The Law of International Responsibility 9780199296972, 0199296979

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Preface James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

When the International Law Commission was established in 1948, to ‘encourage the progressive development of international law and its codification’, 1 one of the first 14 topics selected by the Commission for codification was ‘State responsibility’. 2 At the time it was not surprising that an examination of the law of responsibility would be limited to States: although there had been some suggestion in the inter-war period that the League of Nations could be a sui generis international person, 3 the opening of the international legal system to inter-governmental organizations was not definitely affirmed until the 1949 Advisory Opinion of the International Court of Justice in the Reparations case, 4 and later still in respect of other natural and legal persons. Hersch Lauterpacht, one of the first and most fervent advocates for recognition of individuals as subjects of international law, 5 was still able to write in 1947 that ‘[a]s a rule, the subjects of the rights and duties arising from the Law of Nations are States solely and exclusively.’ 6 On this prevailing view, codification of the law of State responsibility would cover the field of international responsibility entirely. At the start of the 21st century a rather different picture has emerged. The international legal system, although principally controlled by States, now encompasses a broad range of actors and may directly regulate not only relations between States, but relations between States and individuals, between inter-governmental organizations and individuals, between States and corporations, between inter-governmental organizations and nongovernmental organizations. It seems that there is no natural or legal person beyond the reach of international law, if only to be the subject of a single right or injunction. When the ILC brought its codification of the law of State responsibility to a close in 2001, it had already commenced work on diplomatic protection, concerned with the invocation of responsibility in respect of injury to nationals. A year later it commenced work on responsibility of international organizations. Other projects have dealt with other aspects of international responsibility, including its two projects on ‘liability’ in respect of transboundary harm. To speak of international responsibility is to speak of all such relations. This collection seeks to cover this field of international responsibility; it serves not only as a critique of the ILC’s Articles on State responsibility (2001), on diplomatic protection (2006) and on responsibility of international organizations (adopted in 2009 on first reading), but it examines many aspects of international responsibility which may arise in a multifaceted international legal system. It

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also includes a review of the rules applying to liability for activities which are not as such prohibited under international law but which may entail special consequences both on the ground of prevention and of (p. vi) compensation. These rules have also been progressively developed by the ILC under the English rubric of ‘liability’; in all other official languages of the United Nations they are covered under the same wording as the consequences for wrongful acts (eg responsabilité, responsabilidad). Part I of this book provides an introduction to the topic, covering issues relating to the definition of responsibility, the system of responsibility and the distinction between primary and secondary rules. Part II examines the development of the law on international responsibility and its relationship with other areas of law, including emerging areas of soft law, and municipal legal systems. Part III sets out the sources of international responsibility: the concept of an internationally wrongful act and the notion of responsibility in the absence of an internationally wrongful act. Part IV examines the content of international responsibility, from the general regime to the regime for grave breaches of obligations arising under peremptory norms, to specific regimes in respect of human rights, the WTO, environmental law, European community law and others. It also covers regimes of liability in the absence of an internationally wrongful act, including treaty-based regimes and environmental regimes as well as circumstances precluding wrongfulness. Part V deals with implementation of responsibility by States, international organizations and other entities. It covers modalities for the implementation of international responsibility and countermeasures. These subjects are evidently wide in scope, and many of them remain controversial. Different contributors to this volume take different approaches to responsibility and to the ILC’s work; thus what appears here is a range of views, sometimes conflicting. Within the confines of a single house-style, the individual authors of course speak for themselves. The book aims for a relatively comprehensive coverage, and in consequence an overall critique of the current international law and practice of responsibility; it does not present an overall conclusion. ∗ ∗ ∗ The publication of this volume marks the end of a long bilingual project which was first envisioned in the immediate aftermath of the ILC’s adoption of the Articles on State Responsibility in 2001 (here abbreviated as ARSIWA). Parallel versions of the book are being published in French by Pedone and in English by OUP; the French version under the care of the Centre for International Law at the University of Paris X (Nanterre) under the directorship of Alain Pellet; the English version under the care of the Lauterpacht Centre for International Law (Director: James Crawford). Due to differences in editorial style and linguistic tradition, the two versions differ in detail. Concerning the English version, editorial assistance has been provided by a number of research associates of the Lauterpacht Centre, including in particular Merel Alstein, Stephanie Ierino, Jonathan Ketcheson, Dr Tom Grant, Kylie Evans, and Federica Paddeu. Mr Arnoldo Brenes, Dr Douglas Guilfoyle, and Dr Monique Sasson kindly provided expert assistance in the editing of specialized chapters. But thanks are due above all to Dr Kate Parlett for her meticulous attention to detail and perseverance over the course of the work; and to Affef Ben Mansour of CEDIN for her patience and skill in coordinating the French end of the joint project. The editors would also like to thank John Louth of Oxford University Press for his commitment to the project, and to Merel Alstein, Ceri Warner, Beth Cousins and Benjamin Roberts for their assistance in the final stages of the process. About two-thirds of the contributions were originally written in French; a mountainous task of translation ensued. Thanks are due to Dr Sonia Rolland, Alex Campbell, Melissa (p. vii) Thibault, Mark Power, Paul Davies, Julian Fell, Andria Robertson, Kelisiana Thynne, David McKeever, Dr Soléne Rowan, Freya Baetens, Eva Nanopoulos, Francesca Galli, Mushtaq Namdarkhan, Merel Alstein, and Stephanie Ierino. But the major burden was born—with great good cheer and expedition—by Federica Paddeu and Olivia Dhein, without whom this work would never have been completed.

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James Crawford Lauterpacht Centre for International Law University of Cambridge Alain Pellet Centre de droit international (CEDIN) Université de Paris Ouest Nanterre La Défense Simon Olleson 13 Old Square London 26 October 2009 (p. viii)

Footnotes: 1 Art 1(3), United Nations Charter. 2 ILC Yearbook 1949, 281. 3 A McNair, Oppenheim’s International Law, Volume I (4th edn, London, Longmans, 1928), 133– 134. 4 Reparations for Injuries Suffered in the Services of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174. 5 See eg H Lauterpacht, An International Bill of the Rights of Man (New York, Columbia University Press, 1945). 6 H Lauterpacht (ed), International Law: A Treatise, by L. Oppenheim (6th edn, London, Longmans, 1947), 19 (§13).

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Contents James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Preface v List of Contributors xviii Table of Cases xxiii Table of Statutes xlv The Work of the ILC on Responsibility lxi Select Abbreviations lxiv PART I INTRODUCTION—RESPONSIBILITY AND INTERNATIONAL LAW 1 The Definition of Responsibility in International Law 3 Alain Pellet 2 The System of International Responsibility 17 James Crawford 3 Primary and Secondary Rules 27 Eric David PART II INTERNATIONAL RESPONSIBILITY—DEVELOPMENT AND RELATION WITH OTHER LAWS Section 1 Development of the Law of International Responsibility A Responsibility for Internationally Wrongful Acts 4 The Development of the Law of Responsibility through the Case Law 37 Patrick Daillier 5 Doctrines of State Responsibility 45

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Martti Koskenniemi B The Codification Process 6 Private Codification Efforts 53 Lucie Laithier 7 The Hague Conference of 1930 61 Clémentine Bories 8 The Work of García Amador on State Responsibility for Injury Caused to Aliens 69 Daniel Müller (p. x) 9 The ILC’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts 75 Alain Pellet C Liability in the Absence of an Internationally Wrongful Act 10 Liability for Injurious Consequences of Acts Not Prohibited by International Law 95 Alan Boyle Section 2 Responsibility and the Legal System A Responsibility and the International Legal System 11 The Law of Responsibility and the Law of Treaties 105 Joe Verhoeven 12 Responsibility and the United Nations Charter 115 Vera Gowlland-Debbas 13 Leges speciales and Self-Contained Regimes 139 Bruno Simma And Dirk Pulkowski 14 The Concept of ‘Soft Responsibility’? 165 Jean-Marc Sorel B Responsibility and Municipal Law 15 Relations between the International Law of Responsibility and Responsibility in Municipal Law 173 Pierre-Marie Dupuy PART III THE SOURCES OF INTERNATIONAL RESPONSIBILITY 16 Overview of Part One of the Articles on State Responsibility 187 Gilbert Guillaume Section 1 The Notion of an Internationally Wrongful Act 17 The Elements of an Internationally Wrongful Act 193 Brigitte Stern A Attribution 18 The Rules of Attribution: General Considerations 221 Luigi Condorelli And Claus Kress 19 Attribution of Conduct to the State

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19.1 State Organs and Entities Empowered to Exercise Elements of Governmental Authority 237 Djamchid Momtaz (p. xi) 19.2 Insurrectional Movements 247 Gérard Cahin 19.3 Private Individuals 257 Olivier De Frouville 20 Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State 281 Christian Dominicé 21 State Succession and Responsibility 291 Václav Mikulka 22 The Attribution of Acts to International Organizations 297 Pierre Klein 23 The Responsibility of Other Entities 23.1 Private Individuals 317 Christian Tomuschat 23.2 Armed Bands and Criminal Groups 331 Gérard Cahin 23.3 Non-Governmental Organizations 343 Anna-Karin Lindblom B Breach of an International Obligation 24 Actions and Omissions 355 Franck Latty 25 Source of the Obligation 365 Yumi Nishimura 26 Content of the Obligation: Obligations of Means and Obligations of Result 371 Constantin P Economides 27 Duration of the Breach 383 Jean Salmon 28 Relevance of the Intertemporal Law 397 Paul Tavernier C Grave Breaches of Obligations Owed to the International Community as a Whole 29 International Crimes of States 405 James Crawford 30 The Character of the Violated Obligation 415 Antonio Cassese 31 The Character of the Breach 421 Paola Gaeta (p. xii) D Circumstances Precluding Wrongfulness From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

32 The Notion of Circumstances Precluding Wrongfulness 427 Sandra Szurek 33 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility 33.1 Consent 439 Affef Ben Mansour 33.2 Compliance with Peremptory Norms 449 maja ménard 33.3 Self-Defence 455 Jean-Marc Thouvenin 33.4 Countermeasures 469 Hubert Lesaffre 33.5 Force Majeure 475 Sandra Szurek 33.6 Distress 481 Sandra Szurek 33.7 Necessity 491 Sarah Heathcote Section 2 Responsibility in the Absence of an Internationally Wrongful Act 34 The Concept of Liability in the Absence of an Internationally Wrongful Act 503 Michel Montjoie 35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law 515 Philippe Guttinger 36 Obligations of Prevention and the Precautionary Principle 521 Gerhard Hafner And Isabelle Buffard PART IV THE CONTENT OF INTERNATIONAL RESPONSIBILITY 37 Overview of Part Two of the Articles on State Responsibility 537 Rosalyn Higgins (p. xiii) Section 1 The General Regime of Responsibility for Internationally Wrongful Acts A General Principles 38 The Obligation of Cessation 545 Olivier Corten 39 Assurances and Guarantees of Non-Repetition 551 Sandrine Barbier 40 The Obligation to Make Reparation 563 Brigitte Stern B The Modalities of Reparation

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41 Interaction Between the Forms of Reparation 573 Yann Kerbrat 42 The Different Forms of Reparation 42.1 Restitution 589 Christine Gray 42.2 Compensation 599 John Barker 42.3 Interest 613 Sir Elihu Lauterpacht And Penelope Nevill 42.4 Satisfaction 623 Eric Wyler And Alain Papaux 43 Contribution to the Injury 639 Anaïs Moutier-Lopet 44 Division of Reparation between Responsible Entities 647 Alexander Orakhelashvili Section 2 Consequences of Grave Breaches of Obligations Owed to the International Community as a Whole 45 Punitive Damages 667 Stephan Wittich 46 The Obligation of Non-Recognition of an Unlawful Situation 677 Martin Dawidowicz 47 The Obligation of Non-Assistance to the Responsible State 687 Nina Hb Jørgensen (p. xiv) 48 The Obligation of Cooperation 695 Nina Hb Jørgensen 49 International Criminal Responsibility of the State 703 Antoine Ollivier 50 The ‘Transparency’ of the State 717 Rafaëlle Maison Section 3 Specific Regimes of Responsibility 51 Responsibility for Violations of Human Rights Obligations 51.1 International Mechanisms 725 Susan Marks And Fiorentina Azizi 51.2 Inter-American Mechanisms 739 Raphaële Rivier 51.3 European Mechanisms 763 Jean-Paul Costa 51.4 African Mechanisms 775 Habib Gherari 52 Responsibility and the World Trade Organization 791

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Joanna Gomula 53 Responsibility and International Environmental Law 803 Céline Nègre 54 Other Specific Regimes of Responsibility 54.1 Investment Treaty Arbitration and ICSID 815 Zachary Douglas 54.2 The Iran-US Claims Tribunal 843 Daniel Müller 54.3 The UN Compensation Commission 849 Dražen PetroviĆ 55 Responsibility in the Context of the European Union Legal Order 861 Jean-Marc Thouvenin Section 4 Regimes of Responsibility in the Absence of an Internationally Wrongful Act A Reparation for Harmful Consequences of Acts not Internationally Wrongful 56 The ‘Polluter Pays’ Principle 877 Régis Chemain 57 Reparation in the Event of a Circumstance Precluding Wrongfulness 887 Mathias Forteau (p. xv) B Treaty-Based Mechanisms 58 Maritime Law 895 Gabriel Nakhleh And Mikael Quimbert 59 Space Law 903 Mathias Forteau 60 Nuclear Energy 915 Michel Montjoie PART V THE IMPLEMENTATION OF INTERNATIONAL RESPONSIBILITY 61 Overview of Part Three of the Articles on State Responsibility 931 James Crawford Section 1 The Injured Party A The State 62 The Concept of an Injured State 941 Giorgio Gaja 63 Plurality of Injured States 949 Rosario Huesa Vinaixa 64 States having an Interest in Compliance with the Obligation Breached 957 Giorgio Gaja 65 Succession of States in Respect of Rights of an Injured State 965 Václav Mikulka

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B International Organizations 66 Invocation of Responsibility by International Organizations 969 Eglantine Cujo C Other Entities 67 Individuals 985 Christian Tomuschat 68 Peoples and Minorities 993 Anne-Laure Vaurs-Chaumette 69 Injuries to Corporations 1005 Vaughan Lowe 70 The International Community as a Whole 1023 Anne-Laure Vaurs-Chaumette (p. xvi) Section 2 Modalities for the Implementation of International Responsibility A Conditions for Claims 71 Notice of Claim by an Injured State 1029 Jacqueline Peel 72 Waiver, Acquiescence, and Extinctive Prescription 1035 Christian J Tams B Diplomatic and Functional Protection 73 Diplomatic Protection 1051 John Dugard 74 Functional Protection 1073 Myriam Benlolo Carabot And Muriel Ubéda-Saillard C Procedures for the Peaceful Settlement of Disputes 75 The Diplomatic Channel 1085 Michael Waibel 76 Conciliation and Other Forms of Non-Binding Third Party Dispute Settlement 1099 Nadine Susani 77 Arbitration 1107 Frédérique Coulée 78 Resort to International Courts in Matters of Responsibility 1115 Gilles Cottereau Section 3 Countermeasures A The Object of Countermeasures 79 The Definition of Countermeasures 1127 Denis Alland 80 Countermeasures in Response to Grave Violations of Obligations Owed to the International Community 1137 Linos-Alexandre Sicilianos From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

B Conditions for Recourse to Countermeasures 81 Procedural Conditions 1149 Yuji Iwasawa And Naoki Iwatsuki 82 Proportionality 1157 Roger O’keefe 83 The Time Factor in the Application of Countermeasures 1169 Maurice Kamto (p. xvii) C Substantive Limits on the Recourse to Countermeasures 84 Obligations Relating to Human Rights and Humanitarian Law 1177 Silvia Borelli And Simon Olleson 85 Obligations Relating to the Use of Force and Arising from Peremptory Norms of International Law 1197 Charles Leben 86 Other Non-Derogable Obligations 1205 Laurence Boisson De Chazournes Appendices: The ILC Texts Appendix 1 Draft articles on State Responsibility provisionally adopted by the International Law Commission on first reading (1996) 1217 Appendix 2 Articles on Responsibility of States for Internationally Wrongful Acts (2001) 1229 Appendix 3 Articles on Diplomatic Protection (2006) 1237 Appendix 4 Articles on Responsibility of International Organizations adopted by the International Law Commission on first reading (2009) 1241 Index 1253

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List of Contributors James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Denis Alland Professeur de droit public, Université de Panthéon-Assas (Paris II) Fiorentina Azizi Judicial Training Officer, OSCE Office in Baku Sandrine Barbier Legal Officer, Legal Department of the French Ministry of Foreign Affairs John Barker Fellow, Lauterpacht Centre for International Law, University of Cambridge Myriam Benlolo Carabot Professeur de droit international et européen, Université de Valenciennes Affef Ben Mansour Doctorante, Université de Paris Ouest, Nanterre-La Défense Laurence Boisson De Chazournes Professeur de droit international, Université de Genève Silvia Borelli Research Fellow, Faculty of Laws, University College London Clémentine Bories Maître de Conférences, Université de Paris Ouest, Nanterre-La Défense Alan Boyle Professor of Public International Law, University of Edinburgh

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Isabelle Buffard Post-doctoral Researcher; Lecturer in International Law, Faculty of Law, University of Vienna Gérard Cahin Professeur de droit public, Université de Rennes 1 Antonio Cassese President, Special Tribunal for Lebanon Regis Chemain Maître de Conférences, Université de Paris Ouest, Nanterre-La Défense Luigi Condorelli Professor of International Law, University of Florence Olivier Corten Professeur de droit international, Université libre de Bruxelles Jean -Paul Costa President of the European Court of Human Rights Gilles Cottereau Professeur de droit international, Université du Maine Eglantine Cujo Legal Service, European Commission James Crawford Whewell Professor of International Law, Director, Lauterpacht Centre for International Law, University of Cambridge; former ILC Special Rapporteur on State Responsibility Patrick Daillier Professeur de droit international, Université de Paris Ouest, Nanterre-La Défense Eric David Professeur ordinaire de droit international, Université libre de Bruxelles Martin Dawidowicz Legal Consultant, Codification Division, United Nations Office of Legal Affairs Olivier De Frouville Professeur de droit public, Université de Montpellier 1 (p. xix) Christian Dominicé Professeur honoraire, Institut de Hautes Etudes Internationales et du Développement, Genève Zachary Douglas University Lecturer in Law, Fellow of Jesus College, University of Cambridge John Dugard Centre for Human Rights, Pretoria University; Member, International Law Commission

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Pierre -Marie Dupuy Professeur de droit international, Institut de Hautes Etudes Internationales et du Développement, Genève Constantin Economidès Emeritus Professor of International Law, University of Athens Mathias Forteau Professeur de droit international, Université de Paris Ouest, Nanterre-La Défense Paola Gaeta Professeur de droit criminal international, Université de Genève Giorgio Gaja Professor of International Law, University of Florence; ILC Special Rapporteur on the Responsibility of International Organizations Habib Gherari Professeur de droit international, Université Paul Cézanne Aix-Marseille III Joanna Gomula Fellow, Lauterpacht Centre for International Law, University of Cambridge Vera Gowlland -Debbas Professeur honoraire de droit international, Institut de Hautes Etudes et du Développement, Genève Christine Gray Professor of International Law, University of Cambridge Gilbert Guillaume former President of the International Court of Justice Philippe Guttinger Maître de Conférences, Université de Paris Ouest, Nanterre-La Défense Gerhard Hafner Professor Emeritus of International Law, University of Vienna Sarah Heathcote Senior Lecturer, Australian National University College of Law Rosalyn Higgins former President of the International Court of Justice Rosario Huesa Vinaixa Professor of International Law, University of Balearic Islands Yuji Iwasawa Professor of International Law, University of Tokyo; Chair, UN Human Rights Committee Naoki Iwatsuki

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Associate Professor of International Law, Rikkyo University Nina HB Jørgensen Senior Appeals Counsel, Special Court for Sierra Leone Maurice Kamto Professor of International Law, University of Yaoundé II; Member, International Law Commission Yann Kerbrat Professeur de droit international, Université Paul Cezanne — Aix-Marseille III Pierre Klein Professeur de droit international; Directeur, Centre de droit international, Université libre de Bruxelles Martti Koskenniemi Academy Professor, University of Helsinki (p. xx) Claus Kress Professor of Law, University of Cologne Lucie Laithier Doctorante, Université de Paris Ouest, Nanterre-La Défense Franck Latty Professeur de droit international, Université d’Auvergne Sir Elihu Lauterpacht Honorary Professor of International Law, Emeritus Director of the Lauterpacht Centre for International Law, University of Cambridge Charles Leben Professeur de droit international, Université Panthéon-Assas Hubert Lesaffre Docteur en droit public, Centre de droit international de Nanterre (CEDIN) Anna -Karin Lindblom Deputy Director, Ministry of Integration and Gender Equality, Sweden Vaughan Lowe Chichele Professor of Public International Law; Fellow of All Souls College, University of Oxford Susan Marks Professor of International Law, London School of Economics Maja Ménard Associate, Cleary Gottlieb Steen & Hamilton LLP Václav Mikulka

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Director, Codification Division, Office of Legal Affairs, United Nations Djamchid Momtaz Professor of International Law, Tehran University Michel Montjoie Docteur en droit public, Centre de droit international de Nanterre (CEDIN) Anaïs Moutier -Lopet Doctorante, Université de Paris Ouest, Nanterre-La Défense Daniel Müller Doctorante, Université de Paris Ouest, Nanterre-La Défense Gabriel Nakhleh Officer of the French navy—maritime administration Céline Nègre Chercheur associé, Centre d’études et de recherches internationales et communautaires (CERIC) Penelope Nevill Fellow and College Lecturer, Downing College, University of Cambridge Yumi Nishimura Associate Professor of International Law, University of Tokyo Roger O’Keefe University Senior Lecturer in Law, University of Cambridge; Deputy Director, Lauterpacht Centre for International Law Simon Olleson Barrister, 13 Old Square Chambers, London Antoine Ollivier Doctorante, Centre de droit international de Nanterre (CEDIN) Alexander Orakhelashvili Lecturer in Law, University of Birmingham Alain Papaux Professeur de philosophie du droit, Université de Lausanne Jacqueline Peel Associate Professor of Law, Melbourne Law School Alain Pellet Professeur de droit international; Directeur, Centre de droit international de Nanterre (CEDIN); Member of the International Law Commission Dražen PetroviĆ Principal Legal Officer, ILO, Geneva

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Dirk Pulkowski Legal Counsel, Permanent Court of Arbitration Mikael Quimbert Officer of the French Navy, Maritime Administration Raphaële Rivier Professeur de droit public, Université de Rouen (France) (p. xxi) Jean Salmon Professeur émérite de droit international de l’Université libre de Bruxelles Linos -Alexander Sicilianos Associate Professor of International Law, University of Athens Bruno Simma Judge, International Court of Justice Jean -Marc Sorel Professeur de droit international, Université Paris 1 Panthéon-Sorbonne Brigitte Stern Professeur de droit international, Université de Paris 1 Panthéon-Sorbonne Nadine Susani Docteur en droit public, Centre de droit international de Nanterre (CEDIN) Sandra Szurek Professeur de droit international, Université de Paris Ouest, Nanterre-La Défense Christian Tams Professor of International Law, University of Glasgow Paul Tavernier Professeur de droit international, Université de Paris Sud Jean -Marc Thouvenin Professeur de droit international, Université de Paris Ouest, Nanterre-La Défense Christian Tomuschat Emertius Professor, Humboldt University Berlin, Faculty of Law Muriel Ubéda -Saillard Doctorante, Université de Paris Ouest, Nanterre-La Défense Anne -Laure Vaurs Chaumette Maître de Conférences, Université de Paris Ouest, Nanterre-La Défense Joe Verhoeven Professeur de droit international, Université de Panthéon-Assas Michael Waibel

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British Academy Postdoctoral Fellow, Lauterpacht Centre for International Law, University of Cambridge Stephan Wittich Assistant Professor of International Law, University of Vienna Eric Wyler Professeur associé de droit international, Sciences Po, Paris (p. xxii)

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Table of Cases James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

44213 Ontario Ltd v Krispus Kiyonga (1992) 11 Kampala LR 14 (High Court, Uganda), 20; 103 ILR 259 249n In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (Court of Appeal, England and Wales) 494 A v France (App No 14838/89), Merits and Just Satisfaction) ECHR, Series A, No 277-B 267 A and Others v United Kingdom (App No 3455/05), ECHR, Judgement of 19 February 2009 [GC] 772 A v United Kingdom (App No 25599/94), ECHR Reports 1998-VI 278n , 730 Abbasi see R (Abbasi) Abudakar v Ghana, African Commission on Human and Peoples’ Rights, Communication No 103/93 787 Acar v Turkey (App No 24940/94), ECHR, Judgment, 18 December 2001 1103n Achutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, African Commission on Human and Peoples’ Rights, Communications 64/92, 68/92 and 78/92 786–7 nn Adali v Turkey (App No 38187/97), ECHR, Decision on Admissibility of 31 January 2002 267 ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006 565n , 601n , 606 , 609n ADF Group Inc v United States of America, ICSID Additional Facility Case No ARB(AF)/00/1, Award of 9 January 2003 203n ADM see Archer Daniels Midland Company

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Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p 3 1094–5 , 1094n Aerial Incident (Israel v Bulgaria), ICJ Reports 1959, p 127 1065 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States), Order of 22 February 1996, ICJ Reports 1996, p 9 576 , 1095n Affaire Borrel see Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) Affaire relative a la concession des phares de l’Empire Ottoman, 24 July 1956, 12 RIAA 155; 23 ILR 81 275 , 293 , 389n , 1046n , 1048 Affaire relative a l’acquisition de la nationalité polonaise (Germany v Poland), 24 July 1924, 1 RIAA 401 355 Agrotexim and others v Greece (App No 14807/89), ECHR, Series A, No 330-A (1995) 388 , 1058 , 1059 Aguas del Tunari SA v Republic of Bolivia, Decision on Jurisdiction of 21 October 2005, (2005) 20 ICSID Review 450 1019n Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections), Judgment, 24 May 2007 596 , 1005n , 1006–7 , 1010 , 1012 , 1014 , 1060 , 1124 Ahmed v Austria (App No 25964/94), ECHR Reports 1996-VI 766 AIG see American International Group Aigbe v Nigeria, African Commission on Human and Peoples’ Rights, Communication 252/2002 783n Air Service Agreement of 27 March 1946 (United States of America v France) (1978) 18 RIAA 417 472 , 1128 , 1129 , 1133 , 1153 , 1154 , 1157n , 1160 , 1161 , 1165–6 , 1170n , 1171 , 1174 Airey v Ireland (App No 6289/73), ECHR, Series A, No 32 (1979), 14 357n Akdivar and others v Turkey (App No 21893/93), ECHR Reports 1996-IV [GC] 769 Aksoy v Turkey (App No 21987/93), ECHR Reports 1996-IV 772n Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities (Case 5/71) [1971] ECR 975 (ECJ) 868n , 869 Al-Adsani v United Kingdom (App No 35763/97), ECHR Reports 2001-XI [GC] 772 Al-Jedda see R (Al-Jedda) Alabama Arbitration (US v UK), Tribunal of Arbitration, London/Geneva 1872 177–8 , 400 Alex Genin, Eastern Credit Limited, Inc and AS Baltoil v Estonia (ICSID Case No ARB/99/2)), Final Award of 25 June 2001, 6 ICSID Reports 236 1016n (p. xxiv) Alliance, (1903–1905) 9 RIAA 140 485 Aloeboetoe v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993) 605n , 748 , 749–50 , 751 , 757–8

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Ambatielos (1956) 12 RIAA 91; 23 ILR 314 140 , 1047n , 1062 Amco Asia Corporation and others v Indonesia (ICSID Case No ARB/81/1): Decision on Annulment of 16 May 1986, 1 ICSID Reports 509 839 Resubmitted Case: Award of 5 June 1990, 1 ICSID Rep 569 607n , 831 American International Group Capital Partners v Republic of Kazakhstan [2005] EWHC 2239 (Comm) (Commercial Court, England and Wales); 11 ICSID Reports 118 841 American International Group Inc and American Life Insurance Company v Iran and Central Insurance of Iran (1983) 4 Iran-US CTR 96 606 , 608n , 620n American Manufacturing and Trading Inc v Zaire (Democratic Republic of the Congo), (ICSID Case No ARB/93/1), Award of 21 February 1997, 5 ICSID Reports 11 178 , 1016n American Security and Trust Company (1958) 26 ILR 322 823n Amnesty International v Zambia, African Commission on Human and Peoples’ Rights, Communication 212/98 783n Amoco International Finance Corporation v Iran (1987) 15 Iran-US CTR 222 137n , 583 , 586n , 601n , 608n , 848 Amoco Iran Oil Company v Iran (1982) 1 Iran-US CTR 493 844n An v Cyprus (App No 18270/91), E Com HR, Decision on Admissibility, 8 October 1991; 13 HRLJ 44 659–60 Anaconda-Iran Inc v Government of the Islamic Republic of Iran et al (1986), 13 Iran-US CTR 199 478–9 Andresen (Germany/Mexico), 1930, Whiteman, Damages in International Law, Vol I, 217 476n Anglo-Iranian Oil Company case (United Kingdom v Iran), ICJ Reports 1952, p 93 1008n Apostolidi and others v Turkey (App No 45628/99), ECHR, Judgment of 27 March 2007 1184n Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, p 177 1077n , 1079 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia v Libyan Arab Republic), Judgment, ICJ Reports 1985, p192 1094n Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections (Yugoslavia v Bosnia and Herzegovina), ICJ Reports 2003, p 7 215n Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) — Provisional Measures, Order of 18 April 1993, ICJ Reports 1993, p 3 1122 — Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p 325 137 , 1122 — Preliminary Objections, ICJ Reports 1996, p 595 627 , 699 , 996 , 1122 , 1185n

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— Counter-claims, Order of 17 December 1997, ICJ Reports 1997, p 243 452n — Merits, Judgment, 26 February 2007 22 , 203 , 204 , 205–6 , 208 , 215 , 227 , 230 , 234–5 , 243 , 246 , 257 , 268–9 , 277 , 279 , 284n , 286 , 333 , 359 , 413–14 , 554 , 558 , 565n , 578n , 582 , 601n , 624n , 631n , 632 , 713 , 996n , 1185n Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, Judgment, 18 November 2008 215–16 Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), ICJ Reports 1960, p 192 1045 , 1111 Archer Daniels Midland Company and Tate & Lyle Ingredients Americas Inc v United Mexican States (ICSID Case No ARB(AF)/04/05), Award of 21 November 2007 473 , 620n , 1157n , 1158n , 1161–2 , 1165 Argentina—Measures Affecting the Export of Bovine Hides and the Import of Finished Leather (WT/DS155), WTO Panel Report, 16 February 2001 796 Arges Sequeira Mangas v Nicaragua (Case 11.218), Inter-Am Com HR, Report No 52/97 of 18 February 1998 747 , 756n Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Burundi), Order of 30 January 2001, ICJ Reports 2001, p. 3 779n (p. xxv) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), Order of 30 January 2001, ICJ Reports 2001, p. 6 779n Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168 39 , 203n , 204 , 228 , 334 , 359 , 439–40 , 441–2 , 444–5 , 462–3 , 463n , 464 , 554 , 556 , 559 , 565n , 567n , 574 , 579 , 595–6 , 601n , 671 , 779n , 960 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), ICJ Reports 2006, p 6 451 , 779n , 960 , 1185n Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Judgment, ICJ Reports 2002, p 3, 77 19–20 , 177 , 327 , 357 , 363 , 539–40 , 565n , 583–4 , 592 , 601n , 721–2 , 723 , 939 n Arthur Young & Co v Islamic Republic of Iran, 17 Iran-US CTR 245 255 Asian Agricultural Products Ltd v Sri Lanka (ICSID Case No ARB/87/3), Award of 27 June 1990, 4 ICSID Reports 250 834 , 1016n Assanidze v Georgia (App No 71503/01), ECHR Reports 2004-II [GC] 584–5 Association des fonctionnaires de l’administration centrale des Postes, Conseil d’Etat, 2 November 1923, Recueil Lebon, p 699 (France) 272n Association Ekin v France (App No 39288/98), ECHR Reports 2001-VIII 769 Association pour la défense des droits de l’Homme et des libertés v Djibouti, African Commission on Human and Peoples’ Rights, Communication 133/94 786n Atlantic Triton v Guinea (ICSID Case No ARB/84/1) (1986) 3 ICSID Reports 13 620n Attorney-General v Eichmann, 29 May 1962 (Supreme Court of Israel), (1968) 36 ILR 310 718

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Attorney-General v Mobil Oil NZ Ltd (1987) 118 ILR 620 (High Court, New Zealand) 841–2 Attorney-General v Nissan [1970] AC 179; 44 ILR 360 (House of Lords, United Kingdom) 661 Auditing of accounts between the Kingdom of the Netherlands and the French Republic pursuant to the Additional Protocol of 25 September 1976 of the Protection of the Rhine against Pollution by Chlorides, Award of 12 March 2004 (Permanent Court of Arbitration) 613 Australia—Measures Affecting Importation of Salmon—Recourse to Art. 21.5 by Canada (WT/DS18), WTO Panel Report of, 20 March 2000 795 Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, WTO Panel Report of 21 January 2000, WTO Doc WT/DS126/RW 158 , 798n Austria v Italy (‘Pfunders’) (App No 788/60), (1961) 4 Yearbook ECHR 116 1183 Austrian Citizen’s Compensation (1966) 32 ILR 153 1039n Autopista Concesionada de Venezuela CA v Bolivarian Republic of Venezuela (ICSID Case No ARB/00/5), Award of 23 September 2003, 6 ICSID Reports 417 480n , 932n Autosalone Ispra dei Fratelli Rossi Snc v European Atomic Energy Community (Case C136/01) [2002] ECR I-6565 (ECJ) 874n Avena and Other Mexican Nationals (Mexico v United States of America): — Provisional Measures, Order of 5 February 2003, ICJ Reports 2003, p 77 1125n — Judgment, ICJ Reports 2004, p 12 179n , 539–40 , 541–2 , 554 , 556 , 559 , 560 , 565n , 584 , 592–3 , 595 , 601n , 944n , 1125n Azurix Corp v Argentina (ICSID Case No ARB/01/12), — Decision on Jurisdiction of 8 December 2003, 10 ICSID Reports 412 1016n — Award of 23 June 2006, 14 ICSID Reports 215 620n Bakalian v Ottoman Bank, (1965) Clunet 1966, 118; 47 ILR 216 1008n , 1009n , 1013n Bankovic v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), Decision on admissibility, ECHR Reports 2001-XII [GC] 649n , 659–60 , 733 , 734 , 767–8 , 769 , 1184n Banro American Resources, Inc and Société Aurifèredu Kivu et du Maniema SARL v Democratic Republic of the Congo (ICSID Case No ARB/98/7), Award of 1 September 2000, (2002) 17 ICSID Review 3 1020 Barbera, Messegue and Jabardo v Spain (App Nos 10588/83; 10589/83; 10590/83), ECHR, Series A, No 285-C 605n Barberie, Moore, International Arbitrations IV, 4199 1047 , 1048 Barcelona Traction, Light & Power Company, Limited, Second Phase, ICJ Reports 1970, p 3, 32 24 , 78 , 196 , 451 , 568 , 576 , 641 , 825 , 844n , 855 , 910n , 957–8 , 977 , 980 980–1 , 1001–2 , 1006 , 1007–9 , 1010–11 , 1013 , 1014n , 1016–17 , 1018 , 1018n , 1019n , 1020n , 1023 , 1025 , 1039n , 1054 , 1057–60 , 1067–8 , 1181 , 1185 (p. xxvi) BB v United Kingdom (App No 53760/00), ECHR, Judgment of 10 February 2004 671n

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Beamglow Ltd v European Parliament, Council of the European Union and Commission of the European Communities (Case T-383/00) [2005] ECR II-5459 (CFI) 872 , 872n Beck, Copp and Bazeley v United Kingdom (App Nos 48535/99; 48536/99; 48537/99), ECHR, Judgment of 22 October 2002 604n Behrami and Behrami v France and Saramati v France, Germany and Norway (App Nos 71412/01 and 78166/01), ECHR, Decision on Admissibility of 2 May 2007 [GC] 303 , 768 Belilos v Switzerland (App No 10328/83), ECHR, Series A, No 132 (1988) [GC] 771 Belov case (1972) 1082 Bergaderm and Goupil see Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission Beyeler v Italy (Just Satisfaction) (App No 33202/96), ECHR, Judgment of 28 May 2002 [GC] 582 , 616 nn BG Group Plc v Argentina, Award of 24 December 2007 620n Biovilac see SA Biovilac NV Birgnone, Ralston, Venezuelan Arbitrations of 1903, 710 1056n Birra Wührer SpA and others v Council and Commission of the European Communities, (Case 256/80) [1982] ECR 85 (ECJ) 871 Blake v Guatemala, Merits, Inter-Am Ct HR, Series C, No 36 (1998) 389 , 727–8 , 743–4 Blazek et al v Czech Republic, Human Rights Committee, Communication No 857/1999, 12 July 2001, CCPR/C/72/D/857/1999 559n Blumenthal, Recueil des décisions des tribunaux mixtes, Vol 3 (1924), 616 1056n Bolivar Railway (Merits), 1903, 9 RIAA 445 249n Booker plc v Co-operative Republic of Guyana (ICSID Case No ARB/01/9) 436 Bosnia-Herzegovina v UK (1994) 43 ICLQ 714 308 Bosnian Genocide case see Application of the Convention on the Prevention and Punishment of the Crime of Genocide Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others (Case C-84/95) [1996] ECR I-3953 (ECJ) 873 Bosphorus Hava Yollari Turzim Ve Ticaret Anonim Sirketi v Ireland (App No 45036/98), ECHR Reports 2005-VI 312 , 663 Boues rouges case, Tribunal de Grand Instance, Bastia (France), 4 July 1985, No 123/76, Judgment 422 808n BP America Production Company, Pan American Sur SRL, Pan American Fueguina, SRL and Pan American Continental SRL v Argentina, (ICSID Case No ARB/04/8), Decision on Preliminary Objections of 27 July 2006 1016 n BP Exploration Co v Government of the Libyan Arab Republic (1973) 53 ILR 297, (1974) 53 ILR 375 583 , 585 , 595 , 600 nn

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Brannigan and McBride v United Kingdom (App Nos 14553/89 and 14554/89), ECHR, Series A, No 258-B (1993) [GC] 772n Brasserie du Pêcheur v Germany and Factortame v UK (Joined Cases C-46/93 and C-48/93), [1996] ECR I-1029 (ECJ) 153 , 356n , 865 , 868 , 869 , 870 Brazil—Export Financing Programme for Aircraft—Recourse to Arbitration by Brazil under Art. 22.6 of the DSU and Art. 4.11 of the SCM Agreement (WT/DS46/ARB), Decision by the Arbitrators, 28 August 2000 800 , 1167n Brazilian Loans, 1929, PCIJ, Series A, No 21, p 93 479 Breard see Vienna Convention on Consular Relations (Paraguay v United States of America) British Claims in the Spanish Zone of Morocco (Great Britain v Spain), 1 May 1925, 2 RIAA 615 253 , 584 , 590 , 642 Brown (United States) v Great Britain, 23 November 1923, 6 RIAA 120 293 , 294 Brumarescu v Romania (App No 28342/95), ECHR Reports 2001-I [GC] 582 , 987 Burden v United Kingdom (App No 13378/05), ECHR, Judgment of 29 April 2008 [GC] 770n Caballero Delgado and Santana v Colombia, Reparations and Costs, Inter Am-Ct HR, Series C, No 31 (1997) 749–50n Caire (France) v United Mexican States, 7 June 1929, 5 RIAA 175 181n Calcerrada Fornieles and Cabeza Mato v Spain (App No 17512/90), E Com HR, Decision on Admissibility, 6 July 1992 769 Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53 (House of Lords, United Kingdom) 101 (p. xxvii) Cameroon v Nigeria see Land and Maritime Boundary between Cameroon and Nigeria Campbell, 10 June 1931, 2 RIAA 1145 751n Camuzzi International SA v Argentina (ICSID Case No ARB/03/7): — Decision on Jurisdiction, 11 May 2005 1016–17n — Award of 18 September 2007 620n Canada/United States—Continued Suspension of Obligations in the EC—Hormones Dispute (WT/DS320, WT/DS321), Panel Report, 14 November 2008 799–800 Canada—Certain Measures Affecting the Automotive Industry (WT/DS 139, DS/142), Panel Report, 19 June 2000 796 , 796n Canada—Certain Measures Concerning Periodicals (WT/DS31), Panel/Appellate Body Reports, 30 July 1997 797 Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, WTO Appellate Body, Panel report, 31 March 2008, WTO doc WT/DS321/R 806 Canada—Export Credits and Loan Guarantees for Regional Aircraft—Recourse to Arbitration by Canada under art 22.6 of the DSU and art 4.11 of the SCM Agreement—Decision by the

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Arbitrator, WTO doc WT/DS222/ARB, 17 February 2003 1167n Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products (WT/DS103, DS113), Panel Report, 27 October 1999 796–7 Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products— Second Recourse to Art. 21.5 of the DSU by New Zealand and the United States (WT/DS103, DS113), Appellate Body report, 17 January 2003 797n Canada—Measures Relating to Exports of Wheat and Treatment of Imported Grain (WT/DS276), Panel/Appellate Body Reports, 27 September 2004 797n Cargill Inc v United Mexican States, Award (ICSID Case No ARB(AF)/05/02), Award of 18 September 2009 473 Carnevaro (1912), Scott, 1 Hague Court Reports 284 (Permanent Court of Arbitration) 1056n Castillo-Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series C, No 43 (1998) 751 , 755n , 755 nn, 758 Castillo Petruzzi et al v Peru: — Merits, Reparations and Costs, Inter Am-Ct HR, Series C, No 52 (1999) 543 , 559n — Compliance with Judgment, Inter-Am Ct HR, Series C, No 59 (1999) 759–60 Cayuga Indians (1926) 6 RIAA 189 1046–7 , 1048 Cecere v Italy (App No 68344/01), ECHR, Judgment of 24 December 2005 1103n Centros Ltd v Danish Commercial Register, (Case C-212/97) [1999] ECR I-1459 (ECJ) 1007n Certain Attributes of the Inter-American Commission of Human Rights (Advisory Opinion OC13/93), Inter-Am Ct HR, Series A, No 13 (1993) 744 Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962, p 151 305 , 662 Certain German Interests in Polish Upper Silesia, 1926, PCIJ, Series A, No 7, p 4 240 , 832 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240 43 , 282 , 283 , 399 , 657 , 663 , 1030–1 , 1038 , 1046 , 1047n , 1096 , 1096n Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 4 June 2008 228 , 555 , 632n , 1122 Ceskoslovenská Obchodní Banka, AS v Slovak Republic (ICSID Case No ARB/97/4), Decision on Objections to Jurisdiction of 24 May 1999, 5 ICSID Reports 330 823 , 840n Cesti Hurtado v Peru, Merits, Inter-Am Ct HR, Series C, No 56 (1999) 758 CFDT v European Communities (Application No 8030/77), E Com HR, (1978) 13 DR 240 312n Chattanooga, Whiteman, Damages in International Law I, 221 476n Chevreau (France v United Kingdom), 9 June 1931, 2 RIAA 1113 182 , 357 Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (WT/DS207), Appellate Body report, 23 October 2002 795n Chorherr v Austria (App No 13308/87), ECHR, Series A, No 226-B (1993) 771n

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Chorzów Factory see Factory at Chorzów Christern & Co, Becker & Co, Max Fischbach, Richard Friedericy, Otto Kummerow and A Dauman claims, German-Venezuelan Commission, 1903, 10 RIAA 363 613n Chrysostomos v Turkey (App No 15299/89), E Com HR, (1991) 68 DR 216 1184n Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, African Commission on Human and Peoples’ Rights, Communication No 218/98 778n , 786n , 787 Civil Liberties Organisation (pour le compte de l’Association des barreaux) v Nigeria, African Commission on Human and Peoples’ Rights, Communication No 101/93 787 (p. xxviii) Civil Liberties Organisation v Nigeria, African Commission on Human and Peoples’ Rights, Communication No 67/92 786n Civil Liberties Organisation v Nigeria, African Commission on Human and Peoples’ Rights, Communication No 151/96 787 Claude Sayag and SA Zurich v Jean-Pierre Leduc, Denise Thonnon and SA La Concorde (Case 9-69) [1969] ECR 329 (ECJ) 868 CME Czech Republic BV v Czech Republic, Partial Award of 13 September 2001, 9 ICSID Reports 113 356n , 565n , 601n , 608n , 1018n , 1019n CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/8), — Decision on Objections to Jurisdiction, 17 July 2003 1017n — Award of 12 May 2005, 14 ICSID Reports 152 436 , 452 , 493 , 500 , 621n , 834 , 889–90 — Decision on application for annulment, 25 September 2007, 14 ICSID Reports 251 493n , 888n Coard et al. v United States (Case 10.951), Inter-Am Com HR, Report No 109/99 of 29 September 1999 753–4n , 756n Cocchiarella v Italy (App No 64886/01), ECHR Judgment of 29 March 2006 671–2 Comité culturel pour la démocratie au Bénin, Hilaire Badjogoume, El Hadj Boubacare Diwara v Bénin, African Commission on Human and Peoples’ Rights, Joint Communications 16/88 and 17/88 780 , 786n Commission of the European Communities v Federal Republic of Germany (Case C-297/95) [1996] ECR, I-6739 (ECJ) 179n Commission of the European Communities v French Republic (‘Mutton and Lamb’) (Case 232/78), [1979] ECR 2729 (ECJ) 153 Commission of the European Communities v French Republic (Case C-304/02), [2005] ECR I6263 (ECJ) 866 Commission of the European Communities v Ireland (‘MOX Plant’) (Case C-459/03), ECR 2006 I-4635 (ECJ) 147 Commission of the European Communities v Italian Republic (Case 39/72), [1973] ECR 101 (ECJ) 358n

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Commission of the European Communities v Italian Republic (Case 199/85), [1987] ECR 1055– 1060 179n Commission of the European Communities v Luxembourg and Belgium (Joined Cases 90/63 and 91/63), [1964] ECR 625 (ECJ) 152–3 Commonwealth of Puerto Rico et al v The SS ‘Zoe Colocotroni’ et al, 628 F 2d 652 (1st Cir, 1980) , cert den 450 US 912 (1981) 808n Compagnie d’approvisionnement, de transport et de crédit SA and Grands Moulins de Paris SA v Commission of the European Communities, (Joined Cases 9/71 and 11/71) [1972] ECR 391 (ECJ) 872 Compagnie des Hauts Fourneaux de Chasse v High Authority of the European Coal and Steel Community, (Case 33/59), [1962] ECR 719 (ECJ) 872 Compañía de Aguas del Aconquija and Vivendi Universal v Argentina (ICSID Case No ARB/97/3), Decision on Annulment of 3 July 2002, 41 ILM 1135 20n Compañía del Desarrollo de Santa Elena SA v Republic of Costa Rica (ICSID Case No ARB/96/1), Award of 17 February 2000, 5 ICSID Reports 157 618 , 839n Company General of the Orinoco (1905) 10 RIAA 184 889 Comptoir national technique agricole (CNTA) SA v Commission of the European Communities (Case 74/74) [1975] ECR 533 (ECJ) 871 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v European Community), (ITLOS, Case No 7) 1119 , 1122 , 1124 Consorts Hovelaque, Conseil d’État (France), 13 January 1984 251 Constitutional Court v Peru, Competence, Inter-Am Ct HR, Series C, No 55 (1999) 753n Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria, African Commission on Human and Peoples’ Rights, Communications 140/94, 141/94 and 145/95 787n Constitutional Rights Project (on behalf of Lekwot and others) v Nigeria, African Commission on Human and Peoples’ Rights, Communication 64/93 787 Constitutional Rights Project (on behalf of Lekwot and others) v Nigeria, African Commission on Human and Peoples’ Rights, Communication 87/93 788 Continental Casualty Company v Argentina (ICSID Case No ARB/03/9), Award of 5 September 2008 620n (p. xxix) Cordis Obst und Gemüse Großhandel GmbH v Commission of the European Communities and French Republic (Case T-18/1999) [2001] ECR II-913 (CFI) 869–70 Cordova v Italy (No 1) (App No 40877/98), ECHR Reports 2003-I 772n Cordova v Italy (No 2) (App No 45649/99), ECHR Reports 2003-I 772n Corfu Channel (United Kingdom v Albania): — Preliminary Objections, ICJ Reports 1948, p 15 1122 — Merits, ICJ Reports 1949, p 1 43 , 98 , 98n , 261 , 283–4 , 355 , 357 , 358–9 , 450 ,

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499n , 507 , 578 , 604 , 624n , 632 , 636 , 658 , 671 , 888 — Assessment of the Amount of Compensation, ICJ Reports 1949, p 244 658 Corn Products International Inc v United Mexican States, Decision on Responsibility (ICSID Case No ARB(AF)/04/01), Award of 15 January 2008 473 Corus UK Ltd v Commission of the European Communities (Case T-171/99) [2001] ECR II-2967 (CFI) 614n Costa Rica v Nicaragua see Dispute Regarding Navigational and Related Rights Costa v ENEL (Case 6/64) [1964] ECR 585 (ECJ) 147 , 152 Cotesworth and Powell (Great Britain v Colombia), 5 November 1875, Moore, International Arbitrations II, 2050 273 , 274 Cour de cassation (Belgium), section française, 2me Chambre, 12 février 2003 723 Cour de cassation (France), Chambre criminelle, arrêt du 13 mars 2001 723 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others (Case C453/99) [2001] ECR I-6297 (ECJ) 864 De Courcy v United Kingdom (App No 2749/66), E Com HR, Decision on admissibility, 16 December 1966 387 Cowper (United States/Great Britain) (1822), de Lapradelle & Politis, Recueil des arbitrages internationaux I, 348 642 Cruz Varas and others v Sweden (App No 15576/89), ECHR, Series A, No 201 (1991) [GC] 766 CSOBsee Ceskoslovenská Obchodní Banka Cumaraswamy Advisory Opinion, see Difference Relating to Immunity from Legal Process Cyprus v Turkey (App Nos 6780/74 & 6950/75), E Com HR, (1975) 2 DR 125 660 Cyprus v Turkey (App No 8077/77), E Com HR, (1978) 13 DR 145 660 Cyprus v Turkey, Merits (App No 25781/94), ECHR Reports 2001-IV [GC] 267 , 660 , 677n , 764 , 767 , 1184n ‘Cysne’ see Responsibility of Germany for acts committed subsequent to 31 July 1914 Dames and Moore v Islamic Republic of Iran (1983) 4 Iran-US CTR 212 846 De Becker v Belgium (App No 214/56), E Com HR, Decision on admissibility, 9 June 1956 387 , 769 de Montfort, 10 July 1926, 3 ILR 279 1056n De Wilde, Ooms et Versyp v Belgium (App Nos 2832/66, 2835/66, 2899/66), ECHR Series A, No 15 (1972) 357n Delagoa Bay Railway (1900), in GF de Martens, Nouveau recueil général de traités, 2e serie, Vol XXX, 329 643 , 1059 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

