the treaty. The ccit goes on to name details on how such cooperation should proceed. Those include: establishing and maintaining channels of communication between competent agencies and services to facilitate the secure and rapid exchange of information concerning all aspects of terrorist offences and cooperating on inquiries concerning establishing the identity, whereabouts and activities of persons suspected of being involved in terrorist offences as well as the movement of funds, property, equipment or other instrumentalities relating to the commission of such offences.30 Such duties arise irrespective of the intended place of commission of a terrorist act.31 The ccit is a soft law document.32 Its stipulations are not legally binding. It may however be well recognized as a proof of contemporary practice regarding prevention of terrorist crimes. Reiterating similar stipulations of the binding anti-terrorist treaties it confirms the existence of the duty of prevention of crimes motivated politically and aimed at raising fear, coercing

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ccit, Article 9. ccit, Article 9. ccit, Article 8, para. 1, which implies states are to cooperate to prevent crimes described in Article 2 ccit, where such cooperation encompasses “all practicable measures”, including, if “necessary and appropriate”, adopting internal regulations aimed at preventing and combating preparations to committing such crimes within state jurisdiction or beyond it. Two of the primary reasons behind suspending the work on the project were the two broadly defined exceptions for the application of the prospected treaty and the priority given to specific agreements on terrorist crimes (see: Article 2 bis). un Information Department, Legal Committee Urges Conclusion of Draft Comprehensive Convention on International Terrorism, Delegates Urge Clear Definition, 2012, available at: accessed 14 March 2016.

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governments and bringing significant economic loss.33 Some authors go as far to as consider the duty of terrorism prevention as proof of a controversial notion of “indirect armed aggression”, which includes crimes committed for those reasons, usually perceived as “terrorist” crimes.34 This notion is to cover the secretive, i.e. in the absence of an official proclamation of war, use of armed force by one state against another. Such situation is said to occur when armed groups of individuals are being sent onto the territory of another state to conduct military operations or such activates are supported differently, e.g. by allowing their preparation within state territory.35 This notion is close to the popular term of “terrorism sponsoring” also often used to broaden the narrow scope of an armed aggression in international law. Undoubtedly these perspectives cannot yet be considered recognized in international jurisprudence, practice or dogmatic, although their rapid increase in popularity must be noted. The duty of prevention with regard to international terrorism is however beyond doubt. States are obliged to take active measures in preventing harm to other countries, be it damage done to state property or infringing sovereign state functions. Detail of such duty of prevention with regard to crimes driven by political motives and aimed at raising panic or coercing governments, as indicated above, can be found in the numerous anti-terrorist treaties and all rely on enhanced international cooperation aimed at preventing such offences and exchanging information on potential offenders. In the light of the considerations already made in this book this particular duty of prevention can easily be set against the background of rich international jurisprudence regarding the duty of prevention as such. And so the international cooperation must be done in good faith, cover relevant and accurate information, with the exception of information crucial to state security or other vital interests. States failing to show due diligence, in the absence of any circum­ stances precluding lawfulness, can be attributed international responsibility. 33

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Dimitrios Delibasis, The Right to National Self-Defense: In Information Warfare Operations (Bury St. Edmonds 2007) 227, who indicates state duty to prevent terrorist crimes as an implication of its obligation to prevent state use for the purpose of their preparation or committment; Kimberly N. Trapp, State Responsibility… (n 1125) 64, 80–82, where the author discusses the evolution of the standard for due diligence in terrorism prevention, following the 911 attacks and argues that it was as early as 1970s that due diligence was recognized by the courts as a necessary element of terrorism prevention. P. Lamberti Zanardi, ‘Indirect Military Aggression’ in Antonio Cassese (ed.), The Current Legal Regulation of the Use of Force (BRILL 1986) 112. Idem 112.

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­ ogmatically the failure to show due diligence in introducing and enforcing D preventive measures can be considered a violation of international law resulting in state responsibility, in practice however such failure needs to be accompanied by actual significant damage to another state for the country of origin to be attributed responsibility. The duty of prevention so perceived and the following obligation to show due diligence seem uncontroversial.36 The individual obligations are always case specific and rely on international cooperation of states, good faith and state of the art technologies. It is particularly the technologies used for terrorist prevention that have recently provoked an eager debate on the limits of this duty of prevention with regard to terrorist crimes. The 2014 Snowden revelations – the case of the us governmental subcontractor/whistleblower exposing a secret us mass surveillance program (prism) emphasized the vital challenge for setting the limits of anti-terrorist due diligence. The existing international consensus shows its weakness in two points: the definition of terrorism, disallowing for a clear qualification of a given activity as terrorist or terrorism-related and the ever-present conflict of values, well expressed in the security vs. liberty dichotomy. While all individuals alike, despite their origin, location or occupation, wish to feel safe, they differ on the limit of other rights and freedoms they are willing to sacrifice. While in Europe and Americas the question of privacy is vividly present in public policy and debate that is by far not the case in Asia or Africa. The human rights perception of privacy is as controversial as the definition of terrorism itself and varies depending on ­geographical location and local perceptions of morality or culture. Adding to the challenge is another human rights term, also challenging in its enforcement – the right to a fair trial. Any infringement on personal liberties done for the purpose of securing other interests, such as those of foreign states threatened by terrorism, can only be affected when introduced with respect of the rule of law. This condition at times proves impossible to meet with the vagueness of the concepts behind it. It is well demonstrated with the challenges posed by the era of global electronic communications and increasing state reliance on computer-operated infrastructure. Offences referred to as acts of “cyberterrorism” rely on the Internet to show a new face of this old problem and offer an interesting perspective on the notion of

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Jean Marc Sorel, ‘Some Questions About the Definition of Terrorism and the Fight Against Its Financing’ (2003) 14(2) ejil 365–378; Lee Jarvis, ‘The Spaces and Faces of Critical Terrorism Studies’ (2009) 40(1) Security Dialogue 5–27; Marieke De Goede, ‘The Politics of Preemption and the War on Terror in Europe’ (2008) 14(1) ejir 161–185.

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due diligence in preventing terrorist crimes in the 21st century, discussed in detail below.37

Cyberterrorism and Cybersecurity

The 21st century saw a new face of international terrorism. To the already ambiguous list of “asymmetric” threats to international peace and security, i.e. ones originated by private individuals such as terrorist or radical groups, possibly by states not capable of a traditional armed attack conducted with the use of national military, was amended with the notions of “cyberthreats”, “cyberterrorism” and “cyberwarfare”, neither of which can be clearly and reliably defined as per contemporary legal scholarship and international practice. Their general common trait is the use of the global computer network based on the Internet Protocol (tcp/ip) and protocols compatible with it as tools for conducting attacks on national security and creating new threats to international peace.38 The direct reference to the well recognized, yet not uncontroversial, notions of terrorism and war show the scale of potential harm to domestic and international interests caused by cyberthreats.39 Any attempt to define “cyberterrorism” as an element of legal terminology must rely on the un 37

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For more on the problems with finding a practical balance between collective security and individual liberty see e.g.: Benjamin J Goold and Liora Lazarus, Security & Human Rights (Hart Publishing 2007) 122 ff. This issue was also raised by the icj in, inter alia, the 2004 advisory opinion on the legality of the Israeli wall in Palestine (icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (2004) icj Reports 136, 193) where the court observed that any human rights restrictions applied to prevent crimes must be necessary to achieve a given aim. Referring to the hrc work it emphasized that ‘it is not sufficient that such restrictions be directed to the ends authorized; they must also be necessary for the attainment of those ends’. (…) they ‘must conform to the principle of proportionality’ and ‘must be the least intrusive instrument amongst those which might achieve the desired result’. Also, according to Article 4 of the International Covenant on Economic, Social and Cultural Rights (u.n. Doc. A/6316 (1966), 993 u.n.t.s. 3, hereinafter cited as: icescr) states may subject the rights granted in the convention only to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. Sushil Jajodia, Moving Target Defense: Creating Asymmetric Uncertainty for Cyber Threats (Springer 2011); H.P. Hestermeyer, Transboundary Harm: Internet Torts in Transboundary…, Russell A. Miller, Rebecca M. Bratspies (eds.) Transboundary harm... (introduction, n 25), 268–280. M.E. O’Connell, ‘Cyber Security without Cyber War’ (2012) 14 jcsl 189–190.

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antiterrorism conventions, discussed above. The growing scale of such threats has also resulted in a law of war rhetoric, used forever more often in cases of online threats and, above all, the means necessary for their prevention. States struggle to enhance their “cyberresillience” i.e. their capabilities to prevent and/or resist a cyberattack onto their crucial resources and infrastructure, such as those used for operating mass transportation or electricity supply, streaming funds to train and equip national and regional “cyberarmies”. This is the case not only because the majority of international law scholars dealing with the issue of cyberthreats comes from a military background40 or because the Internet started out as a military exercise, but primarily because of the size of harm possible to be affected with the use of the global network. The size of any such impending damage has rapidly increased in recent years, just to mention the potentially catastrophic attack on the uranium enrichment facility in Iran, executed through injecting the software operating the nuclear installations with malicious code, circulated online. The legal qualification of threats originated online has been subject to political and scholarly debate since late 1990s, accompanying the slow rise of other Internet governance related debates on international agendas.41 One of the early scholarly attempts at a legal assessment of cyberthreats described cyberterrorism as the use of a digital system to commit an act punishable or prohibited by the un anti-terrorist treaties.42 With this un reference, “cyberterrorism” could be defined as: an intentional use or threat of use, without legally recognized authority, of violence, disruption or interference against cyber systems, when it is likely that such use would result in death or injury of a person or persons, substantial damage to physical property, civil disorder, or significant economic harm.43 The definition centers on a particular category of information systems, usually described with a reference to “critical infrastructure”, a notion well present in 40 41

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Ibidem, 199. For a detailed discussion on the legal issues of Internet governance and their evolution see: Joanna Kulesza, ‘Legal issues in a networked world’ in Handbooks of Communication Science 5, Communication and Technology L. Cantoni, J.A. Danowski (eds.), (De Gruyter Mouton 2015) 345–364. Stanford University, Draft International Convention to Enhance Protection from Cyber Crime and Terrorism (2000) available at: accessed 14 March 2016 (hereinafter cited as: Stanford cybersecurity draft). Stanford cybersecurity draft, Article 1.