America), Judgment, ICJ Reports 1984, p 246 169n , 1043 , 1045 , 1045n , 1092 Democratic Republic of the Congo against Burundi, Rwanda and Uganda, African Commission on Human and Peoples’ Rights, Communication No 227/99 779 Denkavit Belgie NV v Belgium (Case No 145/85) [1987] ECR 565 (ECJ) 475 Denmark v Turkey (App No 34382/97), ECHR Reports 2000-IV 555n Desert Line Projects LLC v Republic of Yemen (ICSID Case No ARB/05/17), Award of 6 February 2008 620n , 672 Diallo see Ahmadou Sadio Diallo Dickson Car Wheel Co (USA) v United Mexican States, July 1931, 4 RIAA 669 210 , 628n Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215 21 , 43–4 , 105 , 212 , 358n , 359 , 362 , 367 , 388–9 , 399 , 434 , 486–7 , 547 , 548 , 576 , 577–8 , 580–1 , 590 , 630–1 , 632 , 633n , 635n , 672 , 674 , 949–50 , 1133–4 , 1163 (p. xxx) Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 87 18 , 178–9 , 201 , 204 , 240 , 298 , 939 , 1078 , 1080–1 Dispute Over the Inter-Entity Boundary in Brcko Area, (Republika Srpska v BosniaHerzegovina), Award of 14 February 1997 677n , 678n Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, 13 July 2009, 50 554 , 558 Diversion of Water from the Meuse, 1937, PCIJ, Series A/B, No 70, p 4 829 Dix, 1903–1905, 9 RIAA 119 249 Djibouti v France see Certain Questions of Mutual Assistance in Criminal Matters Doane, Moore, Digest of International Law, VI (1906) 553 Doe v Unocal 110 F Supp 2d 1294, 1304 (CD Cal 2000) 326 Dogger Bank, United Kingdom v Russia (1905) Scott Hague Court Rep 403 542 , 553 Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities — (Case T-184/95), [1998] ECR II-667 (CFI) 871 , 872–3 , 893 — (Case C-237/98 P) [2000] ECR I-4549 (ECJ) 871–2n Drozd and Janousek v France and Spain (App No 12747/87), ECHR, Series A, No 240 182n , 650 , 767 Dual Nationality Case see Islamic Republic of Iran v United States of America (Case No A-18) Dudgeon v United Kingdom (App No 7525/76), ECHR, Series A, No 59 (1981) [GC] 386 , 765 , 768–9 Duke Energy Electroquil Partners & Or v Ecuador (ICSID Case No ARB/04/19), Award of 18 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

August 2008 620n Duke Energy v Peru (ICSID Case No ARB/03/28), Decision on Jurisdiction of 1 February 2006 817n Durand and Ugarte v Peru, Merits, Inter-Am Ct HR, Series C, No 68 (2000) 741 Dusan Beric and others v Bosnia and Herzegovina (App Nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05), ECHR, Decision on Admissibility, 16 October 2007 303 E Tête v France (App No 11123/84), E Com HR (1987) 54 DR 67 312 East Timor (Portugal v Australia), Preliminary Objections, ICJ Reports 1995, p 90 663–4 , 678 nn, 684n , 1002 , 1185n Ebrahimi v Islamic Republic of Iran (1989) 22 Iran-US CTR 138 609 , 848 Édouard Dubois et Fils SA v Council of the European Union and Commission of the European Communities (Case T-113/1996) [1998] ECR-II 125 (CFI) 867n , 870 Edwards v United Kingdom (App No 46477/99), ECHR Reports 2002-II 730 EEA I, Opinion 1/91, 14 December 1991, [1991] ECR, I-6079 (ECJ) 143 Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), (Advisory Opinion OC-2/82), Inter-Am Ct HR, Series A, No 2 (1982) 745 , 1184 Eichmann see Attorney-General v Eichmann El Amparo v Venezuela, Reparations and Costs, Inter-Am Ct HR Series C No. 28 (1996) 750 El Oro Mining and Railway Company (Limited) (Great Britain) v United Mexican States, Decision No 55, 18 June 1931, 5 RIAA 191 1064n El Salvador v Nicaragua (1917) 11 AJIL 674 (Central American Court of Justice) 591 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgment, ICJ Reports 1989, p 15 20 , 146–7 , 169n , 211 , 1013–14 , 1015 , 1016 , 1058 , 1059–60 , 1063 , 1065 Elmi v Australia, Committee against Torture, Views of 25 May 1999, UN Doc CAT/C/22/D/120/1998 728 ELSI see Elettronica Sicula SpA Embassy Limousines & Services v European Parliament (Case T-203/96) [1998] ECR II-4239 (CFI) 871 Enron Corporation and Ponderosa Assets LP v Argentina (ICSID Case No ARB/01/3), — Decision on Jurisdiction, 14 January 2004, 11 ICSID Reports 273 830–1 , 1016–17n — Award of 22 May 2007 480n , 620n , 891n (p. xxxi) Erika case see Ligue de Protection des Oiseaux et al v TotalFina et al Eritrea’s Damages Claim, Final Damages Award, 17 August 2009 (Eritrea-Ethiopia Claims Commission) 566n , 602–3 , 602n From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Esphanian v Bank Tejarat (1983) 2 Iran-US CTR 157 844–5 , 1056n Etezadi v Islamic Republic of Iran (1994) 30 Iran-US CTR 23 847 Ethiopia’s Damages Claim, Final Damages Award, 17 August 2009 (Eritrea-Ethiopia Claims Commission) 566n , 671 Eureko BV v Republic of Poland, Partial Award of 19 August 2005, 12 ICSID Reports 331 356n European Communities—Export Subsidies on Sugar. Complaint by Brazil, Panel Report, 15 October 2004, WTO doc WT/DS266/R 349–50 European Communities—Measures Affecting the Approval and Marketing of Biotech Products, (WT/DS291/R, WT/DS292/R, WT/DS293/R), Panel Report, 29 September 2006, 339–341 532 , 792n , 806 European Communities—Measures Affecting Trade in Commercial Vessels (WT/DS301), Panel Report, 20 June 2005 799n , 801 European Communities—Measures Concerning Meat and Meat Products (Hormones), Appellate Body report, 16 January 1998, WTO doc WT/DS48/AB/R 532 , 806 European Communities—Measures Concerning Meat and Meat Products (Hormones)—Original Complaint by Canada—Recourse to Arbitration by the European Communities under art 22.6 of the DSU, Decision by the Arbitrators, 12 July 1999 WTO doc WT/DS48/ARB 1167n European Communities—Measures Concerning Meat and Meat Products (Hormones)—Original Complaint by the United States—Recourse to Arbitration by the European Communities under art 22.6 of the DSU, Decision by the Arbitrators, 12 July 1999 WTO doc WT/DS26/ARB 1167n European Communities—Regime for the Importation, Sale and Distribution of Bananas (WT/DS27), Appellate Body and panel reports adopted on 25 September 1997 794 European Communities—Regime for the Importation, Sale and Distribution of Bananas— Recourse to Arbitration by the European Communities under art 22.6 of the DSU, Decision by the Arbitrators, 9 April 1999, WTO doc WT/DS27/ARB 800 , 1167n European Communities—Regime for the Importation, Sale and Distribution of Bananas— Recourse to Arbitration by the European Communities under art 22.6 of the DSU, Decision by the Arbitrators, 24 March 2000 WTO doc WT/DS27/ARB/ECU 1167n Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC; Giorgio Fedon & Figli SpA and Fedon America, Inc v Council of the European Union and Commission of the European Communities (Joined Cases C-120/06 P and C-121/06 P) [2008] ECR I-6513 (ECJ) 870 , 871—2 nn, 872—3 Factory at Chorzów, — Jurisdiction, 1927, PCIJ, Series A, No 9, p 4 5n , 43 , 538n , 539 , 563–4 , 576 , 579 , 581–2 , 586 , 589–90 , 591–2 , 597 , 600n , 609 , 639 , 648 , 677n , 739n , 839 , 831 , 1032n — Merits, 1927, PCIJ, Series A, No 17, p 4 5 , 39n , 363 , 564 , 579 , 600–1 , 600n , 705n , 748n , 831–2 , 850 , 911n , 1099 Fadeyeva v Russia (App No 55723/00) ECHR Reports 2005-IV 102n Fairén Garbi and Solís Corrales v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C,

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No 2 (1987) 755n Federal Democratic Republic of Ethiopia v State of Eritrea, Partial Award-Jus Ad Bellum, Ethiopia’s claims 1-8, Partial Award of 19 December 2005, 135 ILR 479 (Eritrea-Ethiopia Claims Commission) 423n , 463 FIAMM see Fabbrica italiana accumulatori motocarri Montecchio SpA Fijalkowska v Poland, Human Rights Committee, Communication No 1061/2002, 4 August 2005, CCPR/C/84/D/1061/2002, 559n Filártiga v Peña Irala 630 F.2d 876 (2nd Cir, 1980); (1980) 19 ILM 966 325 Finnish Ships, 9 May 1934, 3 RIAA 1479 1064 First National City Bank of New York (1958) 26 ILR 325 1039n Fisheries Jurisdiction (Spain v United Kingdom), Jurisdiction of the Court, ICJ Reports 1998, p 432 554 , 596 , 1093 Flack (1929) 5 RIAA 61 1007n Flegenheimer (1958) 25 ILR 91 1008n , 1009n , 1054 (p. xxxii) Fletcher (Roy and Alice) v United Kingdom (App No 3034/67), E Com HR, Decision on admissibility, 19 December 1967 387–8 Flexi-Van Leasing, Inc v Islamic Republic of Iran (1982) 1 Iran-US CTR 455 1019n Fogarty v United Kingdom (App No 37112/97), ECHR Reports 2001-XI [GC] 772 Foremost Tehran Inc v Islamic Republic of Iran (1986) 10 Iran-US CTR 228 846 Forests of Central Rhodopia (Greece v Bulgaria), 23 March 1933, 3 RIAA 1389 583 , 596 , 953 Forti v Suarez Mason 672 F Supp 1531, 1540 (ND Cal 1987) 326 Forum of Conscience v Sierra Leone, African Commission on Human and Peoples’ Rights, Communication No 223/98 778n France, Norway, Denmark, Sweden and the Netherlands v Turkey (App Nos 9940-9944/82), E Com HR, (1983) 35 DR 143 1184n France v Switzerland, September 1955, (1956) 3 NTIR 1 1102 Francovich and Bonifaci v Italy (Joined Cases C-6/90 and C-9/90), [1991] ECR I-5357 147 , 153 , 862 , 865 , 990 Free Zones of Upper Savoy and the District of Gex, PCIJ Series A, No 25, p 4 178 , 1086n , 1099 Fresh Marine Company SA v Commission of the European Communities (Case T-178/98) [2000] ECR II-3331 (CFI) 870 Fuchs v Commission of the European Communities (Case T-134/01) [2002] ECR II-3909 (CFI) 614n Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7 21 , 21n , 43–4 , 107–8 , 113 , 140 , 147 , 189–90 , 217 , 218 , 295–6 , 358n , 367–8 , 380n , 385–6 ,

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434 , 470 , 472 , 479–80 , 493 , 494 , 496 , 497 , 499 , 531 , 537 , 540 , 543 , 554 , 596–7 , 601n , 804 , 850 , 880 , 888 , 889 , 891 , 891n , 936 , 966–7 , 1040n , 1119 , 1125 , 1128 , 1151 , 1157n , 1161 , 1166 , 1170 , 1170n , 1175 , 1211–12 , 1212 nn Galileo International Technology LLC and Others v Commission of the European Communities (Case T-279/03) [2006] ECR II-1291 (CFI) 874 In re Gallardo et al, Inter-Am Ct HR, Series A, No 101/81, decision of 13 November 1981, 21 ILM 1424; 67 ILR 578 755n , 757 , 1039n , 1065n Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994) 749–50n , 755 nn Garrido and Baigorria v Argentina: — Merits, Inter-Am Ct HR, Series C, No 26 (1996) 755n — Reparations and Costs, Inter-Am Ct HR, Series C, No 39 (1998) 744 Gaygusuz v Austria (App No 17371/90), ECHR Reports 1996-IV 766 General Motors Corp et al v Iran (1983) 3 Iran-US CTR 1 1019n Gentini (1903) 10 RIAA 552 1046n , 1047–8 German Settlers in Poland, 1923, PCIJ, Series B, No 6, p 4 202 , 237 Giacopini (1903) 10 RIAA 594 1047n GL Solis (USA) v United Mexican States, 3 October 1928, 4 RIAA 358 253n Godínez Cruz v Honduras: — Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989) 579–80n , 739 , 743n , 750n , 755 nn — Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 10 (1990) 758n Goetz and others v Republic of Burundi (ICSID Case No ARB/95/3), Final Award of 10 February 1999, (2000) 15 ICSID Review 457 1016n Gould Marketing Inc v Ministry of National Defence of Iran, Interlocutory Award No ITL 24-492, 27 July 1983, 3 Iran-US CTR 147 477 , 478 , 847 Gradinger v Austria (App No 15963/90), ECHR, Series A, No 328-C (1995) 771n Les Grands Moulins de Paris v European Economic Community (Case 50/86), [1987] ECR 4833 (ECJ) 870 Greco-Bulgarian Communities, 1930, PCIJ, Series B, No 17, p 4 993 Grillo, Conseil d’État, 28 July 1999 251 Grimm v Islamic Republic of Iran (1983) 2 Iran-US CTR 78 845 , 848 Grisbadarna (Norway v Sweden) (1909) 11 RIAA 155 (Permanent Court of Arbitration) 1043–4 Guatemala—Cement II, Panel Report, 17 November 2000, WTO Doc WT/DS156 158 Gulf of Maine see Delimitation of the Maritime Boundary in the Gulf of Maine Area From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(p. xxxiii) Haddadi v United States (1985) 8 Iran-US CTR 20 848 Hawaiian Claims see FH Redward and others (Great Britain) v United States Heirs of Jean Maninat, 31 July 1905, 10 RIAA 55 670 Heirs of Lebas de Courmont, 21 June–21 November 1957, 13 RIAA 761 583 Heirs of the Duc de Guise, 3 April, 18 December 1950, 15 September 1951 & 20 November 1953, 13 RIAA 150 242 Hespel, Conseil d’État, 5 December 1980, Recueil Lebon 251 Hoff, Kate A, Administratrix of the Estate of Samuel B Allison, Deceased (USA) v United Mexican States, 2 April 1929, 4 RIAA 444 485 Hoppenbrouwer, UN Administrative Tribunal, Judgment No 259 of 6 November 1980 1080 Hyatt International Corporation v Government of the Islamic Republic of Iran (1985) 9 Iran-US CTR 72, 88–94 181 , 245 Ilaşcu & others v Moldova & Russia (App No 48787/99): Decision on Admissibility of 4 July 2001 [GC] 267 Merits, ECHR Reports 2004-VII [GC] 19n , 203n , 279 , 582 , 584–5 , 659–60 , 727n , 733–4 Illinois Central Railroad Co v Mexico (1923) 9 RIAA 134 613n The ‘I’m Alone’ (Canada v United States of America), 5 January 1935, 3 RIAA 1609 630 , 631 , 633n , 635n , 670 , 674 INA Corporation v Iran, (1985) 8 Iran-US CTR 373; 75 ILR 595 140–1 , 147 , 607n Inao Horimoto v The State (1966) 32 ILR 161 (Japan) 1039n Inçal v Turkey (App No 22678/93), ECHR Reports 1998-IV [GC] 770 Inceysa Vallisoletana v Republic of El Salvador (ICSID Case No ARB/03/26), Award of 2 August 2006 817 n India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Panel report, 5 September 1997, WTO doc WT/DS50/R 358n Interhandel (Switzerland v United States), Preliminary Objections, ICJ Reports 1959, p 6 576 , 1061 , 1063 , 1123 Interights (on behalf of the Pan African Movement and Inter Africa Group) v Eritrea, African Commission on Human and Peoples’ Rights, Communication 234/99 785 International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr, Civil Liberties Organisation v Nigeria, African Commission on Human and Peoples’ Rights, Communications 137/94, 139/94, 154/96, and 161/97 783n International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights) (Advisory Opinion OC-14/94), Inter-Am Ct HR, Series A, No 14 (1994) 743n , 747 International Status of South West Africa, Advisory Opinion, ICJ Reports 1950, p 128 104n , From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

450–1n International Tin Council cases see JH Rayner Ltd v Dept of Trade; Maclaine Watson v Dept of Trade Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, ICJ Reports 1950, p 221 189 , 367–8 Iran National Airlines Co v Government of the United States of America (1988) 17 Iran US CTR 214 1046n Iran-US Claims Tribunal v AS, (1985) 94 ILR 321 (Supreme Court, the Netherlands) 283n Iraq Airways Company and the Republic of Iraq v Kuwait Airways Corporation: (No 1) (1995) 103 ILR 340; (No. 5): (1998) 116 ILR 534, (Nos 4 & 5): (2002) 125 ILR 602 (House of Lords, United Kingdom) 682n Ireks-Arkady v Council and Commission (Case 238/78) [1979] ECR 2955 (ECJ) 614 Ireland v UK (App No 5310/71), ECHR Series A No 25 (1978) [GC] 160 , 391 , 727 , 769 , 772n , 1183–4 Islamic Republic of Iran v United States of America (Case No A-18) (1984) 5 Iran-US CTR 251 822 , 844–5 , 1009n Islamic Republic of Iran v United States of America (Case No A-19) (1987) 16 Iran-US CTR 288 614 , 848 Islamic Republic of Iran v United States of America (Case No A-27) (1998) 34 Iran-US CTR 39 844 , 848 n Islamic Republic of Iran v United States of America (Case No A-28) (2000) 36 Iran-US CTR 5 848n Islamic Republic of Iran v United States of America (Case No B-1) (1988) 19 Iran-US CTR 273 585 (p. xxxiv) Island of Palmas (Netherlands/USA), 4 April 1928, 2 RIAA 829 47 , 214–15 , 310n , 358 , 397 , 398 , 507 Ivcher Bronstein v Peru, Competence, Inter-Am Ct HR, Series C, No 54 (1999) 753n , 760 James Louis Drummond, 2 Knapp PC Rep 295, 12 ER 492 1056n Jan de Nul NV and Dredging International NV v Arab Republic of Egypt (ICSID Case No ARB/04/13), Decision on Jurisdiction of 16 June 2006 203n Janes et al (USA) v United Mexican States, 16 November 1925, 4 RIAA 82 633n , 670n Japan—Measures Affecting Consumer Photographic Film and Paper (WT/DS 44), Panel Report, 2 April 1998 796 Jeong-Eun Lee v Republic of Korea, Human Rights Committee, Communication No 1119/2002, 23 August 2005, CCPR/C/84/D/1119/2002 559n Jews Deported from Hungary Case (1972) 44 ILR 301 1039n JH Rayner Ltd v Department of Trade [1990] 2 AC 468 655–6 , 661–2

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John D Ouko v Kenya, African Commission on Human and Peoples’ Rights, Communication 232/99 787 John K Modise v Botswana, African Commission on Human and Peoples’ Rights, Communication 97/93 787 The ‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment of 18 December 2004, 128 ILR 267 (ITLOS) 486 Jurisdiction of the Courts of Danzig, 1928, PCIJ, Series B, No 15, p 4 7n , 1165n Kadi v Council of the European Union and Commission of the European Communities (Case T315/01), Judgment of 21 September 2005 (CFI) (see also Kadi and Al Barakaat 1186n Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, (Joined Cases C-402/05 P and C-415/05 P), Judgment of 3 September 2008 (ECJ [GC]) (see also Kadi and Yusuf and Al Barakaat ) 1186n Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, p 1045 398 Kaunda and Others v President of the Republic of South Africa, 2005 (4) South African Law Reports 235 (Constitutional Court, South Africa) 1068n Khulumani v Barclay National Bank Ltd 504 F 3rd 254 (2nd Cir, 2007) 326–7 Kingdom of Greece v Federal Republic of Germany, 26 January 1972, 47 ILR 418 (Arbitral Tribunal for the Agreement on German External Debts) 380 Kingdom of Spain v Commission of the European Communities (Case C-169/95) [1997] ECR I135 (ECJ) 866n Klass and others v Germany (App No 5029/71), ECHR, Series A, No 28 (1978) [GC] 769 Klöckner Industrie-Anlagen GmbH, Klockner Belge SA and Klockner Handelsmaatschappij BV v Republic of Cameroon and Société Camerounaise des Engrais SA (ICSID Case No ARB/81/2): Award of 21 October 1983, 2 ICSID Reports 3 42–3 Decision on Annulment, 3 May 1985, 2 ICSID Reports 95 839 Award (resubmitted case) of 26 January 1988, 14 ICSID Reports 3 42–3 Korea—Measures Affecting Government Procurement (WT/DS163), Panel Report, 19 June 2000 792n , 795 Koua Poirrez v France (App No 40892/98), ECHR Reports 2003-X 766 Krohn & Co Import—Export GmbH & Co KG v Commission of the European Communities (Case 175/84) [1986] ECR 753 (ECJ) 874 The ‘Kronprins Gustav Adolf ’, 18 July 1932 2 RIAA 1299 1038 Kurt Kampffmeyer Mühlenvereinigung KG and others v Commission and Council of the European Communities, (Joined Cases 56 to 60/74) [1976] ECR 711 (ECJ) 872 Kuwait v Aminoil (1982) 66 ILR 519 586n Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the

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European Communities, (Case C-352/98 P) [2000] ECR I-5291 (ECJ) 868n , 869 Lac Lanoux (France v Spain), 16 November 1957, 12 RIAA 281; 24 ILR 101 39 , 507 , 1093n , 1129 , 1153 Ladbroke Racing Ltd v Commission of the European Communities (Case T-32/93) [1994] ECR II-1015 (ECJ) 358 (p. xxxv) LaGrand (Germany v United States of America): Provisional Measures, ICJ Reports 1999, p 9 179n , 204–5 , 1125 Judgment, ICJ Reports 2001, p 466 42 , 43 , 179 , 242 , 538–9 , 540 , 541–2 , 543 , 552 , 553–4 , 556 , 558 , 559–60 , 561 , 591 , 594–5 , 635n , 643–4 , 943–4 , 1048 , 1154n , 1165n , 1173 Lanco International, Inc v Argentina (ICSID Case No ARB/97/6), Preliminary Decision on Jurisdiction of 8 December 1998, 40 ILM 457 1016n Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening): Preliminary Objections, ICJ Reports 1998, p 275 1094 Judgment, ICJ Reports 2002, p 303 223 , 398 , 554–5 , 592 Las Palmeras v Colombia, Preliminary Objections, Inter-Am Ct HR, Series C, No 67 (2000) 741 , 744 Lauder v Czech Republic, Award of 3 September 2001, 9 ICSID Reports 62 1018n Law Office Suleiman v Sudan, African Commission on Human and Peoples’ Rights, Communication 228/99 787 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 50 130n , 136 , 400 , 410n , 413 , 677n , 683 , 684–5 , 691 , 767 , 1000 , 1134 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136 22 , 362–3 , 410n , 411–12 , 463–4 , 463n , 493 , 494 , 498 , 499–500 , 555 , 678 , 679n , 684–5 , 691–2 , 697 , 734–5 , 982n , 1000–1n , 1185 nn, 1187n , 1195–6 Legal Resources Foundation v Zambia, African Commission on Human and Peoples’ Rights, Communication 211/98 784n , 786n , 788 Legality of Use of Force (Yugoslavia v Belgium), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 124 282n , 302–3 , 499 , 548 Legality of Use of Force (Yugoslavia v Canada), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 259 282n , 302–3 Legality of Use of Force (Yugoslavia v France), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 363 282n , 302–3 Legality of Use of Force (Yugoslavia v Germany), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 422 282n , 302–3

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Legality of Use of Force (Yugoslavia v Italy), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 481 282n , 302–3 Legality of Use of Force (Yugoslavia v The Netherlands), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 5424 282n , 302–3 Legality of Use of Force (Yugoslavia v Portugal), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 656 282n , 302–3 Legality of Use of Force (Yugoslavia v Spain), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 761 282n , 302–3 Legality of Use of Force (Yugoslavia v UK), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 826 282n , 302–3 Legality of Use of Force (Yugoslavia v US), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 916 282n , 302–3 LETCO v Liberia (ICSID Case No ARB/83/2), Award of 31 March 1986, 2 ICSID Reports 343; 26 ILM 647 616n , 839n , 1059n LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Decision on Liability, 3 October 2006 501 , 565n , 601 nn, 609 , 620n , 1016–17n , 1016n LIAMCO see Libyan American Oil Company Libyan American Oil Company (LIAMCO) v Government of the Libyan Arab Republic (1981) 20 ILM 1 596 , 600n Libyan Arab Foreign Investment Company v Republic of Burundi (1994) 96 ILR 279 478 Lighthouses case see Affaire relative a la concession des phares Ligue de Protection des Oiseaux et al v TotalFina et al, Tribunal Correctionnel de Paris, Judgment of 16 January 2008 808 (p. xxxvi) Loayza Tamayo v Peru: — Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996) 579 — Merits, Inter-Am Ct HR, Series C, No 33 (1997) 743n — Reparations and Costs, Inter-Am Ct HR, Series C, No 42 (1998) 579 , 580n , 583 , 605 , 758 — Compliance with Judgment, Inter-Am Ct HR, Series C, No 60 (1999) 759–60 Lockerbie cases see Questions of Interpretation and Application of the 1971 Montreal Convention Loewen v United States of America (ICSID Case No ARB(AF)/98/3), Award of 26 June 2003, 7 ICSID Reports 421 828 , 1061 Loizidou v Turkey (App No 15318/89), — Preliminary Objections, ECHR, Series A, No 310 (1995) [GC]; 103 ILR 622 266–7 , 269 , 660 , 732–3 , 767 , 773n , 1184n — Merits and Just Satisfaction, ECHR Reports 1996-VI (1996) [GC]; 108 ILR 443 266–7

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, 269 , 386 , 389 , 605 , 733 , 767 López Burgos v Uruguay, Human Rights Committee, Communication No 52/1979 (R 12/52), 29 July 1981, A/36/40 734 The ‘Lotus’, 1927, PCIJ, Series A, No 10, p 4 18n Ludescher v Austria (App No 35019/97), ECHR Judgment of 20 December 2001 671n Lukanov v Bulgaria (App No 21915/93), ECHR Reports 1997-II 766 The ‘Lusitania’, 1 November 1923, 7 RIAA 32 579 , 605n , 670 Lustig-Prean & Beckett v United Kingdom (Article 41) (App Nos 31417/96; 32377/96), ECHR Judgment of 27 September 1999 616n , 617n M & Co v Federal Republic of Germany (App No. 13258/87), ECHR, Decision on Admissibility, 9 February 1990, 33 YB ECHR 1990; 64 DR 145 312 , 663 The M/V ‘Saiga’ (No 2), (Saint Vincent and the Grenadines v Guinea), Judgment (1999) 38 ILM 1323 (ITLOS) 493 , 582 , 591 , 604n , 605n , 614 , 671 , 1009n Maal, 1903, 10 RIAA 730 670n , 751n The ‘Macedonian’ (United States/Chile), in de Lapradelle & Politis, Recueil des arbitrages internationaux II, 191 1046 Maclaine Watson v Department of Trade (1987) 80 ILR 46; [1988] 3 All ER 257 (House of Lords, United Kingdom) 309n , 655 , 661–2 Macmillan Inc v Bishopsgate Investment Trust Plc (No 3) [1996] 1 WLR 387 (Court of Appeal, England and Wales) 833 Maffezini v Kingdom of Spain (ICSID Case No ARB/97/7): — Decision on Jurisdiction, 25 January 2000, 5 ICSID Reports 396 817n , 1016n — Award of 13 November 2000, 5 ICSID Reports 419 619n , 620n The ‘Manouba’ (France v Italy), 6 May 1913, 11 RIAA 471 (Permanent Court of Arbitration) 631 Marckx v Belgium (App No 6833/74), ECHR, Series A, No 31 (1979), 15 357 Mariposa Development Company and Others (United States) v Panama, 25 June 1933, 6 RIAA 338 385 Martini, 3 May 1930, 2 RIAA 975 575 , 582 , 584 , 591 Massey (USA) v United Mexican States, 15 April 1927, 4 RIAA 155 241 Mathinson, in Ralston, Venezuelan Arbitrations of 1903, 438–55 1056n Matimak Trading Company Ltd v Albert Khalily et al, 118 F.3d 76 (2nd Cir, 1997) 68 BYIL 554 1008n Matthews v United Kingdom (App No 24833/94), ECHR Reports 1999-I [GC] 313 , 663 , 771 Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No 2, p 4 73 , 88–9 , 581 , 628 , 844n , 910n , 1039n , 1052 , 1076–7 , 1085n , 1086 , 1094n

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Maya Indigenous Community of the Toledo District v Belize (Case 12.053) Inter-Am Com HR, Report No 40/04, OEA/Ser.L/V/II.122 Doc 5 rev 1 (2004) 102n Mazilu case see Applicability of Article VI, Section 22 Mazurek v France (App No 34406/97), ECHR Reports 2000-II 770 McCann and Others v United Kingdom (App No 18984/91), ECHR, Series A, No 324 (1995) 987 McElhinney v Ireland (App No 31253/96), ECHR Reports 2001-XI [GC] 772 Mergé (1955) 22 ILR 455 1055–6 Metalclad v Mexico (ICSID Case No ARB(AF)/97/1), Award of 30 September 2000, 5 ICSID Reports 209 619n , 620n Metallgesellschäft Ltd and others v Commissioners of Inland Revenue and another, (Joined Cases C-397 and 410/98) [2001] ECR I-1727 (ECJ) 616n (p. xxxvii) Mexican Eagle Oil Company (1938), Whiteman, Digest of International Law VI, 1271 1007n Mexico—Taxes on Soft Drinks (WT/DS308), Panel Report, 24 March 2006 795n , 799 Middle East Cement Shipping and Handling Co SA v Egypt (ICSID Case No ARB/99/6), Award of 12 April 2002, 7 ICSID Reports 178 619n , 620n The Mikmaq Tribal Society v Canada, Human Rights Committee, Communication No 78/1980, 29 July 1984, A/39/40, 200; 79 ILR 261 997n Milani, Ralston, Venezuelan Arbitrations of 1903, 429–438 1056n Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America): — Jurisdiction and Admissibility, ICJ Reports 1984, p 392 1094n , 1123 — Merits, ICJ Reports 1986, p 14 43 , 137 , 140 , 147 , 206–8 , 232 , 234 , 243n , 245–6 , 266 , 267–8 , 270 , 333–4 , 336 , 356–7 , 362 , 423 , 461 , 462–3 , 472 , 546 , 600n , 699 , 747n , 1128 , 1202n , 1210 , 1211 MINE v Guinea, 693 F.2d 1094 (DC Cir, 1982) 842 Minister of Defence, Namibia v Mwandinghi, 1992 (2) SA 355; 91 ILR 341 (Supreme Court, Namibia) 251 Minority Schools in Albania, 1935, PCIJ, Series A/B, No 64, 17 994n MM v The Netherlands (App No 39339/98), (2004) 39 EHRR 19 267 Mobil Oil Iran Inc et al v Islamic Republic of Iran (1987) 16 Iran-US CTR 38 479n Mohtadi v Islamic Republic of Iran (1996) 32 Iran-US CTR 124 845 , 846n Monetary Gold Removed from Rome in 1943, ICJ Reports 1954, p 19 663–4 , 1002 Montijo, Moore, International Arbitrations II, 1440 178n Moses, Moore, International Arbitrations III, 3127 237

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Mossé, 7 January & 6 October 1953, 13 RIAA 486 245 Motion for allowance of interest on awards from the date until their payment, BritainVenezuela Commission, 9 RIAA 470 613n Mouvement burkinabé des droits de l’Homme et des peuples v Burkina Faso, African Commission on Human and Peoples’ Rights, Communication 204/97 787 MOX Plant (Ireland v UK), Provisional Measures, Order of 3 December 2001, 126 ILR 259 (ITLOS) 532 , 806n , 1126 MTD Equity Sdn Bhd and MTD Chile SA v Republic of Chile (ICSID Case No ARB/01/17), Decision on Annulment of 21 March 2007 570n , 619n , 621n Myrna Mack-Chang v Guatemala, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 101 (2003), 115 582 , 605 Nacaryan and Deryan v Turkey (App Nos 19558/02 and 27904/02), ECHR, Judgment of 8 January 2008 1184n Namibia case see Legal Consequences for States of the Continued Presence of South Africa in Namibia National Grid Plc v Argentina, Award of 3 November 2008 620n Nationality Decrees in Tunis and Morocco, 1923, PCIJ, Series B, No 4, p 4 1053 ‘Naulilaa’ see Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa Nauru v Australia see Certain Phosphate Lands in Nauru Nazari v Islamic Republic of Iran (1994) 30 Iran-US CTR 123 358 , 846 Neira Alegría, Reparations and Costs, Inter-Am Ct HR, Series C, No 29 (1996) 616n , 749–50n The ‘Neptune’, de Lapradelle and Politis, Recueil des arbitrages internationaux I, 139 493 Nicaragua case see Military and Paramilitary Activities in and against Nicaragua Nicaragua v Costa Rica (Interstate Case 1/06), Inter-Am Com HR, Report No 11/07 of 8 March 2007 756 Noble Energy and Machalapower Cia v Ecuador (ICSID Case No ARB/05/12), Decision on Jurisdiction of 5 March 2008 817n Noble Ventures Inc v Romania (ICSID Case No ARB/01/11), Award of 12 October 2005 819n Norris v Ireland (App No 10581/83), ECHR, Series A, No 142 (1988) [GC] 768 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands), Judgment, ICJ Reports 1969, p 3 169n , 525n , 553 , 1044n , 1086 , 1093 Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, ICJ Reports 1963, p 15 399 Norwegian Loans, ICJ Reports 1957, p 26 1038 , 1064

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Nottebohm (Liechtenstein v Guatemala), Second Phase, Judgment, ICJ Reports 1955, p 4 73 , 823 , 825 , 844n , 1008n , 1009 , 1011 , 1039n , 1053–5 , 1057 (p. xxxviii) Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, p 99 1002 Nuclear Tests (New Zealand v France): — Measures of Interim Protection, Order of 22 June 1973, ICJ Reports 1973, p. 135 1213 — Judgment, ICJ Reports 1974, p 253 1002 Oberlander and Messenger, Arbitral Award of 2 March 1897 575 Oil Platforms (Islamic Republic of Iran v United States of America): — Preliminary Objection, ICJ Reports 1996, p 803 214 , 461 — Judgment, ICJ Reports 2003, p 161 462–3 , 891n , 1094n Oleifici Mediterranei v European Economic Community (Case 26/81) [1982] ECR 3057 (ECJ) 868n Organisation mondiale contre la torture and others v Rwanda, African Commission on Human and Peoples’ Rights, Joint Communications 27/89, 46/90, 49/91, and 99/93 787n Osman v United Kingdom (App No 23452/94), ECHR Reports 1998-VIII [GC] 278 , 772n Otto-Preminger-Institut v Austria (App No 13470/87), ECHR, Series A, No 295-A (1994) 768 Ozgur Gündem v Turkey (App No 23144/93), ECHR Reports 2000-III 278n Palmisani v Istituto nazionale della previdenza sociale (Case C-261/95) [1997] ECR I-402 (ECJ) 864n Pammel v Germany (App No 17820/91), ECHR Reports 1997-IV 616n Pan American Energy LLC and BP Argentina Exploration Company v Argentina, (ICSID Case No ARB/03/13), Decision on Preliminary Objections of 27 July 2006 1016n Panevezys-Saldutiskis Railway, 1939, PCIJ, Series A/B, No 76, p 4 73 , 844n , 1053 Papachrysostomou v Turkey (App No 15300/89) E Com HR(1991) 68 DR 216 1184n Papamichalopoulos v Greece (App No 14556/89): — Merits, ECHR, Series A, No 260-B (1993) 388 , 771 — Article 50, ECHR, Series A, No 330-B (1995) 582 , 601n , 605n , 771 , 987 Paquet, 1903, 9 RIAA 323 357 Passage through the Great Belt (Finland v Denmark), ICJ Reports 1991, p 12 576 , 597 , 1032n Pellat (France) v United Mexican States, 7 July 1929, 5 RIAA 534 242 Pellegrini v Italy (App No 30882/96), ECHR Reports 2001-VIII 766 Perriquet, Conseil d’État, 15 March 1995, Recueil Lebon (France) 251 Petrolane Inc v Islamic Republic of Iran (1991) 27 Iran-US CTR 64 746 , 847

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‘Pfunders’ case see Austria v Italy Phillips Petroleum Co Iran v Islamic Republic of Iran (1983) 21 Iran-US CTR 79 606 , 608n , 847 , 848 Phosphates in Morocco, Preliminary Objections, 1936, PCIJ, Series A/B, No 74, p 28 201 , 384– 5 , 393 , 1066 Pinkerton and Roach v United States (Case 9647), Inter-Am Com HR, Report No 3/87 of 22 September 1987 753n Pinson, (1928) 4 ILR 297 1056n Plama Consortium Limited v Republic of Bulgaria (ICSID Case No ARB/03/24), Decision on Jurisdiction of 8 February 2005, 13 ICSID Reports 268 1016n Platonov v Russia, Human Rights Committee, Communication No 1218/2003, 16 November 2005, CCPR/C/85/D/1218/2003 555 Polish nationality case see Affaire relative a l’acquisition de la nationalite polonaise Pope & Talbot v Canada (2002) 7 ICSID Reports 148 619n , 620n Postal Treaty, 1903, 10 RIAA 499 613n Presbyterian Church of Sudan v Talisman Energy Inc, (2nd Cir, 2009) 327n Prefet de police v M. Ihsen Mtimet, Conseil d’Etat Sect, 16 May 2001, 2001 Revue de droit public 655–6 272n Prosecutor v Akayesu, ICTR, Case No 96-4-T, Judgment, Appeals Chamber, 2 September 1998 252 Prosecutor v Blaskić, ICTY, Case IT-95-14-AR 108bis, Decision on the Objection to the Issue of Subpoenae Duces Tecum, Appeals Chamber, 29 October 1997, 110 ILR 688 190n , 214 , 233n , 713 , 982 Prosecutor v Delalić (Celebici Camp), ICTY, Case No IT-96-21-T, Judgment, Trial Chamber, 10 December 1998 254 Prosecutor v Kallon, Case No SCSL-04-15-AR-72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004 (Appeals Chamber, Special Court for Sierra Leone) 251 Prosecutor v Kamara, Case No SCSL-04-16-AR-72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004 (Appeals Chamber, Special Court for Sierra Leone) 251 (p. xxxix) Prosecutor v Kupreškić, ICTY, Case No IT-95-16-T, Judgment of 14 January 2000 1193–4 , 1194n , 1195 Prosecutor v Martić; ICTY, Case No IT-95-11-R61, Decision on Review of Indictment Pursuant to Rule 61, 8 March 1996 1193–4 , 1194n Prosecutor v Tadić, ICTY, Case No IT-94-1-A, — Judgment, Trial Chamber I, 8 November 1994, 101 ILR 8 179 — Judgment, Appeals Chamber, 2 October 1995 132n

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— Judgment, Trial Chamber, 7 May 1997, 112 ILR 1 207–8 , 254 , 267 , 270 — Judgment, Appeals Chamber, 15 July 1999, 124 ILR 61 206 , 207–8 , 227 , 230 , 234n , 267 , 270–1 PSEG Global Inc v Turkey (ICSID Case No ARB/02/05), Award of 1 January 2007 621n Public Trustee v Chartered Bank of India, Australia and China (1956) 23 ILR 687 1039n Pulp Mills on the River Uruguay (Argentina v Uruguay), Request for the Indication of Provisional Measures, Order of 13 July 2006, ICJ Reports 2006, p 113 805 , 1087 Purohit and Moore v Gambia, African Commission on Human and Peoples’ Rights, Communication 241/101 785 , 787 , 788 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p 3 121 , 130n , 299 , 721 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p 114 121 , 130n , 721 Quillevere v France (App No 61104/00), ECHR, Judgment of 27 October 2005 1103n R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department (Court of Appeal, England and Wales) [2002] ECWA Civ 1598; 126 ILR 685 660 , 1068n R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 (House of Lords, United Kingdom) 303 , 452 R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (Nos 1 & 3), (1998/1999) 119 ILR 50 (House of Lords, United Kingdom) 721 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd (Case C-5/94) [1996] ECR I-2553 (ECJ) 865 R v Perka [1984] 2 SCR 232 (Supreme Court of Canada) 494 Radio-Orient Company, 2 April 1940, 3 RIAA 1871 583 Railway Traffic between Lithuania and Poland, 1931, PCIJ, Series A/B, No 42, p 4 1093n The ‘Rainbow Warrior’ see Difference between New Zealand and France Rankin v Islamic Republic of Iran (1987) 17 Iran-US CTR 135 249 , 845 , 846 , 847 , 848 Rann of Kutch (1976) 50 ILR 2 1043n Ratiani v Georgia, Human Rights Committee, Communication No 975/2001, 4 August 2005, CCPR/C/84/D/975/2001 555 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174 6–7 , 17–18 , 201 , 298 , 299 , 601n , 648 , 660–1 , 739n , 970 , 971 , 972 , 975 , 994 , 1055 , 1074–5 , 1077 , 1078–80 , 1082 , 1124 Republic of Ecuador v Occidental Exploration and Production Co [2006] QB 432; 12 ICSID Reports 129 (Court of Appeal, England and Wales) 932n

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Republic of Somalia v Woodhouse [1993] 1 All ER 371 (High Court, Queen’s Bench Division, England and Wales) 1011–12 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, ICJ Reports 1995, p 288 529 , 531 , 593 , 806 , 1213 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15 411 , 699 , 1183 Responsibility of Germany for acts committed subsequent to 31 July 1914 and before Portugal entered into the war (‘Cysne’) (Portugal v Germany), 30 June 1930, 2 RIAA 1035 471 Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa (‘Naulilaa’) (Portugal v Germany), 31 July 1928, 2 RIAA 1011 471 , 476 , 1130 , 1151 , 1157n , 1166 , 1177 Retimag SA v Federal Republic of Germany (App No 712/60), 4 ECHR Yearbook 385 1064 (p. xl) Right of Passage over Indian Territory, Merits, ICJ Reports 1960, p 6 140n The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (Advisory Opinion OC-16/99), Inter-Am Ct HR, Series A, No 16 (1999) 744 Rights of Nationals of the United States of America in Morocco (France v United States), ICJ Reports 1952, p 212 211n Robert E Brown, 23 November 1923, 6 RIAA 120 1064 Robins et al v Secretary of State for Work and Pensions (Case C-278/05) [2007] ECR I-1053 (ECJ) 865 Roula (1957) 4 NTIR 69 1102n , 1103 Rozas v United States, Moore, International Arbitrations III, 3125 237 Rumeli Telekom AS & Or v Kazakhstan (ICSID Case No ARB/05/16), Award of 29 July 2008 620n Russian Indemnity, 11 November 1912, 11 RIAA 421 442 , 479 , 493 , 1037 , 1038 SA Biovilac NV v European Economic Community (Case 59/83) [1984] ECR 4057 (ECJ) 871 Salam Lerma Vda de Galvan (United Mexican States) v United States of America, 21 July 1927, 4 RIAA 273 242 Salem, 8 June 1923, 2 RIAA 1161 1055 Salini v Morocco (ICSID Case No ARB/00/4), Decision on Jurisdiction of 23 July 2001, 6 ICSID Reports 400 817n Sambiaggio, (1903) 10 RIAA 499 253n Saramati v France, Germany and Norway see Behrami and Behrami v France Savarkar, 24 February 1911, 11 RIAA 243 442 Schneider Electric SA v Commission of the European Communities (Case T-351/03), [2007] ECR II-2237 (CFI) 869n

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Scordino v Italy (No 1) (App No 36813/97), ECHR Reports 2006-V 616n SD Myers Inc v Canada, Award on Liability of 13 November 2000, 8 ICSID Rep 3 601n , 609 , 619n , 620n Sea-Land Services Inc v Islamic Republic of Iran (1984) 6 Iran-US CTR 149 847 SEDCO, Inc v National Iranian Oil Co and Iran, Case No 129 of 24 October 1985, (1987) 84 ILR 484 607n , 822n , 1059n Selmouni v France (App No 25803/94), ECHR Reports 1999-V [GC] 765 Sempra Energy International v Argentina (ICSID Case No ARB/02/16): — Decision on Jurisdiction of 11 May 2005 1016–17n — Award of 28 September 2007 480 , 620n Sempra Metals Limited (formerly Metallgesellschaft Ltd) v Commissioners of Inland Revenue [2007] UKHL 34, [2007] 3 WLR 354, [2007] 4 All ER 657 (House of Lords, United Kingdom) 614n Senator Lines GmbH v The Fifteen Member States of the European Union (App No 56672/00), ECHR Reports 2004-IV [GC] 768 SERAC v Nigeria, African Commission on Human and Peoples’ Rights, Communication 155/96 102n Serbian Loans, 1929, PCIJ, Series A, No 20, p 6 73 , 479 Short v Islamic Republic of Iran (1987) 16 Iran-US CTR 76 255 , 846n , 847 Siag & Vecchi v Egypt (ICSID Case No ARB/05/15), Award of 1 April 2009 620n Siemens AG v Argentina (ICSID Case No ARB/02/8), Award of 17 January 2007 620n Siemens SA v Commission (Case T-459/93) [1995] ECR II-1675 (CFI) 614n Sir Dawda K Jiwara v Gambia, African Commission on Human and Peoples’ Rights, Communications 147/95 and 149/96 784 nn, 785 , 997n Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v Sri Lanka, Human Rights Committee, Communication No. 1249/2004, 18 November 2005, CCPR/C/85/D/1249/2004 555 Social and Economic Rights Action Centre, Centre for Economic Rights v Nigeria, African Commission on Human and Peoples’ Rights, Communication 155/96 788 , 997 , 997n Société à responsabilité limitée Unifrex v Commission and Council of the European Communities (Case 281/82) [1984] ECR 1969 (ECJ) 874 Société Anonyme du Charbonnage Frédéric Henri v Germany (1921) 1 ILR 227 1008n Société Nachfolger Navigation Co. Ltd. (1988) 104 Revue de droit international public et de la science politique 851 493–4 Société Radio Orient, 2 April 1940, 3 RIAA 1871 591 (p. xli) Société Verdol—Decisions Nos 20 et 34, 15 April and 16 November 1949, 13 RIAA 94 239 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Socony Vacuum Oil Company (1954) 21 ILR 55 293 Soering v United Kingdom (App No 14038/88), ECHR Series A, No 161 (1989) [GC] 766 SOS Esclaves v Mauritania, African Commission on Human and Peoples’ Rights, Communication 198/97 783n Sosa v Alvarez-Machaín 542 US 692; 124 S Ct 2739 (2004) (United States of America, Supreme Court) 19n , 325–6 Soufraki v United Arab Emirates (ICSID Case No ARB/02/07): — Award of 7 July 2004, 12 ICSID Reports 156 823–4 — Decision on Annullment of 5 June 2007 825 South West Africa (Ethiopia v South Africa; Liberia v South Africa): — Preliminary Objections, ICJ Reports 1962, 319 450–1n , 1094n — Second Phase, Judgment, ICJ Reports 1966, p 6 959 , 971 , 1001 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, 117 ILR 148 (ITLOS) 531–2 SpA Eridania-Zuccherifici nazionali and SpA Società Italiana per l’Industria degli Zuccheri v Minister of Agriculture and Forestry, Minister for Industry, Trade and Craft Trades, and SpA Zuccherifici Meridionali, (Case 230/78) [1979] ECR 2749 (ECJ) 869 Spader (1903/1905) 9 RIAA 223 1046n Speed Investments v Formula One Holdings Ltd [2004] EWCA Civ 1512 (Court of Appeal, England and Wales) 1008n Sporrong and Lönnroth v Sweden (App Nos 7151/75 and 7152/75), ECHR, Series A, No. 52 (1982); 5 EHRR 617 102n , 603n SPP(ME) v Egypt (ICSID Case No ARB/84/3), Award, 20 May 1992, 3 ICSID Reports 189 620n , 839n The SS ‘Wimbledon’, 1923, PCIJ Series A, No 1, p 4 4 , 43 , 142–3 , 178 , 492 , 614 , 621 , 643 , 656 , 791n , 817 , 1008 Stanwick Corporation v Islamic Republic of Iran (1990) 24 Iran-US CTR 102 846 Starrett Housing Corp v Iran, — (1983) 4 Iran-US CTR 122; (1983) 85 ILR 349 1014 — (1987) 16 Iran-US CTR 112 607n , 608n , 609 Steffens v Council of the European Union and Commission of the European Communities (Case T-222/97) [1998] ECR II-4175 (CFI) 870 Stevenson (1903) 9 RIAA 385 1048 , 1056n Stocke v Germany (App No 11755/85) ECHR, Series A, No 199 (1991) 267 Stögmüller v Austria (App No 1602/62), ECHR, Series A, No 9 (1969) 769 Stran Greek Refineries v Greece (App No 13427/87), ECHR, Series A, No 301-B (1995) 616nn