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national civil defense discussions, applicable to all systems and interconnected functional objects, including buildings, equipment, installations, services considered crucial to national security and its citizens as well as to the smooth operation of public administration and other state institutions or facilities.44 In more detail, critical infrastructure can be defined as an: interconnected networks of physical devices, pathways, people and computers that provide for timely delivery of government services; medical care; protection of the general population by law enforcement; firefighting; food; water; transportation services, including travel of persons and transport of goods by air, water, rail or road; supply of energy, including electricity, petroleum, oil and gas products; financial and banking services and transactions; and information and communications services.45 It is because of the security of such systems that states need to take particular measures to protect international peace and prevent their damage, as critical infrastructures are forever more frequently operated online or atleast equipped with an Internet connection. The latter, a relatively new technical feature, can be considered their weakest point. It is because of this growing risk of significant harm caused to states as well as international security with the use of the global network that the necessary preventive measures aimed at annihilating asymmetric online threats need to be discussed by academia and have been appearing on international diplomatic agendas. The alleged international duty of states to prevent online generated threats needs to be discussed in the context of international cooperation on law enforcement and could only be enforced through a combination of various means, covering “all practicable measures” to prevent preparations the commission of such threatening conduct within or outside state territories as per the universal norms of jurisdiction as well as through an exchange of information, coordination of administrative and other activities and introducing any other appropriate measures.46 44

45 46

Stanford cybersecurity draft, Article 1 para. 2. This definition was removed from the latter versions of the draft which demonstrates the challenge posed by defining such an ambiguous term. See: Draft International Convention To Enhance Protection from Cyber Crime and Terrorism, [2013-01-20]. Available at: accessed 14 March 2016. Stanford cybersecurity draft, Article 1 pt. 7. Stanford cybersecurity draft, Article 11.

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Those general observations reflect the contemporary consensus and international practice on antiterrorist measures. Time has shown that the general principles of anti-terrorist treaties remain accurate and applicable to new threats, such as those originated online. This observation seems particularly significant regarding the fact that the question of international cybersecurity and threat prevention has recently transcended the academic debate and entered diplomatic forums of intergovernmental organizations. It must be observed however that the obligation to prevent significant transboundary harm inflicted with the use of an electronic network applies to two categories of events: incidental and deliberate, with the latter often showing a terrorist character if the acting individuals operated without state authorization, followed a political motivation and aimed at causing panic or corrupting a government. The duty o prevention applies however also to the former category, implying respective obligations on all states. Effectively, regardless of the origins of a given harmful event, state responsibility depends on its actions regarding a particular threat to the global network and its operation. If in a given situation a state fails to undertake measures aimed at preventing the threat or minimizing its results, as identifying the individuals or occurrences originating the threats that is they have failed to show due diligence in taking measures possible and appropriate in a given situation, the state may be held internationally responsible. If however in a given situation a state has taken all measures at its disposal to prevent a given harmful event and that threat showed unavoidable, it may be freed from responsibility. The criteria of “aggravating circumstances”, mentioned by F.V. García-Amador that is circumstances the occurrence of which bring a “higher level of responsibility” of a state seems met particularly in those circumstances where state authorities, being informed of an ongoing cyberattack originated from state territory intentionally fail to initiate appropriate procedures or proceedings.47 The general obligation to prevent transboundary harm, including those originated online, may be generally derived from Article 2 para. 4 un Charter. A state failure resulting in transboundary harm may be recognized as a failure to meet this peremptory norm of equal sovereignty of states through a reference to the due diligence standard described above, as it can be applied to all international obligations of conduct and allow for assessing state omissions resulting in significant transboundary harm, especially should they cause “a real detrimental effect on (…) industry”, as measured by factual and objective 47

García Amador’s second report, u.n. Doc. A/CN.4/106, pt. 9, 122.

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standards.48 Yet forever more international incidents49 invite the discussion on a cyberspace specific standard of due diligence. The detailed blueprint of the due diligence principle as introduced by the ilc allows for assessing state responsibility in cases where direct attribution of harmful online activities to states proves particularly difficult for technical reasons, as tracing the origins of harmful content in general and the individuals behind such activities in particular often shows impossible in the global peer network of bites. On a general note it can be observed that all states are under an obligation to prevent significant transboundary harm originated within state jurisdiction, territory or control. This obligation should be met with the application of all appropriate measures, including but not limited to introduction of judicial and administrative measures aimed at identifying and prosecuting such offences or enforcing other forms of liability. This due diligence obligation should be executed in international cooperation aimed at preventing such attacks. The latter includes the necessity to share information on potential threats and jointly identify effective prevention measures. Just as in the general observations made by the ilc, it is the individual state’s level of economic and technological development that proves significant for assessing the level of diligence required in a particular case, although the lack of material resources may not serve as the sole explanations for enabling state territory for originating harmful online activities. Moreover, also in the context of cybersecurity, the duty of prevention a continuous one, requiring states to engage in ongoing collaboration. All preventive measures aimed at granting international cybersecurity need to be introduced and enforced in good faith and proportional to the particular threat. The element of proportionality, imminent to due diligence can be used to support an argument for a higher due diligence standard for the protection critical infrastructure, such as power plants, water supplies or public transportation supported by computer operated infrastructure. Moreover, it may be argued that the elements of the global network itself, such as the Internet backbone or the dns also should be granted particular protection, higher than e.g. local or purely commercial networks. These observations have already been recognized beyond academic debate and included in various acts of international law. Arguably it was the Council of Europe with its 2011 Recommendation to be the first international organization to recognize the issue of due diligence in ensuring international

48 49

ilc Draft Articles on Prevention, commentary (4) to Article 2, 152. See e.g. Scott J. Shackelford, ‘From Net War to Nuclear War: Analogizing Cyber Attacks in International Law’ (2009) 27 bjil 192 ff.