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‘Street Children’ Case (Villagrán-Morales et al v Guatemala), Reparations and Costs, Inter-Am Ct HR, Series C, No 77 (2001) 616n Suárez Rosero v Ecuador, Provisional Measures, Order of 12 April 1996 (Inter-Am Ct HR) 543 Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal, SA v Argentina, (ICSID Case No ARB/03/19), Decision on Jurisdiction of 3 August 2006 1016n Swordfish Stocks see Conservation and Sustainable Exploitation of Swordfish Stocks Sylvania Technical Systems, Inc v Iran (1985) 8 Iran-US CTR 298 618 , 621 Tagliaferro (1903) 10 RIAA 593 1047n , 1048 Taskin v Turkey (App No 46117/99) ECHR Reports 2004-X 102n Tàtar v Romania (App No 67021/01), ECHR, Judgment of 27 January 2009 525n , 532 Tatsuji Saito, Hackworth, Digest, Vol V, 586 641 Técnicas Medioambientales Tecmed, SA v Mexico (ICSID Case No ARB (AF)/00/2), Award of 29 May 2003, 10 ICSID Reports 130 619n , 620n Tehran Hostages see United States Diplomatic and Consular Staff in Tehran Tellech, 25 May 1928, 6 RIAA 248 1056n Tellini (Italy v Greece), Decision of the Conference of Ambassadors, September 1923 633n Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6 578 , 583 , 592 , 1043 , 1044n , 1045 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue (Case C-446/04) [2006] ECR I-11753 (ECJ) 865–6 (p. xlii) Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libyan Arab Republic (1977) 53 ILR 389; 104 JDI 350 362 , 575n , 582–3 , 595 , 600n Timurtas v Turkey (App No 23531/94), ECHR Reports 2000-VI 754n Tippetts, Abbett, McCarthy, Stratton v TAMS-AFFA Consulting Engineers of Iran and others (1984) 6 Iran-US CTR 219 356 Togen Akiyama v The State (1966) 32 ILR 233 1039n Tokios Tokeles v Ukraine (ICSID Case No ARB/02/18), Decision on Jurisdiction of 29 April 2004, 11 ICSID Reports 313 822n , 826–8 TOPCO see Texaco Overseas Petroleum Co Torres Ramírez v Uruguay, Human Rights Committee, Communication No 4/1977 (R1/4), 23 July 1980, A/35/40, 125 542 Tradex Hellas SA v Albania (ICSID Case No ARB/94/2), Decision on Jurisdiction of 24 December 1996, 5 ICSID Reports 43 817n Trail Smelter Arbitration (United States of America/Canada), 16 April 1938 and 11 March 1941, 3 RIAA 1905 39 , 98n , 507 , 553 , 604n , 804 Treatment in Hungary of Aircraft and Crew of United States of America, ICJ Reports 1954, p From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

103 649n Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, 1932, PCIJ, Series A/B, No 44, p 4 211 Trial of Pakistani Prisoners of War, ICJ Reports 1973, p 347 1095 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg (Nuremberg: International Military Tribunal, 1948) 712–13 , 717 , 719 Tribunal Correctionnel, Versailles, Decision of 12 January 2006 498 Turkey—Restrictions on Imports of Textile and Clothing Products (WT/DS34), Panel Report, 31 May 1999 795–6 Tyrer v United Kingdom (App No 5856/72), ECHR, Series A, No 26 (1978), 15–16 400 , 771n Überseering BV v NCC Nordic Construction Company Baumanagement GmbH (Case C208/00) [2002] ECR I-9919 (EJC) 1007n United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3 10 , 43 , 142–3 , 150–1 , 224 , 231–2 , 241 , 274–5 , 284n , 358 , 361 , 362 , 386 , 388 , 398–9 , 472 , 523 , 546 , 592 , 747n , 791n , 843 , 943 , 1063 , 1094 , 1128 , 1147n , 1153 , 1173 , 1206–7 United States—Anti-Dumping Act of 1916 (Original Complaint by the European Communities) —Recourse to Arbitration by the United States under art 22.6 of the DSU, Decision by the Arbitrators, 24 February 2004, WTO doc WT/DS136/ARB 1167n United States—Continued Dumping and Subsidy Off set Act of 2000—Original Complaint by Brazil— Recourse to Arbitration by the United States under art 22.6 of the DSU, Decision by the Arbitrator, 31 August 2004 WTO doc WT/DS217/ARB/BRA 1167n United States—Continued Suspension of Obligations in the EC—Hormones Dispute, Appellate Body report, 16 October 2008, WTO doc WT/DS320/AB/R 472–3 United States—Definitive Safeguard Measures on Imports of Certain Steel Products, Appellate Body report, 10 November 2003, WTO doc WT/DS248/AB/R 156–7 , 472 United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (WT/DS202), Appellate Body report, 8 March 2002 800–1 United States—Import Measures on Certain Products from the European Communities (WT/DS165), Appellate Body report, 10 January 2001 799n United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (WT/DS285), Panel Report, 10 November 2004 795 United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services —Recourse to Arbitration by the United States under art 22.6 of the DSU, Decision by the Arbitrator, 21 December 2007, WTO doc WT/DS285/ARB 1167n United States—Sections 301–310 of the Trade Act of 1974, Panel Report, 22 December 1999, WTO doc WT/DS152/R 156–7 , 542 , 799n United States—Standards for Reformulated and Conventional Gasoline, Appellate Body report, 29 April 1996, WTO Doc WT/DS2/AB/R 143 , 792

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(p. xliii) United States—Subsidies on Upland Cotton—Recourse to Arbitration by the United States under art 22.6 of the DSU and art 4.11 of the SCM Agreement, Decision by the Arbitrator, 31 August 2009, WTO doc WT/DS267/ARB/1 1167n United States—Subsidies on Upland Cotton—Recourse to Arbitration by the United States under art 22.6 of the DSU and art 7.10 of the SCM Agreement, Decision by the Arbitrator, 31 August 2009, WTO doc WT/DS267/ARB/2 & Corr.1 1167n United States—Tax Treatment for ‘Foreign Sales Corporations’. Recourse to Arbitration by the United States under Art. 22.6 of the DSU and Art. 4.11 of the SCM Agreement, Decision of the Arbitrator, 30 August 2002, WTO doc WT/DS108/ARB 800 , 1167n United States—Transitional Safeguard Measures on Combed Cotton Yarn from Pakistan (WT/DS192), Appellate Body Report, 5 November 2001 800 , 1157 n Van Gend en Loos (Case 26/62), [1963] ECR 1 (ECJ) 152 Velásquez Rodríguez v Honduras: — Preliminary Objections, Inter-Am Ct HR, Series C, No 1 (1987) 755n — Merits, Inter-Am Ct HR, Series C, No 4 (1989) 356 , 579–80n , 601n , 605n , 671 , 727 , 729 , 743n , 745–6 , 748 , 754 , 987 , 1064 — Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989) 739 , 748–9 , 749–50n , 751 , 758 — Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 9 (1990) 758 Verdol see Société Verdol Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996 747 , 756 Vienna Convention on Consular Relations (Paraguay v United States of America), ICJ Reports 1998, p 298 594–5 Vilvarajah and others v United Kingdom (App Nos 13163/87; 13164/87; 13165/87; 13447/87; 13448/87), ECHR Series A, No 215 (1991) 766 Vracaritch (1962) RGDIP 376 542 , 553 Wainwright v United Kingdom (App No 12350/04), ECHR Judgment of 26 September 2006 671n Waite & Kennedy v Germany (App No 26083/94), ECHR Reports 1999-I 663 Walter Fletcher Smith, 2 May 1929, 2 RIAA 913 583 , 597 Weinberger v Uruguay, Communication 28/1978, Human Rights Committee, 29 October 1980, Selected Decisions, Vol 1, 57 1064n Wena Hotels Limited v Egypt (ICSID Case No ARB/98/4): Award of 8 December 2000, 6 ICSID Reports 89 620n , 835–7 Decision on Annulment of 5 February 2002, 6 ICSID Reports 129 836–7 Westland Helicopters (1988) 80 ILR 658 309n

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‘White Van’ Case (Paniagua-Morales and others v Guatemala), Reparations and costs, InterAm Ct HR, Series C, No 76 (2001), 27 582 , 750 , 755n Wilson (1894), Moore, Digest of International Law VI, 745 634 World Against Torture, Lawyers’ Committee for Human Rights, Union africaine des droits de l’Homme, Les Témoins de Jéhovah v Zaïre, African Commission on Human and Peoples’ Rights, Joint Communications 25/89, 47/90, 56/91 and 100/93 780 X v France (App No 18020/91), ECHR, Series A, No 234-C (1992) 768 X and Y v The Netherlands (App No 8978/80), ECHR, Series A, No 91 (1985) 278n X, Y, and Z v United Kingdom (App Nos 8022/77, 8027/77), (1980) E Com HR, 18 DR 66 1064 Yeager v Islamic Republic of Iran (1987) 17 Iran-US CTR 92 249n , 266 , 273 , 845 , 847 Young, James and Webster v United Kingdom (App Nos 7601/76; 7806/77), ECHR, Series A, No 44 (1981) 766 Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Case T-306/01), Judgment of 21 September 2005 (CFI) (see also Kadi and Al Barakaat ) 130n , 137n , 1186n Z and Others v United Kingdom (App No 29392/95), ECHR Reports 2001-V [GC] 730 , 772n ‘Zoe Colocotroni’ case see Commonwealth of Puerto Rico et al v The SS Zoe Colocotroni et al Zuzich (1954) (Foreign Claims Settlement Commission, United States of America) 577–8 (p. xliv)

Footnotes: 9 For a contrary solution, see the decision of the High Court of Uganda in relation to the nonexecution of a contract concluded by the rebels with a Canadian company: 44213 Ontario Ltd v Krispus Kiyonga (1992) 11 Kampala LR 14, 20; 103 ILR 259, 266. 99 The jurisprudence offers many examples of responsibility by catalysis. See eg in relation to article 8, X and Y v The Netherlands (App No 8978/80), ECHR, Series A, No 91 (1985), concerning the impossibility of bringing criminal proceedings with regard to the perpetrator of sexual violence against a mentally handicapped minor. See also, with regard to article 3, A v The United Kingdom (App No 25599/94), ECHR Reports 1998-VI; or on the subject of the freedom of expression (art 10): Özgur Gündem v Turkey (App No 23144/93), ECHR Reports 2000-III. 20 For example, Paolo Cecere v Italy (App No 68344/01), ECHR, Judgment, 24 December 2005; Quillevere v France (App No 61104/00), ECHR, Judgment, 27 October 2005; Acar v Turkey (App No 24940/94), ECHR, Judgment, 18 December 2001. 57 See Communications 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria; Communications 64/92, 68/92 and 78/92, Achutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi in which the Commission emphasized that the new government inherited the international obligations of the previous regime, including those obligations in the field of State responsibility. 12 The ICJ affirmed the obligation to make full reparation (citing article 31) in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 460. See also Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 31–32 (para 76); Avena and Other Mexican Nationals (Mexico v United States of America), ICJ

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Reports 2004, p 12, 59 (para 119); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 257 (para 259); Reports and Recommendations made by the Panel of Commissioners concerning Part Three of the Third Instalment of ‘F3’ Claims, 18 December 2003 (UN Doc S/AC.26/2003/15), para 220(c); ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006, para 484; CME Czech Republic BV v Czech Republic, Partial Award of 13 September 2001, para 616; LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Award on Damages of 25 July 2007, para 31. 12 See CME v Czech Republic, Partial Award (2001) 9 ICSID Rep 113, 238–9 (paras 615–8); Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189, 246–251 (paras 189–206) (Iran-United States Claims Tribunal); LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Award on Damages of 25 July 2007, para 31; ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006, para 484. 48 As noted above, a similar approach was adopted in ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006, para 484. To avoid double compensation, interest was also to run from the date of the Award. 28 See eg Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 251 (para 243); ADF Group Inc v United States of America (ICSID Additional Facility Case No ARB(AF)/00/1), Award of 9 January 2003, para 190 & fn 184; Jan de Nul NV and Dredging International NV v Arab Republic of Egypt (ICSID Case No. ARB/04/13), Decision on Jurisdiction of 16 June 2006, para 89; Ilasçu and others v Russia and Moldova (App No 48787/99), ECHR Reports 2004-VII, para 319. 49 Aegean Sea Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29) (‘the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function’). 52 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order of 22 February 1996, ICJ Reports 1996, p 6 (case discontinued following settlement of dispute arising out of the destruction of an Iranian aircraft with 290 passengers and crew). 25 See Affaire relative à la concession des phares de l’empire Ottoman, 24/27 July 1956, 12 RIAA 155, 198. See Chapter 21. 67 See Williams (1898) in JB Moore, 4 History and Digest of International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 4184; Gentini (1903) 10 RIAA 552; Spader (1903/1905) 9 RIAA 223; Lighthouses (1956) 12 RIAA 186; Iran National Airlines Co v Government of the United States of America (1988) 17 Iran US CTR 214; and cf C Rousseau, Droit international public, vol V (Paris, Sirey, 1983), 181–182, K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 272–280. 85 CME Czech Republic BV (The Netherlands) v Czech Republic, Partial Award, 13 September 2001, (2006) 9 ICSID Reports 113; Aguas del Tunari SA v Republic of Bolivia, Decision on Jurisdiction, 21 October 2005, (2005) 20 ICSID Review 450. 1 This paper was written in 2001, and thanks are due to Dr Monique Sasson who revised the paper in 2009 for publication at the request of the editors. Had the paper been written today, in the light of developments in the ILC and in international arbitration (and notably in ICSID arbitrations), the paper would have had a rather different structure. It is, however, too soon to say what effect the ILC Articles of 2006 and the range of views expressed in recent arbitral awards will have on the development of customary international law. The need for caution in this respect is evident in the light of the decision of the ICJ in the Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, para 90.

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41 See eg the decisions of inadmissibility in Communications 198/97, SOS Esclaves v Mauritania, and Communication 252/2002, Stephen O Aigbe v Nigeria. 1 See eg Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (‘Naulilaa’), 31 July 1928, 2 RIAA 1011, 1028; ‘Le Régime de représailles en temps de paix’, Annuaire de l’IDI 1934, 708, art 6(2); Air Services Agreement of 27 March 1946 (United States of America v France), 9 December 1978, 18 RIAA 416, para 83; Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, para 85; Commentary to art 51, para 2. 4 ARSIWA art 52(1)(a) in conformity with art 43 establishing the procedure that an injured State must follow to invoke the responsibility of another State. This condition, sometimes called ‘sommation’ was emphasized both by arbitral tribunals and the ICJ: Air Services Agreement of 27 March 1946 (United States of America v France), 9 December 1978, 18 RIAA 416, 444 (paras 85– 87); Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 56 (para 84), and has been considered to correspond to a general practice, see Commentary to art 52, para 3. 20 Marckx v Belgium (App No 6833/74), ECHR, Series, A No 31 (1979), 15 (para 31); see also De Wilde, Ooms et Versyp v Belgium (App Nos 2832/66, 2835/66, 2899/66), ECHR Series A No 15 (1972); Airey v Ireland (App No 6289/73), ECHR, Series A, No 32 (1979), 14 (para 25). 49 See Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 [GC] (1978); Brannigan and McBride v United Kingdom (App Nos 14553/89; 14554/89), ECHR, Series A, No 258B [GC] (1993); Aksoy v Turkey (App No 21987/93), ECHR Reports 1996-IV. A and other's v United Kingdom (App No 3455/05), ECHR Judgment of 19 February 2004 [GC]. 21 See eg Case 5/71, Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975 (para 11); Case C-352/98 P, Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the European Communities [2000] ECR I-5291 (paras 41, 42). 70 See eg on claims brought by shareholders in investment treaty disputes: Asian Agricultural Products Limited v Democratic Socialist Republic of Sri Lanka, Final Award, 27 June 1990, 4 ICSID Reports 245; American Manufacturing & Trading, Inc v Democratic Republic of the Congo, Final Award (21 February 1997), 5 ICSID Reports 11; Antoine Goetz and others v Republic of Burundi, Final Award (10 February 1999), (2000) 15 ICSID Review 457; Lanco International, Inc v Argentine Republic, Preliminary Decision on Jurisdiction, 8 December 1998, 40 ILM 457; Emilio Agustín Maffezini v Kingdom of Spain, Decision on Jurisdiction, 25 January 2000, 5 ICSID Reports 396; Alex Genin, Eastern Credit Limited, Inc et AS Baltoil v République d’Estonie, Final Award, 25 June 2001, 6 ICSID Reports 236; Azurix Corp v Argentine Republic, Decision on Jurisdiction, 8 December 2003, 10 ICSID Reports 412; LG & E Energy Corp, LG & E Capital Corp. and LG & E International Inc v Argentine Republic, Decision on Objections to Jurisdiction, 30 April 2004, 11 ICSID Reports 411; Plama Consortium Limited v Republic of Bulgaria, Decision on Jurisdiction, 8 February 2005, 13 ICSID Reports 268; Suez, et al v Argentine Republic, Decision on Jurisdiction, 3 August 2006, ; Pan American Energy LLC, and BP Argentina Exploration Company v The Argentine Republic, BP America Production Company, Pan American Sur SRL, Pan American Fueguina, SRL and Pan American Continental SRL v The Argentine Republic, Decision on Jurisdiction, 27 July 2006, . 27 See eg Velásquez Rodríguez v Honduras, (Reparations and Costs), Inter-Am Ct HR, Series C, No 7 (1989), para 39; Aloeboetoe v Suriname, (Reparations and Costs), Inter-Am Ct HR, Series C, No 15 (1993), paras 54ff. 73 See eg Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 253– 254 (para 32); Ambatielos, (1956) 23 ILR 314–317. 38 See observations in Amco Asia Corporation and others v Indonesia, Resubmitted Case: Award

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(1990) 1 ICSID Rep 569, 617–628 (paras 200–258); and in Starrett Housing Corp v Iran (1987) 16 Iran-US CTR 112, 197 (para 266). 41 There are many statements in cases to this effect. See American International Group, Inc and American Life Insurance Company v Iran and Central Insurance of Iran (‘AIG’ case) (1983) 4 IranUS CTR 96, 107. 29 Before 2000, capitalized interest was awarded in Atlantic Triton v Guinea (1986) 3 ICSID Reports 13 on the basis of applicable French law and in SPP(ME) v Egypt (1992) 3 ICSID Reports 189 in accordance with the provisions of a loan agreement between the parties (however, only simple interest was awarded on the non-loan elements of the award). Since 2000 compound interest awards have been made in Maffezini v Spain, Award of 13 November 2000, 5 ICSID Reports 419; Metalclad v Mexico, Award of 30 August 2000, 5 ICSID Reports 209; Middle East Cement Shipping and Handling Co SA [ME Cement] v Egypt, Award of 12 April 2002, 7 ICSID Reports 173; AIG v Kazakhstan, Award of 7 October 2003, 11 ICSID Reports 3; Pope & Talbot v Canada, Award on Damages of 31 May 2002, 7 ICSID Reports 148; SD Myers v Canada, Second Partial Award on Damages of 21 October 2002, 8 ICSID Reports 124; Técnicas Medioambientales Tecmed SA v Mexico, Award of 29 May 2003, 10 ICSID Reports 130; Azurix v Argentina (ICSID Case No ARB/01/12), Award of 23 June 2006; LG&E Energy Corp & Ors v Argentina (ICSID Case No ARB/02/01) Award of 25 July 2007; Wena Hotels v Egypt, Award of 8 December 2000, 6 ICSID Reports 89, Siemens AG v Argentina (ICSID Case No ARB/02/8), Award of 17 January 2007; Enron v Argentina (ICSID Case No ARB/01/3), Award of 22 May 2007; Sempra Energy International v Argentina (ICSID Case No ARB/02/16), Award of 28 September 2007; Camuzzi International SA v Argentina (ICSID Case No ARB/03/7), Award of 18 September 2007; BG Group Plc v Argentina (UNCITRAL Case No 08-0485), Award of 24 December 2007; Rumeli Telekom AS & Or v Kazakhstan (ICSID Case No ARB/05/16), Award of 29 July 2008; Continental Casualty Company v Argentina (ICSID Case No ARB/03/9), Award of 5 September 2008; National Grid Plc v Argentina, Award of 3 November 2008; Waguih Elie George Siag & Clorinda Vecchi v Egypt (ICSID Case No ARB/05/15), Award of 1 April 2009. 31 See eg American Security and Trust Company Claim (1958) 26 ILR 322. 40 See eg Communications 137/94, 139/94, 154/96, and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr, Civil Liberties Organisation v Nigeria; Communication 212/98, Amnesty International v Zambia. 98 Amoco International Finance Corporation v Iran (1987-II) 15 Iran-US CTR 222 (para 112). 79 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. See also Kuwait v Aminoil (1982) 66 ILR 519, 599ff; Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189. 42 Cases in which the DCF approach have been used include Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189, Starrett Housing Corp v Iran (1987) 16 Iran-US CTR 112 and Phillips Petroleum Co Iran v Iran (1989) 21 Iran-US CTR 79. 10 Art II(1), Claims Settlement Declaration, 1 Iran-US CTR 9; for an interpretation of this provision see Amoco Iran Oil Company v Iran (1982) 1 Iran-US CTR 493, 497. 11 See eg Andresen (Germany/Mexico), 1930, in M Whiteman, Damages in International Law (Washington, US Government Printing Office, 1937), Vol I, 217; Chattanooga, ibid, 221. On these two cases, see S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol I, 530–535. 18 See eg the Anglo-Iranian Oil Company case (United Kingdom v Iran), ICJ Reports 1952, p 93, 102. See also D Harris, ‘The Protection of Companies in International Law in the Light of the Nottebohm case’ (1969) 18 ICLQ 275. 44 Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 (1978), para 239. See also the observations of the European Commission in France, Norway, Denmark, Sweden, Netherlands

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v Turkey (App Nos 9940-9944/82), (1983) 35 DR 143, 169 and Chrysostomos, Papachrysostomou and Loizidou v Turkey (App Nos 15299/89; 15300/89 and 15318/89), (1961) 68 DR 216, paras 20– 21. Cf the Dissenting Opinion of Judge Pettiti in Loizidou v Turkey, Preliminary Objections (App No 15318/89), Series A, No 310 (1995) [GC]: ‘The European Convention is not an international treaty of the traditional type nor a synallagmatic convention … since it is not based on reciprocity. It is based on the principle that all individual subjects of law are its beneficiaries, so that fundamental rights can be protected more securely.’ For recent reaffirmations of this jurisprudence, see Apostolidi and others v Turkey (App No 45628/99), ECHR, Judgment, 27 March 2007, para 71; Nacaryan and Deryan v Turkey (App Nos 19558/02 and 27904/02), ECHR, Judgment, 8 January 2008, para 49. 20 D Ruzié, ‘La protection des agents internationaux’, in SFDI, Les agents internationaux, Colloque of the SFDI d’Aix en Provence (Paris, Pedone, 1985) 281; see also Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, p 177. 42 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1985, p 192 (‘the manifestation of the existence of dispute in a specific manner, as for instance by diplomatic negotiations, is not required’, though perhaps desirable in many cases). United States Diplomatic Staff in Tehran. 78 The Court had held in 2003 that the admission of the FRY to the UN in 2000 was not a ‘new fact within the meaning of art 61 of the Court’s Statute which justified revision of its decision on jurisdiction’: Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections (Yugoslavia v Bosnia and Herzegovina), ICJ Reports 2003, p 7. 55 See East Timor (Portugal v Australia), Preliminary Objections, ICJ Reports 1995, p 90, 102 (para 29) (self determination); Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 31) (prohibition of genocide); Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, ICJ Reports 2004, p 136, 199–200 (paras 155, 157) (self-determination and ‘intransgressible principles’ of customary international humanitarian law); Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, ICJ Reports 2006, p 6, 31–32 (para 64), (prohibition of genocide); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v and Montenegro), Judgment of 26 February 2007, paras 147, 161 and 185 (prohibition of genocide). 14 For example, genocide cannot justify counter-genocide: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-claims, Order of 17 December 1997, ICJ Reports 1997, 243, 258 (para 35). 13 See also the comments of the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ, Judgment, 26 February 2007, para 167. 27 Corfu Channel, Merits, ICJ Reports 1949, p 4, 35; quoted in Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia), Judgment, 26 February 2007, para 463). 10 See Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 81 (para 152). In respect of international organizations, see Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 181, 184; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 460. See also Arrest

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Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 31–32 (para 76); Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 59 (para 119); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 257 (para 259). 4 See Corfu Channel Merits, ICJ Reports 1949, p 4, 22: ‘Albania’s obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact … and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion.’ In the Bosnian Genocide case, the ICJ emphasized that the subjective element of the crime of genocide, namely the dolus specialis (the intention to act wrongfully), is a necessary component of that specific crime: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 421. 37 In the Bosnian Genocide case, the ICJ clearly stressed the intimate connection existing between the obligation to prevent a genocide and the general customary duty of due diligence: ‘in this area, the notion of due diligence, which calls for an assessment in concreto, is of critical importance’: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 430. 22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 32); confirmed in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Merits, Judgment, 26 February 2007, 63 (paras 166–167). 30 See eg Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v Mexico (ICSID Case No ARB(AF)/04/05), Award of 21 November 2007; Desert Line Projects LLC v Yemen (ICSID Case No ARB/05/17), Award of 6 February 2008; Duke Energy Electroquil Partners & Or v Ecuador (ICSID Case No ARB/04/19), Award of 18 August 2008. 3 See Archer Daniels Midland Company and another v United Mexican States (ICSID Case No ARB(AF)/04/05), 21 November 2007, paras 152–160. 5 Ibid, emphasis added. This passage of the commentary was cited with approval in Archer Daniels Midland Company and another v United Mexican States (ICSID Case No ARB(AF)/04/05), 21 November 2007, para 152. 79 Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., 127, para 78. See also Coard et al v United States (Case 10.951), Inter-Am Com HR, Report No. 109/99 of 29 September 1999, Annual Report of the InterAmerican Commission on Human Rights 1999, OEA/Ser.L/V/II.106 doc. 6 rev, para 39; Arges Sequeira Mangas v Nicaragua (Case 11.218), Inter-Am Com HR, Report No 52/97 of 18 February 1998, Annual Report of the Inter-American Commission on Human Rights 1997, OEA/Ser.L/V/II.98, doc. 6, paras 143–144. 28 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Burundi), Order of 30 January 2001, ICJ Reports 2001, p 6; Armed Activities on the territory of the Congo (Democratic Republic of the Congo v Rwanda), Order of 30 January 2001, ICJ Reports 2001, p 3; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v Rwanda), ICJ Reports 2006, p 6; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168. 41 In this sense, A Cassese, ‘Article 51’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies, commentaire article par article (3rd edn, Paris, Economica, 2005), 1333; E Roucounas, Institut de droit international, Session of Santiago (2007), 10th Commission, ‘Problèmes actuels du recours à la force en droit international, A, Sous groupe légitime défense’, 129ff,

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available at: . See also the two separate opinions of Judge Kooijmans in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 230 (para 35), and in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168, para 30. See also the separate opinion of Judge Simma in the Congo v Uganda case, paras 9–13. Cf O Corten, Le droit contre la guerre (Paris, Pedone, 2008), 220ff. 21 On responsibility in relation to human rights, see below, Chapters 51.1–51.4. In his separate opinion in Armed Activities on the Territory of the Congo, Judge Simma suggested that Uganda’s second counterclaim should have been considered by the Court on the basis that Uganda had standing to raise claims relating to international human rights and international humanitarian law even if the victims were not Ugandan nationals: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, Separate Opinion of Judge Simma, p 334 at 348–349 (para 37). 19 Cf Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ Reports 2002, p 3, 77 (para 48) (Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal). 77 See eg in French administrative law, although in the framework of a dispute as to the of legality of an administrative act: Conseil d’Etat Assoc. des fonctionnaires de l’administration centrale des Postes, 2 November 1923, Rec Lebon, p 699 and more recently Conseil d’Etat Sect, Préfet de police c/ M. Ihsen Mtimet, 16 May 2001, Revue de Droit Public 2001, no 3, 655–656, note by X Pretot, 645–654. 55 For examples involving the liberation of the victims, see Communication 16/88 Comité culturel pour la démocratie au Bénin v Bénin; Communication 67/92, Civil Liberties Organisation v Nigeria; Communication 133/94, Association pour la défense des droits de l’homme et des libertés v Djibouti, in which the Commission verified the terms of the agreements reached. 31 As one panel explained, in the context of withdrawal of a prohibited subsidy, such withdrawal ‘was intended by the drafters of the SCM Agreement to be a specific and effective remedy for violations of the prohibition in Art. 3.1(a). However, we do not understand it to be a remedy intended to fully restore the status quo ante by depriving the recipient of the prohibited subsidy of the benefits it may have enjoyed in the past. Nor do we consider it to be a remedy intended to provide reparation or compensation in any sense. A requirement of interest would go beyond the requirement of repayment encompassed by the term “withdraw the subsidy”, and is therefore, we believe, beyond any reasonable understanding of that term’, Australia—Subsidies Provided to Producers and Exporters of Automotive Leather. Recourse to Art. 21.5 of the DSU by the United States (WT/DS126/RW), panel report adopted 11 February 2000, para 6.49. 29 See Public Trustee v Chartered Bank of India, Australia and China (1956) 23 ILR 687, 698–9; Austrian Citizen’s Compensation Case (1966) 32 ILR 153; Inao Horimoto v The State (1966) 32 ILR 161; Togen Akiyama v The State (1966) 32 ILR 233; Jews Deported from Hungary Case (1972) 44 ILR 301. 29 Sempra Energy International v Argentine Republic (ICSID Case No ARB/02/16), Award of 28 September 2007, para 246; see also Enron Corporation and Ponderosa Assets LP v Argentine Republic (ICSID Case No ARB/01/3), Award of 22 May 2007, para 217; cf however, Autopista Concesionada de Venezuela CA v Bolivarian Republic of Venezuela (ICSID Case No ARB/00/5), Award of 23 September 2003. 2 See eg the ICSID Convention, art 27; Autopista Concesionada de Venezuela CA v Bolivarian Republic of Venezuela (2001) 6 ICSID Reports 417, 447 (paras 136–140); Republic of Ecuador v Occidental Exploration and Production Co [2006] QB 432, 447–452; 12 ICSID Reports 129, 135– 40. 53 See eg Case C-136/01, Autosalone Ispra dei Fratelli Rossi Snc v European Atomic Energy Community [2002] ECR I-6565 (para 30).

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41 LaGrand (Germany v United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, p 9, 16 (para 29). The position of the Court is clearly modified after Avena and Other Mexican Nationals (Mexico v United States of America), Provisional Measures, Order of 5 February 2003, ICJ Reports 2003, p 77; Judgment, ICJ Reports 2004, p 12. 24 LaGrand (Germany v USA), Merits, ICJ Reports 2001, p 466, 495 (para 81); in its order in relation to provisional measures issued by the Court in the same case it had already noted that ‘the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be’: see LaGrand (Germany v USA), Provisional Measures, ICJ Reports 1999, p 9, 87 (para 28). See also Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, ICJ Reports 2004, p 12, 56 (para 112). 8 See also Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12. 20 Eg art 1(2)(b), France-USSR Agreement for the Promotion and Reciprocal Protection of Investments, Paris, 4 July 1989, 29 ILM 317, 321. See further Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 23. The ‘incorporation’ test is also the basic principle adopted in the Hague Convention concerning the Recognition of the Legal Personality of Foreign Corporations, Partnerships and Foundations, 1 June 1956, (art 1). The position of States adopting the ‘seat’ theory is preserved by art 2. The Convention is not in force. For an application of the Convention, see Bakalian v Ottoman Bank (1965) 47 ILR 216. 26 See Bakalian v Ottoman Bank (1965) 47 ILR 216; Clunet, 1966, 118. Cf L Caflisch, ‘The Protection of Corporate Investments Abroad in the Light of the Barcelona Traction Case’ (1971) 31 ZaöRV 162, 173–177. 52 See Bakalian v Ottoman Bank (1965) 47 ILR 216, 228; C Staker, ‘Diplomatic Protection of Private Business Companies: Determining Corporate Personality for International Law Purposes’ (1990) 56 BYIL 155, 164–168. 5 The US made a claim of joint and several responsibility against USSR and Hungary in the case of the Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v Union of Soviet Socialist Republic, Hungary), Order of 12 July 1954, ICJ Reports 1954, p 103; however, findings as to responsibility were never made because the respondents refused to accept the Court’s jurisdiction. See also the discontinuance order in the Lockerbie cases, Order of 10 September 2003, ICJ Reports 2003, p 1. In Banković, where the European Court was asked to determine the responsibility of 10 NATO member States for the bombing of the Belgrade television station which claimed the life of several persons, the Court refused to adjudicate because the matter was allegedly beyond the Convention’s espace juridique, see Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), Decision on admissibility, ECHR Reports 2001-XII [GC]; for an analysis see A Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14 EJIL 529, 538–551. 46 See Banković v Belgium et al (App No 52207/99), ECHR Reports 2001-XII [GC], para 80. 30 In M/V ‘Saiga’ (No 2) (St Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, 120 ILR 143, the Tribunal considered that, ‘any expenses incurred by Saint Vincent and the Grenadines in respect of its officials must be borne by it as having been incurred in the normal functions of a flag State’ (ibid, 201 (para 177)) See also Barbera, Messegue and Jabardo v Spain (App Nos 10588/83; 10589/83; 10590/83), ECHR, Series A, No 285-C, para 16. 8 See Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No 2, 12; PanevezysSaldutiskis Railway, 1939, PCIJ, Series A/B, No 76, 4, 16; Nottebohm (Second Phase), Judgment, ICJ Reports 1955, p 4, 24; Barcelona Traction, Light and Power Company Limited (Second Phase), ICJ Reports 1970, p 3, 32–33 (paras 35–36).

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50 See Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12; Barcelona Traction Light and Power Company (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 44 (paras 78–79). See M Benlolo Carabot and M Ubeda-Saillard, Chapter 74. 59 See eg the Separate Opinion of Judge Ammoun, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 325–326; Judge Oda’s Separate Opinion in Elettronica Sicula (ELSI) (United States of America v Italy), Objections and Merits, ICJ Reports 1989, p 15, 87. It is, however, possible that other laws may govern certain matters. For example, the right to attend and vote at meetings might be determined by the law of the place where the meetings are held. See generally S Rammeloo, Corporations in Private International Law (Oxford, OUP, 2001). 76 See the Separate Opinion of Judge Fitzmaurice, Barcelona Traction, ICJ Reports 1970, p 3, 68 (para 8). 84 Flexi-Van Leasing, Inc v Iran (1982) 1 Iran-US CTR 455, 462; General Motors Corp, et al v Iran (1983) 3 Iran-US CTR1; GH Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, OUP, 1996), 44–54. But see the Separate Opinion of Judge Jessup, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 207– 215 (paras 85–98). 86 See the comments of Judge Fitzmaurice, Barcelona Traction, ICJ Reports 1970, p 3, 66–67 (paras 5–6), and of Judge Morelli, 235–236. Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 461. 27 Cf Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12; Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4, 24; Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 44. 21 BB v United Kingdom (App No 53760/00), Judgment of 10 February 2004, para 36: ‘The Court recalls that it does not award aggravated or punitive damages’. Wainwright v United Kingdom (App No 12350/04), Judgment of 26 September 2006, para 60: ‘The Court does not, as a matter of practice, make aggravated or exemplary damages awards’. See, however, Ludescher v Austria (App No 35019/97), Judgment of 20 December 2001, para 30, where the Court found ‘no basis, in the circumstances of the present cases, for accepting the applicant’s claim for punitive damages’ (emphasis added). 42 See especially Case T-383/00, Beamglow Ltd v European Parliament, Council of the European Union and Commission of the European Communities [2005] ECR II-5459 (para 174); Case T69/00, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies, Inc (FIAMM Technologies) v Council of the European Union and Commission of the European Communities [2005] ECR II-5393 (para 160). 24 See eg in the case of a violation of respect of private life, Beck, Copp and Bazeley v United Kingdom (App Nos 48535/99; 48536/99; 48537/99), ECHR, Judgment of 22 October 2002, paras 97– 124. 14 Notable exceptions include, in the European Court of Human Rights, Stran Greek Refineries v Greece (App No 13427/87), ECHR, Series A, No 301-B (1995), paras 82–83, Scordino v Italy (No 1) (App No 36813/97), ECHR Reports 2006-V, para 258; Lustig-Prean & Beckett v United Kingdom (Art 41) (App Nos 31417/96; 32377/96), Judgment, 27 September 1999, paras 28–9; Beyeler v Italy (No 2) (Just Satisfaction), (App No 33202/96), Judgment, 28 May 2002, para 23; in the InterAmerican Court of Human Rights, Neira Alegría (Reparations and Costs), Inter-Am Ct HR, Series C, No 29 (1996), para 46, Case of the ‘Street Children’ (Villagrán-Morales et al v Guatemala) (Reparations and Costs), Inter-Am Ct HR, Series C, No 77 (2001), para 81. 22 James Louis Drummond, 2 Knapp PC Rep 295, 12 ER 492; Milani, Birgnone Stevenson and Mathinson cases (British-Venezuelan Mixed Claims Commission), JH Ralston, Venezuelan Arbitrations of 1903 (Washington, Government Printing Office, 1904), 429–438, 710, 754–761, 438– 455 respectively; Carnevaro (Permanent Court of Arbitration, 1912), Scott, 1 Hague Court Reports From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

284; Hein, 26 April/10 May 1922 (Anglo-German Mixed Arbitral Tribunal), 1 ILR 216; Blumenthal (French-German Mixed Tribunal), Recueil des Décisions des Tribunaux Mixtes, vol 3 (1924), 616; de Montfort, 10 July 1926 (French-German Mixed Tribunal), 3 ILR 279; Pinson (French-Mexican Mixed Claims Commission), 4 ILR 297, 299; Tellech, 25 May 1928 (United States-Austria and Hungary Tripartite Claim Commission), 6 RIAA 248. 53 See eg Human Rights Commitee: Blazek et al v Czech Republic, Communication No 857/1999, CCPR/C/72/D/857/1999, 12 July 2001, para 7; Fijalkowska v Poland, Communication No 1061/2002, CCPR/C/84/D/1061/2002, 4 August 2005, para 10; Jeong-Eun Lee v Republic of Korea, Communication No 1119/2002, CCPR/C/84/D/1119/2002, 23 August 2005, para 9; Inter-American Court of Human Rights: Castillo Petruzzi et al v Peru, Inter-Am Ct HR, Series C, No 52, (1999) para 222. 5 Dix US-Venezuela Mixed Claims Commission, 1903–1905, 9 RIAA 119, 120. Cf Bolívar Railway (Merits), Great Britain-Venezuela Mixed Claims Commission, 1903, 9 RIAA 445. 20 See, notably, the refusal of the Tribunal de Grand Instance of Bastia in the case of the Boues rouges to recognize the damage caused to the French marine ecosystem by the discharge from an Italian-American factory; reparation for environmental damage was ordered only in relation to the interest represented by the environment for the claimants: TGI, Bastia, 4 July 1985, No 123/76, Judgment 422, 4. 6 In BP Exploration Co v Libyan Arab Republic (1973) 53 ILR 297, (1974) 53 ILR 375, the parties settled after a finding of liability but before damages were calculated. 7 See Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland; R v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029. 70 See European Communities—Regime for the Importation, Sale and Distribution of Bananas— Recourse to Arbitration by the European Communities under art 22.6 of the DSU—Decision by the Arbitrators, WT/DS27/ARB, 9 April 1999; European Communities—Measures Concerning Meat and Meat Products (Hormones)—Original Complaint by Canada—Recourse to Arbitration by the European Communities under art 22.6 of the DSU—Decision by the Arbitrators, WT/DS48/ARB, 12 July 1999; European Communities—Measures Concerning Meat and Meat Products (Hormones)— Original Complaint by the United States—Recourse to Arbitration by the European Communities under art 22.6 of the DSU—Decision by the Arbitrators, WT/DS26/ARB, 12 July 1999; European Communities—Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the European Communities under art 22.6 of the DSU—Decision by the Arbitrators, WT/DS27/ARB/ECU, 24 March 2000; Brazil—Export Financing Programme for Aircraft—Recourse to Arbitration by Brazil under art 22.6 of the DSU and art 4.11 of the SCM Agreement—Decision by the Arbitrators, WT/DS46/ARB, 28 August 2000; United States—Tax Treatment for ‘Foreign Sales Corporations’—Recourse to Arbitration by the United States under art 22.6 of the DSU and art 4.11 of the SCM Agreement—Decision of the Arbitrator, WT/DS108/ARB, 30 August 2002; Canada —Export Credits and Loan Guarantees for Regional Aircraft—Recourse to Arbitration by Canada under art 22.6 of the DSU and art 4.11 of the SCM Agreement—Decision by the Arbitrator, WT/DS222/ARB, 17 February 2003; United States—Anti-Dumping Act of 1916 (Original Complaint by the European Communities)—Recourse to Arbitration by the United States under art 22.6 of the DSU—Decision by the Arbitrators, WT/DS136/ARB, 24 February 2004; United States— Continued Dumping and Subsidy Offset Act of 2000—Original Complaint by Brazil—Recourse to Arbitration by the United States under art 22.6 of the DSU—Decision by the Arbitrator, WT/DS217/ARB/BRA, 31 August 2004 (see also the almost identical reports in relation to complaints by Canada, Chile, the European Communities, India, Japan, Korea and Mexico); United States— Measures Affecting the Cross-Border Supply of Gambling and Betting Services—Recourse to Arbitration by the United States under art 22.6 of the DSU—Decision by the Arbitrator, WT/DS285/ARB, 21 December 2007; United States—Subsidies on Upland Cotton—Recourse to Arbitration by the United States under art 22.6 of the DSU and art 4.11 of the SCM Agreement— Decision by the Arbitrator, WT/DS267/ARB/1, 31 August 2009; United States—Subsidies on

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Upland Cotton—Recourse to Arbitration by the United States under art 22.6 of the DSU and art 7.10 of the SCM Agreement—Decision by the Arbitrator, WT/DS267/ARB/2 & Corr. 1, 31 August 2009. 41 See eg the judgment of the Grand Chamber in Burden v United Kingdom (App No 13378/05), ECHR, Judgment of 29 April 2008 [GC]. 58 Caballero Delgado and Santana v Colombia, Merits, Inter-Am Ct HR, Series C, No 22 (1995), para 69. 32 See in particular the Caire adjudicated by the French-Mexican Claims Commission in 1927: Estate of John Baptiste Caire (France) v United Mexican States, 7 June 1929, 5 RIAA 175. 66 Castillo Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series C, No 43 (1998), para 86, referring to Maal, 1 June 1903, 10 RIAA 730, 732, & 733; Campbell, 10 June 1931, 2 RIAA 1145, 1158. 72 See eg Camuzzi International SA v Argentina, Decision on Jurisdiction, 11 May 2005, , para 81; Enron v Argentina, Decision on Jurisdiction, 2 August 2004, ; LG&E v Argentina, Decision on Liability, 3 October 2006, 21 ICSID Review 203 (para 78); Sempra Energy v Argentina, Decision on Jurisdiction, 11 May 2005, , para 93. 24 Canada—Certain Measures Affecting the Automotive Industry (WT/DS 139, DS/142), Appellate Body and panel reports adopted on 19 June 2000. 27 Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products (WT/DS103, DS113), Appellate Body and panel reports adopted on 27 October 1999, panel report, para 7.77. In a follow-up compliance report, where the Appellate Body was again faced with involvement of private parties, it explained: ‘However, under Art. 9.1(c) of the Agreement on Agriculture it is not solely the conduct of the WTO Members that is relevant. We have noted that Art. 9.1(c) describes an unusual form of export subsidy in that “payments” can be made and funded by private parties, and not just by government. The conduct of private parties, therefore, may play an important role in applying Art. 9.1(c). Yet, irrespective of the role of private parties under Art. 9.1(c), the obligations imposed in relation to Art. 9.1(c) remain obligations imposed on Canada. It is Canada, and not private parties, which is responsible for ensuring that it respects its export subsidy commitments under the covered agreements’, Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products. Second Recourse to Art. 21.5 of the DSU by New Zealand and the United States (WT/DS103, DS113), Appellate Body and panel reports adopted on 17 January 2003, Appellate Body report, paras 94–95. 29 On this problem, see eg Canada—Wheat, where the United States alleged that the Canadian wheat export regime was inconsistent with art XVII:1 of GATT, in that it resulted in sales, which were not in accordance with commercial considerations, because of government involvement. Ultimately, however, the US arguments did not relate to attribution, but rather to the effects of the regime, which in its opinion were inconsistent with this provision. Canada—Measures Relating to Exports of Wheat and Treatment of Imported Grain (WT/DS276), Appellate Body and panel reports adopted on 27 September 2004. 72 See Godinez-Cruz v Honduras, Merits, Inter-Am Ct HR, Series C, No 5 (1989); Case of the ‘White Van’ (Paniagua-Morales et al) v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 23 (1996); Castillo Páez v Peru, Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996); Loayza Tamayo v Peru, Preliminary objections, Inter-Am Ct HR, Series C, No 25 (1996); Garrido and Baigorria v Argentina, Merits, Inter-Am Ct HR, Series C, No 26 (1996). 77 See In the matter of Viviana Gallardo et al., Inter-Am Ct HR, Series A, No 101/81, decision of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

13 November 1981, paras 26–27; Velázquez Rodríguez v Honduras, Preliminary Objections, InterAm Ct HR, Series C, No 1 (1987), paras 60–68, 88; Fairén Garbi-Solís Corrales v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 2 (1987), para 8; Godínez Cruz v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 3 (1987), para 90; Gangaram Panday v Suriname, Preliminary Objections, Inter-Am Ct HR, Series C, No 12 (1991) para 39; Castillo-Páez v Peru, Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996), para 43. 12 See eg the Germany–Bangladesh Treaty concerning the Promotion and Reciprocal Protection of Investments, 6 May 1981, art 8(4). Cf, D Carreau, Droit International (6th edn, Paris, Pedone, 1999), paras 868–872; S Rammeloo, Corporations in Private International Law: A European Perspective (Oxford, OUP, 2000); S Bastid et al, La Personnalité Morale et ses Limites: Etudes de Droit Comparé et de Droit International Public (Paris, LGDJ, 1960). And see Case C-212/97, Centros Ltd v Danish Commercial Register [1999] ECR I-1459 CJEC; and Case C-208/00, Überseering BV v NCC Nordic Construction Company Baumanagement GmbH, [2002] ECR I-9919 CJEC, for developments in the European Union. 61 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240, 250 (para 20). 47 In Certain Questions of Mutual Assistance in Criminal Matters, the ICJ gave reparation to the State of Djibouti through a declaration of wrongfulness. Djibouti was complaining of a breach, by France, of the duty (embodied in a bilateral treaty on judicial assistance in criminal matters) to motivate a denial of a request based on rogatory letters (Certain Questions of Mutual Assistance in Criminal Matters, Judgement, 4 June 2008, para 204)). 98 See eg CSOB v Slovakia (ICSID Case No ARB/97/4), Award, 24 May 1999, 5 ICSID Reports 330. 65 See CFDT v European Communities, Application No 8030/77, 10 July 1978, 13 DR 240 (para 7). 17 See eg Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (WT/DS207), Appellate Body and panel reports adopted on 23 October 2002, Appellate Body report, para 144; EC—Selected Customs Matters (WT/DS315), Appellate Body and panel reports adopted on 11 December 2006, Appellate Body report, para 184, confirming findings in panel report, para 7.36; Mexico—Taxes on Soft Drinks (WT/DS308), Appellate Body and panel reports adopted on 24 March 2006, panel report, paras 8.143–8.144. 46 Ibid, for a reservation that was ruled incompatible with art 57; see also Chorherr v Austria (App No 13308/87), ECHR, Series A, No 226-B (1993) for a reservation that was rated compatible; or Gradinger v Austria (App No 15963/90), ECHR, Series A, No 328-C (1995) for a reservation that was rated incompatible. 1 Motion for allowance of interest on awards from the date until their payment, Britain-Venezuela Commission, 9 RIAA 470, 470–1, Christern & Co, Becker & Co, Max Fischbach, Richard Friedericy, Otto Kummerow and A Dauman claims, German-Venezuelan Commission, 1903, 10 RIAA 363, Postal Treaty claim, Italian-Venezuelan Claims Commission, 1903, 10 RIAA 499, Illinois Central Railroad Co v Mexico, US-Mexico General Claims Commission, 1923, 9 RIAA 134. 21 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363, art 47; see Communication 223/98, Forum of Conscience v Sierra Leone; Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria. 6 See eg CME Czech Republic BV v Czech Republic (2001) 9 ICSID Reports 121, 236 (para 605); Eureko BV v Republic of Poland (2005) 12 ICSID Reports 331, 373 (paras 186–189). 44 See the separate opinion of I Brownlie in CME v Czech Republic, Final Award (2003) 9 ICSID 113, 424–438 (paras 58–121) for a comparison of different approaches. 78 See eg the draft Multilateral Agreement on Investment, Chapter V.C(1)(b) and (c), and Chapter V.(D) (3)(b), ; the Separate Opinion of Judge Padilla Nervo, Barcelona Traction, ICJ Reports 1970, p 3, 245; but see Judge Tanaka, ibid, 130–131. On the other hand, see the overlapping awards in the cases of CME v Czech Republic

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and Lauder v Czech Republic (2006) 9 ICSID Reports 113 and 62. C McLachlan, L Shore, & M Weiniger, International Investment Arbitration: Substantive Principles (Oxford, OUP, 2007), 118– 119; Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 308–309. 73 See CMS Gas Transmission Co v Argentina, Decision on Objections to Jurisdiction, 17 July 2003, 42 ILM 788. 35 Eg CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/08), Award of 12 May 2005. 14 CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/8), Award, 12 May 2005, 14 ICSID Reports 152. See further below for a discussion of the decision on annulment: CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/08), Decision on application for annulment, 25 September 2007, 14 ICSID Reports 251. 7 Gabcíkovo-Nagymaros Project, ICJ Reports 1997, p 7, 40 (para 51); see the more cautious position of the ad hoc ICSID Committee (Guillaume, Elaraby, Crawford) in CMS Gas Transmission Company v The Argentine Republic, Case No ARB/01/08, award of 25 September 2007, 14 ICSID Reports 151, 179–180 (paras 132–135). 69 See eg Pinkerton and Roach v United States (Case 9647), Inter-Am Com HR, Report No 3/87 of 22 September 1987, Annual Report of the Inter-American Commission on Human Rights 1986–87, OEA/Ser. L/VII. 71, Doc. 9, Rev. 1, 146–147, paras 50–56. See also Coard et al. v United States (Case 10.951), Inter-Am Com HR, Report No 109/99 of 29 September 1999, Annual Report of the Inter-American Commission on Human Rights 1999, OEA/Ser.L/V/II.106 doc. 6 rev, paras 38–40. 25 See eg Case 199/85, Commission of the European Communities v Italian Republic [1987] ECR 1055–1060; Case C-297/95, Commission of the European Communities v Federal Republic of Germany (1996) ECR-I, 6741–45. 28 Ibid, 32 (para 67). See also eg the arbitral award in Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215 which held that a number of omissions by France violated a treaty with New Zealand; the report of the Panel in India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Panel, 5 September 1997, WTO Doc WT/DS50/R, para 7.43, which held that India had failed to take the action necessary to implement its treaty obligations; or, in Community law, the condemnation of a State whose Parliament does not transpose a Directive within the time foreseen: Case 39/72 Commission v Italy [1973] ECR 101. 21 Commonwealth of Puerto Rico et al v The SS Zoe Colocotroni et al, 628 F 2d 652 (1st Cir, 1980), cert den 450 US 912 (1981). See also M Rèmond-Gouilloud, Du droit de détruire—essai sur le droit de l’environnement (Paris, PUF, 1989); P Point, ‘Principes économiques et méthodes d’évaluation du préjudice écologique’, in SFDI, Le dommage écologique en droit interne, communautaire et comparé (Paris, Economica, 1992), 123–141. 18 Arts 1, 3 and 27, ARSIWA; Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, p 15, 51 (paras 73). See also Compañía de Aguas del Aconquija and Vivendi Universal v Argentine Republic (ICSID Case No ARB/97/3), Decision on Annulment, 3 July 2002, 41 ILM 1135, 1154–1156 (paras 93–103). 95 In addition to Klöckner and Amco, see: LETCO v Liberia (ICSID Case No ARB/83/2), Award, 31 March 1986, 2 ICSID Reports 358, 372; SPP v Egypt (ICSID Case No ARB/84/3), Award, 20 May 1992, 3 ICSID Reports 189, 207, 208 (paras 80, 83); Compañía del Desarollo de Santa Elena SA v Costa Rica (ICSID Case No ARB/96/1), Award, 17 February 2000, 5 ICSID Reports 153, 170 (paras 64–65). 67 See Ivcher Bronstein v Peru, Competence, Inter-Am Ct HR, Series C, No 54 (1999), para 42; Case of the Constitutional Court v Peru, Competence, Inter-Am Ct HR, Series C, No 55 (1999), para 41.

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69 Cf Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria. 53 See Osman v United Kingdom (App No 23452/94), ECHR Reports 1998-VIII [GC]; Z and others v United Kingdom (App No 29392/95), ECHR Reports 2001-V [GC]; Cordova v Italy (No 1) (App No 40877/98), ECHR Reports 2003-I; Cordova v Italy (No 2) (App No 45649/99), ECHR Reports 2003-I. 13 See eg Corfu Channel Case (United Kingdom v Albania), Merits, Judgment, ICJ Reports 1949, p 1; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 139. 59 Moreover any interpretation of the Corfu Channel as supporting ‘forcible necessity’ is to be rejected; the reduction in reparations owed by the United Kingdom (UK) was due to Albania’s contribution to the injury, not to a purported UK entitlement to ground Operation Retail on necessity: Corfu Channel, Merits, ICJ Reports 1949, p 4, 35. 8 Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paras 19–20. See more recently Case T-134/01 Fuchs v Commission [2002] ECR II-3909, paras 56–57. Interest is also recoverable on fines improperly levied by the Community (Case T-171/99 Corus UK Ltd v Commission [2001] ECR II-2967) and to restore the status quo ante where improperly paid state aid is recovered from an individual (eg Case T-459/93 Siemens SA v Commission [1995] ECR II1675, paras 96–100). Recovery of interest in claims by individuals against Member States for breaches of the European Community Treaty will depend on the application of the principle of national procedural autonomy, ie national procedural and remedial rules on interest will apply subject to the requirements of effectiveness and equivalence. For a recent application of the principle in an important English case, see Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Commissioners of Inland Revenue [2007] UKHL 34, [2007] 3 WLR 354, [2007] 7 All ER 657. 1 See eg Factory at Chorzów, Jurisdiction, 1925, PCIJ, Series A, No 9, p 4, 31; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 46–47; ibid, Sep Op Judge Dillard, 166–167; Arbitral Tribunal for Dispute Over the Inter-Entity Boundary in Brcko Area Award, (Republika Srpska v. Bosnia-Herzegovina), Award of 14 February 1997, para 77, available at ; Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV, 26. See also H Lauterpacht, ‘Règles générales du droit de la paix’ (1937-IV) 62 Recueil des cours 287; TC Chen, The International Law of Recognition (London, Stevens & Sons Limited, 1951), 411; G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 4, 16 (para 64). 45 Loizidou v. Turkey, Preliminary Objections (App No 15318/89), Series A, No 310 (1995) [GC], para 93; Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV [GC], para 78. 20 The concept was recognized by the ICJ in North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, p 3, 26 (para 30), where it was distinguished from acquiescence due to the existence of detriment suffered by the party relying upon it. It was also relied upon in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Judgment, ICJ Reports 1984, p 246, 305 (para 130), where it was assimilated to the idea of preclusion, and in Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgment, ICJ Reports 1989, p 15, 44 (para 54), where it was said to be a possible consequence of silence. 55 See Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p 246, 304 (para 129). 27 See Denmark v Turkey (App No 34382/97), ECHR Reports 2000-IV. 21 ‘The injury inflicted upon an individual, a national of the claimant States … constitutes an act internationally unlawful, because it signifies an offence against the State to which the individual is united by the bond of nationality’, United States-Mexico General Claims Commission, Dickson Car Wheel Co, July 1931, 4 RIAA 669, 678.

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50 Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 274 (para 127). 65 Although there are exceptions, as illustrated by those decisions ordering the responsible State to apologize: see eg The ‘I’m Alone’ and The ‘Rainbow Warrior’. In LaGrand, the ICJ stated that the apologies already offered by the United States to Germany for the breach of art 36 of the Vienna Convention on Consular Relations 1963 could not be considered as sufficient reparation, because detention of individuals appeared to have been one of the consequences of the wrongful act (Lugard (German v United States of America), ICJ Reports 2001, p 466, 512 (para 133). 11 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 171 (para 87); Arbitral Tribunal for Dispute Over the Inter-Entity Boundary in Brcko Area Award (Republika Srpska v Bosnia-Herzegovina), Award of 14 February 1997, para 77, available at ; East Timor (Portugal v Australia), ICJ Reports 1995, p 90, Disciplinary Opinion of Judge Skubiszewski, 262 (para 125), 264 (para 129). 37 Case T-184/1995, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [1998] ECR II-667 (para 60ff); Case C-237/98 P, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [2000] ECR I-4549 (para 26). 38 See for instance Drozd and Janousek v France and Spain (App No 12747/87), ECHR, Series A, No 240, paras 96, 110. 10 See eg Duke Energy v Peru (ICSID Case No ARB/03/28), Decision on Jurisdiction, 1 February 2006; World Duty Free v Kenya (ICSID Case No ARB/00/7), Award, 4 October 2006; and Noble Energy and Machalapower Cia v Ecuador (ICSID Case No ARB/05/12), Decision on Jurisdiction, 5 March 2008. 62 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136. Although the Court also dealt with the obligation of nonrecognition in the East Timor case, its judgment does not elaborate the content of the obligation: see East Timor (Portugal v Australia), ICJ Reports 1995, p 90. But see ibid, Diss Op Judge ad hoc Skubiszewski, 262–265. 17 See eg Case T-113/1996, Edouard Dubois et Fils SA v Council of the European Union and Commission of the European Communities [1998] ECR-II 125. 73 See eg FV Garcia-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 223–6; International Covenant on Civil and Political Rights,16 December 1966, 999 UNTS 171, art 1(c); Weinberger v Uruguay, Communication 28/1978, Human Rights Committee, Selected Decisions, Vol 1, 57, 59; El Oro Mining and Railway Company (Limited) (Great Britain) v United Mexican States, decision No 55, 18 June 1931, 5 RIAA 191, 198; see also Draft Articles on Diplomatic Protection, Commentary to art 15, paras 5–6 and the references cited therein. 16 Ibid, 222–224 (paras 383–394); see also Enron Corporation Ponderosa Assets, LP v Argentine Republic, ICSID Case No ARB/01/3, award of 22 May 2007, 108–109 (paras 344–345). 15 Eritrea-Ethiopia Claims Commission, Final Damages Award, Eritrea’s Damages Claim, 17 August 2009, 6–7 (paras 19–23); Eritrea-Ethiopia Claims Commission, Final Damages Award, Ethiopia’s Damages Claim, 17 August 2009, 6–7 (paras 19–23). 17 See eg discussion in Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claim, 17 August 2009, 12 (para 41). 24 See eg Esphahanian v Bank Tejarat (1983) 2 Iran-US CTR 166; Case No A/18 (1984) 5 Iran-US CTR 251. 7 United States—Standards for Reformulated and Conventional Gasoline (WT/DS2), Appellate From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Body and panel reports adopted on 20 May 1996, Appellate Body Report, DSR 1996:I, 16. This view may be contrasted with the approach adopted 10 years later by the panel in the EC—Biotech dispute. The panel refused to take into account certain international environmental agreements, arguing that ‘the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members’, raising the question whether this is a requirement that all WTO Members be parties to such agreements, European Communities—Measures Affecting the Approval and Marketing of Biotech Products (WT/DS291, DS292, DS293), panel report adopted on 21 November 2006, para 7.68. 36 The EC claimed that the purpose of art 23 was to prevent ‘countermeasures’ within the meaning of general international rules on State responsibility, but the panel ruled that the ‘obligation to have recourse to the DSU when Members “seek the redress of a violation …” covers any act of a Member in response to what it considers to be a violation of a WTO obligation of another Member’, European Communities—Measures Affecting Trade in Commercial Vessels (WT/DS301), panel report adopted on 20 June 2005, para 7.207. 41 Case 59/83, SA Biovilac NV v European Economic Community [1984] ECR 4057 (para 28); in Case C-237/98, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [2000] ECR I-4549, para 19, the Court adopted a formulation that could lead one to think that it supports this theory, which it nevertheless denied in FIAMM (Joined cases C-120/06 P and C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc v Council of the European Union and Commission of the European Communities [2008] ECR I-6513 (para 169). 14 Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29; see also Factory at Chorzów, Jurisdiction, 1927, PCIJ, Series A, No 9, p 4, 21. 6 Ibid, 485 (para 48). See also Factory at Chorzów, Jurisdiction, 1925, PCIJ Reports, Series A, No 9, p 4, 22. 7 See Factory at Chorzów, Jurisdiction, 1927, PCIJ Reports, Series A, No 9, p 4, 21; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ Reports 1986, p 14, 142 (para 283). 1 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 23, citing Factory at Chorzów: Jurisdiction, 1927, PCIJ, Series A, No 9, p 21; Merits, 1928, PCIJ, Series A, No 17, p 29; and Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174, 184. 18 The Special Rapporteur cited two case examples in his Third Report, J Crawford, Third Report on State Responsibility, A/CN.4/507, para 232. In the Factory at Chorzów, Jurisdiction, 1927, PCIJ Reports, Series A, No 9, p 4, 21, by the time the dispute came before the Permanent Court, Germany was no longer seeking for its national the return of the factory in question or of the property seized with it. In Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1991, p 12, in the eventual settlement of the case, Finland chose to accept compensation in lieu of its original claim for restitution, ie non-construction of a bridge across the Great Belt by Denmark. For details of the terms of the settlement see M Koskenniemi, ‘L’affaire du passage par le Grand-Belt’ (1992) AFDI 905–947, especially 940ff. 2 The decision in Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17 is an essential precedent in this regard. 12 See eg Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 3, 29. 41 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25, quoting Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29.

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55 See Factory at Chorzów, Merits, 1925, PCIJ Reports, Series A, No 17, p 4, 48, 59. 33 SERAC v Nigeria (2002) ACHPR Comm 155/96 (2002) para 69; Maya indigenous community of the Toledo District v Belize, Case 12.053, Report No 40/04, IACHR OEA/Ser.L/V/II.122 Doc 5 rev 1 (2004); Fadeyeva v Russia (App No 55723/00) ECHR Reports 2005-IV; Taskin v Turkey [2006] 42 EHRR 50, para 119. 7 In its Partial Award-Jus Ad Bellum, Ethiopia’s claims 1–8, Federal Democratic Republic of Ethiopia v State of Eritrea, 19 December 2005, 135 ILR 479, 485 the Eritrea Ethiopia Claims Commission rightly pointed out that ‘localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack’. As regards the armed clashes that occurred in the vicinity of Badme on 6–7 May 1998, on which there were different accounts by the Parties, the Commission found it was not necessary to resolve these differences, since it was clear that ‘these incidents involved geographically limited clashes between small Eritrean and Ethiopian patrols along a remote, unmarked, and disputed border’. In the Commission’s view ‘these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter’. Upon this ground, it decided that the attack carried out on 12 May 1998 by Eritrean armed forces against the town of Badme and several other border areas could not be justified as lawful self-defence. It constituted instead an unlawful armed attack, for which Eritrea was liable to compensate Ethiopia: ibid, 488–489. 30 Cf First National City Bank of New York (1958) 26 ILR 325. 10 See further the Separate Opinion of Benito Flores in Flack (1929) 5 RIAA 61, 64–74; the Mexican Eagle Oil Company episode (1938), in MM Whiteman, Digest of International Law (Washington, DC, US Government Printing Office, 1967), vol VI, 1271–1279; JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225. 14 See eg Société Anonyme du Charbonnage Frédéric Henri v Germany (1921) 1 ILR 227. Cf, the comments of the Italian-United States Conciliation Commission in Flegenheimer (1958) 25 ILR 91, 148; and Judge Tanaka in Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 114, 122–123. 28 See Case A/18 (1984) 5 Iran-US CTR, 251 (including dissents); Flegenheimer (1958) 25 ILR 91. 4 North Sea Continental Shelf, ICJ Reports 1969, p 3, 48–49 (para (88) (the delimitation of the continental shelf between neighbouring States must be effected by agreement with reference to equitable principles); Cf also Free Zones of Upper Savoy and the District of Gex, PCIJ Reports, Series A, No 22, p 4, 13 (‘Whereas the judicial settlement of international disputes … is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, as far as is compatible with its Statute, such direct and friendly settlement.’). 22 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38–39 (paras 46–8). 25 See eg, art 1(2) of the Chemical Weapons Convention, Paris 13 January 1993; 1974 UNTS 316, by which the States parties undertake to destroy their chemical weapons; art 4 of the International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999; UN Doc A/54/109; 39 ILM 270, by which the States parties undertake to ensure that the offences established by the Convention are punishable under their domestic law. See also the engagement to construct the system of locks at issue in Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, and L-A Sicilianos, ‘La responsabilité de l’État pour absence de prévention et de répression des crimes internationaux’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 1999), 115, 116. 46 Cf Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, where the International Court of Justice observed that ‘the parties accepted obligations of conduct, obligations of performance, and obligations of result’: para 135.

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22 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 39 (para 48). 33 See Commentary to art 45, para 4; see also Judge Weeramantry’s separate opinion in the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 117–118 (on the question of estoppel, but with implications of a more general nature). 37 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 51 (para 67). 28 See eg Gallardo, 21 ILM 1424, where Costa Rica unsuccessfully attempted to waive review procedures concerning the human rights complaint filed by an individual. 79 See Government of Costa Rica, 13 November 1981, Inter-American Court of Human Rights, 67 ILR 578, 587 (para 26). See also Draft Articles on Diplomatic Protection, Commentary to art 16 (paras 12–17) and references. 47 Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994). 74 See eg Tagliaferro (1903) 10 RIAA 593; Giacopini (1903) 10 RIAA 594. 30 See GL Solis (USA) v United Mexican States, US-Mexico Mixed Claims Commission, 3 October 1928, 4 RIAA 358, 361. Cf Sambiaggio, Italy-Venezuela Mixed Claims Commission, 1903, 10 RIAA 499. 34 See judgments of the Inter-American Court of Human Rights in: Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), 10 (paras 37–39); Godínez Cruz v Honduras (Reparations and Costs), Inter-Am Ct HR, Series C, No 8 (1989), 9 (paras 35–37). See also, S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 Austrian Review of Int’l & Eur Law 101. 15 Blake v Guatemala, Merits, Inter-Am Ct HR, Series C, No 36 (1998), paras 65 and 67; see previously Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 155, and Godínez Cruz v Honduras, Merits, Inter-Am Ct HR, Series C, No 5 (1989), para 163. 54 See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 34; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 32. 84 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 58; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 31. 13 This does not exclude the responsibility of the central Government to prosecute international crimes committed in the areas occupied by the rebel groups, provided that the central Government obtains control or custody over the suspects. This seems to be a normal consequence of the regimes of accountability under treaties such as the Convention against Torture (see United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984; 1465 UNTS 85, arts 5–7); and it may also arise where the government assumes responsibility for the fate of particular individuals: see eg Ilascu & others v Moldova & Russia (App No 48787/9), ECHR Reports 2004-VII, paras 336–352. 15 Ireland v United Kingdom (1978) 58 ILR 188, 263 (para 159). See also Ilaşcu and Others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VII, para 319. 58 Even if art 37 of the ILC Articles assigns a subsidiary role to satisfaction, international practice shows a trend in favour of complementarity: see eg the requirement of apologies and compensation in The ‘I’m Alone’ and The ‘Rainbow Warrior’, quoted above. 39 This formed the basis of the award in INA Corporation v Iran (1985) 8 Iran-US CTR 373. 11 See, for example, Tradex Hellas SA v Albania (ICSID Case No ARB/94/2), Decision on Jurisdiction, 24 December 1996, 5 ICSID Reports 43; and Inceysa Vallisoletana v Republic of El Salvador (ICSID Case No ARB/03/26), Award, 2 August 2006.

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12 See International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts 1 and 2 of the American Convention on Human Rights)(Advisory Opinion OC-14/94), Inter-Am Ct HR, Series A, No 14 (1994), para 50; Loayza-Tamayo v Peru, Merits, InterAm Ct HR, Series C, No 33 (1997), paras 24; 51–55. 47 See South West Africa, Advisory Opinion, ICJ Reports 1950, p 128, 146,148 (separate opinion of Judge Mc Nair). 6 Corfu Channel, Merits, ICJ Reports 1949, 4, 35; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, 15, 23; International Status of South-West Africa, Advisory Opinion, ICJ Reports 1950, 128; South-West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, ICJ Reports 1962, 319. 8 Cf Iran-US Claims Tribunal v AS, Supreme Court of the Netherlands, 94 ILR 321, 323. 49 See Iraq Airways Company and the Republic of Iraq v Kuwait Airways Corporation (No 1) (2002), 103 ILR 340, 116 ILR 534, 125 ILR 602. 33 See Islamic Republic of Iran v United States of America (Case No A27) (1998) 34 Iran-US CTR 39 (where the Tribunal awarded an indemnity to Iran), but see also Islamic Republic of Iran v United States of America, (Case No A28) (2000) 36 Iran-US CTR 5. 61 See the classic formulation by Max Huber in the Island of Palmas (1928) 2 RIAA 838, 839. 55 In this regard, reference can be made to the decision of the US-Mexico General Claims Commission in Janes, 16 November 1925, 4 RIAA 82, in which the award of $12,000 appears to have been excessive in relation to the damage caused; and the Tellini affair (Italy v Greece) in 1923—for discussion of the details of the complex modalities for the settlement of the dispute, see G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 37–38 (para 124 and note 313). 4 See eg Laura MB Janes et al (USA) v United Mexican States, 16 November 1925, 4 RIAA 82, 86– 90. 27 See the dictum of the Permanent Court of International Justice in Jurisdiction of the Courts of Danzig, 1928, PCIJ, Series B, No 15, p 4, 17–18. 48 See eg Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928, PCIJ Reports, Series B, No 15, p 4, 17–19; LaGrand (Germany v United States of America), Merits, ICJ Reports 2001, p 466, para 77. 58 Although cf the decisions of the Court of First Instance in Case T-306/01 Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Judgment of 21 September 2005, para 293 and Case T-315/01 Kadi v Council of the European Union and Commission of the European Communities, Judgment of 21 September 2005, para 242, which suggested that an arbitrary deprivation of the right to property was not only contrary to customary international law, but might be regarded as a breach of jus cogens. Both decisions were appealed to the European Court of Justice, which disposed of the cases on other grounds without expressing a view on this point: see Joined Cases C-402/05 P and C-415-05 P Kadi and Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008. 91 See Abassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (2003) 42 ILM 358; Kaunda and Others v President of the Republic of South Africa 2005 (4) South African Law Reports 235(CC). 15 Case C-169/95, Kingdom of Spain v Commission of the European Communities [1997] ECR I135, para 47 mentions ‘restoring the previously existing situation’; see also J Verhoeven, Droit de la Communauté européenne (2nd edn, 2001, Larcier, Précis de la Faculté de droit de l’Université catholique de Louvain), 466, who talks of restitutio in integrum).

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8 In one panel’s opinion: ‘Customary international law applies generally to the economic relations between the WTO Members. Such international law applies to the extent that the WTO treaty agreements do not “contract out” from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO’, Korea—Measures Affecting Government Procurement (WT/DS163), panel report adopted on 19 June 2000, para 7.96. 39 Lac Lanoux (France v Spain) (1957) 24 ILR 101, 127. Cf also art 41 of the 1978 Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946 UNTS 3. 23 LaGrand (Germany v USA), Provisional Measures, ICJ Reports 1999, p 9; LaGrand (Germany v USA), Merits, ICJ Reports 2001, p 466. 13 The International Court of Justice held that its orders on provisional measures are binding in the LaGrand case: LaGrand (Germany v United States), ICJ Reports 2001, p 466, 506 (para 109). 64 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, ICJ Reports, 1971, p 50. 25 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 54 (para 118); 56 (para 126); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 199–200 (paras 155–159). 42 See the criticisms of this position in the separate opinions of Judge Higgins in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 215, para 33, and of Judge Burgenthal, 242, paras 5–6. 15 A/CN.4/515, 54 (Spain); see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, Sep Op Judge Kooijmans, 232 (paras 44–45). 81 The ICJ nevertheless neglected this element of cooperation in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 159). 60 See eg Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (paras 159–160): the Court considered that, faced with the breach of obligations erga omnes, in particular the right of self-determination, all States have an obligation not to recognize the unlawful situation and not to lend support to the creation of this situation. The Court invited the Security Council and the General Assembly to adopt the necessary measures to bring the situation to an end. 56 Cf art 48(1)(a) and (b), ARSIWA. See also the reasoning of the Court in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, ICJ Reports 2004, p 136, 199 (para 155). 65 See eg the discussion by the International Court in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, ICJ Reports 2004, p 136, 178–181 (paras 108–113), in relation to the applicability of Israel’s obligations under the two International Covenants and the Convention on the Rights of the Child to the Occupied Palestinian Territories. 43 See Communication 211/98, Legal Resources Foundation v Zambia, relating to a constitutional amendment. 56 See Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia and Communication 211/98 Legal Resources Foundation v Zambia, in which the Commission also referred to art 27 of the Vienna Convention on the Laws of Treaties; see also ARSIWA, art 3. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

3 See Legality of Use of Force, Request for the Indication of Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, p 124 (Yugoslavia v Belgium); ibid, p 259 (Yugoslavia v Canada); ibid, p 363 (Yugoslavia v France); ibid, p 422 (Yugoslavia v Germany); ibid, p 481 (Yugoslavia v Italy); ibid, p 542 (Yugoslavia v the Netherlands); ibid, p 656 (Yugoslavia v Portugal); ibid, p 761 (Yugoslavia v Spain); ibid, p 826 (Yugoslavia v United Kingdom); ibid, p 916 (Yugoslavia v United States). 17 For example, LETCO v Liberia, Award of 31 March 1986, 2 ICSID Reports 343. 49 See SEDCO Inc v National Iranian Oil Company and the Islamic Republic of Iran, Case No 129 of 24 October 1985, 84 ILR 484, 496 (interpreting art VII(2) of the Algiers Claims Settlement Declaration); Liberian Eastern Timber Corporation (LETCO) v The Government of the Republic of Liberia, 1987, 26 ILM 647, 652–654 (interpreting art 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States). 8 Many precedents relevant to public international law are drawn from sources which look to other legal systems, including hybrid systems and reference to general principles of law. The domestic legal backgrounds of adjudicators is also an informal but influential factor. See also the governing law clause in the three Libyan Oil cases: BP Exploration Co v Libyan Arab Republic (1973) 53 ILR 297, (1974) 53 ILR 375; Texaco Overseas Petroleum Co (TOPCO) v Libyan Arab Republic (1977) 53 ILR 389; Libyan American Oil Co (LIAMCO) v Libyan Arab Republic (1977) 62 ILR 140. 35 See, however, the ambiguous wording used by the Inter-American Court in Loayza-Tamayo v Peru (Reparations and Costs), Inter-Am Ct HR, 1998, Series C, No 42 (1998). 55 See eg Loizidou v Turkey, Jurisdiction (App No 15318/89), ECHR, Series A, No 310 [GC] (1995). 7 See the separate opinion of Judge Moore in The Lotus, 1927, PCIJ, Series A, No 10, p 4, 70; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, arts 101–107; A Rubin, The Law of Piracy (2nd edn, Newport, Naval War College Press, 1998); R Jennings & A Watts, Oppenheim’s International Law (9th edn, London, Longmans, 1992), vol 1, 746–755. 28 See The Lusitania, 1 November 1923, 7 RIAA 32, 39: ‘The remedy should be commensurate with the loss’. For further discussion of punitive damages see below, Chapter 45. 23 See eg Lustig-Prean & Beckett v United Kingdom (Art 41) (App Nos 31417/96; 32377/96), Judgment, 27 September 1999. 22 See eg The M/V ‘Saiga’ (No 2) (St Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, 120 ILR 143, 200–201 (paras 172, 175). 25 But see the Separate Opinion of Judge Anderson in the M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (1999) 120 ILR 143, 251–254. 5 See eg Maal, 1903, 10 RIAA 730, 732–733. 59 See eg the decision by the Swiss Federal Court in the Westland Helicopters case (1988) 80 ILR 658 and the decision of the English Chancery Division in Maclaine Watson v Department of Trade (1987) 80 ILR 46. 9 See, among others, Maffezini v Spain (ICSID Case No ARB/97/7), Decision on Objections to Jurisdictions, 25 January 2000, 5 ICSID Rep 396; and Salini v Morocco (ICSID Case No ARB/00/4), Decision on Jurisdiction, 23 July 2001, 6 ICSID Reports 400. 28 Ibid, 176–178. See also SD Myers v Canada, Award on Damages (2002) 8 ICSID Reports 124, 171; Maffezini v Spain (2000) 5 ICSID Reports 419; Metalclad v Mexico (2000) 5 ICSID Reports 209; Middle East Cement v Egypt (2002) 7 ICSID Reports 178; MTD Equity Sdn Bhd and TD Chile SA v Chile (2004) 12 ICSID Reports 6; Pope & Talbot v Canada (2002) 7 ICSID Reports 148; Técnicas Medioambientales Tecmed, SA v Mexico (2003) 10 ICSID Reports 130. 15 See eg the Amicus Curiae brief filed by the United Kingdom in the Supreme Court of the United States in Matimak Trading Company Ltd v Albert Khalily et al, reproduced in (1997) 68 BYIL 554,

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557; the EU Judgments Regulation, Council Regulation (EC) 44/2001, art 22, and Speed Investments v Formula One Holdings Ltd [2004] EWCA Civ 1512. 1 JG Collier & AV Lowe, The settlement of disputes in international law: institutions and procedures (Oxford, OUP, 1999), 20; Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 11–15 (negotiation as the chief method by which States settle disputes and define the subject-matter of claims); JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 2 (‘the principal means of handling all international disputes … negotiation is employed more frequently than all the other methods put together’); United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 10; MN Shaw, International law (6th edn, Cambridge, CUP, 2008), 918. 45 Revised General Act for the Settlement of Disputes 1949; South West Africa, Preliminary Objections, ICJ Reports 1962, p 319 (objection that no proof adduced that the dispute incapable of being settled by negotiation). The PCIJ elaborated on the concept of failed negotiations in Mavrommatis (negotiations fail ‘if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation’). Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 13. See also South West Africa, Preliminary Objections, ICJ Reports 1962, p 319, 346. 18 For example, Pammel v Germany (App No 17820/91), ECHR Reports 1997-IV; Joined Cases C397 and 410/98 Metallgesellschaft Ltd & Ors v Commissioners of Inland Revenue & Or [2001] ECR I-1727 (ECJ). 32 As R Errera regretted in his separate opinion, the Mikmaq case did not allow determination of whether an individual could act on behalf or a people and seize the Committee with violations of art 1(1) of the Covenant: The Mikmaq Tribal Society v Canada, HRC, Communication No 78/1980, 29 July 1984, UN Doc Supp No 40 (A/39/40), 200; 79 ILR 261, 266. 46 JG Collier & AV Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford, OUP, 1999), 20–21; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Jurisdiction and Admissibility, ICJ Reports 1984, p 392, 440; Aegean Sea Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29) (ongoing negotiations no impediment to the exercise of the court’s jurisdiction: ‘The jurisprudence of the court provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued pari passu … the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function’). 43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, para 392; the language of ‘complete dependence’ is taken from Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 62–63 (paras 109–110). 35 See United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Report 1980, p 3, 31–33 (paras 63–67); see also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14. 35 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, para 190, discussing a ‘fundamental or cardinal principle’ of international law; G Gaja, ‘Réflexions sur le rôle du Conseil de sécurité dans le nouvel ordre mondial. A propos des rapports entre maintien de la paix et crimes internationaux des États’ (1993) RGDIP 297. And see Crawford’s comment, according to which it is the crime of aggression that is at the root of the very notion of international crime in the ILC’s work: J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 18 (para 68). 8 The dichotomy between general protection of individuals through human rights and protection of minorities through collective rights had already been envisaged by the PCIJ in the advisory opinion

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on Minority Schools in Albania, PCIJ Reports, Series A/B, No 64, 17. 23 The situation may be different in the framework of contracts between the State and private individuals. Thus, when the events ‘make performance definitely impossible or impossible for a long period’, the Tribunal faced with this question affirmed that ‘force majeure as a cause of full or partial suspension or termination of contract, is a general principle of law which applies even when the contract is silent’, a statement which seems contestable. See Mobil Oil Iran, Inc, et al, Partial Award No 311-74/76/81/150-3, 14 July 1987, 16 Iran-US CTR 38. See, for other references, P Daillier, A Moutiers-Lopet, A Robert, & D Müller, ‘Tribunal Irano-Américain de Réclamations, Chronique’ (2002) 48 AFDI 453. But in other cases the Tribunal has not admitted that force majeure justified per se the termination of the contract (ibid, 454 for other examples). 19 See eg Mohtadi v Iran, ibid. 17 AG de la Pradelle, and NS Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), Vol II, 891; The Case of the United States to be laid before the Tribunal of Arbitration to be convened at Geneva, London, 1872 & Case presented on the part of Her Britannic Majesty to the Tribunal of Arbitration, London, 1872, both reproduced in JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), Vol I, 496. 13 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, ICJ Reports 1995, p 288, 306 (para 64); WTO Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS48/AB/R, 16 January 1998; EC—Measures Affecting the Approval and Marketing of Biotech Products, WTO Appellate Body, Reports of the Panel, 29 September 2006, WT/DS291/R & Corr.1, WT/DS292/R & Corr.1, WT/DS293/R & Corr.1; Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, WTO Appellate Body, Report of the Panel, 31 March 2008, WT/DS321/R; ITLOS, MOX Plant (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001. On the MOX Plant case see S Maljean-Dubois & JC Martin, ‘L’affaire de l’usine Mox devant les tribunaux internationaux’ (2007) 134 JDI 437. See also the absence of the precautionary principle in the ILC Articles on the Prevention of Transboundary Damage from Hazardous Activities, in Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2); only very little discussion was included in the Commentary to art 10. 40 Article 39 was approved by the annulment committee in MTD Equity Sdn Bhd and MTD Chile SA v Republic of Chile (ICSID Case No ARB/01/17), Decision on Annulment of 21 March 2007, para 99, where the claimants had made decisions which increased the risk of the investment. 36 Eg MTD v Chile, Award of 25 May 2004, 12 ICSID Reports 6. The award of an increment on top of the basic LIBOR rate is not uncommon: see eg PSEG Global Inc v Turkey (ICSID Case No ARB/02/05), Award of 1 January 2007, where the LIBOR rate plus 2% was awarded. Some domestic jurisdictions now use an interest rate formula based on central bank rates in legislation, eg the bank rate plus 1 or 2%: see eg the 2002 amended German Civil Code and the French legislative provisions. Some jurisdictions may build an element of penalty or default into statutory interest formulas—for example, twice the bank rate—but this is not appropriate in international law given its rejection of penalties and aggravated damages. 50 Ibid; see also Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 189; Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994), para 69; Neira Alegría et al v Peru, Merits, Inter-Am Ct HR, Series C, No 20 (1995), para 89; Caballero Delgado and Santana v Colombia, Reparations and Costs, Inter Am-Ct HR, Series C, No 31 (1997), paras 15–17. 14 Noble Ventures Inc v Romania (ICSID Case No ARB/01/11), Award, 12 October 2005. In this case an umbrella clause was at issue, and the tribunal found that: ‘where the acts of a governmental agency are to be attributed to the State for the purpose of applying an umbrella clause … breaches of a contract into which the State has entered are capable of constituting a

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breach of international law by virtue of the breach of an umbrella clause’ (para 85). The tribunal held that the contracts were entered into by two instrumentalities on behalf of the State and that they were attributable to the State for the purpose of the umbrella clause (para 86). 22 See North Sea Continental Shelf cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v the Netherlands), Judgment, ICJ Reports 1969, p 3, 46–48 (paras 85–87). 53 Cf only North Sea Continental Shelf, ICJ Reports 1969, p 6, 26; Temple of Preah Vihear (Cambodia v Thailand) ICJ Reports 1962, p. 6, Judge Spender (diss), 143–4; T Cottier & JP Müller, ‘Estoppel’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition . 23 See contra P Weil, oral pleading in Oil Platforms (Islamic Republic of Iran v United States of America, 26 February 2003, CR 2003/12 (Translation), 17 (para 17.16): ‘The action taken under such circumstances is not an internationally wrongful act, it is an internationally lawful act’ (emphasis in original). 47 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3. The same formulation is also found in a number of bilateral investment treaties, such as art 13, Agreement between Japan and the Democratic Socialist Republic of Sri Lanka, 1 March 1982; cf also art XXI of the Friendship, Commerce and Navigation Treaty between Iran and the United States, at issue in Oil Platforms (Islamic Republic of Iran v United States of America), ICJ Reports 2003, p 161. 19 See eg Case 26/81, Oleifici Mediterranei v EEC, [1982] ECR 3057 (para 16). 59 See Joint Communications 27/89, 46/90, 49/91, and 99/93 Organisation mondiale contre la torture and others v Rwanda. 6 Ibid, para 29; see also Case C-261/95, Rosalba Palmisani v Istituto nazionale della previdenza sociale [1997] ECR I-4025 (para 27). 11 See Papamichalopoulos and others v Greece (App No 14556/89), ECHR Series A No 330-B (1995), para. 36; Velásquez Rodríguez v Honduras, (Reparations and Costs), Inter-Am Ct HR, Series C, No 7 (1989); SD Myers Inc v Canada, Award on Liability, (2000) 8 ICSID Rep 3. 26 Lorzidou v Turkey, (App No 15318/89) ECHR Reports 1998-IV, para 39. See also Papamichalopoulos and others v Greece (App No 14556/89), ECHR, Series A, No 330-B (1995), para 43. 37 See also Prebsyterian Church of Sudan v Talisman Energy Inc, 2 October 2009, where the 2nd Circuit materially limited the scope of complicity in conduct of the state. 10 Thus the ICTY has affirmed that ‘in terms of existing international law, it is evident that States, by definition, cannot be subject to penal sanctions like those provides for under internal systems of penal law’: ICTY, Prosecutor v Blaskic, Case IT-95-14-AR 108bis, Decision on the Objection to the Issue of Subpoenae Duces Tecum, Appeals Chamber, 29 October 1997, 110 ILR 688, 697–698 (para 25). 52 See eg ICTY, Prosecutor v Blaskic, Case No IT-95-14-T, Trial Chamber, Judgment, 3 March 2000, 122 ILR 1, 50 (para 100). 106 Case No IT-95-16-T, Prosecutor v Kupreškić, judgment of 14 January 2000. 103 Case No IT-95-11-R61, Prosecutor v Martić; Decision on Review of Indictment Pursuant to Rule 61, 8 March 1996. 73 SC Res 808 and 827 (1993), and 955 (1994), respectively): see ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Appeals Chamber, 2 October 1995, which upheld the view that the legality of its creation rested on art 41 of the UN Charter. 56 See in this regard, ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, para 103ff.

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67 See reference to art 103 in SC Res 670 (1990). There is also a growing case law in this respect, eg: see Orders of 14 April 1992 (Provisional Measures), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) and (Libyan Arab Jamahiriya v United States of America), Provisional Measures, Orders of 14 April 1992, ICJ Reports 1992, p 3 and 114, 115, and 126 (paras 39 and 42), respectively; European Court of First Instance, Case T/306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, §§231, 234; European Court of First Instance, Case T 315/01, Yassin Abdullah Kadi v Council and Commission, §183–4 (although see now European Court of Justice (Grand Chamber), Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008. 38 Railway Traffic between Lithuania and Poland, 1931, PCIJ Reports, Series A/B, No 42, p 4, 116: (‘not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements’, although they are not obliged actually to reach agreement); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 264 (para 99) (exceptionally, the court held that art VI of the Treaty on Non-Proliferation is ‘an obligation to achieve a particular result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely the pursuit of negotiations on the matter in good faith’). 45 See Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6; Rann of Kutch (1976) 50 ILR 2; Grisbadarna (1909) 9 RIAA 155. 1 Cf Right of Passage over Indian Territory, Merits, ICJ Reports 1960, p 6. 62 For a jurisdictional application of the principle according to which the powers of a State must be exercised in a reasonable way and in good faith, see Rights of Nationals of the United States of America in Mo rocco (France v United States), ICJ Reports 1952, p 212. 19 France-Switzerland, September 1955, see FM Van Asbeck ‘La tâche et l’action d’une Commssion de Conciliation’ (1956) 3 NTIR 1; for the Roula case, see JPA François, ‘Le Palais de la Paix en 1956’ (1957) 4 NTIR 69. 24 See eg Case T-351/03, Schneider Electric SA v Commission of the European Communities [2007] ECR II-2237 (para 114). 37 In SEDCO Inc v National Iranian Oil Co and Iran (1987) 84 ILR 484, 573, the Tribunal stated that: ‘Comparable sales, which generally are higher than the claimed values of the SISA rigs, are a useful but only approximate guide’: it added that this ‘conclusion is demonstrated by the fact that “comparable sales” adduced in support of Claimant’s valuation of the SEDIRAN rigs are uniformly lower than the claimed rig values. Thus in each case the information is only “comparable” and requires substantial explanation in justification of its relevance.’ 28 Accord: SEDCO v NIOC and Iran (1985) 9 Iran-US CTR 245, 256. 23 See eg Short v Iran (1987) 16 Iran-US CTR 76, 83. 45 Communications 147 and 149/96, Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia. 33 See Sir Dawda K Jawara/Gambie, ACHPR, Communications No.147/95 and 149/96, 11 May 2000, in relation to article 26 of the African Charter on the right to internal self-determination; Social and Economic Rights Action Center, Center for Economic and Social Rights v Nigeria, ACHPR, Communication No 155/96, 13–27 October 2001, in relation to article 24 of the African Charter on the right to a satisfactory environment. 15 Private parties (US or foreign) can be sued for torts occasioned ‘in violation of the law of nations’ anywhere committed against aliens, under the unusual jurisdiction created by the Alien Tort Claims Act (28 USC §1350). See eg Sosa v Alvarez-Machain, 124 S Ct 2739 (2004). The US cases distinguish between corporate complicity with governmental violations of human rights, and those violations (eg torture, slavery) which do not require any governmental involvement or state

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action. Cf also the Torture Victim Protection Act 1992 (Pub L No 102–256, 106 Stat 73 (1992)), under which only designated ‘rogue’ States can be defendants. 34 See eg Sporrong and Lönnroth v Sweden (1983) 5 EHRR 617, where planning blight was held to constitute a taking of property without compensation, contrary to art 1 of Protocol 1 of the European Convention on Human Rights. The ‘prompt, adequate and effective’ standard of compensation for expropriation is not universally accepted, however. See CF Amerasinghe, ‘Issues of Compensation for the Taking of Alien Property in the Light of Recent Cases and Practice’ (1992) 41 ICLQ 22. 20 For a consideration of this balancing exercise, see Sporrong and Lönnroth v Sweden (App Nos 7151/75, 7152/75), ECHR, Series A, No 52 (1983), paras 66 and 73. 3 The idea of the existence of self-contained regimes is not a new one. The PCIJ in the case of the SS Wimbledon, found the provisions in the Treaty of Versailles that related to the Kiel Canal to be self-contained: 1923, PCIJ Reports, Series A, No 1, p 4, 23–4. In the Tehran Hostages case, the International Court of Justice stated that the rules of diplomatic law ‘constitute a self-contained régime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse’, United States Diplomatic and Consular Staff in Teheran (USA v Iran), ICJ Reports 1980, p 3, 40 (para 86). However, as Pauwelyn has noted, ‘the Court did not find that diplomatic law was a self-contained regime in the sense of a regime that is completely detached from other rules of international law. It only concluded that in the particular circumstances of the Teheran Hostages case the remedies to be resorted to for breach of diplomatic law had to be limited to those available under diplomatic law, not any other remedies such as occupation of the embassy’, J Pauwelyn, Conflict of Norms in Public International Law (Cambridge, CUP, 2003), 36. 43 Starrett (1987) 16 Iran-US CTR 112, 221–222 (paras 338–339). 23 See para 5 of the Commentary to both arts 13 and 15 of the draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 165, 167–168. For an example in judicial practice of the different obligations including information and participation of the public and its access to judicial procedures, see in particular Tatar v Romania (App No 67021/01), ECHR, Judgment, 27 January 2009, paras 88 and 112–124. 10 See eg the opinion of arbitrator René-Jean Dupuy in Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libyan Arab Jamahiriya (1977) 104 JDI 350–389, available in English in (1978) 17 ILM 1; CD Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1990), 13. 71 See eg Timurtaş v Turkey (App No 23531/94), ECHR, Reports 2000-VI, para 103. 24 See eg Tokios Tokelės v Ukraine (ICSID Case No ARB/02/18), Decision on Jurisdiction, 29 April 2004, 11 ICSID Reports 313. 15 Under 1996 draft art 1 this obligation would apply both to activities where there was a risk of harm and those which merely caused harm. Cf Corfu Channel Case (United Kingdom v Albania), Merits, Judgment, ICJ Reports 1949, p 1, in which it was held that Albania both knew of the risk and could have prevented the harm. Similarly, the Trail Smelter case appears to be an example of liability for harm which was foreseeable and preventable, although it is true that the arbitral award also makes provision for future liability which is not dependent on failure to take preventive measures: Trail Smelter Arbitration (United States v Canada) (1938–1941) 1 International Environmental Law Reports 231. 23 See eg Canada, Claim against the Union of Soviet Socialist Republics for Damage Caused by Soviet Cosmos 954, 23 January 1979, 18 ILM 899; Trail Smelter (Canada/United States of America) (1941) 3 RIAA 1905. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

47 See Tyrer v United Kingdom (App No 5856/72), ECHR, Series A, No 26 (1978) (concerning the Isle of Man). 11 See the first phase in United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 3. 46 See United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3, 41 (para 88). 35 See eg United States—Import Measures on Certain Products from the European Communities (WT/DS165), Appellate Body and panel reports adopted on 10 January 2001, Appellate Body report, para 111. In its report the panel referred to the ILC Articles in the context of countermeasures and proportionality, ibid, panel report, para 6.23, footnote 100. Art 23 was the focus of United States— Sections 301–310 of the Trade Act of 1974 (WT/DS152), panel report adopted on 27 January 2000. The panel referred to rules on State responsibility: paras 7.80–7.81, 7.126. 2 See United States—Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, 8 October 2001, WT/DS192/AB/R, para 120, especially fn 90. 6 Jack Rankin v Islamic Republic of Iran (1987) 17 Iran-US CTR 135, 143. Cf Kenneth P Yeager v Islamic Republic of Iran (1987) 17 Iran-US CTR 92, 101. 97 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures) (Order of 13 September 1993), Provisional Measures, ICJ Reports 1993, 325, 440, separate opinion of Judge ad hoc Lauterpacht; European Court of First Instance, Case T/306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, paras 281–282; European Court of First Instance, Case T 315/01, Yassin Abdullah Kadi v Council and Commission, paras 226, 230; see also Commentary to art 50, para. 9.