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cybersecurity. It has called upon states to cooperate with other stakeholders: business and civil society, including academia, to identify and enforce all necessary measures “to prevent, manage and respond to significant transboundary disruptions to (…) the infrastructure of the Internet”.50 This duty was to be enforced “within the limits of non-involvement in day-to-day technical and operational matters” as performed by private parties, such as Internet service and content providers. The reference to “all relevant stakeholders” mirrors the multistakeholder principle of international Internet law and Internet governance.51 The Recommendation went on to identify a minimum standard of care in cases of maintaining risks and consequences of any”disruptions”,52 i.e. negative consequences influencing “the stable and ongoing functioning of the network”, resulting from “technical failures”.53 The Council of Europe (CoE) put particular emphasis on the interconnection between effective networks resilience and international cooperation, by directly identifying it as “intrinsically related to” the decentralized and distributed nature of this unique medium.54 Significantly, since all actions “in one jurisdiction may affect the ability of users to have access to information on the Internet in another”,55 the international no-harm principle needs to be recognized as the starting point of any cybersecurity cooperation. This is also a derivative of the general obligation of states to act in compliance with international law, ensuring that “their actions do not have an adverse transboundary impact”. The CoE Committee of Ministers made a direct reference to the possible harmful effect that the activities taken in one location may have on the “access to and use of the Internet” beyond state jurisdiction.56 States are therefore under an international obligation to ensure that their actions within their jurisdictions do not illegitimately interfere with access to content outside their territorial boundaries or negatively impact the transboundary flow of Internet traffic, 50

51

52 53 54 55 56

CoE, Recommendation CM/Rec(2011)8 of the Committee of Ministers to member states on the protection and promotion of the universality, integrity and openness of the ­Internet; September 21st, 2011, pt. 1.3. (hereinafter cited as: CoE, Recommendation CM/Rec(2011)8…). For a detailed definition of the multistakeholderism principle in international Internet law Joanna Kulesza, (2012). International Internet law. Global Change, Peace & Security 24(3), 351–364. CoE, Recommendation CM/Rec(2011)8…, para. 1.3. CoE, Recommendation CM/Rec(2011)8…, preamble pt. 5. CoE, Recommendation CM/Rec(2011)8…, preamble pt. 5. CoE, Recommendation CM/Rec(2011)8…, preamble, pt. 5. CoE, Recommendation CM/Rec(2011)8…, para. 1.1.1.

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with a failure to meet this obligation resulting in possible responsibility of an non-diligent state.57 One of the significant elements of the international legal order that comes into play with reference to online threats is the international human rights law, obliging states to refrain from putting illegitimate, from an international point of view, limitation on individual rights, in particular the right to privacy or freedom of expression.58 Effectively, any “blanket surveillance”, i.e. a non-case-specific invasion of privacy or any other restriction of online communications may not be introduced as preventive measure as it would go against the body of international human rights law in general and against the recommendations of the Human Rights Council in particular, including e.g. those referring to Article 17 of the International Covenant on Civil and Political Rights (iccpr).59 With that it can be easily ascertained that the due diligence obligation of preventing transboundary harm online does not reach as far as continuous surveillance of all subjects to state jurisdiction. It is rather to the contrary – such surveillance needs to be considered a breach of international human rights law and go against state positive duties of states to ensure fundamental rights to all state subjects. Also, as per the human rights standard on free speech, as in Article 19 iccpr, any duty of preventive censorship regarding online content, placed on e.g. Internet service providers, should also be viewed as a violation of international human rights law.60 The same free speech standard, which prohibits censorship, should be viewed as prohibiting rather than encouraging any state authorization for online services, although in some cases they might be considered risk-originating activities.61 The encouraged cooperation focuses rather on preventing transboundary harm to Internet’s stability and resilience62 through the development and implementation of emergency ­procedures for managing and responding to Internet disruptions applicable to all stakeholders, in particular bodies managing critical infrastructure.63 ­Aiming to meet this obligation states need to ensure “the d­ evelopment and

57 58 59 60

61 62 63

CoE, Recommendation CM/Rec(2011)8…, para. 1.1.2. CoE, Recommendation CM/Rec(2011)8…, para. 1.1.1. United Nations (1966). International Covenant on Civil and Political Rights, G.A. res. 2200A (xxi), u.n. Doc. A/6316 (1966). See e.g. European Court of Justice (2011), Judgment of the Court (Third Chamber) of 24 November 2011. Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs scrl (sabam); case number C-70/10. The issue is discussed in more detail below. CoE, Recommendation CM/Rec(2011)8…, para. 2. CoE, Recommendation CM/Rec(2011)8…, para. 2.1.1.