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Table of Statutes James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998 , 525n art 9(4) 101 Additional Protocol I to the Geneva Conventions, 8 June 1977 251–2 , 465 , 812n , 1192n , 1193 art 20 1189 nn, 1199 art 51 1192–3 (6) 1189–90 , 1193n (8) 1190 , 1192 art 52(1) 1190 , 1193n art 53 1190 art 54 (1) 1204 (4) 1190 art 55(2) 1190 art 56(4) 1190 Additional Protocol II to the Geneva Conventions, 8 June 1977 1190–1 , 1192n art 1 252 , 334 art 13 (1) 1191

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(2) 1191 art 14 1191 art 15 1191 art 16 1191 African Charter on Human and Peoples’ Rights (Banjul Charter), Nairobi, 27 June 1981 158 , 776 , 777 , 782 , 784–5 , 1069 , 1070 art 20(1) 995 art 21 995 art 22 995 art 24 995 , 997n art 26 997n arts 27–29 318 art 47 778 art 48 778 art 49 778 art 50 783 art 55 779 art 56 783 art 58 779 art 59 779–80 Protocol on the Rights of Women in Africa, 11 July 2003 776 see also Ouagadougu Protocol African Charter on the Rights and Welfare of the Child, 11 July 1990 776 , 777 African Convention Governing the Specific Aspects of Refugee Problems in Africa, Addis Ababa, 10 September 1969 776 Agreement between Japan and the Democratic Socialist Republic of Sri Lanka, 1 March 1982 art 13 1094n Agreement between the Government of the United Kingdom and the Government of the People’s Republic of China concerning the Settlement of Mutual Historical Property Claims, 5 June 1987 1095n Agreement establishing the Caribbean Court of Justice, 14 February 2001 1116n Agreement on the Cessation of Hostilities between Ethiopia and Eritrea, 18 June 2000 1100 Agreement for the Implementation of the Provisions of the UN Convention on the Law of the

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Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 December 1995 1121–2 art 6 528 Agreement on Safeguards (WTO 1994) art 5.1 801 Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’) (WTO 1994) 1166– 7 art 4.10 799 , 800 , 1166n , 1167 art 4.11 800 , 1167n art 7.9 799 , 800 , 1166n , 1167 art 7.10 1167n Agreement on the Application of Sanitary and Phytosanitary Measures (WTO 1994) art 5(7) 528 Agreement on the Permanently Manned Civil Space Station, 26 September 1988 906–7 art 17(1) 909 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space, 22 April 1968 art 5(5) 908 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome 24 November 1993 1121–2 Algiers Agreement (Eritrea—Ethiopia), 12 December 2000 785 Algiers Declaration (establishing the Iran/US Claims Tribunal) see Declaration of the Government of the Democratic and Popular Republic of Algeria (p. xlvi) Alien Tort Claims Act 1789 (US) 19n , 325–7 , 939 , 990 American Convention on Human Rights, San José, 21 November 1969 , 158 , 727 , 739–60 , 1069 , 1070 art 1 (1) 543 , 729 , 746 , 754 (2) 543 art 4 729 art 5 729 art 7 729 art 27 465 , 745 art 33 740 , 752–3 art 41 740

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art 44 753 , 755 , 986 art 45 753 , 755–6 art 46(1) 741 art 47(d) 784n art 51(1) 756 art 57 757 art 61(1) 756–7 art 62(3) 740 art 63 757 , 987 (1) 749–50 , 759 art 64 740n American Declaration of the Rights and Duties of Man, OAS Resolution XXX (Bogotá 1948) 740 , 753 art 1 747 Amsterdam Treaty 1998 art 174(2) 528 Antarctic Treaty, Washington, 1 December 1959 517 , 945 art I 357n art X 1087n Annex on Liability see Madrid Protocol Antarctic Treaty, Protocol see Madrid Protocol Arbitration Act 1996 (UK) s 9 842n s 36 842n ss 38–44 842n Arbitration (International Investment Disputes) Act 1966 (UK) s 1 841 s 3(1) 842n s 3(2) 842n Arbitration (International Investment Disputes) Act 1979 (NZ) s 8 842 Articles on Responsibility of States for Internationally Wrongful Acts (ILC 2001) Introductory Commentary 970 , 994 , 1194

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Part Two, Commentary 537 , 981 Part Three, Commentary 1167n , 1169 art 1 8–9 , 10 , 13 , 17 , 18n , 20 , 43 , 79 , 107 , 165 , 173 , 269 , 360 , 407 , 434 , 508 , 644 , 931 , 939 art 2 8–9 , 43 , 71 , 79 , 123 , 165 , 173 , 175 , 200–1 , 210 , 224 , 345 , 356 , 383 , 434 , 508 , 641 , 652 , 729 , 794–5 , 949 , 994 (a) 225–6 art 3 9 , 20 , 71 , 173 , 175 , 176–7 , 210–11 , 786n art 4 71 , 149 , 180–1 , 182 , 203 , 229 , 233 , 239 , 241–2 , 265 , 269 , 287 , 1038 (1) 180 , 240 (2) 180 , 229 , 238 , 243 art 5 71 , 149 , 180 , 181–2 , 203 , 229 , 233 , 238 , 246 , 345 , 727 , 1038 art 6 71 , 149 , 180 , 182–3 , 204 , 229 , 233 , 240 , 265 , 301 , 649–50 , 1038 art 7 71 , 149 , 175–6 , 178 , 203 , 229–30 , 246 , 255 , 263–4 , 727 (1) 241 art 8 71 , 149 , 206 , 227 , 229 , 233 , 247 , 265–71 , 333 , 727 art 9 71 , 149 , 203 , 229 , 233 , 265 , 271–3 , 334–5 art 10 19 , 71 , 149 , 204 , 229 , 247–8 , 250 , 387 , 847 (1) 231 (2) 231 , 292 (3) 253 art 11 71 , 149 , 206 , 229 , 231–2 , 233 , 262–3 , 265 , 273–5 (1) 262–3 , 279–80 (2) 232 , 279–80 art 12 21n , 43 , 82n , 85 , 105 , 123 , 170n , 209–10 , 211–12 , 365–6 , 371 , 376 , 398 , 522 , 652 art 13 84 , 214–16 , 310n , 387 , 398–401 , 652 art 14 43 , 84 , 151 , 214 , 216 , 248 , 253–4 , 384 , 389–91 , 546 , 679n (3) 255 , 521 , 522n , 523–4 art 15 84 , 214 , 216–17 , 248 , 360 , 392–3 , 547 , 629 art 16 123 , 285–7 , 292 , 308 , 311 , 650–3 , 692 , 735 (b) 651 art 17 73 , 231 , 285 , 287–8 , 292 , 309 , 367–8 , 651–3 art 18 41 , 285 , 288–9 , 292 , 651–3

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art 19 41 art 20 30 , 80n , 84 , 108 , 149 , 217 , 428 , 430 , 439–47 , 1041 art 21 31 , 71 , 80n , 84 , 108 , 123 , 149 , 217 , 428 , 451 , 456 , 461–2 , 464–5 , 466 art 22 43 , 71 , 80n , 84 , 108 , 123 , 149 , 217 , 428 , 471 , 1131–2 , 1145 , 1187n art 23 43 , 80n , 84 , 108 , 123 , 149 , 217 , 288 , 428 , 444 , 476 , 495 , 847 , 1202 (1) 477 (2) 478 (p. xlvii) art 24 43 , 80n , 84 , 108 , 149 , 217 , 384 , 428 , 481 (1) 482 (2) 482–3 art 25 43 , 84 , 108 , 123 , 149 , 217 , 272 , 428 , 436 , 491 , 495–501 (1) 496 , 497 (2) 496 , 498–9 art 26 49 , 73 , 84 , 149 , 217–18 , 398 , 401 , 428 , 431 , 446–7 , 452 , 495 , 499 , 1042 , 1099 art 27 20 , 84 , 109 , 149 , 218 , 285 , 428 , 444n , 500 , 888–90 , 891–2 , 972 (b) 888–9 art 28 41 , 106–7 , 285 , 644 , 820n art 29 15 , 29 , 44 , 564 art 30 15 , 31 , 44 , 199 , 200 , 506 , 545–7 , 551–4 , 557–9 , 573–4 , 590 , 751 , 788n , 1209n (a) 547 (b) 551 , 554 , 557 , 558–9 , 561 art 31 44 , 176 , 199 , 200 , 540 , 565 , 567 , 579 , 848 , 1030n (1) 295 , 569 , 599–600 , 794 , 798 (2) 794 , 1163 art 32 149 , 176–7 , 211 , 566 art 33 372 , 820 , 942 (1) 567–8 , 820 , 952 , 1024 (2) 820 , 932 , 969 art 34 30–1 , 218 , 295 , 464 , 566 , 573 , 574 , 576 , 594 , 599–600 art 35 199 , 580 , 589–90 , 1203–4 (b) 567 , 1032 art 36 44 , 199 , 539 , 573 , 589 , 599–600 , 674 , 798 , 848 , 953n , 1095 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(1) 581 , 601 (2) 539 , 1163n art 37 44 , 199 , 320 , 573 , 633n (1) 581 (2) 556 , 829 (3) 567 , 635 , 1032 art 38 600n , 614 , 622 art 39 570 , 644–5 art 40 121 , 195–6 , 398 , 412 , 425 , 674 , 691–2 , 812–13 , 959 , 981–2 , 1024 , 1139 , 1200 (1) 410 , 415–16 , 421–2 , 426 , 690 (2) 22 , 425 , 690 , 692 , 1139 art 41 14n , 85 , 123–4 , 398 , 410–11 , 412 , 415 , 674 , 683–4 , 690 , 691–2 , 959 , 981–2 , 999 , 1139 , 1200 (1) 696–7 , 1000 (2) 22 , 373–4 , 679 , 684 , 685–6 , 690 , 692 , 1000 (3) 674 art 42 23–4 , 49 , 85 , 159 , 196 , 198 , 411 , 412 , 565–6 , 567–9 , 645 , 697–8 , 817 , 934–5 , 938 , 942–7 , 950–1 , 957–8 , 970 , 1030 , 1040–1 , 1203 (a) 23 , 567 , 934 , 943 (b) 23 , 567 , 934 , 935 , 945–6 , 1139n art 43 412 , 576–7 , 593–4 , 935 , 963 , 1029–33 , 1170n (2) 593 , 634n , 935 (a) 1031–2 (b) 1032–3 art 44 88 , 412–13 , 821 , 963 , 1051–2 , 1062 , 1066 (b) 818 art 45 81 , 413 , 444 , 818 , 953n , 963 , 1030n , 1035–6 , 1042 , 1047 , 1096 (1) 1044 art 46 41 , 542 , 593 , 656–7 , 817 , 949 , 952–3 art 47 31 , 283 , 284 , 289 , 657–8 (1) 935–6 , 1170 (2) (a) 936 (b) 936

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art 48 14 , 15 , 24 , 31 , 49 , 78n , 82 , 84–5 , 159–60 , 196–7 , 198 , 568–9 , 593 , 645 , 656–7 , 698 , 934–5 , 938 , 942 , 945 , 947 , 951 , 957–9 , 962–3 , 998 , 999 , 1001 , 1002 , 1027 , 1040–1 , 1138–40 , 1201 (1) 627 , 934 , 958 , 959 , 976 , 1029n , 1030 , 1032 , 1040 , 1138 , 1164 , 1185n , 1200–1 (2) 199–200 , 416 , 548n , 557 , 961 , 978–9 , 1027 , 1138 (b) 1032n (3) 963 , 1030n art 49 31 , 44 , 539 , 569 , 707n , 818 , 954 , 1159 , 1187n (1) 1157–8 , 1174 , 1185n , 1203 (2) 936–7 , 1174–5 , 1185n (3) 937 , 1175 art 50 31 , 44 , 113 , 151 , 539 , 736n , 937 , 975 , 1111 , 1182 , 1194n , 1197–1204 , 1206–7 , 1209–13 (1) 111 , 135–6 , 736n , 745n , 937 , 1178 , 1182 , 1199–1201 (a) 1178 , 1198–9 , 1202 , 1203 (b) 1164–5 , 1178 , 1182 , 1185 , 1186 , 1188 , 1195–6 , 1198–9 (c) 1178 , 1182 , 1188–9 , 1195–6 , 1198–9 (d) 1178 , 1182 , 1196 , 1198–9 (2) 111–12 , 135–6 , 137 , 151 , 937 , 1206 (a) 1198 art 51 44 , 82 , 135–6 , 137 , 539 , 800 , 954 , 975 , 1157–67 , 1203 art 52 82 , 106n , 539 , 1111 (1) 634n , 1170 (a) 1151 , 1170n (b) 1151–2 , 1170–1 (2) 408 , 1153 , 1172 (3) 1153 , 1173 (3)(b) 1096 art 52(a) 408 (p. xlviii) art 52(b) 408 , 579 , 1096 art 53 41 , 82 , 408 , 539 , 937–8 , 1172 , 1176 art 54 14n , 23n , 41 , 49 , 120 , 124 , 161–2 , 416 , 698 , 939 , 942 , 954 , 962 , 979– 80 , 999 , 1001 , 1138 , 1139n , 1142 , 1144–6 , 1164 , 1201 art 55 20 , 117 , 121 , 139–40 , 142 , 203 , 365 , 400 , 594 , 674 , 793 , 794 , 819–21 , 957 , 1167n

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art 56 41 , 107 , 793 art 57 201 , 345 art 58 19 , 345 , 411 art 59 116 , 117–22 , 124 , 138 , 958 , 1138 , 1142 , 1203 Draft articles, later rejected/revised draft art 6 688 , 695–6 , 698–9 draft art 14 688–9 draft art 19 14 , 22n , 78n , 81 , 106 , 128 , 212–13 , 373 , 406–10 , 415–16 , 421–5 , 624 , 703 , 706 , 710 , 1120 draft arts 20–23 375–7 , 522–3 draft art 35 888 , 889 , 892–3 draft art 40 933–4 , 979 , 1142–3 draft art 41 689–90 , 693 draft art 42 690 draft art 50 1181–2 draft art 53 689 , 696 , 937 , 1143 , 1172 draft art 58 1107–12 draft arts 59–60 1110–11 Annex II 1112–13 Athens Convention on the Carriage of Passengers and their Luggage by Sea, 13 December 1974 896 , 899 2002 Protocol, London, 1 November 2002 899 Atomic Energy Act 1954 (US) 916 Austrian State Treaty, Vienna, 15 May 1955 art 23(3) 1037n , 1039n art 27(2) 1037n , 1039n Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 January 1991 527 Banjul Charter see African Charter on Human and Peoples’ Rights Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989 324 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999 102 , 102n , 324 , 518

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Basic Law (Israel) 681n Bergen Declaration on Sustainable Development in the ECE Region, 16 May 1990 527 Biodiversity Convention see Convention on Biological Diversity Brussels Convention on the Liability of Operators of Nuclear Ships, 25 May 1962 920–1 Brussels Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 17 December 1971 920 , 921 Brussels Convention Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy, 31 January 1963 516 , 519 , 917 , 921–8 art 2(a) 922 , 923 art 3(b) 925 art 5 922 art 6 926 art 12 925 art 14(b) 919 Brussels Conventions 1969 see International Convention on Civil Liability for Oil Pollution Damage ; International Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties Bunker Fuel Convention see International Convention on Civil Liability for Bunker Oil Pollution Damage Burundi-United Kingdom Agreement for the Promotion and Protection of Investments, 13 September 1990 , art 1 1010n Canada-Poland Agreement for the Promotion and Reciprocal Protection of Investments, Warsaw, 6 April 1990 art XI 1093n Treaty Creating the Court of Justice of the Cartagena Agreement, 28 May 1979 1116 see also Cochabamba Protocol Cartagena Protocol on Biosafety to the Convention on Biodiversity, Montreal, 29 January 2000 528 , 530n , 810n Charging Orders Act 1979 (UK) 841 Charter of Fundamental Rights of the European Union, Nice 2000 774 Charter of the International Military Tribunal, 8 August 1945 718 art 6 321 Charter of the International Military Tribunal for the Far East, 19 January 1946 321 , 718 Charter of the Organisation of African Unity (OAU), Addis Ababa, 25 March 1963 775 , 784 art II(1) 775

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art III 775 Charter of the Organization of American States, Bogotá, 30 April 1948 740 , 1086 art 3(1) 740 art 20 1210 (p. xlix) Buenos Aires Protocol see Protocol of Buenos Aires Charter of the United Nations, 26 June 1945 31 , 115–38 , 348 , 380 , 698–9 , 958 Chapter VII 116 , 121 , 125 , 126–7 , 277 , 319 , 708 , 712 , 718–19 , 999–1000 , 1137 , 1140 , 1141–2 art 1 (2) 995 (3) 174 art 2 (3) 1149 , 1152 (4) 31 , 127 , 134 , 419 , 430 , 446–7 , 458 , 460–1 , 498 , 671 , 1092 art 5 123n , 126 art 6 123n , 126 art 19 123n , 126 art 24(2) 135 art 25 123 , 131 , 133 , 683 art 33 1031 , 1092 , 1152 , 1171 (2) 1092 art 39 120 , 125 , 127–8 , 132 art 41 126–8 , 130 , 132n , 133 , 134 art 42 31 , 126–7 art 43 31 , 972 art 48 31 (1) 123 art 49 135 , 698 art 50 123 , 135 art 51 121–2 , 135 , 137 , 423n , 430 , 455–6 , 457 , 460–1 , 463–4 art 55 995 art 71 344 art 103 116 , 120 , 121 , 130 , 138 , 372

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Civil Code (France) Art 1235 4 Civil Liability Convention see International Convention on Civil Liability for Oil Pollution Damage Civil Procedure Rules (UK) part 72.2 841 Cochabamba Protocol Modifying the Treaty Creating the Court of Justice of the Cartagena Agreement, 10 March 1996 1116n Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, 1996 351–2 art 1 351 art 2 351 art 9 351 Code of Crimes against the Peace and Security of Mankind (ILC 1996) 79 Commercial Code 1807 (France) 895 Comprehensive Anti-Apartheid Act 1987 (US) 1001 Constitutive Act of the African Union, Lomé, 11 July 2000 776n Preamble 775 art 3 775 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984 19n , 728 art 2 17n art 4 862 art 14(1) 325 , 986 Convention (No 87) Concerning Freedom of Association and Protection of the Right to Organise (ILO 1948) art 8(1) 347 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 16 February 1976 art 4(3) 528 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 22 September 1992 530n , 878–9n art 2 (2) 528 (a) 880 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992 528 , 531 , 1119n

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art 27 1101n Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels, Geneva, 10 October 1989 883 Convention on Environmental Impact Assessment in a Transboundary Context, Espoo 25 February 1991 1119n Convention on International Liability for Damages Caused by Space Objects, 29 November 1971 166 , 511 , 516 , 904–13 , 920 Preamble 909 art I (a) 908 (b) 907 (c) 904 (d) 906 art II 904 art III 907–8 art IV (1) 907–8 , 911 (2) 911 art V 905 (1) 911 (2) 911 (3) 911 art VI(1) 644 , 906 art VII 908 art VIII 910 art IX 910 , 1082 art X 910 (1) 910 , 1046n (2) 910–11 (p. l) art XII 909 art XIV 911 art XV 912 art XVI (1) 912 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(3) 912 (5) 912 art XVII 912 art XVIII 912 art XIX (2) 912 (3) 912 (4) 912 art XX 912 art XXII (1) 906 (3) 911 (4) 910 Protocol on Settlement of Canada’s Claim 1981 913 Convention on Limitation of Liability for Maritime Claims, London, 19 November 1976 900 Convention on Nuclear Safety, Vienna, 20 September 1994 920 Convention on Supplementary Compensation for Nuclear Damage, Vienna, 29 September 1997 (CSC) 516 , 918 , 921–8 art II(2) 923 art III (1)(a) 925 (1)(b) 925 art IV 925 art XIII(5) 927 art XVIII(1) 920 Annex 918 art 11 926 Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979 174 , 986 Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965 158 , 776n , 997 art 2 996 art 6 986 Convention on the Establishment of a Security Control in the Field of Nuclear Energy, 20 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

December 1957 art 12 1116 Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997 art 7 804n art 32 99n Convention on the Marking of Plastic Explosives for the Purpose of Identification, Montreal, 1 March 1991 1119n Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, New York, 20 February 1977 art 7 374 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948 18 , 215 , 995–6 , 997 , 1183 art II 995 art III 414 , 996 art VIII 699 art IX 405 , 414 , 996 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 13 November 1972 art 5 485 Protocol (1996) 1121–2 art 3(2) 880 Convention on the Privileges and Immunities of the United Nations, 13 February 1946 1077 art VI, s 22 1079 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, 10 November 1976 812n Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris, 13 January 1993 1119n art 1(2) 358n Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992 527 , 878–9n , 1119n art 2(5)(b) 880 Convention on the Protection of the Alps, Salzbug, 7 November 1991 878–9n art 2(1) 880 Convention on the Rights of the Child, New York, 20 November 1989 art 2(1) 1165 art 24(1) 1165

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Convention on the Safety of United Nations and Associated Personnel, New York, 17 February 1995 art 7 1074 art 10 1074 art 11 1074 Convention on the Settlement of Investment Disputes Act 1966 (US) 830n Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Washington, 18 March 1965 (ICSID Convention) 815–42 , 990 arts 18–24 816 art 25 821–7 (1) 822 (2)(a) 822 , 823–4 (2)(b) 822 , 823 , 825–7 , 1015 , 1019 (p. li) art 26 818 , 840–1 art 27 816 , 817 , 932n arts 28–35 1101 arts 37–40 840 art 41 840 art 42 818 (1) 832 , 833 , 835 , 837–9 art 43 840 art 45 840 art 46 840 art 47 831 , 840 , 841n arts 48–52 840 art 53 816 , 817 , 828 art 54 816 , 817 , 828 (1) 828 , 829–31 art 55 816 , 841 arts 59–61 840 arts 62–3 840 art 64 817 art 69 816 , 817 , 842

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Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973 327 art II 996 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, Brussels, 17 December 1971 324 Council Regulation No 17/62, 6 February 1961 art 15 320 art 16 320 Council Regulation 3541/92, 7 December 1992 art 2 1141 art 3 1141 Council Regulation 3275/93, 29 November 1993 art 1 1141 art 3 1141 Council Regulation No 44/2001, 22 December 2000 art 22 1008n Covenant of the League of Nations, 1919 art 12 126 art 13 126 art 15 126 art 16 126 art 17 1117–18 Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Algiers, 19 January 1981 (Algiers Declaration) 819 , 822 , 843–5 , 1007n Claims Settlement Declaration 843 art II 844 , 845 General Declaration 843 Principle B 845 Declaration of the Rights of Man and the Citizen (France 1789) 726 Declaration on Human Rights of Individuals who are not Nationals of the Country in which They Live, GA Res 40/144, 13 December 1985 1070 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, GA Res 2625 (XXV ), 24 October 1970 331 , 337 , 698–9 , 995 , 1147 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on

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Religion or Belief, GA Res 36/55, 25 November 1981 996 Declaration on the Elimination of Violence against Women, GA Res 48/104, 20 December 1993 732 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, GA Res 2131 (XX) 1965 1210 Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms 1999, GA Res 53/144 art 18 347–8 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, 18 December 1992 993n , 995 art 1(1) 995 art 2(4) 995 Definition of Aggression, GA Res 3314 (XXIX), 14 December 1974 127 art 3 (f) 286 (g) 336 art 7 1147n Directive 2004/35/EC, 21 April 2004 (Environmental Liability Directive) 878 , 881 , 883–4 Dispute Settlement Understanding (DSU) see Marrakesh Agreement , WTO Dispute Settlement Understanding Draft Articles on Diplomatic Protection (ILC 2006) 87–90 , 99–100 , 985 , 1052n art 2 1052 art 3(1) 1053 art 4 1053 , 1054–5 art 5 89 , 1060–1 (1) 1061 (2) 1061 (3) 1061 (4) 1061 art 6 (1) 1055 (2) 89 , 1055 art 7 89 , 1056–7 (p. lii) art 9 1009–10 , 1009–10n , 1019n , 1057–8

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art 10 1019 art 11 1058 (a) 1012 , 1060 (b) 1012 , 1060 art 12 1058–9 , 1067 art 13 1067 art 14 1062–3 , 1067 (1) 1062 (2) 1062 (3) 1062 art 15 1063 , 1064–5 (a) 1063 (b) 1063 (c) 89 , 1063 , 1065 art 19 90 , 1068 Draft Articles on Jurisdictional Immunities of States and their Property (ILC 1991) art 10 238 Draft Articles on Most-Favoured-Nation Clauses (ILC 1978) 87n Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (ILC 2001) 10n , 79 , 96–7 , 98 , 101 , 166–7 , 505–6 , 511 , 522 , 524–5 , 807–8 art 1 505 art 3 374 , 378n , 524 , 882 , 882n art 7 524 art 8 524 art 9 524–5 , 882 (2) 168 art 10 882 art 11 882 art 13 525 art 15 99n , 525 Draft Articles on Responsibility of International Organizations (as adopted on first reading) (ILC 2009) 87 , 90–2 , 222n art 1 7 , 18n , 969 , 973n

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art 4(1) 304n , 982 art 7 305 art 14 309n art 16 91 art 21 973n , 974n (1) 971n art 39 91 art 42 972n art 48 977 (1) 976 , 979 (3) 979 art 50 973n art 51 973n art 52 973n , 975 art 53 973n , 975 art 54 973n , 974 art 55 973n art 56 980 art 57 307–8 art 58 309 art 60 91 , 313 art 61 91 Draft Code of Crimes against the Peace and Security of Mankind (ILC 1996) art 20 812 Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities (ILC 2006) 50n , 79 , 97 , 99–104 , 505–6 , 508 , 518 , 882n Principle 1 101 , 505 Principle 2 515 (a) 103 (c) 101 Principle 4 11 , 102n Principle 5 99

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Principle 6 (1) 99 , 101 (3) 104n Principle 7 103 , 104n , 519 ECOSOC Resolution 1503 (XLVIII) on Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms, 27 May 1970 392 , 996 ECOSOC Resolution 2003/3 of 16 June 2000, modifying Resolution 1503 (XLVIII) 996 EC Treaty, Rome 1957 (Treaty on the Functioning of the European Union) 152–3 , 1116n art 10 865 art 20 1083 art 83 320 art 103 320n art 174 (2) 880 (3) 880 art 220 154 art 226 153 , 861–2 , 866 (1) 32 (2) 32 art 227 153–4 , 861 art 228 153–4 (1) 32 (2) 32–3 , 153 , 866 art 232 356n art 234 990 art 235 863 , 873–4 art 282 867 art 288 863 , 867 , 873 (2) 989–90 art 292 154 art 301 980 art III-337 (new) 989–90 Energy Charter Treaty, Lisbon, 17 December 1994 819

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art 26 1015n (p. liii) Environmental Charter 2004 (France) 880n art 5 527 EU Treaty see Maastricht Treaty on European Union European Code of Conduct on Space Debris 2008 907n European Convention for the Peaceful Settlement of Disputes, Strasbourg, 29 April 1957 art 1 1101n art 4 1101n European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950 21 , 158 , 307 , 311 , 314–15 , 322 , 399 , 732–4 , 763–72 , 773–4 , 819 , 820 , 986 , 1069 , 1070 , 1183–4 art 1 17n , 313 , 659–60 , 730 , 732 , 733 , 765 art 2 278 , 771 art 3 278n , 418n , 659 , 730 , 766 , 771 art 4(1) 771 art 5 584–5 , 659 (5) 986 art 6(1) 671–2 , 766 , 770–1 art 7 402n , 771 art 8 278n , 418n art 10 278n , 769 art 11 772 art 14 770 art 15 418n , 465 , 771–2 art 19 765 art 27(2) 764 art 30 764 art 32 765 (2) 765 art 34 768 , 784n art 35 768 , 1046n (1) 769 (2) 784n

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art 41 20n , 659 , 770 , 962 , 987 art 43 764 , 769–70 art 46 765 (1) 770 (2) 764 art 56 768 , 771 art 57 771 Protocol No 1 art 1 617 , 771 art 3 313 Protocol No 11, 1 November 1998 764 art 38 1101–2 Protocol No 14, 13 May 2004 773 European Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, 21 June 1993 art 8 511 European Convention on Nationality, 6 November 1997 art 3 1053 European Convention on State Immunity, 16 May 1972 Additional Protocol 1116n European Social Charter 763 , 772–3 Evian Accords (France/Algeria), 19 March 1962 250 Exchange of Notes between the United Kingdom and Chile (15 and 30 June 1998) Concerning Liability for Damage during the launch phase of the Fasat-Bravo satellite 905 Federal Arbitration Act 1925 (US) 842 Framework Agreement for the Conservation of Living Marine Resources in the High Seas of the Southeast Pacific (Galápagos Agreement), 14 August 2000 1121–2 Framework Convention on Climate Change New York, 9 May 1992 531 , 877 , 1119n art 3(3) 527–8 see also Kyoto Protocol on Climate Change France-USSR Agreement for the Promotion and Reciprocal Protection of Investments, Paris, 4 July 1989 art 1 1015n (2)(b) 1008n Friendly Relations Declaration see Declaration on Principles of International Law Concerning

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Friendly Relations and Co-operation Among States GATT (General Agreement on Tariffs and Trade) 1947 793n , 798n , 971 GATT (General Agreement on Tariffs and Trade) 1994 862 art XXIII 794–5 (1) 793–4 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 203n , 307 , 465 art 1 1199 art 2 234 art 3 741 , 1190–1 , 1193 , 1194n (1) 1191 art 8 347 art 10 346–7 art 44 347 art 46 1189n Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 203n , 307 , 465 art 2 234 art 3 741 , 1190–1 , 1193 , 1194n (1) 1191 art 7 1199 art 47 1189 (p. liv) Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949 203n , 307 , 465 art 2 234 , 1189 art 3 741 , 1190–1 , 1193 , 1194n (1) 1191 art 4(A)(6) 273 art 5(2) 417 art 13 1199 art 25(1) 417n art 33 1189n Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 203n , 307 , 465 , 849 art 2 234

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art 3 741 , 1190–1 , 1193 , 1194n (1) 1191 art 4 1189n art 8 1199 art 33(3) 1189 art 88 526 art 127 526 art 137 526 see also Additional Protocol Geneva Convention on the Territorial Sea and Contiguous Zone, 29 April 1958 art 14(3) 484–5 Geneva Convention Relating to the Status of Refugees, 28 July 1951 766 Genocide Convention see Convention on the Prevention and Punishment of the Crime of Genocide Golan Heights Law (Israel), 14 December 1981 681n Guidelines for Multinational Enterprises (OECD 2000) 19n Hague Convention I on the Pacific Settlement of Disputes, 29 July 1899 62 Preamble 1177n art 9 1100 Hague Convention II on the Laws and Customs of War on Land, 29 July 1899 62 , 273 Hague Convention I on the Pacific Settlement of Disputes, 19 October 1907 art 9 1100 Hague Convention IV on the Laws and Customs of War on Land, 19 October 1907 62 , 273 Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 19 October 1907 art 5 523 Hague Convention VIII Relative to the Laying of Automatic Submarine Contact Mines, 19 October 1907 62 art 3 526 art 4 360 , 526 Hague Convention concerning Certain Questions relating to the Conflict of Nationality Laws, 12 April 1930 art 1 1053 art 4 844–5 , 1055

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Hague Convention concerning the Recognition of the Legal Personality of Foreign Corporations, Partnerships and Foundations, 1 June 1956 art 1 1008n , 1009n Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 art 4(4) 1190 Hague Regulations annexed to Hague Convention IV respecting the Laws and Customs of War on Land, 18 October 1907 1189 art 50 1189n Helsinki Final Act of the Conference on Security and Co-operation in Europe, 1 August 1975 Principle VI 1210 HNS Convention see International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea ICSID Arbitration Rules 815 rules 1–12 840 rules 13–27 840 rule 28 840 rules 29–32 840 rules 33–37 840 rule 38 840 rule 39 840 , 841n rule 41 840 rule 42 840 rules 46–53 840 ICSID Convention see Convention on the Settlement of Investment Disputes Indicative List of Measures that Might be Taken by a Meeting of the Parties in Respect of NonCompliance with the Montreal Protocol 1992 810 Inter-American Convention on Forced Disappearances, Belém do Pará, 9 June 1994 755 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Belém do Pará, 9 June 1994 732 art 7 755 Inter-American Convention to Prevent and Punish Torture, Cartagena de Indias, 9 December 1985 741 art 1 755 International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk

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chapter 17 898 chapter 19 898 (p. lv) International Convention for the Prevention of Pollution from Ships, London, 2 November 1973 (MARPOL Convention) 898 International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999 art 4 358n International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 23 March 2001 102 , 102n , 896 , 897 , 900 art 1 (3) 897 (4) 897 art 3 897 art 7(11) 901 International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969 (Civil Liability Convention) 324 , 517 , 519 , 807n , 883 , 884 , 896–7 , 900–1 art I(6) 896–7 art III (1) 897 (2) 897 (3) 897 art V (2) 900 (3) 900 Protocol I (1976) 896 Protocol II (1984) 896 Protocol III (1992) 896 , 896n art 1(6) 103n art 3 102n art 5(2) 102n International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 3 May 1996 (HNS Convention) 324–5 , 895–6 , 898–9 , 900 art 1 (3) 898

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(4) 899 (6) 898 art 7(1) 898 art 12 901 art 13 901 art 23 519 International Convention on Oil Pollution Preparedness, Response and Cooperation, London, 30 November 1990 878–9n International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971 900–1 art 1(2) 901 Protocol (2003), art 4(2) 901 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969 Preamble 896 International Covenant on Civil and Political Rights, New York, 16 December 1966 158 , 175 , 318 , 322 , 328 , 555 , 730–1 , 734–5 , 776n , 994 , 1069 , 1070 art 1 (1) 997n (2) 566 art 2 17n , 1183 (1) 734 (3) 542 art 6(1) 379 art 7 379 art 9 (1) 394 (5) 394 , 986 art 14 (2) 379 (6) 986–7 art 15 402n art 23(a) 987–8 art 27 997

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Optional Protocol I 986 , 987–8 art 1 784n , 997 International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966 158 , 318 , 322–3 , 328 , 731 , 776n , 987 , 994 , 1187–8 , 1204 art 1(2) 566 art 12 731 International co-operation in the peaceful uses of outer space, GA Res 62/217, 21 December 2007 907 International Monetary Fund Stand-By Arrangements 168–9 Israel-Lebanon Monitoring Group Protocol on the Working Rules 1088 Joint Protocol Relating to the Application of the Vienna Convention on Civil Liability for Nuclear Damage and the Paris Convention on Third Party Liability in the Field of Nuclear Energy, Vienna, 21 September 1988 323 , 918–19 art 1 (a / b) 919 Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003 102–3 nn, 517–18 , 880 , 884 Kyoto Protocol on Climate Change, 11 December 1997 811 (p. lvi) Law on the Presumption of Innocence (France), 15 June 2000 770–1 Lisbon Treaty 2007 amending the EC Treaty and the Treaty on European Union art 191(2) 528 , 880n art 258 861–2 , 866 art 259 861 art 268 863 , 873–4 art 340 863 , 867 Loi Barnier (No 95-101), 2 February 1995 (France) 527 Lomé Peace Agreement, 4 October 2000 250 London Declaration on the Protection of the North Sea, 25 November 1987 527 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 21 June 1993 99 , 102–3n , 324 , 878–9n , 883–4 Preamble 518–19 art 2 884n art 8 (a) 884 (b) 102n , 884

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(c) 884 (d) 884 art 12 884 Maastricht Treaty on European Union 1993 32–3 , 1116n art 4 865 art 7 153 art 130R 528 Madrid Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991 art 2(c), Annex VI 103n , 517 Manila Declaration on the Peaceful Settlement of Disputes, GA Res 37/10, 15 November 1982 1153 paragraph 3(a) 1092 Maroua Declaration 1975 223 MARPOL Convention see International Convention for the Prevention of Pollution from Ships Marrakesh Agreement Establishing the World Trade Organization (WTO, 1994) 791 , 1166 art XVI:4 791n Annexes see Agreement on Subsidies and Countervailing Measures ; Agreement on the Application of Sanitary and Phytosanitary Measures ; TRIPs ; WTO Dispute Settlement Understanding Model Bilateral Investment Treaty for the United States of America 2004 (USA), art 26(3) 840– 1 Model Status-of-Forces Agreement for Peace-Keeping Operations (UN, 1990) 298n Montego Bay Convention see Convention on the Law of the Sea Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987 170 , 527 , 809–11 , 809n Napoleonic Code (Code civil, France) arts 1381–3 109 arts 1384ff 109 Nice Treaty 2001 528 North American Free Trade Agreement 819 , 939 Chapter XI 818 , 1157 , 1165 Chapter XX 1165 art 1135 615 Annex 703.2.A 1165

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Nuremberg Tribunal Statute see Charter of the International Military Tribunal OSPAR Convention see Convention for the Protection of the Marine Environment of the NorthEast Atlantic Ouagadougou Protocol creating the African Court on Human and Peoples’ Rights 776 , 780–1 , 782 art 2 786 art 27(2) 783n see also Protocol on the Statute of the African Court of Justice and Human Rights Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960 323–4 , 516 , 518–19 , 916–18 , 921–8 art 1 922 art 2 922 art 3 323 , 923–4 (a) 923 art 6 (b) 921 (e) 924 art 7 323 (b) 924 art 8 926 art 10 925–6 art 11 926 art 13 927 art 17 927 Additional Protocol I of 28 January 1964 323 , 917 , 918 Additional Protocol II of 16 November 1982 323 , 917 see also Brussels Convention Supplementary to the Paris Convention ; Joint Protocol ; Protocol to Amend Peace Treaty with Italy 1947 art 77 1037n , 1039n (p. lvii) Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 4 October 1993 art 6 1012n

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art 10 1015n Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res 47/68, 14 December 1992 905 , 908 Principle 2 905 Principle 9 909n Protocol II (to the 1980 Convention on Certain Conventional Weapons), on Prohibitions or Restrictions on the Use of Mines, Booby- Traps and other Devices to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Geneva,10 October 1980, amended 1996) 1190n Protocol of Buenos Aires to the Charter of the Organization of American States, 27 February 1967 740 Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-Sheikh, 1 July 2008 776n , 780n , 781 Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy, 12 February 2004 519 , 917 , 919 art IB 103n art 2 922 art 9 924 art 13(i) 927 art 17(a) 927 art 21 924 Protocol to the Convention on Long-range Transboundary Air Pollution on Further Reduction of Sulphur Emission, Oslo, 14 June 1994 1119n Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971 349 Rio Declaration on Environment and Development 1992 531 Principle 10 101 , 525 Principle 13 881–2 Principle 15 525 , 527 , 529 , 530n , 806n , 1212n Principle 16 518 , 878 , 879 Rome Convention on the Law Applicable to Contractual Obligations, 19 June 1980 art 2(a) 838n art 9 838n art 10.2 838n Rome Statute of the International Criminal Court, 17 July 1998 18–19 , 719

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art 1 1116 arts 5–9 321 art 8(2) 812 art 12(2) 719 art 34(1) 996 art 75(2) 322 art 79 322 Rome Treaty 1957 see EC Treaty Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia art 105 322 art 106(B) 322 Rules of Procedure of the African Commission on Human and Peoples’ Rights arts 88–92 778 arts 93–101 778 art 104(1) 784–5 art 111 783n Rules regarding the Taking up of International Claims by Her Majesty’s Government (UK, 1983) Rule V 1011n Rule VI 1012n , 1017 SCM Agreement see Agreement on Subsidies and Countervailing Measures Single European Act 1986 art 130R 878 Space Debris Mitigation Guidelines (COPUOS, 2007) 907 State Immunity Act 1978 (UK) s 14(4) 841 Statute of the African Court of Justice and Human Rights see Ouagadougou Protocol Statute of the Inter-American Commission on Human Rights, October 1979 art 1(2) 740 Statute of the International Court of Justice art 24 1119 art 36(2) 1118 , 1122–3 (c) 1117 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(d) 1117 art 38(1)(c) 372 , 512 Statute of the International Criminal Court see Rome Statute Statute of the International Criminal Tribunal for Rwanda (SC Res 955, 1994) 18–19 , 132 arts 2–4 321 art 5 1116 Statute of the International Criminal Tribunal for the Former Yugoslavia (SC Res 827, 1993) 18–19 , 132 art 1 19n art 6 1116 arts 2–5 321 Statute of the International Law Commission (GA Res 174 (II), 21 November 1947) art 23 (b–d) 86 (p. lviii) Statute of the International Tribunal for the Law of the Sea ( Convention on the Law of the Sea, Annex VI ) art 1 1118 art 24 1119 Stockholm Conventions of 1957 1102 Stockholm Convention on Conciliation and Arbitration, 15 December 1992 art 18 1101 Stockholm Convention on Persistent Organic Pollutants, 23 May 2001 528 Stockholm Declaration on the Human Environment (1972) 527 Principle 1 526 Principle 21 882 Supplementary Convention see Brussels Convention Supplementary to the Paris Convention Timor Gap Treaty (Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East Timor and Northern Australia), Timor Sea, 11 December 1989 663–4 Torture Convention see Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Torture Victim Protection Act 1991 (US) 19n , 326 Treaty establishing the European Community see EC Treaty Treaty of Friendship, Commerce and Navigation between the United States of America and Iran, Tehran, 15 August 1955 846 art XXI 1094n

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27 January 1967 903–7 , 909 art I 904 art VI 905 art VII 904 , 907 Treaty on the Functioning of the European Union see EC Treaty Treaty on the Non-Proliferation of Nuclear Weapons, London/Washington/Moscow, 1 July 1968 357n Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, ILO 1997 19n , 328 , 353n TRIPs (Trade-Related Intellectual Property Rights Agreement (WTO 1994) 792n Uganda Embargo Act 1978 (US) 1001 UK-USSR Agreement for the Promotion and Reciprocal Protection of Investments, London, 6 April 1989 art 1 (a) 1015n (d) 1008n UNCC Provisional Rules for Claims Procedure art 16 852 arts 18–20 850–1 , 850–3 art 31 851 art 33 852 art 36(a) 852 art 38(d) 852 art 40 (1) 851 (2) 851 art 41 853 UNCLOS see Convention on the Law of the Sea United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 313 , 567 , 944 , 1118 Part XI 1121 Part XII 96 Part XV 939n , 1121

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art 18(2) 485 art 39(1) 485 art 73 486 art 87(1) 31 art 98 485 arts 101–107 18n art 105 31 art 109 485 art 111 31 art 129(3) 311 art 139 12n , 311 art 194 23 , 947 art 235(2) 99n , 101 art 283 1087n art 284 1101 art 290 (5) 1121 , 1126 (6) 1126 art 291 1124 art 298(1) 1123 Annex VI see Statute of the International Tribunal for the Law of the Sea Annex IX, arts 1–6 971n Universal Declaration of Human Rights, GA Res 217A (III), 10 December 1948 318 , 328 , 348 , 1070 art 29 318 USA-Argentina Treaty Concerning the Encouragement and Reciprocal Protection of Investment, Washington, 14 November 1991 500 art XI 890 USA-Panama Treaty Concerning the Treatment and Protection of Investments, Washington, 27 October 1982 art IV 602n (p. lix) USA-USSR Treaty concerning the Encouragement and Reciprocal Protection of Investment, Washington, 17 June 1992 art 1(1)(c) 1015n

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Versailles Peace Treaty 1919 591 , 817 Vienna Convention for the Protection of the Ozone Layer, 22 March 1985 170 , 527 Protocol on Substances that Deplete the Ozone Layer see Montreal Protocol Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963 , 323–4 , 516 , 917 , 918 , 921–8 art I 922 (1)(k) 923 art II(5) 921 art IV (1) 923–4 (2) 924 (3) 924 art V (1) 924–5 art VI 926 art VII 925–6 art VIII 926 art XI 927 art XII(1) 927 art XVII 927 Amending Protocol, 12 September 1997 323 , 918 , 919 , 924 , 926 art IB 923 art XI(1)bis 927 art XX(A) 928 Optional Protocol Concerning the Compulsory Settlement of Disputes, 24 April 1963 927–8 see also Joint Protocol Vienna Convention on Consular Relations, 24 April 1963 274 , 277 , 538 , 543 , 591 , 592 , 594–5 , 943 art 31 1207n art 36 635n , 943–4 (1) 538 , 541 , 559–60 (2) 541 , 560–1 , 584 art 41 1207n

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art 45 1037n art 60 (2)(b) 946–7 (2)(c) 946 art 64 379 Vienna Convention on Diplomatic Relations, 18 April 1961 142–3 , 150–1 , 274 , 277 , 943 art 22 357n , 388 , 1207n (2) 374 , 379 , 523 art 24 1207n art 25 388 art 26 386 , 388 art 27 388 art 27(3) 373 art 29 374 , 379 , 386 , 388 , 1207n art 32 1037n Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 8 April 1983 art 26 378 art 42 1087n Vienna Convention on Succession of States in respect of Treaties, 23 August 1978 87n art 41 1087n , 1093n Vienna Convention on the Law of Treaties, 23 May 1969 21–2 , 87 , 441–2 , 449 , 450 , 648 , 693 , 767 , 816 , 1132 , 1200 art 4 397 , 401 art 7 223n (2) 223 arts 7–17 1038–9 art 26 31 , 107 art 27 174 , 177 , 786n art 28 397 , 399 art 31 145 , 379n (1) 146 art 32 379n art 33 379n From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

art 34 651–2 art 35 651–2 art 36 179 (2) 972n art 45 1035–6 , 1037 , 1044 art 46 174 , 223n art 48 1041 art 49 108 , 109 , 1041 (2) 111 (3) 111 , 112 art 50 108 , 109 , 1041 art 51 108 , 109 , 1041 art 52 108 , 109 , 1041 art 53 410 , 422 , 710 , 977 , 998 , 1023 , 1025 , 1042 , 1198 art 57 445–6 art 60 22 , 108 , 112–13 , 156 (2)(c) 953 , 1139n art 61 108 , 475 , 479 , 891n art 62 31 , 108 , 891n art 64 397 , 400 , 466 art 65 445–6 , 953 , 1031–2 art 66 1101 (a) 1112 art 70(1) 22n art 71 397 , 691 (2) 400 art 72(1) 22n art 73 22n , 107 , 431–2 , 475 (p. lx) Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986 87n , 397 , 648 , 977 art 7(3) 648 art 26 18n art 46 648

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art 53 410 , 1023 , 1025 art 65 648 art 66 648 Washington Convention see Convention on the Settlement of Investment Disputes World Intellectual Property Organization (WIPO) Rules art 60(b) 615 WTO Agreements see Agreement on the Application of Sanitary and Phytosanitary Measures ; Agreement on Safeguards ; Agreement on Subsidies and Countervailing Measures ; Marrakesh Agreement ; TRIPs ; WTO Dispute Settlement Understanding WTO Dispute Settlement Understanding (Marrakesh 1994) 820 , 1166–7 art 2(1) 1166n art 3 (1)(a) 798n (2) 792 (3) 794 , 1087 (7) 794 , 797–8 , 1087 (8) 794–5 , 794 nn art 19(1) 156 art 21 799 (5) 800 art 22 156 , 158 , 799 , 1166n (4) 798 , 1167 (6) 800 , 1167n (8) 800 art 23 155–6 (2) 1166n art 23(1) 799 art 26 794

Footnotes: 24 See in particular the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 38 ILM 517. 38 See, essentially, Additional Protocol I to the Geneva Conventions of 12 August 1949, 8 June 1977, 1125 UNTS 3, and the 1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, 1108 UNTS 151. 97 See Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949

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Geneva Conventions, and Relating to the Protection of Victims of Non-international Armed Conflicts (29 January 1987), S Treaty Doc No 2, 100th Cong, 1st Sess, III (1987) reprinted in (1987) 81 AJIL 910, referring to the fact that ‘ … the Joint Chiefs of Staff have … concluded that a number of the provisions of [Additional Protocol I] are militarily unacceptable’ (ibid, 911). The Legal Advisor of the Department of State at the time stated that the United States decision not to ratify Additional Protocol I was due, inter alia, to the fact that ‘it eliminates significant remedies in cases where an enemy violates the Protocol. The total elimination of the right of reprisal … would hamper the ability of the United States to respond to an enemy’s intentional disregard of the limitations established in the Geneva Conventions of 1949 or Protocol I …’: AD Sofaer, ‘The Rationale for the United States Decision’ (1988) 82 AJIL 784, 785. See also MJ Matheson, ‘The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’ (1987) 2 American University Journal of International Law and Policy 419; GH Aldrich, ‘Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions’ (1991) 85 AJIL 1. 72 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (‘Second Geneva Convention’), 12 August 1949, 75 UNTS 85, art 47. See also art 20, Additional Protocol I. 111 Ibid, para 531; earlier in the judgment, having noted that a number of States had not ratified Additional Protocol I and having acknowledged that there did not appear to be a consistent body of State practice pointing to the existence of customary rules prohibiting reprisals against civilians and civilian objects mirroring those in arts 51(6) and 52(1) of Additional Protocol I, the Trial Chamber observed ‘[t]his is however an area where opinio iuris sive necessitatis may play a much greater role than usus, as a result of the aforementioned Martens Clause’ (ibid, para 527). 33 See Sir Dawda K Jawara/Gambie, ACHPR, Communications No.147/95 and 149/96, 11 May 2000, in relation to article 26 of the African Charter on the right to internal self-determination; Social and Economic Rights Action Center, Center for Economic and Social Rights v Nigeria, ACHPR, Communication No 155/96, 13–27 October 2001, in relation to article 24 of the African Charter on the right to a satisfactory environment. 47 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3. The same formulation is also found in a number of bilateral investment treaties, such as art 13, Agreement between Japan and the Democratic Socialist Republic of Sri Lanka, 1 March 1982; cf also art XXI of the Friendship, Commerce and Navigation Treaty between Iran and the United States, at issue in Oil Platforms (Islamic Republic of Iran v United States of America), ICJ Reports 2003, p 161. 54 RB Lillich and BH Weston, International Claims: Their Settlement by Lump Sum Agreements (Charlottesville, University of Virginia Press, 1975); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China concerning the Settlement of Mutual Historical Property Claims, 5 June 1987, 1656 UNTS 77. 9 Agreement establishing the Caribbean Court of Justice, 14 February 2001, available at: . 65 Ibid, art 22.2; SCM Agreement, arts 4.10 and 7.9. 66 See DSU, art 22.6; SCM Agreement, arts 4.11 and 7.10. 15 Private parties (US or foreign) can be sued for torts occasioned ‘in violation of the law of nations’ anywhere committed against aliens, under the unusual jurisdiction created by the Alien Tort Claims Act (28 USC §1350). See eg Sosa v Alvarez-Machain, 124 S Ct 2739 (2004). The US cases distinguish between corporate complicity with governmental violations of human rights, and those violations (eg torture, slavery) which do not require any governmental involvement or state action. Cf also the Torture Victim Protection Act 1992 (Pub L No 102–256, 106 Stat 73 (1992)), under which only designated ‘rogue’ States can be defendants.