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implementation of common standards, rules and practices aimed at preserving and strengthening the stability, robustness and resilience of the Internet”.64 This general obligation translates into particular duties of criminal law enforcement and international legal aid as well as no undue delay in notifying potential victims of any risks of significant transboundary disruptions to the functioning of the network.65 Such notice from the originating state should comprise of four elements: (1) a prompt notification of any such risk for all ­potentially affected states66; (2) sharing all available information relevant to responding to a given disruption67; (3) prompt engagement in multilateral consultations aimed at identifying and applying mutually acceptable measures of response to threats already arisen68 as well as provide (4) mutual assistance “as appropriate”.69 When attempting to indicate the activities within the duty of due diligence one should reflect “with due regard” the capabilities of individual states, with other states offering help to those affected in good faith, aiming to mitigate the already arisen harmful results.70 Due diligence in cases of online communications ought to reflect the multistakeholder environment and the principle of non-involvement, obliging states to refrain from interference with the “day-to-day technical and operational matters”.71 As is the case with all due diligence obligations, states are required to introduce “reasonable: legislative, administrative or any other appropriate measures” to ensure online security and connectivity.72 An obligation so identified indicates the ­basic efforts of states with regard to securing online communications. States are therefore encouraged to engage “in dialogue and co-operation for the further development of international standards relating to responsibility and liability” for online disruption.73 A similar idea can be found in the 2013 eu Proposal for a Directive concerning measures to ensure a high common level of network and information security across the Union (hereinafter cited as: nis Directive).74 As per this draft 64 65 66 67 68 69 70 71 72 73 74

CoE, Recommendation CM/Rec(2011)8…, para. 2.1.2. CoE, Recommendation CM/Rec(2011)8…, para. 2.1.3. CoE, Recommendation CM/Rec(2011)8…, para. 2.2.1. CoE, Recommendation CM/Rec(2011)8…, para. 2.2.2. CoE, Recommendation CM/Rec(2011)8…, para. 2.2.3. CoE, Recommendation CM/Rec(2011)8…, para. 2.2.4. CoE, Recommendation CM/Rec(2011)8…, para. 2.2.4. CoE, Recommendation CM/Rec(2011)8…, para. 2.3. CoE, Recommendation CM/Rec(2011)8…, para. 2.3. CoE, Recommendation CM/Rec(2011)8…, para. 2.4. European Comission, Proposal for a Directive of the European Parliament and of the Council concerning measures to ensure a high common level of network and information security across the Union, COM/2013/048 final (hereinafter cited as: nis Directive).

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document critical infrastructure operators, including Internet infrastructure and those offering online services critical to the information society, are to be legally obliged to introduce risk management mechanisms and procedures ensuring information sharing with state authorities. The fact that no such obligation existed thus far resulted in only under 30% of small and medium enterprises in Europe ensuring any risk management policies, including risk assessment and procedures in case of a system failure.75 This obligation, while arguably ensuring a higher level of security, will also result in increased costs for the operation of individual service providers. Whether those costs should be borne by the enterprises alone, or whether states should subsidize new security features, remains an issue open to discussion. Moreover, the information sharing duty, resting upon private bodies, remains unilateral – while state authorities and state-operated infrastructures remain one of the main targets of cyberattacks, states shun the duty to share threat information with private companies. This policy seems short-sighted as only through comprehensive cooperation can cyberthreats be affectively liquidated. So far however the draft is to introduce detailed obligations enforced through national laws only for entities managing critical infrastructure or providing services essential to the functioning of societies.76 The goal of the document is ensuring “a high common level of network and information security” throughout the eu and as such it introduces state duties of “prevention, handling of and response to risks and incidents affecting networks and information systems”.77 It also introduces a mechanism of cooperation among states aimed at ensuring a “coordinated and efficient handling of and response to risks and incidents affecting network and information systems”.78 To achieve this aim states are ensure that public administrations and market operators “take appropriate technical and organizational measures to manage the risks posed to the security of the networks and information systems which they control and use in their operations”.79 The “all appropriate measures” clause known to international law on transboundary harm is also here related to “the state of the art” in a given area, with the undertaken actions guaranteeing a level of security “appropriate” to the individual risk. In particular those measures need to “prevent and minimize the 75

76 77 78 79

nis Directive; Comission Staff Working Document Impact Assessment Accompanying the document Proposal for a Directive of the European Parliament and of the Council Concerning measures to ensure a high level of network and information security across the Union. com(2013) 48 final, 21. nis Directive, Preamble. nis Directive, Article 1. nis Directive, Article 1. nis Directive, Article 14.