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46 See art 35(2), European Convention of Human Rights; art 47(d), American Convention on Human Rights. 8 See Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights (Advisory Opinion OC10/89), Inter-Am Ct HR, Series A, No 10 (1989), paras 43–47. 19 See eg art 1 of the Antarctic Treaty, Washington, 1 December 1959, 402 UNTS 71, prohibiting all measures of a military nature in the Antarctic; art 22 of the Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, which prohibits agents of the accrediting State from entering the premises of a diplomatic mission without the consent of the head of mission; Art 1 of the Treaty on the Non-Proliferation of Nuclear Weapons, London/Washington/Moscow, 1 July 1968, 729 UNTS 169 by which nuclear-weapon States undertake ‘not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices …’. 12 JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 3; United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 10; Convention on succession of States in Respect of Treaties, art 41; 1983 Convention on the Succession of State Property, Archives and Debts, 8 April 1983, not yet entered into force, 22 ILM 306 (1983), art 42 both provide for ‘a process of consultation and negotiation’; art XI of the 1959 Antarctic Treaty, 402 UNTS 71, entered into force June 23, 1961; art 283 UNCLOS, 10 December 1982, 1833 UNTS 3 (exchange of views as a form of consultation). 103 See also, in England: s 3(2) of the Arbitration (International Investment Disputes) Act 1966, by which s 9 of the Arbitration Act 1996 applies to applications to stay in favour of ICSID arbitrations. 105 See eg in England: s 3(1) of the Arbitration (International Investment Disputes) Act 1966, by which the Lord Chancellor can direct that ss 36, 38–44 of the Arbitration Act 1996 apply to ICSID arbitrations. 67 See, in this regard, ARSIWA, art 55. See also para 9 of the introductory Commentary to Part Three, Chapter II. 3 In its work on the Responsibility of International Organizations, the ILC has used the same formulation as in ARSIWA, art 1 with respect to the international responsibility of international organizations: see art 1, Draft Articles on the Responsibility of International Organizations adopted on first reading, Report of the ILC, 61st Session, 2009, A/64/10, 23. 56 See Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia and Communication 211/98 Legal Resources Foundation v Zambia, in which the Commission also referred to art 27 of the Vienna Convention on the Laws of Treaties; see also ARSIWA, art 3. 20 The ‘Rainbow Warrior’ (France/New Zealand), 30 April 1990, 20 RIAA 215, 251 (para 75); for the arguments of the parties, see ibid, 248–251 (paras 72–74). See also the ICJ in GabčíkovoNagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38–39 (paras 46–48, esp para 47): ‘when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect’, citing what is now art 12, ARSIWA: ‘There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’ (emphasis added). 37 See eg draft art 12: G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 22. 24 See also art 12, ARSIWA which makes clear that there is a breach of an obligation ‘regardless of its … character’; see also Commentary to art 12, para 11, ILC Yearbook 2001, Vol II, 54. 60 See art 13 of the draft Articles on State responsibility adopted on first reading in 1996; that provision, as with other provisions containing rules of ‘negative attribution’, was deleted, essentially for drafting reasons: Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58. 12 It should be noted that the distinct obligation of non-assistance applies ‘whether or not the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

breach itself is a continuing one’; see Commentary to art 14, paras 11–12. For a detailed assessment of practice on third-party countermeasures see M Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and Their Relationship to the UN Security Council’ (2006) 77 BYIL 333; C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005), 198–251. 6 ARSIWA, art 14(3) is a fusion of art 24 on the ‘moment and duration of the breach of an international obligation by an act of the State not extending in time’ and art 25(1) on the ‘moment and duration of the breach of an international obligation by an act of the State extending in time’ and art 26. For the text of these articles see: Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–97. 28 Cf draft arts 20–28 as adopted on first reading—esp arts 20 and 21—reflect Ago’s special concept of the distinction between obligations of result on the one hand and obligations of conduct on the other. 60 Cf arts 22 and 49, ARSIWA. 32 See art 27 ARSIWA. 20 See also the Commentary to art 28, para 3. 70 In this regard, see ARSIWA, art 30. 25 See the Commentary to art 30, which states that ‘… modern international law does not normally place any obstacles of principle in the way of the application of certain forms of reaction to an internationally wrongful act (economic reprisals, for example)’: Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 116. 5 See art 31, ARSIWA (‘Reparation’). 21 See art 36, ARSIWA. 42 See art 36(2) and Commentary thereto, especially paras 1 and 4. 58 Even if art 37 of the ILC Articles assigns a subsidiary role to satisfaction, international practice shows a trend in favour of complementarity: see eg the requirement of apologies and compensation in The ‘I’m Alone’ and The ‘Rainbow Warrior’, quoted above. 4 Interest is a form of compensation with particular characteristics that are dealt with separately in ILC art 38: see E Lauterpacht & P Nevill, below, Chapter 42.3. 44 See ARSIWA, art 41, and, in an excessively cautious manner, art 54. 6 See art 60(2)(c) of the Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331 and art 42(b)(ii) ARSIWA. 4 ARSIWA art 52(1)(a) in conformity with art 43 establishing the procedure that an injured State must follow to invoke the responsibility of another State. This condition, sometimes called ‘sommation’ was emphasized both by arbitral tribunals and the ICJ: Air Services Agreement of 27 March 1946 (United States of America v France), 9 December 1978, 18 RIAA 416, 444 (paras 85– 87); Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 56 (para 84), and has been considered to correspond to a general practice, see Commentary to art 52, para 3. 60 In addition a call for the provision of satisfaction, under the ILC’s scheme, constitutes a precondition for the taking of countermeasures if it represents a form of adequate reparation; see art 52(1)(a) ARSIWA, referring back to art 43(2)(b): a responsible State which refuses to fulfil its obligation to provide satisfaction (if appropriate) thus risks the adoption of countermeasures against it by the injured State. 20 See art 45, ARSIWA. 6 See art 45, ARSIWA (‘Loss of the right to invoke responsibility’). 17 See art 48 of ARSIWA. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

1 The concept of the ‘rights of the injured State’ which underlay Part Two, Chapter II of the first reading draft has been replaced with that of the ‘obligations of the responsible State’ in the final text. This change was made to allow for those cases where there is a plurality of injured States, each of which is entitled to respond to the breach. It also helps clarify the right of election that an injured State may have as between the forms of reparation. This is considered helpful since the position of other States entitled to respond to the breach under art 48(1) may be affected by a valid election for one remedy rather than another by an injured State. See J Crawford, P Bodeau, & J Peel, ‘The ILC’s Draft Articles on State Responsibility: Towards Completion of a Second Reading’ (2000) 94 AJIL 660, 668. 56 Cf art 48(1)(a) and (b), ARSIWA. See also the reasoning of the Court in the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, ICJ Reports 2004, p 136, 199 (para 155). 19 See ARSIWA art 48(2) and Commentary. 21 In cases where a collective or community interest is at stake it may be difficult to identify an individually injured State. In these circumstances, art 48(2)(b) ARSIWA permits third States to claim performance of the obligation of reparation in the interest of ‘the beneficiaries of the obligation breached’. 7 Art 48(3), ARSIWA (‘Invocation of responsibility by a State other than an injured State’). 26 See ARSIWA art 49, and see further Chapters 79 and 80. 52 Cf art 49(1) and (2) ARSIWA, and Commentary to art 49, para 4. 62 See ARSIWA, art 50(1)(b) and Commentary to art 50, paras 6–7. 116 Cf the very brief explanation by the Chairman of the Drafting Committee following the reformulation in 2000 of the draft provision which eventually became art 50: ILC Yearbook 2000, Vol I, 397 (para 72) (26 62nd meeting) (draft art 51). 24 Cf art 50(1)(b), ARSIWA. 6 See art 52, ARSIWA and G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, 6 (para 18). 7 ARSIWA, art 52(1)(b). 30 For instance States may adopt measures which are not inconsistent with their international obligations (retorsion). In addition, a right may exist allowing States which themselves are not injured to take countermeasures in the case of breach of certain types of obligation. See, for instance, the catalogue of State practice discussed in the Commentary to art 54, paras 3 and 4, which may be evidence of such a customary rule. The ILC left the question open for future development in art 54. 7 See art 54 ARSIWA, which refers to art 48. 24 For the text of draft art 19 as adopted on first reading, see Appendix 1. 18 In the words of art 19(2) of the 1996 draft: ‘An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.’ Draft art 19(4) stated: ‘Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.’ 12 See eg art 77 of the 1947 Peace Treaty with Italy, 49 UNTS 3; or arts 23(3) & 27(2) of the 1955 Austrian State Treaty, 347 UNTS 3. 31 See eg art 77 of the 1947 Peace Treaty with Italy, 49 UNTS 3; or arts 23(3) & 27(2) of the 1955 Austrian State Treaty, 347 UNTS 3. 35 See ILC Principle 4. But the 2003 Kiev Protocol retains additional fault-based liability as provided

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for by national law: Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc MP.WAT/2003/1, CP.TEIA/2003/3. See also the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage 1969, 27 November 1992, arts 3 and 5(2); Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480, art 8(b); and the 1999 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999, UN Doc UNEP/CHW.5/29. 33 See Basic Law: Jerusalem, Capital of Israel, 5740–1980 (31 July 1980), available at . Article 1 of the Basic Law provides that ‘Jerusalem, complete and united, is the capital of Israel’. 32 See eg art 1 of the Burundi-United Kingdom Agreement for the Promotion and Protection of Investments, 13 September 1990, UKTS No 11 (1991). 37 Eg art IX of the Canada-Poland BIT provides that disputes shall ‘to the extent possible, be settled amicably between both parties concerned [the host state and the investor]’; C Schreuer, ‘Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road’ (2004) 5(2) Journal of World Investment and Trade 231 has other examples taken from the investment arbitration context. Obligations to negotiate are also often in bilateral agreements for avoiding jurisdictional conflicts in antitrust matters. 64 See eg Principle 15, Rio Declaration on Environment and Development (1992) 31 ILM 874, or the 2000 Protocol of Cartagena, 2226 UNTS 257. 25 Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 ILM 1550, art 8. The details of the procedure were definitively adopted in 1992, see Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Annex IV, UNEP/OzL. Pro4/15, complemented by an ‘Indicative List of Measures that Might be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol’, Annex V, UNEP/OzL.Pro4/15. 32 The clearest examples are art 5: suspension of a Member of the United Nations against which preventive or enforcement action is taken by the Security Council from the exercise of the rights and privileges of membership; art 6: expulsion of a Member of the United Nations which has persistently violated the Principles contained in the Charter; art 19: suspension of a Member of the United Nations from voting in the General Assembly due to arrears in its contributions. 73 SC Res 808 and 827 (1993), and 955 (1994), respectively): see ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Appeals Chamber, 2 October 1995, which upheld the view that the legality of its creation rested on art 41 of the UN Charter. 7 In its Partial Award-Jus Ad Bellum, Ethiopia’s claims 1–8, Federal Democratic Republic of Ethiopia v State of Eritrea, 19 December 2005, 135 ILR 479, 485 the Eritrea Ethiopia Claims Commission rightly pointed out that ‘localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack’. As regards the armed clashes that occurred in the vicinity of Badme on 6–7 May 1998, on which there were different accounts by the Parties, the Commission found it was not necessary to resolve these differences, since it was clear that ‘these incidents involved geographically limited clashes between small Eritrean and Ethiopian patrols along a remote, unmarked, and disputed border’. In the Commission’s view ‘these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter’. Upon this ground, it decided that the attack carried out on 12 May 1998 by Eritrean armed forces against the town of Badme and several other border areas could not be justified as lawful self-defence. It constituted instead an unlawful armed attack, for which Eritrea was liable to compensate Ethiopia: ibid, 488–489. 8 (1979) 18 ILM 1203, revised by the Protocol Modifying the Treaty Creating the Court of Justice of the Cartagena Agreement (Cochabamba Protocol), 10 March 1996, available at: .

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5 See eg Constitutive Act of the African Union, Lomé, 11 July 2000, 2158 UNTS 3. 13 This does not exclude the responsibility of the central Government to prosecute international crimes committed in the areas occupied by the rebel groups, provided that the central Government obtains control or custody over the suspects. This seems to be a normal consequence of the regimes of accountability under treaties such as the Convention against Torture (see United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984; 1465 UNTS 85, arts 5–7); and it may also arise where the government assumes responsibility for the fate of particular individuals: see eg Ilascu & others v Moldova & Russia (App No 48787/9), ECHR Reports 2004-VII, paras 336–352. 1 Cf the language of provisions in several human rights treaties: art 2, International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171; art 1, Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, CETS No 005; 213 UNTS 221; art 2, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, 1465 UNTS 85. 65 See the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 22 September 1992, 32 ILM 1069. 9 Eg International Convention on Oil Pollution Preparedness, Response and Cooperation, London, 30 November 1990, 1891 UNTS 77; Convention on the Protection of the Alps, 7 November 1991, 31 ILM 767; Convention of the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 ILM 1312; Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480; Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992, 32 ILM 1228. The brevity of this chapter does not allow citation of all relevant conventions, however, for a more complete study see N de Sadeleer, Les Principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 53–54; OB Vignon, ‘Le principle pollueur-payeur, un état du droit positif’, Thesis, University of Nice, 1998, 66–69; ‘Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities)’, A/CN.4/543, 2004, 89–219. 17 These are: Convention on Environmental Impact Assessment in a Transboundary Context, Espoo 25 February 1991, 30 ILM 802, art 15; Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 ILM 1312, art 22(1); UN Framework Convention on Climate Change, New York, 9 May 1992, 1771 UNTS 107, art 14(2); Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 UNTS 79, art 27(3); Protocol to the Convention on Long-range Transboundary Air Pollution on Further Reduction of Sulphur Emission, Oslo, 14 June 1994, 33 ILM 1540, art 9. 15 For example, art 27, Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760 UNTS 79. 61 See eg art 35 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No 5 or art X, para 1, of the 1971 Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187. 4 For example, the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3; and the Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195. 2 See, notably, art 7 of the Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, entitled ‘Obligation not to cause significant harm’. GA Res 51/229, 21 May 1997, Annex. 18 See eg 2001 Articles on Prevention of Transboundary Harm, art 15; 1997 UN Convention on From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

International Watercourses, art 32; United Nations Convention on the Law of the Sea, 10 December 1982, 18 33 UNTS 3, art 235(2). 18 UN Convention on the Marking of Plastic Explosives for the Purpose of Identification, Montreal, 1 March 1991, 30 ILM 721, art 11(1); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Paris, 13 January 1993, 1975 UNTS 469, art 14(2). 25 See eg, art 1(2) of the Chemical Weapons Convention, Paris 13 January 1993; 1974 UNTS 316, by which the States parties undertake to destroy their chemical weapons; art 4 of the International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999; UN Doc A/54/109; 39 ILM 270, by which the States parties undertake to ensure that the offences established by the Convention are punishable under their domestic law. See also the engagement to construct the system of locks at issue in Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, and L-A Sicilianos, ‘La responsabilité de l’État pour absence de prévention et de répression des crimes internationaux’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 1999), 115, 116. 64 Accord: A Broches, ‘The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States’ (1972) 136 Recueil des cours 331, 400. 2 See eg the ICSID Convention, art 27; Autopista Concesionada de Venezuela CA v Bolivarian Republic of Venezuela (2001) 6 ICSID Reports 417, 447 (paras 136–140); Republic of Ecuador v Occidental Exploration and Production Co [2006] QB 432, 447–452; 12 ICSID Reports 129, 135– 40. 97 See ICSID Convention, art 47 and ICSID Rules, r 39. There is now some doubtful authority that ‘recommend’ actually means ‘prescribe’: see CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention (2nd edn, Cambridge, CUP, 2009), 764–765. 15 See eg the Amicus Curiae brief filed by the United Kingdom in the Supreme Court of the United States in Matimak Trading Company Ltd v Albert Khalily et al, reproduced in (1997) 68 BYIL 554, 557; the EU Judgments Regulation, Council Regulation (EC) 44/2001, art 22, and Speed Investments v Formula One Holdings Ltd [2004] EWCA Civ 1512. 11 See eg art VII(2) of the Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, 20 ILM 223; GH Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, OUP, 1996), 88–92. Similar modifications appear in investment protection treaties. 2 Due to lack of consensus within the UN, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, 18 December 1992, contains no definition of ‘minority’. 48 GA Res 2625 (XXV), 24 October 1970. See also GA Res 3314 (XXIX), 14 December 1974 on the Definition of Aggression, art 7. 2 Report of the ILC, 58th Session, 2006, A/61/10, paras 34–48. The Draft Articles (hereinafter ‘Draft Articles on Diplomatic Protection’) are reproduced in ibid, para 49; see also below, Appendix 3. 30 Ibid: ‘Article 9. State of nationality of a corporation. For the purposes of the diplomatic protection of a corporation, the State of nationality means the State under whose law the corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and has no substantial business activities in the State of incorporation, and the seat of management and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality.’ See J Crawford, ‘The ILC’s Articles on Diplomatic Protection’ (2006) 31 SAYIL 19, 37. 83 This may occur under ILC draft art 9 on Diplomatic Protection, which attributes relevance to the location of the management and financial control of a company: see J Crawford, ‘The ILC’s Articles

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on Diplomatic Protection’ (2006) 31 SAYIL 19, 38. 68 See especially the Vienna Convention on Succession of States in respect of Treaties, 23 August 1978, 1946 UNTS 3, and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543, the 1978 Draft articles on Most-Favoured-Nation Clauses and the work in progress on the reservations to treaties and the effect of armed conflicts on treaties. 35 See the ILC’s Draft Articles on Prevention of Transboundary Damage from Hazardous Activities; ILC Yearbook 2001, Vol II(2), 146–170 (para 97). 31 In relation to this last question, see the Commentary to art 3 of the ILC’s Articles on Prevention of Transboundary Harm from Hazardous Activities, ILC Yearbook 2001, Vol II(2), 148, para 8 which states that ‘an obligation of due diligence as the standard basis for the protection of the environment from harm’. 33 See draft art 3, Draft Articles on prevention of transboundary harm from hazardous activities, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 146 and Commentary to draft art 3, para 1, ibid, 153. In 2006 the ILC also adopted Draft Principles on the allocation of loss in the case of transboundary harm arising from hazardous activities; these principles—indirectly—taking into account the polluter-pays principle See Report of the ILC, 58th Session, 2006, A/61/10, 101–182, especially 144–149; and see GA Res 61/36, 4 December 2006). 2 See now the Draft Articles on the Responsibility of International Organizations, as adopted on first reading in 2009, Report of the ILC, 61st Session, 2009, A/64/10, 19ff. 27 See DARIO Commentary to art 1, para 10, Report of the ILC, 61st Session, 2009, A/64/10, 42 and DARIO, draft arts 21 and 50–55. 37 See in this respect the formulation of draft art 4(1) of the International Law Commission’s Draft Articles on Responsibility of International Organisations, adopted on First Reading in 2009, which refers to ‘The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent … ’: see Report of the ILC, 61st Session, A/61/40, 2009 20; for the draft Commentary, see ibid, 54–55. 54 See DARIO, draft arts 14, 58, and see further Report of the ILC, 58th Session 2006, A/61/10, 252 (para 90). 33 See DARIO Commentary to art 21, para 2, Report of the ILC, 61st Session, 2009, A/64/10, 98. 14 Cf, however, DARIO, draft art 21(2); see also C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979), 271. 20 See DARIO, draft art 42. 33 See now ILC Draft Principles of Allocation of Loss in the Case of Transboundary Harm Resulting out of Hazardous Activities, Report of the ILC on the Work of Its 58th Session (2006), A/61/10, 106– 182. 48 See Principles 6(3) and 7. 10 Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community, Official Journal C 321E, 29 December 2006, section 4. 7 Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community (consolidated text), OJ C 321E of 29 December 2006; see now art 103 of the Treaty on the Functioning of the EU. 8 See art 232 (ex-175), EC Treaty. 69 See eg the Energy Charter Treaty, Lisbon, 17 December 1994, art 26, 34 ILM 360, 399–400. 23 For example, the environmental charter incorporated in the Preamble to the French Constitution: R Romi, ‘Les principes du droit de l’environnement et la charter constitutionelle: “jouer

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le jeu” ou mettre les principes “hors-jeu”?’ (2003) RJE No spécial; M Prieur, ‘Vers un droit de l’environnement renouvelé’, Cahiers du Conseil Constitutionnel no 15. 31 The same is true as regards the 2008 European Code of Conduct which deals with space debris without defining them (see European Council, FSCP 1697, 17 December 2008, Annex II). 11 See eg arts 1 and 4, European Convention for the Peaceful Settlement of Disputes, 29 April 1957, ETS No 23. 99 The jurisprudence offers many examples of responsibility by catalysis. See eg in relation to article 8, X and Y v The Netherlands (App No 8978/80), ECHR, Series A, No 91 (1985), concerning the impossibility of bringing criminal proceedings with regard to the perpetrator of sexual violence against a mentally handicapped minor. See also, with regard to article 3, A v The United Kingdom (App No 25599/94), ECHR Reports 1998-VI; or on the subject of the freedom of expression (art 10): Özgur Gündem v Turkey (App No 23144/93), ECHR Reports 2000-III. 5 Things, it would seem, are different with treaty law. There may be international multilateral treaties imposing obligations erga omnes contractantes that do not all possess the same normative value and are therefore not endowed with the same normative strength. By virtue of the treaty itself some provisions can be derogated from, whilst others are non-derogable. If this is the case we are faced with a two-tiered set of obligations: all may be regarded as imposing obligations towards all the other contracting parties, whereas only some of these obligations are absolutely peremptory and therefore may not be derogated from. Take, for instance, the European Convention on Human Rights. One can infer from the fact that art 15 provides that no derogation is possible from some provisions of the Convention, that, among other things, two or more States parties, after applying art 15(3), may enter inter se into an agreement allowing restrictions (warranted by the exigencies set out in art 15) on, for instance, art 8 protecting private and family life), whereas no State party may ever make an agreement with other States parties or third States providing for derogations from art 3 (prohibiting torture). 37 See art 15, International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171; and art 7 of the European Convention on Human Rights, ETS No 5. 42 See art 34, European Convention on Human Rights, 4 November 1950, ETS No 5 (as subsequently amended); see also art 1, (First) Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 271. 17 Art 55, ARSIWA (lex specialis). For examples of a lex specialis see, eg the provisions of the WTO Agreements excluding compensation for breach and focusing on cessation, and (perhaps) art 41 (ex art 50) of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, CETS No 005; 213 UNTS 221, as amended by, inter alia, Protocol No 11 (Strasbourg, 11 May 1994; CETS No 155). 11 Additional Protocol to the European Convention on State Immunity, 16 May 1972, 11 ILM 470. 63 See eg art 1, France-USSR Agreement for the Promotion and Reciprocal Protection of Investments, Paris, 4 July 1989, 29 ILM 317, 321. 20 Eg art 1(2)(b), France-USSR Agreement for the Promotion and Reciprocal Protection of Investments, Paris, 4 July 1989, 29 ILM 317, 321. See further Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 23. The ‘incorporation’ test is also the basic principle adopted in the Hague Convention concerning the Recognition of the Legal Personality of Foreign Corporations, Partnerships and Foundations, 1 June 1956, (art 1). The position of States adopting the ‘seat’ theory is preserved by art 2. The Convention is not in force. For an application of the Convention, see Bakalian v Ottoman Bank (1965) 47 ILR 216. 11 The previously binding agreement was the GATT 1947. The GATT 1994 formally incorporated the provisions of the GATT 1947, without actually reproducing them in its text. 32 The WTO does not offer the possibility of ‘traditional’ compensation or restitution, although

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there was some question as to whether Members could claim the revocation of anti-dumping and countervailing duties. This had occasionally occurred under GATT 1947. However, there seems to be little doubt that this practice is not permissible under the WTO rules. See EU Petersmann, The GATT/WTO Dispute Settlement System (The Hague, Kluwer, 1997), 139–140; D Palmeter & PC Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure (2nd edn, The Hague, Kluwer, 2004), 263–264. 29 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 28. 115 Given that formulation, some doubts may be raised as to whether it is sufficiently wide to cover those provisions (including, in particular, common art 3 of the Geneva Conventions) which, although prohibiting particular conduct, do not expressly prohibit the adoption of reprisals involving that conduct. 71 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (‘First Geneva Convention’), 12 August 1949, 75 UNTS 31, art 46. See also art 20, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (‘Additional Protocol I’), Geneva, 8 June 1977, 1125 UNTS 3. 4 Arguably that provision has acquired customary status, and may not be derogated from. It is submitted that any bilateral or multilateral treaty to the effect that the status of a detained person should be determined, for example, by a military commander, would be null and void, for it would deprive the person at issue of his or her fundamental right to be adjudicated by a court of law. Perhaps one could instead contend that no jus cogens nature attaches to the rule—seemingly imposing erga omnes obligations—whereby prisoners of war must be quartered under conditions as favourable as those for the forces of the detaining Power who are billeted in the same area. This rule, enshrined in art 25(1) of the Third Geneva Conventions of 1949, no doubt imposes an obligation erga omnes. However, is such an obligation vested with the character of a nonderogable obligation? In reality, a better contention would be that that provision has not acquired the status of customary international law, remaining at the stage of treaty law. 70 Geneva Convention Relative to the Treatment of Prisoners of War (‘Third Geneva Convention’), 12 August 1949, 75 UNTS 135; see also art 33 (prohibiting reprisals against medical personnel and chaplains retained to assist prisoners of war). 74 Under art 4 of the Fourth Geneva Convention, ‘protected persons’ are those individuals who do not qualify as protected persons under any of the First to Third Geneva Conventions and who find themselves in the hands of a Party to the conflict or an Occupying Power of which they are not nationals. 38 SC Res 497, 17 December 1981. The text of the Golan Heights Law (14 December 1981) is available at . 14 See eg the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy 1977 (adopted by the Governing Body at its 204th Session), 17 ILM 416 (subsequently amended by the Governing Body at its 279th Session in 2000 and its 295th Session in 2006); the Organisation for Economic Co-operation and Development (OECD)’s Guidelines for Multinational Enterprises (2000) (relating to human rights, labour standards and the environment). See also United Nations Global Compact () and Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, E/CN.4/Sub.2/2003/12 (2003). On the problems of establishing international responsibility of corporations, see S Ratner, ‘Corporations and Human Rights: A Theory of Legal

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Responsibility’ (2001) 11 Yale LJ 443; S Joseph, Corporations and Transnational Human Rights Litigation (Oxford, Hart, 2004); A Lindblom, Non-Governmental Organisations in International Law (Cambridge, CUP, 2005); C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005); L Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge, CUP, 2002). 2 Institut de droit international, ‘Régime des représailles en temps de paix’ (Paris, 19 October 1934), 38 Annuaire de l’Institut de droit international 710, art 6(4) (‘s’abstenir de toute mesure de rigueur qui serait contraire aux lois de l’humanité et aux exigences de la conscience publique’). The language of the resolution clearly recalls that of the Martens clause (see eg, Preamble, para 9, Hague Convention (II) on the Laws and Customs of War on Land, 29 July 1899, 187 CTS 429). 27 Cf the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930, art 1, 189 LNTS 89. 73 Regulations concerning the Laws and Customs of War on Land, annexed to Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907 (‘1907 Hague Regulations’). Art 50 of the 1907 Hague Regulations, prohibiting collective punishment against the civilian population, was not intended to govern belligerent reprisal: see eg R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP, 2002), 193, fn 39 and FJ Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’ (1988) 37 ICLQ 818, 824–825 and the sources cited. 37 The 2001 Bunker Fuel Convention makes the shipowner, charterer, manager and operator jointly and severally liable: 2001 International Convention on Liability and Compensation for Bunker Oil Spills, IMO Doc LEG/CONF 12/19 (2001), 341. Under the 1999 Transboundary Waste Protocol generators, exporters, importers and disposers are all potentially liable at different stages of the wastes’ journey to its eventual destination (Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 10 December 1999, UN Doc. UNEP/CHW.5/29. 15 See notably the 1969 International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 973 UNTS 3, art III(1). 5 International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969, 973 UNTS 331; International Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 970 UNTS 211. 43 Compare the 2004 Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy, art IB; 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage, art 1(6); de La Fayette, 20 IJMCL (2005) 167, at 202–205, and see generally P Bowman & A Boyle, Environmental Damage in International and Comparative Law (Oxford, OUP, 2002), 213– 322. 32 As R Errera regretted in his separate opinion, the Mikmaq case did not allow determination of whether an individual could act on behalf or a people and seize the Committee with violations of art 1(1) of the Covenant: The Mikmaq Tribal Society v Canada, HRC, Communication No 78/1980, 29 July 1984, UN Doc Supp No 40 (A/39/40), 200; 79 ILR 261, 266. 22 Consolidated Version of the Treaty Establishing the European Community, OJ, C-325, 24/12/2002; see now, art 191-2, Consolidated version of the Treaty on the Functioning of the European Union, OJ C-115/47, 9/5/2008. 39 The 1993 Lugano Convention (Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480) and the 2003 Kiev Protocol (Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc. MP.WAT/2003/1, CP.TEIA/2003/3) are notable exceptions. 45 Eg ‘that has significant adverse effects’, ‘that significantly adversely affects’: art 2, Convention

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on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480. 46 Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 3,186–188 (paras 3–6); ILC Report (2006), Report of the ILC, 58th Session, 2006, A/61/10, commentary to Principle 2, 176– 178 (paras 11–14). Compare the 2005 Antarctic Liability Annex under which states parties may sue the operator for the cost of environmental response and cleanup measures, but not for environmental damage per se. For comprehensive analysis of valuation of environmental damage and standing to sue see E Brans, Liability for Damage to Public Natural Resources (The Hague, Kluwer Law International, 2001). 3 The idea of the existence of self-contained regimes is not a new one. The PCIJ in the case of the SS Wimbledon, found the provisions in the Treaty of Versailles that related to the Kiel Canal to be self-contained: 1923, PCIJ Reports, Series A, No 1, p 4, 23–4. In the Tehran Hostages case, the International Court of Justice stated that the rules of diplomatic law ‘constitute a self-contained régime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse’, United States Diplomatic and Consular Staff in Teheran (USA v Iran), ICJ Reports 1980, p 3, 40 (para 86). However, as Pauwelyn has noted, ‘the Court did not find that diplomatic law was a self-contained regime in the sense of a regime that is completely detached from other rules of international law. It only concluded that in the particular circumstances of the Teheran Hostages case the remedies to be resorted to for breach of diplomatic law had to be limited to those available under diplomatic law, not any other remedies such as occupation of the embassy’, J Pauwelyn, Conflict of Norms in Public International Law (Cambridge, CUP, 2003), 36. 7 See para 15 of the Model Status-of-Forces Agreement for Peace-Keeping Operations, annexed to the Report of the Secretary-General, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects’: A/45/594 (9 October 1990) (emphasis added). 22 See, notably, the non-compliance procedure of the Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 ILM 1550, which speaks of ‘situations of noncompliance’ and not of ‘wrongful act’; ‘Party whose implementation of a particular provision of the Protocol is at issue.’ rather than ‘author State’; ‘concerned Party’ rather than ‘injured State’, etc: see Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Annex IV, UNEP/OzL.Pro4/15. 39 Article 111, Rules of Procedure; the same power has been granted to the Court: see art 27(2), Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)), in force 25 January 2004 and see now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-Sheikh, 1 July 2008. 46 See eg art 6 of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 4 October 1993, UKTS No 35 (1994). 67 Art 25(2)(b). For an example of an agreement to treat companies according to this ‘foreign control’ clause, see art 10 of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 4 October 1993, UKTS No 35 (1994). 45 See GA Res 47/68, 14 December 1992, Principle 9, para 1, which equates objects having a source of nuclear energy on board, with space objects. 75 A further express prohibition of the use of certain weapons by way of reprisal against the civilian population or individual civilians is contained in art 3(2) of Protocol II to the 1980 Convention on Certain Conventional Weapons (Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and other Devices to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have

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Indiscriminate Effects (Geneva, 10 October 1980) (as amended in 1996), 1342 UNTS 137). 9 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)). See now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm ElSheikh, 1 July 2008. 32 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)), in force 25 January 2004; see now the Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-Sheikh, 1 July 2008. 11 See eg United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, 3–14 June 1992, 31 ILM 874, principle 15. 44 See Principle 15, 1992 Rio Declaration on Environment and Development, whereby ‘[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’, reproduced in L Boisson de Chazournes, R Desgagné, M Mbengue, & C Romano, Protection internationale de l’environnement (Paris, Pedone, 2005), doc 1.1. 90 Eg Rome Convention on the Law Applicable to Contractual Obligations, 19 June 1980, 1605 UNTS 59, arts 2(a), 9, 10.2. 37 JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225; and see the United Kingdom Rules regarding the Taking up of International Claims by Her Majesty’s Government, Rule V (1983) 54 BYIL 500, 501. 47 JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225–258; and see the United Kingdom Rules regarding the Taking up of International Claims by Her Majesty’s Government, Rule VI, which stipulates that ‘Where a UK national has an interest, as a shareholder or otherwise, in a company incorporated in another State and of which it is therefore a national, and that State injures the company, [the British Government] may intervene to protect the interests of that UK national’ (1983) 54 BYIL 500, 501. 11 See, in particular, art 1 of the ICTY Statute, SC Res 827 (1993). 45 Expressed in eg the OECD Guidelines for Multinational Enterprises (reviewed version 2000) and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted already in 1977. See also A Clapham, Human Rights Obligations of Non-State Actors (Oxford, OUP, 2006), 199ff. 6 Although there do exist other ‘links’ to systems of international law. For example, the TRIPS Agreement incorporates obligations from a number of intellectual property conventions, thus connecting the WTO system with another specialized branch of international law. 65 See eg art 1(a)(ii), UK-USSR Agreement for the Promotion and Reciprocal Protection of Investments, London, 6 April 1989, 29 ILM 366, 369. 19 Eg art 1(d)(iii), UK-USSR Agreement for the Promotion and Reciprocal Protection of Investments, London, 6 April 1989, 29 ILM 366, 370. See further Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 22–26. 18 The EU has had to be specifically provided for in order to be a party to contentious proceedings under Part XV of the Law of the Sea Convention and the WTO dispute settlement mechanism. 7 See the separate opinion of Judge Moore in The Lotus, 1927, PCIJ, Series A, No 10, p 4, 70; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, arts 101–107; A Rubin, The Law of Piracy (2nd edn, Newport, Naval War College Press, 1998); R Jennings & A

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Watts, Oppenheim’s International Law (9th edn, London, Longmans, 1992), vol 1, 746–755. 38 Cf art 139, United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3. 12 See Annex IX, arts 1–6; United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3, or art II(5)-7 of the Constitution of the FAO (as amended). 16 See eg Article IV of the Treaty between the United States of America and the Republic of Panama Concerning the Treatment and Protection of Investments, 27 October 1982, 21 ILM 1227, which provides that: ‘(1) … compensation shall amount to the full value of the expropriated investment immediately before the expropriatory action became known; include interest at a commercially reasonable rate; be paid without delay; be effectively realizable and be freely transferable.’ 64 See eg art 1(1)(c), USA-USSR Treaty concerning the Encouragement and Reciprocal Protection of Investment, Washington, 17 June 1992, 31 ILM 794, 799. 9 See arts 31 and 41, Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261. 65 Although there are exceptions, as illustrated by those decisions ordering the responsible State to apologize: see eg The ‘I’m Alone’ and The ‘Rainbow Warrior’. In LaGrand, the ICJ stated that the apologies already offered by the United States to Germany for the breach of art 36 of the Vienna Convention on Consular Relations 1963 could not be considered as sufficient reparation, because detention of individuals appeared to have been one of the consequences of the wrongful act (Lugard (German v United States of America), ICJ Reports 2001, p 466, 512 (para 133). 9 Cf eg art 32 of the Vienna Convention on Diplomatic Relations, 586 UNTS 262, or art 45 of the Vienna Convention on Consular Relations, 500 UNTS 95. 6 Art 22, Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, under which ‘The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage …’ 7 Ibid, art 24: ‘[t]he archives and documents of the mission shall be inviolable at any time and wherever they may be’. 8 Ibid, art 29: ‘… [t]he receiving State shall treat [a diplomatic agent] with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity’. 39 Lac Lanoux (France v Spain) (1957) 24 ILR 101, 127. Cf also art 41 of the 1978 Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946 UNTS 3. 6 See arts 7 & 46 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 40 See arts 31 to 33, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. 17 Art 36(2) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543, also requires express consent, while this is presumed where a right is conferred onto a third party State (see art 36(1)). 25 This often raises problems of articulation with arts 61 and 62 of the Vienna Convention on the Law of Treaties 1969, see Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 63 (para 102); commentary to Chapter V of Part I, para 4. 23 In other words a State can terminate a treaty for breach while claiming damages for breaches that have already occurred: see Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, arts 70(1)(b), 72(1)(b), and 73. 4 See Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, A/CONF.129/15, art 26; cf F Morgenstern, Legal Problems of International Organizations (Cambridge, Grotius, 1986), 13–16, 32–36, 115. 64 See Dispute Settlement Understanding, arts 2.1 (‘and’ for ‘or’), 22 and 23.2(c).

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31 As one panel explained, in the context of withdrawal of a prohibited subsidy, such withdrawal ‘was intended by the drafters of the SCM Agreement to be a specific and effective remedy for violations of the prohibition in Art. 3.1(a). However, we do not understand it to be a remedy intended to fully restore the status quo ante by depriving the recipient of the prohibited subsidy of the benefits it may have enjoyed in the past. Nor do we consider it to be a remedy intended to provide reparation or compensation in any sense. A requirement of interest would go beyond the requirement of repayment encompassed by the term “withdraw the subsidy”, and is therefore, we believe, beyond any reasonable understanding of that term’, Australia—Subsidies Provided to Producers and Exporters of Automotive Leather. Recourse to Art. 21.5 of the DSU by the United States (WT/DS126/RW), panel report adopted 11 February 2000, para 6.49. 14 As explained further in art 3.8 DSU, ‘there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge’.

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The Work of the ILC on Responsibility James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

1 Articles on Responsibility of States for Internationally Wrongful Acts (2001) Reports of the Special Rapporteurs FV García Amador Report on State Responsibility, ILC Yearbook 1954, Vol II, xxx First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173 Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104 Third Report on State Responsibility, ILC Yearbook 1958, Vol II, 47 Fourth Report on State Responsibility, ILC Yearbook 1959, Vol II, 1 Fifth Report on State Responsibility, ILC Yearbook 1960, Vol II, 41 Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1 R Ago First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125, and ILC Yearbook 1971, Vol II(1), 199. Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 177 Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199 Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71 Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3

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Sixth Report on State Responsibility, ILC Yearbook 1977, Vol II(1), 3 Seventh Report on State Responsibility, ILC Yearbook 1978, Vol II(1), 31 Eighth Report on State Responsibility ILC Yearbook 1979, Vol II(1), 3 and ILC Yearbook 1980, Vol II(1), 13 W Riphagen Preliminary Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 107 Second Report on State Responsibility, ILC Yearbook 1981, Vol II(1), 79 Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 22 Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II (1), 3 Fifth Report on State Responsibility, ILC Yearbook 1984, Vol II(1), 1 Sixth Report on State Responsibility, ILC Yearbook 1985, Vol II(1), 3 Seventh Report on State Responsibility, ILC Yearbook 1986, Vol II(1), 1 G Arangio-Ruiz Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 5 Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1 (p. lxii) Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1 Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1 Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1) 1 Sixth Report on State Responsibility, ILC Yearbook 1994, Vol II(1), 4 Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3 Eighth Report on State Responsibility, ILC Yearbook 1996, Vol II(1), 1 J Crawford First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1 Second Report on State Responsibility, 1999, A/CN.4/498 and Add.1–4 Third Report on State Responsibility, 2000, A/CN.4/507 and Add.1–4 Fourth Report on State Responsibility, 2001, A/CN.4/517 and Add.1

Articles adopted by the Commission Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted on first reading, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58 Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 26 (‘ARSIWA’)

Other documents of the Commission

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See the Analytical Guide to the Work of the International Law Commission, available at < http://untreaty.un.org/ilc/guide/9_6.htm >

2 Articles on Diplomatic Protection (2006) Reports of the Special Rapporteurs M Bennouna Preliminary Report on Diplomatic Protection, ILC Yearbook 1998, Vol II(1), 309 J Dugard First Report on Diplomatic Protection, 2000, A/CN.4/506 and Add.1 Second Report on Diplomatic Protection, 2001, A/CN.4/514 Third Report on Diplomatic Protection, 2002, A/CN.4/523 and Add.1 Fourth Report on Diplomatic Protection, 2003, A/CN.4/530 and Add.1 Fifth Report on Diplomatic Protection, 2004, A/CN.4/538 Sixth Report on Diplomatic Protection, 2005, A/CN.4/546 Seventh Report on Diplomatic Protection, 2006, A/CN.4/56 Draft articles adopted by the Commission First reading—General Assembly, Official Records, Fifty-ninth Session, Supplement No 10, A/59/10, 17–93 Definitive text—General Assembly, Official Records, Sixty-first Session, Supplement No 10, A/61/10, 16–100

(p. lxiii) 3 Draft Articles on Responsibility of International Organizations Reports of Special Rapporteur G Gaja First Report on Responsibility of International Organizations, 2003, A/CN.4/532 Second Report on Responsibility of International Organizations, 2004, A/CN.4/541 Third Report on Responsibility of International Organizations, 2005, A/CN.4/553 Fourth Report on Responsibility of International Organizations, 2006, A/CN.4/564 and Add.1 Fifth Report on Responsibility of International Organizations, 2007, A/CN.4/583 Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597 Seventh Report on Responsibility of International Organizations, 2009, A/CN.4/610

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Draft Articles on the Responsibility of International Organizations adopted on first reading, Report of the ILC, 61st Session, 2009, A/64/10, 23 (‘DARIO’)

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Select Abbreviations James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

AAA American Arbitration Association ACHR American Convention on Human Rights AFDI Annuaire français de droit international AFRI Annuaire français des relations internationales AJIL American Journal of International Law ARSIWA Articles on the Responsibility of States for Internationally Wrongful Acts ATCA Alien Tort Claims Act BIT Bilateral Investment Treaty BYIL British Yearbook of International Law CERD Convention on the Elimination of all Forms of Racial Discrimination

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DARIO Draft Articles on the Responsibility of International Organizations ECHR European Convention on Human Rights ECJ European Court of Justice ECOSOC UN Economic and Social Council ECT Treaty establishing the European Community EEZ exclusive economic zone EJIL European Journal of International Law GATT 1994 General Agreement on Tariffs and Trade 1994 ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICSID International Centre for the Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia IGO intergovernmental organization ILC International Law Commission ILM International Legal Materials ITLOS

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International Tribunal on the Law of the Sea JIEL Journal of International Economic Law NATO North Atlantic Treaty Organisation NGO non-governmental organization NYIL Netherlands Yearbook of International Law OAS Organization of American States OAU Organisation of African Unity OECD Organisation for Economic Co-operation and Development OEEC Organisation for European Economic Cooperation PCIJ Permanent Court of International Justice RBDI Revue belge de droit international RDILC Revue de droit international et de législation comparée Recueil de Cours (p. lxv) Reuceil des cours de l'académie de droit international de la Haye RGDIP Revue générale de droit international public RIAA United Nations Reports of International Arbitral Awards SFDI Société française pour le droit international UN United Nations UNCC United Nations Compensation Commission

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UNCLOS United Nations Convention on the Law of the Sea UNTS United Nations Treaty Series VCLT 1969 Vienna Convention on the Law of Treaties WFP World Food Programme WHO World Health Organization WIPO World Intellectual Property Organization WTO World Trade Organization (p. lxvi)

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Part I Introduction—Responsibility and International Law, Ch.1 The Definition of Responsibility in International Law Alain Pellet From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of international organizations — Responsibility of individuals — Responsibility of states — Reparations — Sovereignty — Immunity from jurisdiction, ratione materiae

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(p. 3) Chapter 1 The Definition of Responsibility in International Law 1 Responsibility as the ‘necessary corollary of law’ 4 (a) No responsibility, no (international) law 4 (b) The traditional definition of international responsibility 5 2 The complex definition of a multi-faceted notion 6 (a) The diversification of persons who may be responsible 6 (i) The responsibility of international organizations 6 (ii) The international responsibility of individuals 7 (b) The ‘objectivization’ of international responsibility 8 (i) Questioning the traditional definition of responsibility 8 (ii) A truly objective concept of responsibility? 10 3 The characteristics of international responsibility 11 (a) Diversity and unity of the concept of international responsibility 11 (b) International responsibility: neither civil nor criminal … 12 Further reading 15 As Paul Reuter remarked, ‘responsibility is at the heart of international law … it constitutes an essential part of what may be considered the Constitution of the international community’.1 Responsibility interacts with the notion of sovereignty, and affects its definition, while, reciprocally, the omnipresence of sovereignty in international relations inevitably influences the conception of international responsibility. At the same time, responsibility has profoundly evolved together with international law itself: responsibility is the corollary of international law, the best proof of its existence and the most credible measure of its effectiveness. Responsibility has become diversified and more complex as a result of the developments which have affected international society. However, even though certain similarities have been (in part) confirmed, international responsibility retains its marked specificity when compared with systems of responsibility in domestic law.

(p. 4) 1 Responsibility as the ‘necessary corollary of law’ (a) No responsibility, no (international) law In an oft-quoted formulation, Charles de Visscher described State responsibility as the ‘necessary corollary’ of the equality of States.2 But it is possible to go further; in the international legal order, it is the necessary corollary of law itself: ‘if one attempts […] to deny the idea of State responsibility because it allegedly conflicts with the idea of sovereignty, one is forced to deny the existence of an international legal order’.3 No responsibility, no law. Of course, it is possible to debate endlessly the criterion or criteria for law—the question whether or not one is in the presence of a legal norm or a legal order. Although Anzilotti expressed the view that ‘the existence of an international legal order postulates that the subjects on which duties are imposed should equally be responsible in the case of a failure to perform those duties’,4 it may be too extreme to identify this criterion with the existence of a system of responsibility. It is possible to

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conceive of normative systems which contain no system of responsibility—for instance, this is the case in relation to certain constitutional systems, in which the only consequence of the violation of their rules is a purely political sanction. Similarly, under French civil law, a failure to comply with a ‘natural’ obligation5 does not entail the responsibility of the author of the omission. On the other hand, there can be little doubt that the maxim ‘ubi responsabilitas, ibi jus’ holds true: where, in a normative system, the violation of rules results in foreseeable consequences, there can be no doubt that the system can be qualified as a ‘legal’ one. Charles de Visscher’s remark also leads to a further observation: while, as a matter of the domestic law of some States, public authorities historically enjoyed (and may still enjoy) a certain immunity from responsibility, such a situation is inconceivable on the international level. The maxim ‘the King can do no wrong’—the foundation for this ‘irresponsibility’ of the State—long reflected the domestic law of the States of Western Europe during the time of their emergence and consolidation; however its transposition to the international sphere is excluded. To some extent this is an echo of the double meaning of ‘sovereignty’, depending on whether one is looking at the national or international legal order: within the State, sovereignty denotes the supreme and unlimited power of the State; in its external aspect, the sovereignty of the State is confronted with the equally sovereign status of other States, and responsibility is the inevitable regulatory mechanism through which that conflict is mediated and the rights of each State may be opposed to those of all others. To paraphrase another famous formula, far from constituting ‘an abandonment of its sovereignty’, the possibility for a State to incur responsibility ‘is an attribute of State sovereignty’.6 In the same way that the responsibility of the individual is the consequence of his or her liberty,7 it is because the State is sovereign, and as a result, coexists with other entities which are equally sovereign, that the State can engage its own responsibility and invoke the consequences of the responsibility of others: ‘If it is the prerogative of

References (p. 5) sovereignty to be able to assert its rights, the counterpart of that prerogative is the duty to discharge its obligations’.8 These observations constitute the first steps towards a definition of responsibility in international law, without however in themselves providing any definition; this is especially so given that international responsibility is not limited either ratione personae solely to States (other subjects of international law may equally engage their international responsibility), and must be distinguished ratione materiae from those cases in which consequences may arise for States at the international level as a result of conduct not involving any breach of an obligation under international law (international liability).9

(b) The traditional definition of international responsibility Although hardly distinguishing between the responsibility of individuals and that of the State, Grotius nevertheless admitted that from an injury caused ‘there arises an Obligation by the Law of Nature to make Reparation for the Damage, if any be done’.10 That formulation formed the very basis of international responsibility until relatively recently. Simplifying, as was often his way, Vattel formally assimilated and limited responsibility (although this was a word he did not use) to the obligation to make reparation.11 This classic theory, which is still sustained by certain authors,12 was clearly expressed by Anzilotti: ‘The wrongful act, that is to say, generally speaking, the violation of an international obligation, is thus accompanied by the appearance of a new legal relationship between the State to which the act is imputable, which is obliged to make reparation, and the State with respect to which the unfulfilled obligation existed, which can demand reparation’.13 That observation is echoed in the famous dictum of the Permanent Court that responsibility is limited to an obligation to make reparation: ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to 14

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make reparation’.14 This strictly private/civil law approach, exclusively relating to inter-State relations, corresponded well to the demands of the ‘Westphalian’ international society, characterized by the presence of competing sovereign States: only they had a place in that society, and the conception which they elaborated of their sovereignty (and which was encouraged by the predominantly positivist views of authors) excluded anything resembling a criminal punishment, which would necessarily imply some form of constraint. Further, the absence of any form of transfrontier solidarity (or an awareness of the possibility that such solidarity could exist) favoured this purely bilateral and interpersonal approach. In this system, ‘other States might have an interest that reparation should be made for the international wrong and the international legal order restored, but they do not have a right to that

References (p. 6) effect’,15 given that they had suffered no injury. Injury constituted, together with a failure to respect the law, a necessary condition for incurring responsibility. At the same time, any idea of ‘fault’ on the part of the State was clearly excluded: it was not only that ‘societas delinquere non potest’, but diplomatic usage and the necessities of the coexistence of equally sovereign entities could not have been accommodated. If a violation of international law had caused damage, reparation had to be made for it: ‘In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of the State that matters, independently of any intention.’16

2 The complex definition of a multi-faceted notion It remains true today that a breach of international law must be objectively ascertained, without having regard to the reasons which might have motivated its author (at least, so long as the rule violated does not itself require that the act in question has been committed with a certain state of mind, as is the case, for example, with genocide or crimes against humanity). However, on the other hand, the very notion of responsibility has been drastically modified as a result of a tripartite evolution, which reflects that of international law itself: • it is no longer reserved only to States, and has become an attribution of the international legal personality of other subjects of international law; • it has lost its conceptual unity as a result of the elimination of damage as a condition for the engagement of responsibility for breach, since • the common point of departure which it shared with liability for acts not involving a breach of international law has disappeared.

(a) The diversification of persons who may be responsible (i) The responsibility of international organizations According to the traditional definition, public international law was, exclusively, a ‘law between States’. Being the only subjects of international law, States were the only entities which were capable of incurring responsibility on the international plane as a result of a breach of its rules. With the diversification of the subjects of international law and the recognition of a certain ‘measure of international legal personality’17 to other entities, that monopoly has disappeared. Responsibility is at one and the same time an indicator and the consequence of international legal personality: only a subject of international law may be internationally responsible; the fact that any given entity can incur responsibility is both a manifestation and the proof of its international legal personality. In the Reparations Advisory Opinion, the International Court arrived at the conclusion that ‘the

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[United Nations] is an international person’, principally as a result of the fact that ‘its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged’.18 The Court continued, observing that, as a result, the United Nations ‘is a subject of international law and capable of possessing international rights and duties,

References (p. 7) and that it has capacity to maintain its rights by bringing international claims’; 19 consequently, the UN can invoke the responsibility of States, but equally, it may itself engage its own responsibility in their regard.20 Accordingly, ‘from the moment that organizations exercise legal competencies of the same type as those of States, it seemed logical that the same consequences should attach to the actions of both one and the other’.21 At the same time, ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights’,22 and, just as the ‘legal personality and rights and duties [of an international organization are not] the same as those of a State’,23 similarly the mechanisms of responsibility which are applicable to States may not necessarily be transposed wholesale and unmodified to international organizations. In reality, ‘it may be admitted … that the international law of responsibility applicable to international organizations includes both some general rules which apply in the sphere of the responsibility of States, as well as some special rules required by the specific nature of international organizations’.24 In particular, two elements prevent a pure transposition: on the one hand, the principle of speciality which characterizes (and limits) the competencies of international organizations; and on the other, the limited concrete resources (including financial resources) which international organizations have available to deal with the obligations resulting from the engagement of their responsibility. These two characteristics explain why the Draft Articles adopted on first reading by the ILC on the ‘Responsibility of International Organizations’ in 200925 are inspired to a very large degree by the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), but nevertheless diverge in certain important respects: ‘the main question that was left out in the Articles on State responsibility, and that [is considered in the draft Articles on International Organizations], is the issue of the responsibility of a State which is a member of an international organization for a wrongful act committed by the organization’.26 It remains the case that the responsibility of international organizations is largely governed by the same general principles which apply to the responsibility of States, and that, seen from afar, it has the same general characteristics and is susceptible of the same type of analysis. However, the same is not true in relation to the responsibility of individuals. (ii) The international responsibility of individuals For a long time regarded as ‘objects’ of international law,27 both individuals and corporations have acquired legal personality, both ‘active’ and ‘passive’,28 which finds its

References (p. 8) expression in the fact that they may, on the one hand, invoke the responsibility of other subjects of international law on the international plane in certain specific circumstances (essentially in the realms of human rights and investment), and on the other, be held accountable for their own internationally wrongful acts. The international responsibility of individuals shares a common characteristic with that of States (and international organizations): its source is the violation of an obligation (of abstention) arising under international law. However, apart from this, the responsibility of individuals is markedly different:

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• it is largely, if not exclusively, criminal; • it is implemented by international tribunals (while as regards State responsibility, the intervention of an international court or tribunal is exceptional and is entirely dependent upon the consent of the States concerned); and • it is quite exceptional at the international level, occurring only if an international criminal tribunal has been created to adjudicate upon its existence, either by treaty, or by a resolution of the Security Council. In the absence thereof, a crime may be defined by an international legal instrument or under customary international law (or both: eg piracy, slavery, racial discrimination), but its sanction—that is to say, the penal implementation of punishment—is left to the domestic courts of States. This intrusion of criminal responsibility into international law constitutes one of the causes of the loss of conceptual unity of the notion of responsibility in international law; however, it is not the only such cause.

(b) The ‘objectivization’ of international responsibility Two other elements, both of which show a growing shift in the notion of international responsibility towards ‘objectivization’, have contributed greatly to its conceptual fragmentation. First, the traditional analysis which saw damage as one of the conditions required for international responsibility to arise has been profoundly called into question. Second, the requirement of a breach is no longer the sole source of liability in the international legal order, although neither the basis upon which this purely ‘objective’ liability arises, nor the entities to which it is owed, have yet been identified with any clarity. (i) Questioning the traditional definition of responsibility According to the most widely-accepted formulation ‘[t]he term “international responsibility” covers the new legal relations which arise under international law by reason of the internationally wrongful act of a State’.29 That conception of responsibility has not changed; by contrast, however, the conditions governing the circumstances under which these new legal relations and their ‘content’ (to use the formulation of the title of Part Two of the Articles on Responsibility of States for Internationally Wrongful Acts), have been the object of a radical reconceptualization, resulting from both developments in international society and the particular resonance which Roberto Ago was able to give to those developments within the context of the codification of the topic of State responsibility by the ILC. The product of that process is the text, remarkable for both its conciseness and

References (p. 9) its scope, of articles 1 and 2 of the Articles on Responsibility of States for Internationally Wrongful Acts. Those two provisions provide:

Article 1 Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2 Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(b) constitutes a breach of an international obligation of the State. The most striking feature of this new approach compared to the traditional understanding of the notion of responsibility is the exclusion of damage as a condition for responsibility. In order for an internationally wrongful act to engage the responsibility of a State, it is necessary and sufficient that two elements (breach and attribution) are present. This is certainly not to say that, in this system, injury has no role to play; however, it fades into the background, at the level not of the triggering of the mechanisms of responsibility, but at that of the ‘new legal relations’ which arise from the fact of responsibility, some of which (the principal being, without doubt, the obligation of reparation) are dependent upon injury for their existence. The ILC explained, in a most convincing fashion, the elimination of damage as a condition for responsibility: If we maintain at all costs that ‘damage’ is an element in any internationally wrongful act, we are forced to the conclusion that any breach of an international obligation towards another State involves some kind of ‘injury’ to that other State. But this is tantamount to saying that the ‘damage’ which is inherent in any internationally wrongful act is the damage which is at the same time inherent in any breach of an international obligation.30 The requirement that there should be a breach of obligation is therefore sufficient.31 We have therefore passed from a purely inter-subjective conception of responsibility, with decidedly ‘civil’ or ‘private law’ overtones, to a more ‘objective’ approach: inter national law must be respected independently of the consequences of a violation and any breach entails the responsibility of its author, while the content of such responsibility, its concrete effects, varies according to whether or not the internationally wrongful act has caused damage, and according to the nature of the norm breached. This reconceptualization of international responsibility, properly described as ‘revolutionary’,32 bears witness to the (relative) progress of solidarity in international society. In a world in which sovereigns were juxtaposed and in which the very notion of an international ‘community’ had no place, it is understandable that the focus of commentators was on inter-State relations, and that

References (p. 10) responsibility was analysed solely from that perspective. However, such an approach is no longer acceptable once it is admitted that the function of international law is not only to guarantee the independence of States, but also to organize their coexistence and inter-dependence. That is the function of the notion of the ‘international community’, the interests of which transcend those of the entities of which it is composed, and in relation to which ‘it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected’.33 (ii) A truly objective concept of responsibility? Cross-border solidarities are evidenced in other manners in the modern world: the gravity of the harm which certain activities, made possible by scientific and technological progress, may cause to individuals and to the environment leads, in the international legal order as in domestic legal systems, to consideration of whether strict liability should exist. Such liability is ‘objective’, in the sense that its source is not as such the conduct of a subject of international law, but rather arises from the result of an act or omission, whether that result is the occurrence of a ‘risk’ or even simply of ‘damage’ itself. In international law, there exist a number of examples of mechanisms of liability of this type. However, they possess very particular characteristics: either, on the one hand, they are exclusively treaty-based (for example, in the fields of marine pollution, activities in outer space, or

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civil nuclear activities), or, on the other, they result from the ‘polluter pays’ principle. But in this latter case they do not affect the State in its role as a public authority, and the consequences for the polluter are essentially a matter of domestic law, such that it is difficult to characterize them as ‘new legal relations which arise under international law’ by reason of an act resulting in responsibility. In any case, it is not possible to argue that there exists at present a rule of customary international law in relation to strict liability which plays the same role as article 1 of the ILC’s Articles on State Responsibility in relation to responsibility for breach of an international obligation: a formulation such as ‘Any damage resulting from a lawful but potentially dangerous act authorized by, or attributable to, a State, results in its liability’ is clearly unsustainable. First it poses problems, impossible to resolve given the present state of international law, in relation to the definition of dangerous activities and of determination of the threshold of gravity of damage necessary for the triggering of responsibility. Second, quite apart from those difficulties, which might be resolved by a political decision, the very principle of such liability is very far from being accepted, as was demonstrated by the inconclusive work carried out by the ILC on the topic of ‘International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law’.34 The following conclusions may be drawn from that work: • the strongest reactions from States faced with risks resulting from hazardous activities (even extremely hazardous activities) not prohibited by international law consist of insistence upon obligations of prevention, incumbent on both operators and States (and the violation of which gives rise to responsibility for omission); 35

References (p. 11) • there is concern as to the provision of compensation for victims of damage caused by such activities, but this is not seen as involving the creation of a liability of the State for that purpose; the draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities adopted by the ILC in 2006 are limited to providing that: Each State should 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. 36 Even if it may be the case that all systems of national law provide for mechanisms of objective liability by which the State guarantees compensation for the activities of highly hazardous activities, it nevertheless appears difficult to derive from that fact any general principles of law applicable in international law. Further the laborious formulations used by the ILC by way of paraphrase throughout its work demonstrates how far the international system is from a system of strict liability, properly so-called. Nevertheless, it is still possible to discern the first outlines of a ‘soft’ responsibility, which the use of the term ‘liability’ in English describes more faithfully than does the undifferentiated use of the term ‘responsabilité’ in French.

3 The characteristics of international responsibility The profound manner in which the very concept of State responsibility was called into question by the ‘Ago revolution’—which is much more in line with the realities of modern international relations than was the traditional approach—as well as by the other developments of international law in this area, has two important consequences. First, in French at least, it has resulted in a fragmentation of the meaning of the single word ‘responsabilité’, which is indiscriminately used to describe juridical institutions which are very different. Second, although ‘classic’ State responsibility could be

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assimilated to responsibility in private or civil law, such an approach is no longer possible: in part ‘civil’, in part ‘criminal’, responsibility fulfils functions which are particular to it in the international legal order.

(a) Diversity and unity of the concept of international responsibility For as long as damage played a central role in ascertaining when international responsibility arose, the unity of the notion was assured, or at the least, defensible. Whether discussing responsibility for internationally wrongful acts, or liability for acts not prohibited by international law, damage remained the central trigger of both responsibility and liability; the object of both mechanisms being to ensure reparation for damage, whether that damage resulted from violation of an obligation, or from an activity involving risk. The elimination of damage as a condition for, or the trigger of, State responsibility for internationally wrongful acts has, however, destroyed that unity. Although still the source of responsibility in the case of liability, in the case of responsibility as a result of the breach of an international obligation, damage is only a factor relevant to certain of the new relations which arise as a result of incurring responsibility, in particular the obligation to make reparation. As was highlighted by the ILC, following the lead of Roberto Ago:

References (p. 12) Being obliged to accept the possible risks arising from the exercise of an activity which is itself lawful, and being obliged to face the consequences—which are not necessarily limited to compensation— of the breach of a legal obligation, are two different matters. It is only because of the relative poverty of legal language that the same term is habitually used to designate both.37 However, moving on from the abstract analysis of the concepts of responsibility and liability to examine the concrete modes of their functioning in the international legal order, certain unifying elements are apparent. First, a failure to comply with the obligations of prevention and reparation by a State or an international organization constitutes an inter nationally wrongful act which takes one back into the realm of, and triggers, the mechanisms of responsibility. Further, in relation to liability, it is far from being accepted that damage is its fundamental basis or source. In this context, it is possible to argue that damage is only a factor entailing the implementation of the obligation to make reparation, whilst it is the risk engendered by hazardous activities which is the foundation of both the ‘preventative’ and ‘reparative’ aspects of liability (however uncertain the latter may be). In any case, even if never expressly stated by the ILC, it is only this analysis which justifies grouping together the two texts, relating on the one hand to prevention of transboundary damage resulting from hazardous activities, and on the other, the allocation of loss in the case of such damage, under the heading of ‘Injurious Consequences Arising out of Acts Not Prohibited by International Law’. All the same, those considerations do not permit us to re-establish the unity of the notion of international responsibility, understood in its broadest sense (that is, as including both responsibility proper and liability). The foundations of the two forms which accountability may take in the international legal order remain distinct: a breach of obligation in the case of responsibility; risk in the case of liability. Further, the functioning of the two forms remains profoundly different, even if it were one day to be accepted that reparation may be due to the ‘international community’ in the case of damage caused to its own interests by hazardous activities, for instance by damage to the ‘global commons’.38 If that possibility were accepted, liability for risk would share a further common feature with the modern system of responsibility for internationally wrongful acts: it would not arise solely in the bilateral relations between States, but would be truly international since it could produce consequences for the international community as a whole (even if those consequences would not be of a criminal character). These observations only concern the responsibility of States and international organizations. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

acts for which individuals may be responsible in the international legal order are entirely different, and in truth, however recent the manifestations of such responsibility may be, remain much more traditional. Individuals may now in the international legal order be held criminally responsible (before international criminal tribunals), and may also, at least in certain cases (for instance, before the International Criminal Court), incur civil responsibility. This development is, of course, yet another element of the ‘fragmentation’ of the law of international responsibility.

(b) International responsibility: neither civil nor criminal … Traditionally, the international responsibility of the State was presented as being of a ‘civil’ or ‘private law’ character. This was entirely acceptable insofar as State responsibility did not

References (p. 13) call into question anything other than inter-personal relations, even if it had always been accompanied by forcible methods of implementation, namely the institution of reprisals, now reborn under the name of ‘countermeasures’; such methods of implementation had as their only goal (or at least were conceived as having as their only goal) enforcing compliance with the obligation of reparation, and did not constitute a punishment for a breach of international law. Conversely, for Kelsen, responsibility was ‘made up of specific sanctions [under international law], that is reprisals and war’,39 which could be seen as having a penal connotation. However, Kelsen’s analysis was based on the (debatable) postulate that law is a system of coercion, with the inevitable result that his analysis considered inter national responsibility as being a sanction: Starting from the idea that the legal order is a coercive order, this view sees the authorization accorded to the injured State to apply coercion to the offending State by way of sanction precisely as the sole legal consequence flowing directly from the wrongful act.40 Although its postulates are open to criticism, this position at least has the merit of demonstrating that the obligation to make reparation is not the sole consequence of the incurring of responsibility; the availability of recourse to countermeasures is another. However, Kelsen did not derive from this that State responsibility was criminal. In a much quoted passage, he underlined the contrary, stating ‘In international law, responsibility is neither civil nor criminal’.41 In reality, it is the coexistence and mixing of these two aspects, civil and criminal, which endow international responsibility with characteristics which are distinctly its own, and which render any assimilation with those notions in domestic law both dangerous and open to question. In fact, according to the formulation of Gaetano Arangio-Ruiz ‘international liability [sic] presents civil and criminal elements’: 42 civil because responsibility, in the great majority of cases, involves the making of reparation by one subject of law to another, or the adoption of countermeasures which are (or at least are said to be) simply the substitute for specific performance in a legal order in which the judiciary and the ‘public authorities’ intervene only exceptionally; criminal, to the extent that responsibility, in and of itself, constitutes a ‘sanction’ for a breach of the law—as the definition contained in article 1 of the ILC’s Articles makes very clear. In the same way that a driver who jumps a red light incurs responsibility by reason of the sole fact that he has not complied with the relevant law, even if he has caused no damage, so a State which breaches one of its obligations under international law incurs responsibility, independently of any injury which may result for another State, since it is

References (p. 14) in the interests of the international community as a whole that international law should be

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respected. As a consequence of the consolidation (even if only embryonic) of solidarity in international society, the system of international responsibility has to this small extent become similar to systems of domestic law. However, such an analogy cannot be pushed too far: • it is of the essence of criminal sanctions that they are pronounced by a court; however neither States, nor international organizations, are subject to the compulsory jurisdiction of any form of judge; • although mechanisms of ‘sanction’ exist in international law (for instance, in Chapter VII of the Charter, even if the term is not expressly used), they are aimed at ensuring the maintenance of international peace and security, and not at ensuring respect for the rules of international law as such; even if it may be argued that, in fact, certain States have been the object of ‘punitive’ sanctions for having gravely violated international rules of fundamental importance (as was the case with Germany after the two World Wars, or Iraq after its invasion of Kuwait in 1990), those measures form part of the law of collective security and not part of the law of international responsibility; 43 • in the current state of international law, the consequences resulting from the ‘objectivization’ of responsibility remain extremely limited; even if the provisions of the ILC’s Articles devoted to ‘serious breaches of obligations under peremptory norms of general international law’ 44 are gravely deficient, 45 it is significant that they foresee collective reactions to breaches, while article 48 opens the possibility that States other than the injured State may under certain circumstances invoke the responsibility of the author of an internationally wrongful act. Despite their extreme caution in this regard, it remains the case that the ILC’s Articles have the great merit of demonstrating (even if they do so in an extremely insufficient manner) that in addition to the breach of obligations of ‘bilateral interest’, there exists in contemporary international law, to use the abandoned formula of draft article 19, a class of international obligations ‘so essential for the protection of fundamental interests of the international community’ that their breach attracts a regime of aggravated responsibi lity, the penal elements of which are certainly more apparent than is the case in relation to the ‘ordinary’ responsibility incurred by States as the result of a ‘normal’ internationally wrongful act. However, those elements are not sufficient to change the nature of international responsibility as a whole, nor even to conclude that the regime of aggravated responsibility is in truth of a penal nature; without doubt the ILC was correct to abandon, during the process of second reading the misleading vocabulary of criminal law which marked certain provisions of the draft adopted on first reading in 1996.46

References (p. 15) The objectivization of responsibility for internationally wrongful acts which results from the excision of damage as a precondition for responsibility is at the origin of a transformation of the function which responsibility is called upon to fulfil in an international society which has less a purely inter-State character and is better integrated than formerly. The international law of responsibility has distanced itself from the ‘civil law’ model which previously characterized it, and no longer solely plays the role of a compensatory mechanism, to which it was for a long time confined. It is now also, and perhaps principally, a mechanism having as its function the condemnation of breaches by subjects of international law of their legal obligations and the restoration of international legality, respect for international law being a matter in which the international community as a whole has an interest.47 Many provisions of the Articles on Responsibility of States for Internationally Wrongful Acts reflect this new (or newly ‘discovered’) function, whether they relate to the continued duty of performance of the obligation breached (article 29), the obligation of the responsible State to cease the internationally wrongful act and if necessary, offer guarantees and assurances of non-repetition (article 30), or the possibility open to States other than the injured State to invoke, within certain limits, the responsibility arising from the

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violation of the law (article 48). Similarly, it may be considered that the strengthening of the obligations relating to the conduct of States in relation to hazardous activities equally represents a conception of international society and the law applicable to it, which is representative of greater solidarity and ‘communitarianism’. Further reading R Ago, ‘Le délit international’ (1939-II) 69 Recueil des cours 415; republished in R Ago, Scritti sulla responsibilità internazionale degli Stati (3 vols) (Naples, Jovene, 1979–1986) P Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal 1 AE Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: A Necessary Distinction?’ (1990) 39 ICLQ 1 J Combacau, ‘Aspects nouveaux de la responsabilité internationale: Deux approches contradictoires?’ (1986) 38 Revue internationale de droit comparé 187 M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’État (Paris, Pedone, 2006) FV García Amador, ‘Nature juridique et fonction de la responsabilité internationale de l’Etat’ (1957) 37 Revue de droit international, de sciences diplomatiques et politiques/The International Law Review 148 B Graefrath, ‘New Trends in State Responsibility’, in Responsibility of States: Thesaurus Acroasium of the Institute of International Public International Law and International Relations of Thessaloniki, vol 20 (1993), 105 W Riphagen, ‘State Responsibility: New Theories of Obligation in Interstate Relations’, in R St J Macdonald and DM Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (The Hague, Nijhoff, 1983), 581 SFDI, La responsabilité dans le système international (Paris, Pedone, 1991) B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y Dinstein (ed), International Law at a Time of Perplexity—Essays in Honour of Shabtai Rosenne (Dordrecht, Nijhoff, 1989), 821

References (p. 16) B Stern, ‘Et si on utilisait la notion de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’ (2001) AFDI 3; published in English as ‘A Plea for ‘Reconstruction’ of International Responsibility Based on the Notion of Legal Injury’ in M Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden, Brill, 2005), 93 S Villalplando, L’émergence de la communauté internationale dans la responsabilité des États (Paris, PUF, 2005)

Footnotes: 1 P Reuter, ‘Trois observations sur la codification de la responsabilité internationale des États pour fait illicite’, in Le droit international au service de la paix, de la justice et du développement— Mélanges Michel Virally, (Pedone, Paris, 1991), 390; reproduced in P Reuter, Le développement de l’ordre juridique international—Écrits de droit international (Paris, Economica, 1995), 574. 2 C de Visscher, La responsabilité des États (Leiden, Bibliotheca Visseriana, 1924), 90. 3 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 205 (para 31). 4 D Anzilotti, Cours de droit international (trans Gidel, 1929) (Paris, Panthéon-Assas/LGDJ, 1999), 467. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

5 Ie those obligations in return for which payment is not obligatory as a matter of law, but which provide a sufficient cause to preclude an action for recovery of money as unduly paid once payment has in fact been made: see Art 1235, Code civil. 6 The SS ‘Wimbledon’, 1923, PCIJ Series A, No 1, p 4, 25. 7 S Popescu, ‘Le fondement de la responsabilité juridique’ (1966) Revue roumaine des sciences juridiques 139. 8 Commentary to draft art 2, para 2, ILC Yearbook 1973, Vol II, 177. Draft art 2 as adopted on first reading was deleted on second reading, and with it the accompanying commentary; however, Ago’s proposition still holds true. 9 The present Chapter was originally written in French, in which the same word (‘responsabilité’) covers both ‘responsibility’ and ‘liability’. 10 H Grotius, The Rights of War and Peace (R Tuck (ed), J Barbeyrac (trans), 1625, Indianapolis, Liberty Fund, 2005), Ch XVII, para 1 (vol II, 884); and see the Prolegomena, para 8 (vol 1, 86). 11 See E Jouannet, Emer de Vattel et l’émergence du droit international classique (Paris, Pedone, 1998), 407. 12 See eg J Combacau & S Sur, Droit international public (Paris, Montchrestien, 2009), 526. 13 D Anzilotti, Cours de droit international (trans Gidel, 1929) (Paris, Panthéon-Assas/LGDJ, 1999), 467. 14 Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29; see also Factory at Chorzów, Jurisdiction, 1927, PCIJ, Series A, No 9, p 4, 21. 15 D Anzilotti, Cours de droit international (trans Gidel, 1929) (Paris, Panthéon-Assas/LGDJ, 1999), 517. 16 ARSIWA, Commentary to art 2, para 10. 17 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174, 179. 18 Ibid. 19 Ibid. 20 See also P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en dro it des gens (Brussels, Bruylant, 1998), esp 2–5. 21 Ibid, 305. 22 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174, 178. 23 Cf ibid, 179. 24 R Zacklin, ‘Responsabilité des organisations internationales’ in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 91; see also M Pérez González, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92 RGDIP 99; and A Pellet, ‘Syllabus: Responsibility of international organizations’, Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 135. 25 See Report of the ILC, 61st Session, 2009, A/64/10, 19 (para 48). 26 Draft Articles on the Responsibility of International Organizations, Commentary to draft art 1, para 6; ibid, 41. 27 See the dictum of the Permanent Court of International Justice in Jurisdiction of the Courts of Danzig, 1928, PCIJ, Series B, No 15, p 4, 17–18. 28 A Pellet, ‘Le droit international à l’aube du XXIème siècle (La société internationale contemporaine—permanence et tendances nouvelles)’ (1997) I Cursos Euromediteraneos 83.

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29 ARSIWA, Commentary to art 1, para 1; see also D Anzilotti, Cours de droit international (trans Gidel, 1929) (Paris, Panthéon-Assas/LGDJ, 1999), 467. 30 Commentary to draft art 3, para 12, ILC Yearbook 1973, Vol II, 183. 31 For a different view, see B Stern, ‘Et si on utilisait la notion de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’ (2001) AFDI 3, published in English as ‘A Plea for ‘Reconstruction’ of International Responsibility Based on the Notion of Legal Injury’, in M Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden, Brill, 2003), 93. 32 A Pellet, ‘Remarques sur une révolution inachevée—Le projet de la C.D.I. sur la responsabilité des États’ (1996) 42 AFDI 7. 33 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3, 43 (para 92). 34 See below, Chapter 10. 35 See the ILC’s Draft Articles on Prevention of Transboundary Damage from Hazardous Activities; ILC Yearbook 2001, Vol II(2), 146–170 (para 97). 36 Principle 4, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities; Report of the ILC, 58th Session, 2006, A/61/10, 108 (emphasis added). 37 Report of the ILC, 25th Session, ILC Yearbook 1973, Vol II, 161, 169 (para 38); for Ago’s original formulation, see R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 203 (para 20). 38 Cf art 139, United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3. 39 H Kelsen, ‘Théorie du droit international public’ (1953-III) 84 Recueil des cours 1, 87; see also ibid, 19, 29. 40 Commentary to draft art 1, para 5, ILC Yearbook 1973, Vol II, 174. 41 H Kelsen, ‘Théorie du droit international public’ (1953-III) 84 Recueil des cours 1, 87; see also P Reuter, ‘Principes de droit international public’ (1961-I) 103 Recueil des cours, 584ff; Commentary to draft art 19, para 21, ILC Yearbook 1976, Vol II(2), 103–104 (n 473); Commentary to art 12, para 5; R Ago, ‘Le délit international’ (1939-II) 69 Recueil des cours 415, 530–531; R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol. II(1), 199, 209 (para 38); R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 33 (n 154), 46 (para 137); G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol. II(1) 1, 54–57 (paras 250–263); J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 13–14 (para 54). 42 G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1) 1, 56 (para 256) (italics in original); cf F García Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 180 (para 35), 182–183 (paras 46–53). 43 See the masterly and nuanced demonstration of the different logic on which these two ‘branches’ of the law are based by M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’État (Paris, Pedone, 2006). 44 See ARSIWA, art 41, and, in an excessively cautious manner, art 54. 45 See below, Chapters 45–50. 46 Cf the use of the terms ‘crimes’ and, above all, ‘delicts’ in draft art 19; see A Pellet, ‘Le nouveau projet de la C.D.I. sur la responsabilité de l’État pour fait internationalement illicite: Requiem pour le crime? in L Vohrah et al (eds), Man’s Inhumanity to Man–Festschrift Antonio Cassese (The Hague, Kluwer, 2002), 654; published in English as A Pellet ‘The New Draft Articles of the International Law Commission on the responsibility of States for internationally wrongful acts: A Requiem for State’s Crimes?’ (2002) 32 Netherlands Yearbook of International Law 55.

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47 See P-M Dupuy, ‘Responsabilité et légalité’, in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 263.

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Part I Introduction—Responsibility and International Law, Ch.2 The System of International Responsibility James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Responsibility of individuals — Pacta sunt servanda — BITs (Bilateral Investment Treaties) — UNCLOS (UN Convention on the Law of the Sea) — World Trade Organization (WTO) — Immunity from jurisdiction, states — Arbitral tribunal

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(p. 17) Chapter 2 The System of International Responsibility∗ 1 The law of international responsibility 17 2 Issues of classification and characterization 20 (a) Responsibility under international or national law? 20 (b) The typology of State responsibility 21 (c) The notion of ‘damage’ and the invocation of responsibility 23 3 Conclusions 24 Further reading 24

1 The law of international responsibility Article 1 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts provides: Every internationally wrongful act of a State entails the international responsibility of that State. Due to the historical development of international law, its primary subjects are States. It is on States that most obligations rest and on which the burden of compliance principally lies. For example, human rights treaties, though they confer rights upon individuals, impose obligations upon States.1 If other legal persons have obligations in the field of human rights, it is by derivation or analogy from the human rights obligations that States have. State responsibility is, so far, the paradigm form of responsibility on the international plane. But States are not the only subjects of international law, as the International Court affirmed in the Reparations for Injuries Advisory Opinion.2 Being a subject of any legal system must involve being subject to responsibilities as well as enjoying rights. Thus it would seem unproblematic to substitute the words ‘international organization’ or ‘international

References (p. 18) legal person’ for ‘State’ in article 1 of the ILC Articles. In other words, that basic statement of principle would seem to be equally applicable to all international legal persons.3 In relation to international organizations, at least, a corollary of their undoubted capacity to enter into treaties with States or with other international organizations is that they are responsible for breaches of the obligations thereby undertaken; this follows from the principle pacta sunt servanda with respect to such treaties.4 The same is intuitively true for breaches of applicable general international law. The potential responsibility of international organizations under general international law was affirmed by the International Court in the Cumaraswamy Advisory Opinion.5 The difficulties are rather ones of implementation, since systems of implementation of responsibility (for example, the jurisdiction of international courts and tribunals) had been developed almost exclusively by reference to States and not international organizations, and the principal agent for change in this regard—the co-existence of the EU alongside States in fields such as the WTO and the law of the sea—is changing the general picture only slowly and in an ad hoc fashion.6 The position so far as individuals, corporations, non-governmental organizations and other groups are concerned is less clear. Just as it is doubtful whether they are in any meaningful sense ‘subjects’ of international law, so it is doubtful whether any general regime of responsibility has developed to cover them. In relation to individuals, international responsibility has only developed

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in the criminal field, and then only in comparatively recent times. Although piracy has been recognized as a ‘crime against the law of nations’ for centuries, it is better to see this as a jurisdictional rule allowing States to exercise criminal jurisdiction for pirate attacks on ships at sea rather than a rule conferring ‘legal personality’ on pirates.7 Since the Second World War real forms of individual criminal responsibility under international law have developed. First steps were taken with the establishment of the Nuremberg and Tokyo war crimes tribunals and the conclusion of the Genocide Convention in the immediate post-war period.8 After the end of the Cold War there followed in rapid succession the creation by Security Council resolution of the International Criminal Tribunals for Yugoslavia (1993) and Rwanda (1994),9 and then the Rome Statute of the International Criminal Court (1998).10

References (p. 19) By contrast, so far there has been no development of corporate criminal responsibility in international law. Under the two ad hoc Statutes and the Rome Statute, jurisdiction ratione personae is limited to individual persons.11 The Security Council often addresses recommendations or demands to opposition, insurgent, or rebel groups, but without implying that these have separate personality in international law. Any international responsibility of members of such groups is probably limited to breaches of applicable international humanitarian law or even of national law. If rebel groups succeed in becoming the government of the State (whether of the State against which they are fighting or of a new State which they succeed in creating), that State may be responsible for their acts.12 But if they fail, their opponent State is in principle not responsible, and any possibility of collective or corporate responsibility for their acts lapses with them.13 It is also very doubtful whether ‘multi-national corporations’ are subjects of international law for the purposes of responsibility, although steps are being taken to develop codes and norms calling for voluntary adherence to human rights and other norms by multi-national corporations.14 From the point of view of international law, the so-called multi-national corporation is best regarded as a group of corporations, each created under and amenable to its own national law as well as to any other national legal system within which it operates—although national legal systems may adopt their own approaches to corporate groups. Thus although article 58 ARSIWA reserves in general terms the possibility of ‘individual responsibility under international law of any person acting on behalf of a State’, a reservation which is not limited to criminal responsibility, so far there has been virtually no development in practice of civil responsibility of individuals or corporations for breaches of international law. Only the United States has legislation dealing (in a very uneven way) with this issue.15 As the dissenting judges in the Arrest Warrant case pointed out, this may be seen as ‘the beginnings of a very broad form of extraterritorial jurisdiction’ in civil matters; they further commented that although ‘this unilateral exercise of the function of

References (p. 20) guardian of international values has been much commented on, it has not attracted the approbation of States generally.’16 Whether it will do so in the future remains to be seen.

2 Issues of classification and characterization The category ‘State responsibility’ covers the field of the responsibility of States for internationally wrongful conduct. It is the general part of the international law of obligations. But what is a breach of international law by a State depends on the actual content of its international obligations, and especially as far as treaties are concerned, this varies markedly from one State to the next. Even under general international law, which might be expected to be virtually uniform for every State,

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different States may be differently situated and therefore may have different responsibilities. There is no such thing as a uniform code of international law, reflecting the obligations of all States. On the other hand, the underlying concepts of State responsibility—attribution, breach, excuses, and consequences—are general in character. Particular treaties or rules may vary these underlying concepts in particular respects, otherwise they are assumed and they apply unless excluded.17 These standard assumptions of responsibility, on the basis of which specific obligations of States exist and are applied, are set out in the ILC’s Articles as adopted on second reading in 2001.

(a) Responsibility under international or national law? State responsibility can only be engaged for breaches of international law, ie for conduct which is internationally wrongful because it involves some violation of an international obligation applicable to and binding on the State. A dispute between two States concerning the breach of an international obligation, whether customary or deriving from treaty, concerns international responsibility, and this will be true whether the remedy sought is reparation for a past breach, or cessation of the internationally wrongful conduct for the future. On the other hand, not all claims against a State involve international responsibility, even if international law may be relevant to the case. For example, if a State is sued on a commercial transaction in a national court, international law helps to determine the extent of the defendant State’s immunity from jurisdiction and from measures of enforcement, but the substantive claim will derive from the applicable law of the contract. There is thus a distinction between State responsibility for breaches of international law, and State liability for breaches of national law. One does not entail the other.18 Claims of responsibility were traditionally brought directly between States at the international level, or (much less often) before an international court or tribunal. Additionally,

References (p. 21) there is now provision for individuals or corporations to access international tribunals and bring State responsibility claims in their own right in certain specific cases. Two prominent examples are claims for breach of the European Convention on Human Rights before the European Court of Human Rights, or for breach of a bilateral investment treaty before an arbitral tribunal established under the treaty. Whether these claims can be enforced in national courts depends on the approach of the national legal system to international law in general as well as on the rules of State immunity. In certain circumstances it is possible for claims of responsibility to be ‘domesticated’, and the principles of subsidiarity and complementarity indicate an increasing role for national courts in the implementation and enforcement of international law. But the interaction between rules of jurisdiction and immunity and the relationship between national and international law make this a complex area.

(b) The typology of State responsibility National legal systems often distinguish types or degrees of liability according to the source of the obligation breached—for example, crime, contract, tort, or delict.19 It appears that there is no such general distinction in international law. As the arbitral tribunal said in the Rainbow Warrior case: the general principles of International Law concerning State responsibility are equally applicable in the case of breach of treaty obligation, since in the international law field there is no distinction between contractual and tortious responsibility, so that any violation of a State of any obligation, of whatever origin gives rise to State responsibility.20 To this extent the rules of State responsibility form a single system, without any precise comparator in national legal systems. The reason is that international law has to address a very wide range of

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needs on the basis of rather few basic tools and techniques. For example, treaties may perform a wide range of functions—legislative (for instance, by establishing international institutions in the public interest) or contractual (for instance, a bilateral trade or loan agreement). The origin of the obligation is the same, but unlike national law, there is no categorical distinction between the legislative and the contractual. The tribunal in the Rainbow Warrior arbitration21 and the International Court in the GabčíkovoNagymaros Project case22 both held that in a case involving the breach of a treaty obligation, the general defences available under the law of State responsibility coexist with the rules of treaty law, laid down in the 1969 Vienna Convention on the Law of Treaties. But they perform a different function. The rules of treaty law determine when a treaty obligation is in force for a State and what it means, ie how it is to be interpreted.

References (p. 22) The rules of State responsibility determine the legal consequences of its breach in terms of such matters as reparation. There is some overlap between the two but they are legally and logically distinct. A State faced with a material breach of a treaty obligation can choose to suspend or terminate the treaty in accordance with the applicable rules of treaty law, thus releasing itself from its obligation to perform its obligation under the treaty in the future (VCLT, article 60). But doing so does not prevent it also from claiming reparation for the breach.23 National legal systems also commonly distinguish ‘civil’ from ‘criminal’ responsibility, although the relations between the two differ markedly between various systems. By contrast there is little or no State practice allowing for ‘punitive’ or ‘penal’ consequences of breaches of international law. Although the ILC’s Draft Articles as adopted on first reading in 1996 sought to introduce the notion of ‘international crimes’ of States,24 the concept was not supported by State practice25 and it caused a great deal of controversy and divergence of opinion within the Commission.26 In 1998, the concept of ‘international crimes of States’ was set aside, contributing to the unopposed adoption of the ILC Articles in 2001. Again the episode suggests that State responsibility is an undifferentiated regime, which does not embody such domestic classifications as ‘civil’ and ‘criminal’; the International Court endorsed this approach in the Bosnian Genocide case.27 But this does not prevent international law responding to different kinds of breaches and their different impacts on other States, on people and on international order. First, individual State officials have no impunity if they commit crimes against international law, even if they may not have been acting for their own individual ends but in the interest or the perceived interest of the State. Secondly, the ILC’s Articles make special provision for the consequences of certain serious breaches of peremptory norms of general international law (jus cogens). A breach is serious if it involves a ‘gross or systematic failure by the responsible State to fulfil’ such an obligation (article 40(2)). The major consequence of such a breach is the obligation on all other States to refrain from recognizing as lawful the situation thereby created or from rendering aid or assistance in maintaining it (article 41(2)).28 In addition, States must cooperate to bring the serious breach to an end ‘through any lawful means’. The principal avenues for such cooperation are through the various international organizations, in particular the Security Council, whose powers to take measures to restore international peace and security substantially overlap with these provisions.29 But the possibility remains of individual action seeking remedies against

References (p. 23) States responsible for such serious breaches as genocide, war crimes, or denial of fundamental human rights.30

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The ILC Articles also clarify the question of the nature of the damage required for a State to invoke the responsibility of another State for an internationally wrongful act. Although the responsibility of a State arises independently of its invocation by another State, it is necessary to specify what other States faced with a breach of an international obligation may do to secure the performance of the obligations of cessation and reparation incumbent on the responsible State. Central to the invocation of responsibility is the notion of the injured State. An injured State is one whose individual right has been denied or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act. Article 42 of the ILC’s Articles provides: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) That State individually; or (b) A group of States including that State, or the international community as a whole, and the breach of that obligation: (i) Specially affects that State; or (ii) Is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. Three cases are identified in article 42. In the first case, in order to invoke the responsibility of another State as an injured State, a State must have an individual right to the performance of an obligation, in the way that the State party to a bilateral treaty has vis-à-vis the other State party (paragraph (a)). Second, a State may be specially affected by the breach of an obligation to which it is a party, even though it cannot be said that the obligation is owed to it individually (paragraph (b)(i)); for example, the pollution of the high seas in breach of the United Nations Convention on the Law of the Sea (UNCLOS) article 194 ‘may particularly impact on one or several States whose beaches may be polluted by toxic residues or whose coastal fisheries may be closed’.31 Those coastal States would then be considered as injured by the breach, independently of any general interest of all States parties to the Convention. Third, it may be case that the performance of the particular obligation by the responsible State is a necessary condition of its performance by all the other States (paragraph (b)(ii)), so-called ‘integral’ or ‘interdependent’ obligations.32

References (p. 24) These obligations will usually arise under treaties establishing particular regimes, where the forbearance of each is based on the forbearance of all; for example, if one State party to the Antarctic Treaty were to claim sovereignty over the remaining unclaimed area of Antarctica contrary to article 4 of that Treaty, all other States parties would be considered as injured thereby and as entitled to seek cessation, restitution (in the form of the annulment of the claim) and assurances of non-repetition.33 The Articles also make provision for the invocation of responsibility in the absence of any direct form of injury, where the obligation breached is one protecting the collective interests of a group of States or the interests of the international community as a whole. This is based on the idea that in case of breaches of specific obligations protecting the collective interests of a group of States or the interests of the international community as a whole, responsibility may be invoked by States which are not themselves injured in the sense of article 42. Such a notion was confirmed by the International Court in Barcelona Traction when it noted that in respect of obligations owed to the international community as a whole, ‘all States can be held to have a legal interest’ in the fulfilment of those rights.34 Article 48 is examined in more detail in Chapter 61 below.

3 Conclusions

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The classical law of State responsibility covers the whole field of internationally wrongful conduct, subject to the possibility that in a particular field a treaty may establish a ‘selfcontained regime’ with its own specific consequences for breach. For example the WTO is normally regarded as such a regime, with its own self-contained rules for violations and their consequences, as well as ‘nonviolation complaints’. But subject to this possibility, State responsibility covers a whole range of subjects which in developed national legal systems are dealt with by other means. The older tendency was to view international responsibility as, in the first place, essentially a bilateral matter, without wider consequences for others or for the international system as a whole, and in the second place, as quintessentially an inter-State issue, separated from questions of the relations between states and individuals or corporations, or from the rather unaccountable world of international organizations. This approach works well enough for bilateral treaties between States or for breaches of general rules of international law which have an essentially bilateral operation in the field of intergovernmental relations (eg in the field of diplomatic relations). But international law now contains a range of rules which cannot be broken down into mere bundles of bilateral relations between States but instead cover a much broader scope. The attempt to develop the law beyond traditional paradigms constitutes one of the more fascinating fields of a rapidly developing—and yet precarious—international order. Further reading D Bodansky, J Crook, R Rosenstock, E Brown Weiss, DJ Bederman, D Shelton, D Caron, & J Crawford, ‘Symposium: The ILC’s State Responsibility Articles’ (2002) 96 AJIL 773

References (p. 25) I Brownlie, System of the Law of Nations: State Responsibility: Part I (Oxford: Clarendon Press, 1983) J Crawford & S Olleson, ‘The Nature and Forms of International Responsibility’, in M Evans (ed) International Law (2nd edn, Oxford: OUP, 2006), 446 J Crawford & S Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’ (2005) 54 ICLQ 959 P-M Dupuy, G Nolte, M Spinedi, L-A Sicilianos, E Wyler, CJ Tams, A Gattini, I Scobbie, D Alland, & P Klein, ‘Symposium: Assessing the Work of the ILC on State Responsibility’ (2002) 13 EJIL 1037(p. 26)

Footnotes: ∗ This Chapter draws in part on J Crawford & S Olleson, ‘The Nature and Forms of International Responsibility’, in M Evans (ed), International Law (2nd edn, OUP, Oxford, 2006), 451. 1 Cf the language of provisions in several human rights treaties: art 2, International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171; art 1, Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, CETS No 005; 213 UNTS 221; art 2, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, 1465 UNTS 85. 2 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 179. 3 In its work on the Responsibility of International Organizations, the ILC has used the same formulation as in ARSIWA, art 1 with respect to the international responsibility of international organizations: see art 1, Draft Articles on the Responsibility of International Organizations adopted on first reading, Report of the ILC, 61st Session, 2009, A/64/10, 23. 4 See Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, A/CONF.129/15, art 26; cf F Morgenstern,

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Legal Problems of International Organizations (Cambridge, Grotius, 1986), 13–16, 32–36, 115. 5 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 87 (para 66). 6 Thus the EU, which is not a State, has had to be specifically provided for in order to be a party to contentious proceedings under Part XV of UNCLOS and the WTO dispute settlement mechanism. In effect for these purposes it is equated to a State. 7 See the separate opinion of Judge Moore in The Lotus, 1927, PCIJ, Series A, No 10, p 4, 70; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, arts 101–107; A Rubin, The Law of Piracy (2nd edn, Newport, Naval War College Press, 1998); R Jennings & A Watts, Oppenheim’s International Law (9th edn, London, Longmans, 1992), vol 1, 746–755. 8 Convention for the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277. 9 See the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), adopted under SC Res 827 (1993); and the Statute of the International Criminal Tribunal for Rwanda, adopted under SC Res 955 (1994). 10 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90. 11 See, in particular, art 1 of the ICTY Statute, SC Res 827 (1993). 12 Article 10, ARSIWA. 13 This does not exclude the responsibility of the central Government to prosecute international crimes committed in the areas occupied by the rebel groups, provided that the central Government obtains control or custody over the suspects. This seems to be a normal consequence of the regimes of accountability under treaties such as the Convention against Torture (see United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984; 1465 UNTS 85, arts 5–7); and it may also arise where the government assumes responsibility for the fate of particular individuals: see eg Ilascu & others v Moldova & Russia (App No 48787/9), ECHR Reports 2004-VII, paras 336–352. 14 See eg the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy 1977 (adopted by the Governing Body at its 204th Session), 17 ILM 416 (subsequently amended by the Governing Body at its 279th Session in 2000 and its 295th Session in 2006); the Organisation for Economic Co-operation and Development (OECD)’s Guidelines for Multinational Enterprises (2000) (relating to human rights, labour standards and the environment). See also United Nations Global Compact () and Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, E/CN.4/Sub.2/2003/12 (2003). On the problems of establishing international responsibility of corporations, see S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 11 Yale LJ 443; S Joseph, Corporations and Transnational Human Rights Litigation (Oxford, Hart, 2004); A Lindblom, Non-Governmental Organisations in International Law (Cambridge, CUP, 2005); C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005); L Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge, CUP, 2002). 15 Private parties (US or foreign) can be sued for torts occasioned ‘in violation of the law of nations’ anywhere committed against aliens, under the unusual jurisdiction created by the Alien Tort Claims Act (28 USC §1350). See eg Sosa v Alvarez-Machain, 124 S Ct 2739 (2004). The US cases distinguish between corporate complicity with governmental violations of human rights, and those violations (eg torture, slavery) which do not require any governmental involvement or state action. Cf also the Torture Victim Protection Act 1992 (Pub L No 102–256, 106 Stat 73 (1992)), under which only designated ‘rogue’ States can be defendants. 16 Separate opinion of Judges Higgins, Kooijmans, & Buergenthal, Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICJ

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Reports 2002, p 3, 77 (para 48). 17 Art 55, ARSIWA (lex specialis). For examples of a lex specialis see, eg the provisions of the WTO Agreements excluding compensation for breach and focusing on cessation, and (perhaps) art 41 (ex art 50) of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, CETS No 005; 213 UNTS 221, as amended by, inter alia, Protocol No 11 (Strasbourg, 11 May 1994; CETS No 155). 18 Arts 1, 3 and 27, ARSIWA; Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, p 15, 51 (paras 73). See also Compañía de Aguas del Aconquija and Vivendi Universal v Argentine Republic (ICSID Case No ARB/97/3), Decision on Annulment, 3 July 2002, 41 ILM 1135, 1154–1156 (paras 93–103). 19 Cf the division of sources of obligation in Roman law into contract, delict, and quasicontract/unjust enrichment: D.1.1.10.1 (Ulpian): ‘Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere’ (‘the principles of law are these: to live honourably, not to harm any other person, and to render to each his own’). 20 The ‘Rainbow Warrior’ (France/New Zealand), 30 April 1990, 20 RIAA 215, 251 (para 75); for the arguments of the parties, see ibid, 248–251 (paras 72–74). See also the ICJ in GabčíkovoNagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38–39 (paras 46–48, esp para 47): ‘when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect’, citing what is now art 12, ARSIWA: ‘There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character’ (emphasis added). 21 Rainbow Warrior (France/New Zealand), 30 April 1990, 20 RIAA 215, 251 (para 75). 22 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38–39 (paras 46–8). 23 In other words a State can terminate a treaty for breach while claiming damages for breaches that have already occurred: see Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, arts 70(1)(b), 72(1)(b), and 73. 24 For the text of draft art 19 as adopted on first reading, see Appendix 1. 25 No State has ever been accused of a criminal offence before an international court, even where the conduct was criminal in character, eg aggression or genocide; see eg G Abi-Saab, ‘The Uses of Article 19’ (1999) 10 EJIL 339; A de Hoogh, Obligations Erga Omnes and International Crimes (The Hague: Kluwer, 1996); N Jørgensen, The Responsibility of States for International Crimes (Oxford: OUP, 2000); A Pellet, ‘The New Draft Articles of the international Law Commission … A Requiem for States’ Crime?’ (2001) 32 Netherlands YBIL 55. 26 For discussion, see Chapter 29. 27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, paras 65 and 66. 28 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 159). 29 M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) 72 BYIL 337. 30 For instance States may adopt measures which are not inconsistent with their international obligations (retorsion). In addition, a right may exist allowing States which themselves are not injured to take countermeasures in the case of breach of certain types of obligation. See, for instance, the catalogue of State practice discussed in the Commentary to art 54, paras 3 and 4, which may be evidence of such a customary rule. The ILC left the question open for future

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development in art 54. 31 Commentary to art 42, para 12. 32 The notion of ‘integral’ obligations was initially developed by Fitzmaurice as Special Rapporteur on the Law of Treaties, although he used the term as referring to non-reciprocal ‘absolute’ or ‘selfexistent’ obligations, for instance, human rights or environmental obligations, which are not owed on an ‘all or nothing’ basis: see eg GG Fitzmaurice, Second Report on the Law of Treaties, ILC Yearbook 1957, Vol II, 16, 54. The terminology has accordingly sometimes given rise to confusion, and the term ‘interdependent obligation’ may be more appropriate. 33 Other commonly cited examples are treaties on disarmament or arms control, which are based on the assumption of similar obligations by the other contracting States. 34 Barcelona Traction, Light & Power Company, Limited, Second Phase, ICJ Reports 1970, p 3, 32 (para 33).

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Part I Introduction—Responsibility and International Law, Ch.3 Primary and Secondary Rules Eric David From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Diplomatic protection — Self-defence — UNCLOS (UN Convention on the Law of the Sea) — UN Charter — Vienna Convention on the Law of Treaties

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(p. 27) Chapter 3 Primary and Secondary Rules 1 An essentially technical distinction 27 2 A sometimes artificial distinction 29 Further reading 33 Despite the somewhat abstract formulation, the distinction between primary and secondary rules is far from being a complex or major problem of international law. It concerns a distinction the object of which was initially a technical one, but whose application has at times seemed artificial.

1 An essentially technical distinction Throughout the drafting of the Articles on State Responsibility, the ILC specified that its codification efforts concerned only the ‘secondary’ rules, to the exclusion of the ‘primary’ rules of international law. That is, the ILC limited the scope of its work to the rules specifically regulating international responsibility, to the exclusion of those rules the violation of which gave rise to responsibility. Thus in its 1980 Report, the ILC stated: the purpose of the present draft articles is not to define the rules imposing on States, in one sector or another of inter-State relations, obligations whose breach can be a source of responsibility and which, in a certain sense, may be described as ‘primary’. In preparing the present draft the Commission is undertaking solely to define those rules which, in contradistinction to the primary rules, may be described as ‘secondary’, inasmuch as they are aimed at determining the legal consequences of failure to fulfil obligations established by the ‘primary’ rules. Only these ‘secondary’ rules fall within the actual sphere of responsibility for internationally wrongful acts.1 Since 1973, that text was to be found in the majority of the Reports of the ILC relating to the first reading of the Draft Articles, with only some modifications in the wording.2 The principles contained in the draft adopted on first reading were further developed by the ILC on second reading. Throughout the second reading of the Draft Articles, the ILC on numerous occasions distinguished between the rules of international responsibility—secondary rules—and substantive rules of international law—primary rules.3 (p. 28) Fundamentally, this distinction—which recalls the classic distinction between ‘substantive law’ and ‘procedural law’, or even the distinction adopted by Hart between ‘primary’ and ‘secondary’ rules4 —was adopted to serve a precise practical objective: to allow the Commission to focus solely on the structural rules of international responsibility, to the exclusion of the substantive rules the violation of which gives rise to responsibility. In the past, the various codification efforts had resulted in attempts to codify, at the same time, both substantive rules—in particular, those concerning damages caused to foreigners and their property and diplomatic protection—and the international rules of responsibility proper. As early as 1963, Roberto Ago, who would become the father of the codification of State responsibility, had suggested during a meeting of a sub-committee of the ILC that the Commission should take a more rigorous approach so as to avoid ‘un mélange de genres’ (a mixing of categories).5 In his view, the Commission had to codify ‘the whole of responsibility, and nothing but responsibility’.6 This did not mean that the Commission had to completely ignore the rules, the violation of which gives rise to responsibility, but that it could take them into account only by way of example, to illustrate the consequences of a breach.7 An examination of the discussions which followed Ago’s proposal shows that it was Herbert Briggs who first used the expression ‘primary and secondary’ rules. Citing the 1929 Harvard Law School project on the ‘Responsibility of States for Injuries in their Territory to the Person of Property of Foreigners’, he observed that despite ambiguities this text:

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employed the term ‘responsibility’ in more than one sense, for the most part it correctly treated State responsibility as a secondary obligation, having its source in the nonobservance of a primary obligation under international law.8 Although today this debate seems to be only of historic interest, it is important to note that at the time it divided the members of the ILC. Some considered that the codification envisaged could not ignore the primary rules. Thus, for Briggs ‘Mr. Ago’s paper somewhat artificially stressed the distinction between the international law of State responsibility and the law relating to the treatment of aliens’.9 Jiménez de Aréchaga and Tsuruoka held similar opinions: the previous attempts to codify State responsibility had always included the question of State responsibility for injuries to foreigners and their property; the Commission should not attempt to codify in abstracto theoretical aspects of the responsibility of States. To the contrary, the Commission had to limit the examination of this subject to issues of current importance.10 These chilly, if not retrograde, positions demonstrate that at the time sufficiently clear principles as to how the responsibility of the State could be engaged on account of the violation of other rules of international law did not yet exist. The majority of the subcommittee rejected the position of these three members of the Commission, and during the Commission’s examination of Ago’s First Report in 1969, almost all of the speakers (p. 29) accepted the idea of limiting the Commission’s work to the rules on State responsibility stricto sensu, that is, to the secondary rules.11 The distinction between primary and secondary rules was thus a convenient method to define more exactly the object of the codification exercise. This distinction, however, has not been always easy to apply, as we shall see.