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impact of incidents” affecting networks and systems, ensuring “the continuity of the services underpinned by those networks and information systems”.80 The open catalogue of bodies bound by the security obligations does not cover “undertakings providing public communication networks or publicly available electronic communication services” as defined within the Framework Directive 2002/21/EC on e-commerce.81 At the same time the “network and information system”, focal to the proposed regulation, is defined through a reference to “an electronic communications network” as per the Directive 2002/21/EC, raising potential issues when it comes to delimiting the scope of individual companies bound by the prospected national laws. The prospected regulation goes on to introduce national authorities responsible for supervising the introduction of the eu standard into national practice. Those responsible for the network security are to be designated by each state and tasked to monitor the application of this Directive at national level, supporting “its consistent application throughout the Union”. National legislation is to be based on a “national nis strategy and national nis cooperation plan”, defining “the strategic objectives and concrete policy and regulatory measures” aimed at reaching the goal set by the Directive. The strategy is in particular to address the criteria for the “identification of the general measures on preparedness, response and recovery, including cooperation mechanisms between the public and private sectors”. States are to be endowed with the task of identifying particular systems included into the scope of the Directive. Leaving the list-setting to individual states provokes the threat of significant discrepancies in national implementations of the eu framework, resulting in varying security obligations laid upon national branches of international enterprises, much as has thus far been the case with personal data protection.82 The general guidelines for national cybersecurity strategies attend to this problem only vaguely – as per the draft they are to be based “on a coordinated response” model set within the “Union nis cooperation plan”, referring to the eu definitions of “format and procedures for the collection and sharing of compatible and comparable information on risks and incidents by the competent authorities” as well as procedures and the criteria for assessing the risks and incidents 80 81

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nis Directive, Article 14. nis Directive, Article 2. Their individual obligations are to be introduced through the amendment of Article 13 with Articles 13a and 13b of the Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), Official Journal L 108, 33. nis Directive, Article 4.

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by those cooperating within the network. The ilc takes it upon itself to design the “processes to be followed for coordinated responses”, covering individuals roles, responsibilities and cooperation procedures. The possible sanctions for infringing national cybersecurity laws fall within the competence of the states, which ought to “take all measures necessary to ensure” the implementation of the principles. The sanctions to be provided in national laws “must be effective, proportionate and dissuasive”.83 The recent European serves as evidence for the ongoing transposition of international law due diligence standard onto particular, international cybersecurity obligations, aimed at ensuring a safe transboundary flow of data and information services. As a result, the well recognized due diligence standard in international law translates onto individual duties of states in the domain of cybersecurity. Those duties include listing potentially threat-originating services, whose operators will need to meet particular security obligations under the pain of sanctions but also a good-faith involvement in international cooperation and exchange of information. The infrastructure covered by this obligations and, consequently, the list of operators as well as the measures to be taken to provide network security are to be set by individual states. Europe seems to be the first region to explicitly translate the international due diligence principle onto particular cybersecurity obligations. The direct reference to the “all necessary measures” clause in the nis Directive clearly indicates the universal due diligence standard applicable to the international cybersecurity challenge. However, the recent (2015) bilateral agreements between China and, respectively, us and uk, deal with cybersecurity cooperation and information sharing and seem to follow a similar trend. The contracting states agreed to engage in good faith in cooperation covering timely responses to requests for information and assistance on malicious cyber activities and to cooperate “in a manner consistent with their respective national laws and relevant international obligations, with requests to investigate cybercrimes, collect electronic evidence, and mitigate malicious cyber activity emanating from their territory”.84 The rules of cybersecurity and threat prevention are to be put by the cooperating states into more detail through their joint efforts to “identify and promote appropriate norms of state behavior in cyberspace within the international community”.85 This consensus 83 84

nis Directive, Article 17. The White House, President Xi Jinping’s State Visit to the United States, September 25, 2015, available at: accessed 14 March 2016. 85 Idem.

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reflects in treaty practice the non-binding suggestions put forward by the un Group of experts dealing with the issue of online security. As such, principles of international cooperation on matters of cybersecurity have been reflected also in the reports of the un Group of Governmental Experts in the Field of Information and Telecommunications in the Context of International security (gge Reports).86 Their latest, 2015, report refers directly to the need for states to work on “norms, rules, or principles for the responsible behavior of States aimed at promoting an open, secure, stable, accessible and peaceful ict environment”, although ones to be considered “voluntary” and “non-binding”.87 According to the non-binding recommendations, states should perceive cyber incidents in “the larger context of the event”, including “the challenges of attribution in the ict environment” as well as the “nature and extent of the consequences”. This is a clear reference to the size of potential harm that might be provoked though illicit online activities, with the criteria for “significant transboundary harm” applicable to this new domain. Moreover, the un experts recommends that states refrain from knowingly allowing their territory “to be used for internationally wrongful acts using icts”.88 Again, this is a direct emphasis of the negative obligations of states to prevent internationally harmful acts originated from their territory. This implication is emphasized by the reference to the need for states to “mitigate malicious ict activity aimed at another State’s critical infrastructure emanating from their territory”, yet with “due regard for sovereignty”.89 The due diligence obligation of cooperation is also reflected in the reference to the need for enhanced cooperation and exchange of information, as well as mutual assistance, prosecution of terrorists and criminal use of icts, as well as the implementation of other “cooperative measures” addressing such threats.90 Exchange of information should in particular cover reporting of vulnerabilities in the cyber capacity of ach state and sharing information on available remedies. These recent developments clearly show that a due diligence standard for cybersecurity is in the making. 86

United Nations Group of Governmental Experts (gge), 2015 report on rules of behavior in cyberspace, u.n. Doc. A/70/174 (hereinafter cited as: 2015 gge Report) and the gge 2013 report, u.n. Doc. A/68/98. 87 2015 gge Report, para. 13. 88 2015 gge Report, para. 13, although e.g. Marina Kaljurand when reffering to those same stipulations argues that there was no gge consensus on applying the due diligence principle to cyberspace, see: Marina Kaljurand, ‘United Nations Group of Governmental Experts: The Estonian Perspective’ in International Cyber Norms Legal, Policy & Industry Perspectives, Anna-Maria Osula and Henry Rõigas (eds.), (ccdcoe 2016) 121. 89 2015 gge Report, para. 13. 90 Idem.

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Towards a Due Diligence Standard for Cyberspace

The principle of due diligence, well established in international law, applied to cybersecurity covers particular obligations aimed at ensuring international peace and cooperation. As generally prescribed by international law, states need to refrain from internationally harmful omissions resulting in significant transboundary harm, also when such harm is to be the result of an online activity, initiated from within state jurisdiction, under its power or control. This obligation translates directly onto national laws and procedures, allowing for the identification of potential threats and mitigating their risks. Meeting this obligations relies on securing national critical infrastructure that is installations and systems vulnerable to attacks. This can be achieved by particular ­security obligations put onto private companies and executed within their internal security policies, making the latter a matter of national and international security. Those national laws need to reflect a well-informed international consensus supported by solid technical knowledge, one reflecting individual economic and technological capabilities of each state. The standard of care for cybersecurity must reflect the specifics of the network, as it is governed by various actors, whose cooperation is essential for Internet’s resiliency and interoperability. The principle of multistakeholderism, well recognized in Internet governance, necessitates the effective cooperation between governments, business and civil society in adopting and enforcing all Internet related policies and regulations, in particular those dealing with the networks safety. The justification behind ilc work on international liability, given by the un Special Rapporteur García-Amador with nuclear tests in mind, still rings true as „new categories of objective responsibility must be constructed to face the growing number of threats brought by technological developments”.91 The question of a due diligence standard for cyberspace can be best answered with more states getting involved in the debate on its desired scope, since solely through an international consensus can global cybersecurity be reached. Due diligence in cyberspace offers a noteworthy alternative to the still arguable and strongly disputed military qualification of cyberattacks, attempting to view them as acts of armed aggression, possibly allowing an armed response. It is only with more states being involved in the cybersecurity dialogue that the prospected content of the duty of due diligence can be ascertained. With the immanently flexible nature of international law and its unique system of enforcement, only through an international consensus and uniform 91

García Amador’s fifth report, 64.

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practice can the goal of a functioning cybersecurity cooperation be achieved. Other issues that need to be looked into include the rights and obligations of private entities aimed at ensuring cybersecurity, the uniformisation of national laws and, last but not least, the need and possible form of financial support for parties obliged to introduce additional cybersecurity measures, especially in developing countries. To achieve a uniform cybersecurity standard the applicability of recognized international liability models needs to be verified vis-à-vis the specifics of the cyberspace. They need to be carefully assessed as to their scope and individual activities, including possible precautionary and insurance measures. Following the examples well present in international environmental law, such as e.g. oil transport or nuclear power production, all risk-originating activities rely on two fundamental legal duties: state authorization and a liability fund. Introducing those two elements for cybersecurity seems particularly challenging, as it directly depends on the catalogue of activities identified as originating the risk of significant transboundary harm caused through online activities. Regarding the growing popularity of online services the majority of information systems may be subject to threats potentially causing significant transboundary harm. As e.g. power plants or public transportation systems are being forever more strongly integrated with computer-based systems when it comes to e.g. the production process or route planning respectively, any such computerbased system affecting large numbers of potential victims, once compromised, allows for its qualification as part of critical infrastructure and subjecting it to particular security obligations falling onto its operator. International law so far looked at the risk-originating activities as a particularly narrow category, based on numerous international treaties and a soft law background, covering nuclear power production, space exploration and oil transportation, with engaging into any of those activities requiring state authorization. As cyberthreats may originate from various kinds of activities, subjecting them all to state authorization would be excessive and therefore undesired, if not only impossible to enforce. While creating an open catalogue of activities covered by the due diligence obligation seems rational, subjecting all risk-originating activities to state authorization is undesired. At the same time, indicating operators of risk-generating activities needs to result in endowing them with particular cybersecurity obligations as per national laws and sanctions included therein, as provided for by e.g. the nis draft directive. Identifying due diligence obligations for infrastructure operators subjects them to liability for harm caused by their omissions. In other areas of international law, such as oil transportation or nuclear power production, corporate practice has led to the development of comprehensive insurance

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services accompanying those business sectors as well as to the introduction of liability funds fueled by private operators. Regarding the scale of possible damage caused by compromised information systems, such as those operating in public transportation or water supplying services civil liability of their operators might exceed by far the financial capabilities of individual companies. Introducing obligatory, allowing for the introduction of voluntary insurance services, possibly creating a liability fund fueled by those covered by the due diligence obligation should be subject to international debate focused on cybersecurity and threat prevention. In summary, one should emphasize that growing number of cyberthreats originated by individuals acting within state jurisdiction, although not directly authorized by a state, necessitates a review of the international law obligation of due diligence in preventing harmful individual actions seems a useful resource. Due diligence in cyberspace ought to be perceived as an application of the standard set out by the ilc in its work on international liability and state responsibility. The ilc work, summarized in this volume, allows for the identification of individual measures needed in national legal regimes for the duty of due diligence to be considered fulfilled also in cyberspace. A following step might be one on detailing a cybersecurity due diligence standard based on a thorough technical analysis as well as a model for individual liability of private entities running risk-originating, computer based or enhanced services, such as public transportation, water supplies, emergency services etc. The process of identifying such a due diligence model for cyberspace ought to include all actors participating in Internet governance, with states bound by the international law no-harm principle as guardians of the contemporary international legal order leading business and civil society to the negotiating table.

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Index accountability 3, 8, 9, 11, 20, 29, 39, 62, 77, 80, 96, 116, 131, 146, 164, 166, 167, 174, 179, 208–212, 227, 246, 279 Alabama case 32, 60, 62, 191, 257, 279 attribution 4, 8, 212–223, 241, 247, 249, 267, 277, 278, 292, 299

Grotius, Hugo 15, 37–41, 43–50, 125

Caroline case 3, 58, 162 compensation 19, 27, 36, 42, 50, 65–85, 91, 94, 96, 116, 120, 122, 130, 140, 145, 165, 170–174, 180, 194, 200–212, 218, 220 compensation fund 170, 206, 227, 228 Contras case 4, 106–110 cyberspace 292, 298, 300–302

insurance 96–98, 107, 180, 189, 206, 227–228, 256, 301 international watercourses 177, 239–242 ius gentium 32–37, 44, 45

damage 2–3, 9–10, 12–14, 17, 28, 30, 38–39, 41–44, 51, 62–77, 85, 91–92, 107, 109, 116, 120–132, 138, 140, 143, 152, 162, 170, 180, 182 significant damage 87, 96, 102, 103, 105, 147, 169, 241, 242, 255, 257, 287 due care 2, 31, 45, 61, 63, 71, 101, 115, 120, 146, 153, 194, 196, 222, 232, 237 duty/obligation of, due care 115, 238, 247, 263, 267, 279 due diligence definition 61, 72, 140, 141, 178–179, 182, 185, 222, 253–255, 261 lack of 2, 13, 17, 28, 32, 35, 45, 52, 58, 71, 81, 94, 98, 106, 113, 123, 125, 131, 136, 140, 141, 148, 159, 187, 196, 200, 207, 211, 215, 222, 223, 228, 231, 246, 248, 263, 267, 281 principle 2, 7, 65, 98, 225, 232, 237, 240, 264, 270–275, 292, 298 standard 30, 31, 55, 62, 78, 103, 137, 141, 163, 172, 195, 217, 242, 247, 264, 267, 292 effective control 107–109, 113, 185, 277, 278 fault 3, 12, 13, 15, 27–32, 38, 40–41, 51–55, 97, 118, 121, 125, 130, 139, 141, 145, 206, 212, 263, 269

harm 5, 913, 31, 41, 42, 48, 58, 60, 76, 91–109, 114, 121, 129, 141, 145, 161 transboundary harm 5, 103, 161–170, 177–181, 187, 190, 191

liability 1, 9, 11–13, 15, 30–31, 39, 50–51, 57, 74, 95, 115–116, 127, 129–139, 196, 206, 208–212, 219, 220, 223, 226, 241, 295 absolute liability 12, 172, 182, 204, 217, 221, 224, 226, 229, 269, 271 air pollution liability 92 civil liability 8, 9, 39, 79, 180, 185, 203, 210, 220, 223, 254 damage liability 13, 194, 200 derivative liability 76 international liability 94, 109, 163, 165–167, 170, 186, 192, 199, 201, 205, 216, 219, 229, 239, 262, 270, 279, 301 international liability theories 175–177 joint and several liability 269 non-liability, principle 63, 77 objective liability 213, 270 risk liability 94, 198, 217, 224 strict liability 221, 224, 227, 241, 269 subsidiary liability 199, 221, 227 negligence 15, 28, 40, 48, 54, 62, 72, 76, 81, 121, 125, 128, 131, 139, 142, 146, 152, 160, 178, 190, 192, 229, 245, 266, 270, 274 no-harm principle 103, 293, 302 Oppenheim, Lassa 48–50, 127, 159, 209 overall control 46, 110–113, 278 precautionary principle 27, 98, 99, 102, 183, 184, 202, 204, 220, 221, 225, 229, 235, 239, 242 measures 31, 301

Index proportionality 47, 61, 84, 194, 205, 240, 241, 250, 292, 298 principle of 259, 274–275, 290 prevention principle of 99, 116, 174 duty/obligation of 5, 10, 13, 17, 31, 74, 75, 95, 97, 105, 113, 114, 130, 136, 161, 162, 163, 171, 172, 174 retaliatory measures 50, 127, 209, 211, 250, 271, 273–275

315 Tadic case 109–113, 158, 216, 278 Teheran hostages case 44, 88, 89, 91, 159, 163 terrorism 56, 106, 136, 143, 159–164, 268, 281–288 Trail smelter case 93–95, 114, 138, 144, 220, 237