2 A sometimes artificial distinction If there is a particular field in which the existence of autonomous secondary rules can give rise to discussion, it is in the field of the circumstances precluding wrongfulness. In fact, insofar as these rules aim at excluding the wrongfulness of conduct and not the responsibility of the State for that conduct, as explained by Ago,12 then these rules are more appropriately regarded as being situated ‘upstream’, that is, they should be seen as forming an element of the primary rule in question. Indeed, if the rules concerning circumstances precluding wrongfulness are compared with the general rules on State responsibility, it emerges that the former are essentially rules concerning behaviour, that is, primary rules, whereas the latter deal with the consequences of nonperformance of these rules. This point did not escape the attention of the members of the ILC. For Riphagen, the rules on circumstances precluding wrongfulness ‘tend to break the logical link between breach of an obligation, responsibility and the content of responsibility’: to say that a breach of an obligation ‘does not constitute an internationally wrongful act’ implied that ‘another primary rule prevailed over the rule at the source of the international obligation that had been breached’.13 Reuter queried whether these rules ‘really belonged among draft articles on State responsibility’.14 Vallat observed that: Suddenly, the Commission was considering something that was juridically altogether different. Again, the subject-matter now related to exceptions, namely circumstances precluding wrongfulness, yet the Commission had not considered the circumstances giving rise to wrongfulness and had not examined the issue of right and wrong in terms of law.15 It was equally observed that the specific case of consent of the victim as a circumstance precluding wrongfulness,16 in reality constituted a primary rule.17 In Francis’ view, when a State consents to ‘an act that would have been wrongful without [that] State’s consent’ the prohibition of the act in question disappeared and the question of responsibility did not arise.18 For Verosta if ‘there was consent there was no injured State, because there was no wrongful act’.19 QuentinBaxter maintained that ‘the factor of consent entered into the primary obligation’; 20 consent ‘was From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

therefore to be regarded as lying at the very root of the existence of international obligations’ and it was very

References (p. 30) difficult to fit that concept into the pattern of a mere exception.21 The same idea was expressed by Ushakov, for whom the derogation from an international rule was a question, not of responsibility, but of agreement between the two States concerned.22 Schwebel similarly concluded that the consent of the victim ‘did not set forth a rule of State responsibility’.23 Nevertheless, Ago continued to maintain that there existed a sort of chronology between the primary obligation and the renunciation by the creditor State of the obligation in respect to this obligation: the renunciation related ‘only to the commission or omission of a specific act’, but it did not constitute ‘a treaty having the effect of changing the rules’.24 But he had to admit that: in exceptional cases the rules and obligations in question might be such that they no longer existed once it had been decided not to apply them.25 The commentary to article 20, the corresponding provision adopted on second reading by the ILC, seems to suggest that consent of the victim is a matter for the secondary rules. If a State authorizes conduct that, save for the authorization, would be wrongful in relation to that State: the primary obligation continues to govern the relations between the two States, but it is displaced on the particular occasion or for the purposes of the particular conduct by reason of the consent given.26 In other words, the ‘displacement’ of the primary rule—the prohibition of the act—would result from the secondary rule—the authorization of the act. If this is the opinion of the ILC, then the distinction will not convince those voluntarists for whom international law must always be based on the consent of States. A similar debate arose in relation to self-defence, which was also included as a circumstance precluding wrongfulness, despite the fact that it does not really seem to constitute a secondary rule.27 Thus Norway, in reply to the request for information circulated by the Preparatory Committee for the 1930 Hague Codification Conference in relation to State responsibility,28 maintained that self-defence should ‘involve exemption from responsibility’, for it was not really ‘an act contrary to international law’.29 Yet, as in the case of consent, to say that acts taken by way of self-defence are in accordance with international law is to say that it is a substantive rule, a primary rule. Already in 1963 Tunkin and Ago recognized that self-defence was a rule of general international law. For Tunkin: ‘[i]f a State, for example, acted in self-defence, it was not acting wrongfully, and hence the question of its responsibility did not arise at all in that case.’30 Regarding that point, Ago said that ‘he fully agreed that Mr. Tunkin was right

References (p. 31) from a theoretical point of view. A general right of self-defence was accepted in international law’.31 But he immediately added that: it had to be remembered that, under the United Nations system for example, recourse to force was not normally permitted, and accordingly it seemed to him that a special problem of self-defence as an excuse for contravening that rule might arise.32 That noncommittal reply is also to be found in the commentary to the former draft article [34] as adopted on first reading. The ILC recognized that self-defence was a peremptory norm of international law which, with the prohibition on the use of force, constituted rules that ‘are now

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indisputably part of general international law and, in written form, of the juridical system represented by the United Nations’.33 The ILC concluded that selfdefence was clearly a primary rule, but that it was necessary to include it in the chapter on circumstances precluding wrongfulness, not in order to codify or define it, but solely for the purpose of stating ‘the principle that the use of force in self-defence precludes the wrongfulness of the acts in which force is so used’.34 The Commentary to article 21 as adopted on second reading is, in this respect, noticeably similar: it indicates that ‘self-defence precludes the wrongfulness of the conduct taken within the limits laid down by international law’,35 but it adds that questions of the extent and application of self-defence are ‘left to the applicable primary rules referred to in the Charter’.36 The ILC thus recognized that self-defence was a primary rule of international law. And the fact that it also constitutes an exception to the prohibition on the use of force is insuffi cient, in my view, to turn it into a secondary rule. Indeed, if it were sufficient, then it would be necessary to include other acts as circumstances precluding wrongfulness: the use of force with the authorization of the Security Council (violation of the prohibition on the use of force contained in art 2(4) of the United Nations Charter, justified by the authorization of a competent organ under arts 42, 43, or 48 of the Charter), the exercise of the right of hot pursuit in the high seas (violation of the freedom of navigation in the high seas under art 87(1)(a) UNCLOS,37 justified by the repression of certain infractions in accordance with art 111 UNCLOS), seizure of a pirate ship in the high seas (violation of the freedom of navigation in the high seas: art 87(1)(a) UNCLOS, justified by the repression of piracy under art 105 UNCLOS), suspension or denunciation of a treaty in case of fundamental change of circumstances (violation of the rule pacta sunt servanda, contained in art 26 Vienna Convention of the Law of Treaties,38 justified by art 62 thereof ), etc. The characterization as primary rules of the rules relating to countermeasures,39 which clearly involve rules concerning conduct, emerges from the codification of the conditions for validity of countermeasures: 40 if the State resorting to countermeasures does not respect these conditions, its responsibility is engaged. It is thus a primary rule, the violation of which leads to the application of a secondary rule. To assert that the rules relating to counter

References (p. 32) measures are secondary rules would be to maintain that their breach can in turn give rise to ‘sub-secondary’ or ‘tertiary’ rules … These examples show that the distinction between primary and secondary rules was not always rigorously applied by the ILC. The Commission was conscious of this situation but, as many of its members observed, the codification of the rules on responsibility would have been incomplete without dealing with the rules relating to circumstances precluding wrongfulness. Thus Reuter, although maintaining that it could be queried whether such provisions properly belonged in a codification of State responsibility, considered that it was unnecessary to ‘take too rigid a position on that point’.41 Similarly Quentin-Baxter said that the draft ‘required a provision relating to consent, even if it involved some slight divergence from strict logic’.42 For Schwebel the fact that a provision on the consent of the victim State did not enunciate a rule on responsibility did not entail that the rule should not be included in the draft for it was a ‘vital exception from application of the principle of State responsibility’.43 In conclusion, the distinction between primary and secondary rules is, without doubt, one of the factors that allowed the ILC to successfully conclude one of the most ambitious codification projects of the 20th century. It allowed the ILC to maintain a specific course without mixing (or without mixing too much) the technical aspects of responsibility with the substantive norms the violation of which trigger the responsibility of the State. The distinction between primary and secondary rules has not always been respected, but that can hardly be complained of since the codification effort would have lost much of its interest if, in the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

name of absolute logic, the text had remained silent on the question of circumstances precluding wrongfulness. This simply goes to show that reality often rebels against classifications which are too rigid and that simple schemes may not always take into account all of the complexities of a topic. Rigid classifications may conceal reality, but evidently they cannot suppress it. The so-called secondary rules may become primary rules and vice-versa: the implementation of responsibility through mechanisms for dispute settle ment refers to rules of conduct, and therefore primary rules, which are no less secondary rules, given that they are triggered by the violation of primary rules … Secondary rules can also proliferate like Russian dolls. It suffices to think of the noncompliance procedure and system of sanctions established under Community law in relation to member States which do not comply with their obligations: in the case of the violation of an obligation under Community law (primary rule) by a member State the Commission may render a reasoned opinion (article 226(1) ECT) (secondary rule). In turn, that reasoned opinion becomes the subject of a primary rule, for it is only if the member does not comply with it that the Commission may seize the European Court of Justice of the matter (article 226(2) ECT) (secondary rule). If the Court determines that the member State has failed to comply with its obligations (primary rule), the State is required to take the necessary measures to comply with the judgment (article 228(1) ECT) (secondary rule). If the member State does not adopt the necessary measures (primary rule), the Commission may render a new reasoned opinion (article 228(2) ECT) (secondary rule), and so on … However, after Maastricht, the possibility of imposing on

References (p. 33) the defaulting State the payment of a lump sum or penalty following the second reasoned opinion (article 228(2) ECT) has put an end to this merry-go-round. As can be seen, every attempt at classification has its limits: if the classification can facilitate the perception of reality it also leads, as in mathematics, to its simplification. It is sufficient to be conscious of this so that the classification maintains its operational virtues without excluding from view the object examined. Further reading S Rosenne, The International Law Commission’s Draft Articles on State Responsibility, Part 1, Articles 1–35 (Dordrecht, Nijhoff, 1991)(p. 34)

Footnotes: 1 Report of the ILC, 32nd Session, ILC Yearbook 1980, Vol II(2), 27 (para 23). 2 See S Rosenne, The International Law Commission’s Draft Articles on State Responsibility, Part I, Articles 1–35 (Dordrecht, Nijhoff, 1991), 39–40, 75–76, 99, 155, 211, 258, 292. 3 Ibid. 4 HLA Hart, The Concept of Law (2nd edn, Oxford, OUP, 1994) ch 5; J Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge, Cambridge University Press, 2002), 14. 5 For the report of the sub-committee, see Report of the ILC, 15th Session, Annex, ILC Yearbook 1963, Vol II, 187, 227. The sub-committee consisted of R Ago (Chair), H Briggs, A Gros, E Jiménez de Aréchaga, M Lachs, A de Luna, A Paredes, S Tsuruoka, G Tunkin, and M Yasseen. 6 R Ago, Working Paper, ILC Yearbook 1963, Vol II, 252. 7 Ibid. 8 Report of the ILC, 15th Session, ILC Yearbook 1963, Vol II, 231. 9 Ibid.

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10 Ibid, 231, 247. 11 See eg the comments of Yasseen, Ramangasoavina, Castrén, Nagendra Singh, Tammes, Albónico, Ushakov, Ustor, Eustathiades, Castañeda: ILC Yearbook 1969, Vol I, 104–117 (1011th to 1013th meetings), passim. 12 Ago, Eighth Report, ILC Yearbook 1979, Vol II(1), 3, 27 (para 49). 13 ILC Yearbook 1979, Vol I, 34 (para 11) (1538th meeting) (Riphagen). 14 Ibid, 35 (para 17) (Reuter). 15 Ibid, 38 (para 36) (Vallat). 16 Art 29 of the draft Articles as adopted on first reading, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58; see also Appendix 1. See now art 20, ARSIWA. 17 ILC Yearbook 1979, Vol I, 34 (para 12) (1538th meeting) (Riphagen). 18 Ibid, 39 (para 5) (1539th meeting) (Francis). 19 Ibid, 40 (para 14) (Verosta). 20 Ibid, 42 (para 21) (Quentin-Baxter). 21 Ibid, 42 (para 22) (Quentin-Baxter). 22 Ibid, 46 (para 17) (1542nd meeting) (Ushakov). 23 Ibid, 48 (para 32) (Schwebel). 24 Ibid, 50 (para 2) (1543rd meeting) (Ago). 25 Ibid. 26 Commentary to art 20, para 2. 27 Art 34 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted on first reading: Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58; see also Appendix 1. See now art 21, ARISWA. 28 On the Hague Conference see: S Rosenne, The International Law Commission’s Draft Articles on State Responsibility, Part I, Articles 1–35 (Dordrecht, Nijhoff, 1991), 2. 29 Quoted in Ago, Eighth Report, ILC Yearbook 1979, Vol II(1), 3, 29 (para 53). 30 Report of the Sub-Committee on State Responsibility, Report of the ILC, 15th Session, Annex, ILC Yearbook 1963, Vol II, 227, 233. 31 Ibid, 237. 32 Ibid. 33 Commentary to draft art 34, para 18, Report of the ILC, 32nd Session, ILC Yearbook 1980, Vol II(2), 58. 34 Commentary to draft art 34, para 23, ibid, 60. 35 Commentary to art 21, para 6. 36 Ibid. 37 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 396. 38 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 39 Draft art 30 as adopted on first reading: Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58; Appendix 1. See now art 22, ARISWA. 40 Draft arts 47–50 as adopted on first reading: Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 63–64; Appendix 1. See now arts 49–54, ARISWA. 41 ILC Yearbook 1979, Vol I, 35 (para 17) (1538th meeting) (Reuter). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

42 Ibid, 42 (para 23) (1539th meeting) (Quentin-Baxter). 43 Ibid, 48 (para 32) (1542nd meeting) (Schwebel).

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Part II International Responsibility—Development and Relation with Other Laws, Ch.4 The Development of the Law of Responsibility Through the Case Law Patrick Daillier From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Codification — Sovereignty — Responsibility of states — Diplomatic protection — Wrongful acts — Arbitration

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(p. 37) Chapter 4 The Development of the Law of Responsibility Through the Case Law 1 The importance of case law in the development of the international law of responsibility 38 (a) Raison d’être 38 (b) Evolution of the case law 39 (c) Difficulties in interpreting the case law 40 2 The ILC’s use of case law in codifying the law on international responsibility 41 (a) Formal references to the international case law in the ILC project 41 (b) The scope of the case law used 43 3 Conclusion 44 Further reading 44 How much has the codification of State responsibility, which is in the process of completion, been dependent on established case law? How much significance will the codification project accord to future case law? The second question is less difficult. It is sufficient to bear in mind that case law retains its own utility where it creates customary law, even after an area of international law has been codified. Furthermore, codification can also further the development of new case law, insofar as it consists of elements that develop the law—such as the articles on ‘serious breaches of obligations owed to the international community as a whole’—that remain controversial. In short, the increase of treaty regimes and the modes of peaceful settlement (eg in the law of the sea and in the framework of the WTO) favours novel answers to technical questions, and is capable either of being at variance with or of reinforcing the solutions advocated today. It is a far from easy task to evaluate the contribution of but one of the formal sources of law to the systematic construction of the law of responsibility, especially given the complex relationship of case law with the other sources of law. Since we are dealing with international case law, it must be noted that it constitutes a medium for the development of customary rules, especially with a view to reinforcing their scope and sometimes their precision—just as case law uses customary rules for its own elaboration. In this way, one can observe a circular relationship between case law and doctrine: at first, the case law is used by the doctrine to support its position. (p. 38) Subsequently doctrine will be invoked by courts or tribunals to support their assertion of the existence of a rule of law. The fact that, unlike other areas of international law, much of the subject of ‘international responsibility’ has been the object of multiple official or doctrinal attempts at codification for close to a century, introduces an additional complication. The formulations used in these codification projects are based on case law developed at various points in time and taken into account by the rapporteurs and codification bodies, either as aspects of doctrine or as examples of practice. But these formulations have in turn played an influential role in relation to the practice of States and dispute resolution bodies in the period between the two official codification attempts (of 1930 and 2001). The interdependence of the various sources of law in the complex process of the formulation of the law on international responsibility is undeniable.

1 The importance of case law in the development of the international law of responsibility (a) Raison d’être From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Both the importance and deficiencies of case law as a source of law can be explained by reference to two sets of factors. One is linked to the historical development of international law, the other to the structure of the international community. The first is concerned with the development of substantive rules of international law (‘primary obligations’ in the terminology of the international law on responsibility), the other with the multiplication of bodies charged with the judicial settlement of disputes (international courts and tribunals). Developments in both these areas have accelerated in a spectacular fashion during the 20th century, even though the origins of those changes are very recent. But this trend is in part counteracted by the structure of the international community, especially by the position accorded to State sovereignty, the importance of the principle of consent in inter-State relations and the practice of self-help. Thus Ago supported the view that the silence in the case law on this matter was due to the fact that where States need a third party in order to determine reparation, they do not have to seek third party authorization to apply a ‘sanction’ to another State.1 Similarly, the absence of an international public prosecutor has tended to limit legal initiatives to those States classed as ‘injured’. Conversely, the distinctive difficulties in proving international responsibility and the sensitivity of States in this matter require that, unlike other questions—especially those concerning territorial delimitation—a detailed answer cannot be found by way of treaty and will be remitted to some third party, often with ambiguous terms of reference. One of the corollaries of this close link between the content of substantive international law and the contribution of the case law to the area of responsibility is that the latter has partly lost its significance in the contemporary world: either certain precedents arise from obsolete treaty situations (peace treaties in particular), or they contradict customary rules or fundamental obligations (prohibition of slavery, colonialism, or acquisition of territory by the use of force).

(p. 39) (b) Evolution of the case law The historical origins can be found from the end of the 18th century when a progressive institutionalization of inter-State arbitration took place. This arose mainly from agreements to litigate breaches of private law rights during the first wars of independence, especially in North and South America, as well as inter-State arbitration linked to breaches of the laws of war, especially in connection with neutral States. The relevance of this arbitral case law is limited, since the search for amicable solutions tended to dominate. The ‘classic’ period stretches from the last third of the 19th century to the middle of the 20th century. The relevance of precedent was only slowly taken up and remains limited to technical rules; arbitration remained the favoured form, especially where State responsibility for the violation of private interests was concerned. The growth of the corpus of case law is undeniable, nourished by the conclusion of compromis linked to numerous civil wars on the American continent, the default by States on their obligations in relation international debt, and a series of international armed conflicts, in particular the First World War.2 The substantive coherence of that growth is a result of the homogeneity of rules established by way of inter-State compromise and principles accepted by arbitrators under the influence of the developed States of that time. The first attempts at codification which took place between the two World Wars reflect not only a conviction that the law on responsibility had been sufficiently consolidated through the case law, but also reveal a certain concentration on an area of law suited to the exercise of diplomatic protection. Thus, the Commentary to many articles in Part One of the ILC’s Articles refers to the Codification Conference of 1930. The contribution of the case law is as significant for the substantive rules as it is for the procedural rules: admissibility of claims, exhaustion of internal remedies, principles for determining the form of reparation and especially the calculation of damages. The precedents are still few and ambiguous in certain areas, especially where environmental damage is concerned. In this area, regard must be had to the Trail Smelter case3 and also, in a lesser measure, to the Lac Lanoux case4 or even to Armed Activities on the Territory of the Congo (dealing with the exploitation of natural resources during an occupation by armed forces).5

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In recent times there has been a remarkable development of the importance attributed to case law, both in qualitative and quantitative terms. The precedents of permanent courts and tribunals have become ever more important, even though arbitration has experienced a significant renaissance in the last few decades (ICSID tribunals, the Iran-United States Claims Tribunal, etc). New areas of law have lent themselves to the peaceful settlement of questions of responsibility: human rights law and humanitarian law, international economic law, responsibility arising from lawful acts, and responsibility of other actors such as international organizations. Further, the development of the possibility of direct recourse on the part of individuals and companies has partly disconnected the case law from the previous limitations imposed by the sovereignty of States.

References (p. 40) The impact of the case law extends beyond the framework of the current project on State responsibility in numerous areas: ‘objective’ responsibility, contractual responsibility, methods for the evaluation of harm, conditions for the exercise of diplomatic protection—which concerns certain aspects of admissibility, such as nationality of claims or exhaustion of local remedies—or the invocation of the rules on responsibility by entities other than individuals and States. Conversely, case law can prove to be unhelpful where the most controversial aspects of responsibility are concerned, especially in the area of international ‘crime’ or ‘objective’ responsibility.

(c) Difficulties in interpreting the case law The authority of precedent varies greatly. It depends on: • the legal basis of the decision: a judgment, advisory opinion or verdict based on a particular treaty is less significant than one based on general principles or customary principles. To be more precise, what matters in this respect are any directions to the arbitrators or judges in the compromis: a general or specific reference to international law leaves scope to apply the various sources of international law. Conversely, indications as to precise solutions correspondingly restrict the judges and arbitrators; • the quality of the reasoning; • the isolated character of the precedent, or conversely, its recurring character; • the authority of the court or arbitrator; • the degree of specificity of the dispute: the case law on war reparations for example is governed by criteria fixed in peace treaties that are often so unequal that one would hesitate to turn them into a general rule; • the degree of coherence of the relevant precedents. But there are many difficulties in analysing individual cases. First, because of the way in which international justice functions; it necessarily deals with both procedural questions (concerning competence or admissibility) as well as substantive ones: the resolution of a dispute is often the result of considerations concerning both types of questions. Second, because arbitration or judicial settlement of disputes often rests on a special basis in the form of a compromis; this may exclude the tribunal from deciding particular aspects of the problem (especially where the principle of responsibility is concerned), since the solution on such a point may already have been determined. The relevance of the case law in such cases is correspondingly affected. Third, a court or tribunal is as much concerned with determining the content of rights and obligations, as with the way in which responsibility is incurred. Their objective, after all, is that of settling concrete disputes. Often the result is a blend of primary and secondary rules in the reasoning, which can cause some problems for those wishing to interpret it. The judge or arbitrator From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

must yield to the intentions of the States in the dispute because they are concerned with achieving a concrete settlement acceptable to the parties, and will aim to settle the dispute according to the approach desired by them: thus certain questions that could have been examined may be avoided. Finally and most importantly, difficulties arise where there exist conflicting precedents, as sometimes occurs.

(p. 41) 2 The ILC’s use of case law in codifying the law on international responsibility The use to which case law is put is inevitably influenced by the purpose of the codification project. The question is whether the text proposed constitutes a codification in the strict sense or whether it contains any significant progressive development of the law. Of course, in this respect the international case law will not have the same significance in the case of liability for harmful consequences of activities not prohibited by international law as it has for responsibility for unlawful conduct. One may also note a somewhat limited use of the ‘classic’ case law in some of the previous codification projects, especially that of García Amador in the 1950s, which was based on a ‘progressive’ vision of the ‘codification’ project.6 There is another factor that affects the role of case law: the concern of protecting the interests of developing countries has led certain participants in the codification project to prefer the ‘development’ of the law over simple codification. At the same time they tend to neglect the relevance of certain sources, such as domestic case law and even some of the international case law (to the extent it is deemed incoherent).7

(a) Formal references to the international case law in the ILC project An examination of the commentaries to the 2001 Articles allows the drawing of several conclusions. First, international case law seems to have been systematically invoked by all the Special Rapporteurs: the commentaries to nearly all the articles contain one or more references to the case law. The only exceptions are articles 18 (coercion), 19, 28, 46 (plurality of injured States), 53 (termination of countermeasures), 54 (measures taken by States other than an injured State), 56 (questions not regulated by the Articles). In this regard, it is true that the work of the Special Rapporteurs was guided only to a limited extent by the content of the compilations produced by the Secretariat, especially in the initial phases. The Articles are based principally on case law precedents, to a far greater extent than on State practice and doctrine, references to which are far less systematic. The explanation may be a formal one: it simply corresponds to the concern for coherence and transparency. An explanation can also be found in the respect for a certain legal tradition, given that the Anglo-Saxon system accords more importance to case law (through the theory of precedent) than continental European doctrine. Another partial justification could be a certain tactical concern, namely that of being able to convince States more easily of the ‘established’ character of the solutions proposed by the ILC. Judicial or arbitral precedent may be regarded as more politically neutral than inter-State practice, more precise than customary rules, and more authentic than doctrinal assertions. A certain tendency not to give too much importance to certain elements of the practice, arbitral or diplomatic, seems to be emerging. This may be either because of its age or because of the difficulty of isolating judicial considerations from those relating to politics when analysing the precedent.8

References

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(p. 42) In short, the references to case law in the commentaries are relatively few in number and not particularly diverse, given the existing body of case law. Several explanations can be put forward: • a considerable amount of the case law is judged to be irrelevant: if for example the hypothesis of individual rights is rejected, this leads to neglecting some parts of the case law that are concerned with the protection of human rights. Moreover, if ‘primary’ obligations are only referred to implicitly in order to concentrate on the conditions for incurring responsibility (the so-called ‘secondary’ obligations), this necessarily excludes an important part of the established case law; • as a result of the suppletive character of most of the articles, the most relevant judicial precedents are the ones not dependent on particular treaty settlements. This excludes reference to numerous arbitrations that are too specific. This last point may also explain an implicit hierarchy in the references to case law (between arbitral tribunals and courts; between general and specialized courts; and between universal and regional bodies); • last but not least, economy of means is a relevant principle in this area. Even Ago proceeded on the basis that ‘[r]eference will therefore be made to the most important cases which have arisen in diplomatic practice and international jurisprudence’. 9 Is there an implicit hierarchy in the case law? This question must be approached carefully, since proving the existence of such a hierarchy is difficult. In fact, the commentaries rely on the case law in varying degrees: • in some instances, reliance is placed on the case law simply for the purpose of showing the acceptance of some theory of responsibility. In such a case it is difficult to see more in this than a reliance on the ‘practice’, one that is very similar to diplomatic practice; • at other times, such reliance concerns the positive foundation for a substantive rule. In such a case the precedent is sometimes merely presented as an illustration of the rule, while elsewhere the precedent will be given the status of proof of its existence; • exceptionally, a rule or concept will be recognized simply by virtue of the fact that it has been relied upon by arbitral tribunals or courts: in this spirit, the last Special Rapporteur expressed great reluctance that a notion such as ‘satisfaction’, which had been accepted in both in the doctrine and in the case law, should be deleted from the draft. 10 The most remarkable illustration of this can be found in the development of article 30(b) (assurances and guarantees of non-repetition), consideration of which was suspended pending the decision of the International Court in the LaGrand case and retained having regard to the Court’s judgment. 11 On the other hand, intellectual honesty and political necessity require the Special Rapporteurs to point out potential differences in opinion as far as the scope for recognizing a certain precedent goes, for example in connection with the rules on compensation, or in relation to the scope of the Klöckner case.12 The substantive disagreement

References (p. 43) between the members of the ILC suggests that such rules should be formulated flexibly. In these situations, further arguments must be presented in order to tip the balance one way or the other, and to explain the wording of an article that has been kept. But it seems that overall a large margin of appreciation is given to the Special Rapporteurs concerning the scope of a given precedent. Thus, in the absence of clear case law that distinguishes between crime and delict, an indirect interpretation would be possible.13 Such an interpretation could be based on implicit reasoning imputed to judges and arbitrators.

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(b) The scope of the case law used As a matter of logic, the precedents that are most referred to are those that deal with continuing breaches. In order of the number of references, the cases are: • Gabcíkovo-Nagymaros Project (Hungary/Slovakia); 14 • Rainbow Warrior (New Zealand/France); 15 • Corfu Channel; 16 • LaGrand (Germany v United States of America); 17 • United States Diplomatic and Consular Staff in Tehran; 18 • Factory at Chorzów; 19 • The SS ‘Wimbledon’; 20 • Certain Phosphate Lands in Nauru (Naura v Australia); 21 and, • Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America). 22 Apart from the ‘classic’ precedents dating back to the PCIJ and the early work of the ICJ, other more recent precedents have become ‘classic’ in their turn. Here, we will discuss the importance accorded to the Gabcíkovo-Nagymaros Project and Rainbow Warrior in the commentaries: • confirmation of the fundamental principle of State responsibility for all wrongful acts and the constituent elements for such an act (articles 1 and 2); • determination of the conditions for the existence of an international obligation and the distinction between immediate and continuing breach (articles 12 and 14); • the recognition of circumstances precluding wrongfulness, especially countermeasures, force majeure, distress and necessity (articles 22, 23, 24, and 25);

References (p. 44) • confirmation of the fundamental principles that the State is required to respect its primary obligations and to put an end to their breach whatever the consequence may be in terms of incurring responsibility (articles 29 and 30); • confirmation of the ‘secondary’ obligation to make full reparation for the injury caused by the wrongful act (article 31) and especially the obligation to compensate (article 36) or to provide satisfaction in default of restitution or compensation (article 37); • finally, and only in relation to the judgment in the Gabcíkovo-Nagymaros Project, a confirmation of the conditions for the lawfulness of countermeasures, as concern the principle of proportionality and the procedural conditions for their implementation (articles 49, 50, and 51).

3 Conclusion The position accorded to the international case law in support of the ILC’s Articles on State Responsibility reflects its essential role in constructing this area of international law: its familiarity through recurring reference strengthens its educational effect in inter national relations. Although a certain preference for the case law of the ‘universal’ institutions is apparent, and in particular for the most recent decisions, it remains the case that the Articles constitute a consecration of State responsibility as developed through the historical case law, including some much older cases. The two conditions for the emergence of a true law of responsibility, that is, an obligation to submit to third party settlement of disputes, and the required density of primary obligations, are yet to be

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met. The completion of the ILC’s work in the area of diplomatic protection in 2006 greatly assists in that latter regard, although the completion of its work on the topic of liability for harmful consequences of acts not prohibited by international law, also completed in 2006, is of far lesser impact. However, the non-fulfilment of those two conditions is simply an echo of the structure of the international system, which may still largely be characterized as an inter-State society. Further reading I Brownlie, System of the Law of Nations: State Responsibility (Oxford, Clarendon Press, 1983) P-M Juret, ‘Observations sur la motivation des décisions juridictionnelles internationale’ (1960) 64 RGDIP 516–595 H La Fontaine, Pasicrisie internationale. Histoire documentaire des arbitrages internationaux (1794–1900) (Stampfli, Berne, 1902) P Reuter, La responsabilité internationale—Problèmes choisis (Cujas, Paris, 1956) (reprinted in (1995) Développement de l’ordre juridique international 377)

References

Footnotes: 1 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 207 (para 34). 2 The decision in Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17 is an essential precedent in this regard. 3 Trail Smelter (United States of America/Canada), 16 April 1938 and 11 March 1941, 3 RIAA 1905. 4 Lac Lanoux (Spain, France), 16 November 1957, 12 RIAA 281, 285. 5 Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 1, 75–79 (paras 237–250). 6 See the description in the first report: R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II(1), 132–136 (paras 41–71). 7 See eg the discussion concerning reparation ‘by equivalent’, in Report of the ILC, 42nd Session, ILC Yearbook 1990, Vol II(2), 71–77 (paras 344–377). 8 Ibid, 69–71 (paras 337–341). 9 R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 177, 179 (para 10). 10 Report of the ILC, 52nd Session ILC Yearbook 2000, Vol II(2), 35–36 (paras 154–160). 11 LaGrand (Germany v United States of America), Judgment, ICJ Reports 2001, p 466. 12 Klöckner Industrie-Anlagen GmbH, Klöckner Belge SA and Klöckner Handelsmaatschappij BV v Republic of Cameroon and Société Camerounaise des Engrais SA (ICSID Case No ARB/81/2), Award, 21 October 1983, 2 ICSID Reports 3; Award (resubmitted case), 26 January 1988, 14 ICSID Reports 3. 13 See R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 224–226 (paras 76–85). 14 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7. 15 Rainbow Warrior (France/New Zealand), 30 April 1990, 20 RIAA 215, 217. 16 Corfu Channel, Merits, ICJ Reports 1949, p 4. 17 LaGrand (Germany v United States of America), Provisional Measures, ICJ Reports 1999, p 9 and Merits, ICJ Reports 2001, p 466.

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18 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment, ICJ Reports 1980, p 3. 19 Factory at Chorzów (Germany/Poland), Jurisdiction, 1927, PCIJ, Series A, No 9; and Merits, 1928, PCIJ, Series A, No 17. 20 The SS ‘Wimbledon’ (France/Germany), 1923, PCIJ, Series A, No 1, p 15. 21 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240. 22 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.5 Doctrines of State Responsibility Martti Koskenniemi From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Responsibility of individuals — Countermeasures

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(p. 45) Chapter 5 Doctrines of State Responsibility I 45 II 46 III 47 IV 51 Further reading 51

I To discuss doctrines may seem to suggest that there is somewhere an international law in an ‘innocent’, substantive sense—in the sense of its treaties and customs, rules and principles—but that there are, in some other place, a set of ‘doctrines about inter national law’—abstract justifications and ‘isms’ of which the former appear as inferences or instances. Such use of the word ‘doctrine’ reflects what Raymond Williams has pointed out as its deterioration ‘from a body of teaching (neutral or positive) to an abstract and inflexible position’.1 In other words, doctrines of law might appear vague and intangible, altogether doctrinaire in contrast to the elegant simplicity and pragmatic relevance of ‘law’ proper. Is such a distinction justified? In one sense, at least, it appears quite natural. While ‘practitioners’ engage in inter national law as such, ‘academics’—at least those bent on abstraction—deal with its ‘doctrines’. Where the former grasp the law in its ‘raw’ or immediate being, the latter address it within some general ‘theory’ or ‘system’. The distinction between ‘law’ and ‘doctrine’ would then appear analogous to other distinctions: ‘concrete’/‘abstract’, ‘practice’/‘theory’, or perhaps ‘clear’/‘obscure’, even ‘useful’/‘useless’. In another sense, however, the distinction appears quite suspect. For if it is true, as legal theory teaches, that all we know about law is dependent on larger conceptual frameworks, then the view that where practitioners grasp the law in an ‘innocent’ sense involves an illegitimate naturalization of practitioner frameworks.2 From this perspective, the distinction would not be about practice/theory but about secret/articulated theory, not about concrete/abstract but about unthinking (and thus possibly delusional) thought and reflective thought. If State responsibility goes ‘deeply into the “roots”, (p. 46) the theoretical and ideological functions of international law’,3 then surely it would be useful to throw some light onto its more abstract aspects. Doctrine that is aware of itself as such is a precondition of the critique of normative claims embedded in our practices.4 But one should be wary of absolutism. To stress the doctrine-dependence of legal knowledge as part of an honest description of practices may set too high a standard for doctrinal abstraction. As Ago observed in his discussion of the act of State doctrine, most practitioner knowledge can be fitted within mutually exclusive doctrines; and no doctrine is fully determining, each allows the derivation of a number of different—yet legitimate—rules or practices: ‘in fact, the parties are far more interested in attaining their objectives than in invoking strict and coherent principles’.5 Doctrines cannot be ‘proven’ by reference to practices, nor practices derived directly from doctrines. But the former may at least bring to light, and help to assess, practitioners’ policies. Thus while there is little logical justification for the textbook practice of discussing the law and the doctrines about the law separately, such separation may still be defended as part of a modest constructivism that builds from bottom up and roof down simultaneously, in order to erect a wall between them that is solid enough to ensure that the house can at least be lived in, even if its architectural merits may remain debatable.

II There is, then, no State responsibility that would not be connected to and seek justification from a doctrine of State responsibility. Even the most down-to-earth identification of someone, a person, a

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State, an organization, as responsible contains implied references to more or less contested doctrines about international law: about its subjects, about how its norms come about (‘sources’), and about responsibility itself—its origin, its relation to blameworthiness (‘fault’), attribution, available defences, and forms of implementation. Even the definition of the problem—‘State responsibility’—is a terrain of controversy. It was sometimes suggested that a State, being ‘sovereign’, cannot at all be ‘responsible’.6 Through an inverse deduction, others have denied that the relevant subject-matter would have to do with ‘States’ at all. As anthropomorphic metaphors, they are not only incapable of being responsible but cannot intelligibly be said to take any action on which such responsibility might be based.7 The notion of State responsibility has been attacked by attacking the notion of statehood as a mere shorthand for the social community, or its organs (Scelle, Kelsen), even an excuse to keep political leaders internationally unaccountable.8 But most lawyers would not hesitate to affirm that ‘State responsibility’ is a necessary aspect of international law’s being ‘law’, perhaps an indispensable element of the legal personality of States.9 This need not be understood as an unacceptably State-centred (p. 47) position. As Max Huber explained in the Island of Palmas arbitration (1928), sovereignty involves protective duties towards one’s own population as well as towards the persons and property of foreigners and other States.10 By far the largest number of State responsibility claims have arisen in connection with injuries suffered by aliens where the territorial State has been alleged to have breached its duty to protect. But already in the 1950s García Amador viewed State responsibility in general terms as an instrument for the protection of ‘the essential rights of man’.11 The fact that human rights protection has been confined under specific treaty regimes does not mean that State responsibility is inapplicable to human rights breaches. But it may be an aspect of its weakness and tentative character that a globalizing world has in practice been largely able to ignore it.

III Notwithstanding the sociological or ethical problems surrounding State responsibility, most lawyers have viewed it simply as a domestic law analogy from relationships between legal subjects in any private law system. Grotius, for example, viewed such responsibility as a natural aspect of the fact that States lived in a legal relationship with each other.12 Lauterpacht used it as a prime example of the futility of attempts to prove international law’s ‘special character’ by denying the applicability of domestic law concepts.13 The moral and social concerns that inform State responsibility—to express disapproval, to direct behaviour and to distribute social burdens—closely resemble standard justifications behind domestic torts but also of criminal law. Although the domestic law analogy is perhaps inevitable, it also complicates doctrinal articulation by foregrounding a persistent question about whether responsibility may extend beyond the network of duty-right relationships between individual States to a relationship between the responsible State and some larger conglomerate, for instance the ‘international community’, or the ‘international community of States’. Or in other words, is the proper analogy with domestic private law or domestic public law? Here doctrinal controversy is ripe and both extreme positions as well a large number of mediating ones have been taken. The view that all responsibility exists in individual State-to-State relationships may be traced back to Vattel (who never used the word responsabilité, however, but instead the traditional notion of obligation de réparer). He derived it from the nature of his Droit des gens as inter-State law and the consequent duty upon each nation to give each other nation its due, including to compensate any injury that may have been caused.14 This contrasts with the position of Grotius and Pufendorf, both of whom wrote in terms of the criminal responsibility of the Prince who had committed an objective wrong against an overriding moral-legal order. As the State’s duties turned inwards towards the nation, that

References

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(p. 48) objective order was replaced by the (subjective) rights that sovereign nations enjoyed visà-vis each other. Responsibility became purely relational. This remained the dominant—though never unchallenged—view under later continental legal positivism and common law pragmatism.15 Both defined the objects that law protects in terms of the rights of States. For every obligation, there had to exist a corresponding subjective right. In effect, that ‘classical’ international law consists of a network of bilateral right—duty relationships has become one standard way of explaining wherein consists its special character.16 The opposite view that all responsibility involves a breach of the objective legal order and thus a relationship between the State committing the breach and the relevant public law entity has been received not only from Grotian naturalism but also from the methodological individualism of later analytical and sociological jurisprudence. Kelsen, for instance, viewed international responsibility as ‘collective responsibility’, an incident of thinking ‘characteristic of primitive man’.17 Nonetheless, the articulation of an overarching telos for the law has been obstructed by controversy as to the extent to which it makes sense to describe States as members of an ‘international community’.18 None of this was made any easier by the occasional association of a public law conception with the policies of socialist and developing States.19 On the other hand, a more or less vaguely articulated moral cosmopolitanism has been an indissociable part of the 20th century academic international law. This has often involved arguing in terms of a hierarchy of norms at the top of which are those that express interests or values shared by ‘the international community [of States] as a whole’ (often loosely associated with erga omnes obligations) or from which no derogation is permissible (jus cogens). Though the minimal content of such norms has so far eluded clear definition, most lawyers would read into them norms prohibiting genocide, aggression and racial discrimination, the right of self-determination and a number of fundamental human rights. The ILC Articles of 2001 acknowledge the existence of both erga omnes obligations and jus cogens norms, but fail to connect them to a well-defined special responsibility regime. This has been reflected most conspicuously in the controversy over international ‘crimes’. In Anzilotti’s influential view, a criminal responsibility that would involve a (public law) relationship between the State committing a violation and the community as a whole was ‘unknown to international law and repugnant to it’.20 By the time the ILC took up the topic, that academic consensus (if there had really been one) had changed. García Amador took it for granted that the developments since the Second World War had given rise to a criminal responsibility of the State and his drafts provided for punitive damages.21 Though States continued to be reluctant to think that they might be responsible to a larger communitas above them, Ago agreed with his predecessor and in passages that many (p. 49) consider the nucleus of his work on the item outlined the development of the notion of international ‘crimes’ (in contrast to mere ‘delicts’) as a result of the international outrage against atrocities that had been committed during the Second World War.22 The proposal over ‘crimes’ provided the single most important source of controversy through the last phases of the ILC debates. Though there was no disagreement about the principle of normative hierarchy, it was feared that reflecting the hierarchy in a criminal law type responsibility would provide a source of illegitimate coercion. Absence of institutional control over interpretative disagreements would play in the hands of the powerful States. Any trace of punitive damages, for example, was deleted from the final text.23 As Ago pointed out, however, to make a distinction between two types of responsibility but to fail to reflect it in consequences of breach was absurd. The compromise in 2001 comes close to such a result. It makes no mention of criminal responsibility but does highlight the existence of ‘peremptory norms’ as well as ‘obligations owed to the international community as a whole’. It refrains, however, from identifying such special norms and provides only very limited special consequences for breach—non-applicability of exoneration principles, a collective duty of non-recognition and a corresponding entitlement to demand cessation, non-repetition, and performance (articles 26, 42, and 48). The controversial question about countermeasures by States not directly injured was dealt with by a clause that left the issue From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

open for further development (article 54). Like any good compromise, the ILC text can be cited as a victory of the ‘bilateralist’ as well as the ‘communitarian’ school. The debate that polarizes ‘bilateralism’ and community interests survives because it plays on the indeterminacy of both notions. Most clusters of law and the relevant cases can be described from both perspectives and little depends on them in terms of normative conclusions.24 Even as Ago held that the correlation of obligations with subjective rights ‘admit[ted] of no exception’, he had no doubt that some rights belonged to all States and that the wrongfulness of an act in breach of jus cogens would not be precluded by the consent of the injured State.25 That the conclusion is both self-evident and yet devoid of normative power follows from the way the determination of the content of jus cogens refers back to State consent. Likewise, subtle renvois from national to international law and vice versa govern much of what can be said of attribution: in determining whether a rule has jus cogens quality or whether an ultra vires act may be attributed to the State what counts is an equitable appreciation of the facts that is irreducible to a priori reasoning. A related question concerns the role of fault. Here the controversy often becomes a real dialogue de sourds, the protagonists agreeing on much more than they are willing to concede. The Grotian view of responsibility lying with ‘Kings and public officials’ was comfortably analogous with municipal law notions of culpa and reflective of the dominant position in Western moral philosophy that attaches responsibility to acts or omissions committed with intent or in breach of a standard of blameworthiness.26 In the 1920s, Lauterpacht thought that only the culpa doctrine could uphold ‘the consciousness

References (p. 50) of international duty in those responsible for the international conduct of the State’.27 His position was meant as a critique of those who, like Justice Holmes in the United States, held it not only morally problematic but unscientific to base responsibility on moral theories or psychological assumptions. Then as now many lawyers hold that a State should be held responsible whatever the degree of blameworthiness in the persons acting on its behalf and however the State had drawn the limits of their competence—but it is not clear if such ‘objectification’ of fault can be stated as a general doctrine in abstraction from what is provided by the individual primary rules.28 Doctrines of objective responsibility (and its close equivalents, non-fault responsibility, responsibility for result as well as ‘strict’ or ‘absolute’ liability) reflect equitable ideas about burdensharing in societies engaged in intrinsically risk-related technological activities.29 But where the development of such responsibility arose together with the ethics of domestic welfare society, States remained reluctant to provide a corresponding international guarantee for activities under their jurisdiction or control. Responsibility for the acts of private individuals would follow only for a State ‘having failed to fulfil its international obligation with respect to vigilance, protection and control’.30 A great burden then fell upon the intermediate doctrine of ‘due diligence’, which has tended to make the distinction between fault and objective responsibility vanish. As the international equivalent to domestic ideals of welfare or burden-sharing, due diligence combines considerations of control and blameworthiness with changing notions of international justice. Thus today States may be held responsible for domestic human rights violations—even violations in the private sphere—on account of failure to legislate so as to prevent them.31 With the increase of economic and technological activities with potentially harmful international effects, in the 1980s academic doctrine as well as the ILC turned to examine the ‘international liability for the injurious consequences of acts not prohibited by international law’. The interest in separating this type of liability from State responsibility proper stemmed from the need to provide some sort of accountability for environmental harm without implying the blameworthiness of the economic or industrial activity that caused it. No doubt, the lack of success in codifying the topic results from the great difficulty to maintain its independence from ‘primary rules’ of due care on the 32

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one hand, and from State responsibility proper, on the other.32 Like ‘abuse of rights’, ‘liability’ is perhaps best understood in terms of primary rules that in the one case set limits to rights and in the other a duty to make good the consequences of certain types of actions.33

References

(p. 51) IV In the end, whether one wishes to interpret the ILC text of 2001 from a ‘bilateralist’ or an ‘international community’ standpoint remains largely a matter of taste. In whichever way it is conceived, State responsibility remains both a sword and a shield. It enables States to be held accountable for violating at least some of their international obligations. At the same time, it protects decision-makers in national societies from such accountability. The more significant the international role of private actors, the less any regime of public law responsibility is able to regulate the effects of globalization. One of the lessons of its drafting history is that large academic doctrines provide poor guides for the regulatory choices that are involved in ‘codification and progressive development’. The applicable rules come about through a complex diplomatic play that aims at freedom and constraint simultaneously and it is up to those concerned with consistency and system to explain or criticize them from the perspective of some ‘theory’ or ‘approach’. This is not to belittle the significance of doctrines about where responsibility should lie, what it should consist of and who it should be owed to. Bearing such questions in mind is indispensable in order to use a generally worded codification in support of particular regulatory objectives. Further reading D Anzilotti, ‘La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers’ (1906) 13 RGDIP 5–29, 285–309 I Brownlie, System of the Law of Nations. State Responsibility, Part I (Oxford, OUP, 1983) J Dumas, ‘La responsabilité des Etats à raison des crimes et délits commis sur leur territoire au préjudice d’étrangers’ (1931-II) 36 Recueil des cours 187 P-M Dupuy, La responsabilité des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976) C Eagleton, The Responsibility of States in International Law (New York, New York University Press, 1928) G Nolte, ‘From Dionisio Anzilotti to Roberto Ago. The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-State Relations’ (2002) 13 EJIL 1083 P Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford, OUP, 2000) M Spinedi & B Simma, United Nations Codification of State Responsibility (The Hague, Oceana, 1987) K Strupp, Die völkerrechtliche Haftung des Staates, insbesondere bei Handlungen Privater (Kiel, Verlag des Instituts, 1927) K Strupp, Das völkerrechtliche Delikt, in F. Stier-Somlo, Handbuch des Völkerrechts, Vol 3 (Berlin, Kohlhammer, 1920) J Willisch, State Responsibility for Technological Damage in International Law (Kiel, Duncker & Humblot, 1987) J Weiler, A Cassese, & M Spinedi, International Crimes of State. A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin, De Gruyter, 1989)(p. 52)

Footnotes: 1 R Williams, Keywords. A Vocabulary of Culture and Society (rev edn, Oxford, OUP, 1983) 108.

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2 Cf S Marks, The Riddle of All Constitutions. International Law, Democracy, and Critique of Ideology (Oxford, OUP, 2000), 22, 66–7. 3 M Spinedi & B Simma, ‘Introduction’, in M Spinedi & B Simma (eds), United Nations Codification of State Responsibility (The Hague, Oceana, 1987), vii. 4 M Jay, ‘For Theory’, in M Jay, Cultural Semantics (London, Athlone, 1998), 27–30. 5 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 73. 6 A Lasson, Princip und Zukunft des Völkerrechts (Berlin, Hertz, 1871), 12–31. 7 G Scelle, Cours de droit international public (Paris, Domat-Montchrestien, 1948), 914–920. 8 P Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard ILJ 1. 9 WE Hall, A Treatise on International Law (4th edn, Oxford, Clarendon, 1898), 56; Lassa Oppenheim, International Law, Vol I (Peace) (3rd edn, Longmans, London, 1920), 195; R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 205–206, 224. 10 Island of Palmas (Netherlands/USA), 4 April 1928, 2 RIAA 829, 838–839. 11 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 192, 199–201. 12 The term ‘responsibility’, however, appeared only at the end of the 18th century: G Viney, ‘Responsabilité’ (1990) 35 Arch Phil de droit 277. 13 H Lauterpacht, Private Law Sources and Analogies of International Law (London, Longmans, 1927), 134–143. 14 E de Vattel, Droit des gens ou principes de la loi naturelle appliqués à la conduite & aux affaires des Nations et des Souverains (London, 1758), Bk II, paras 324–325. Cf also E Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique (Paris, Pedone, 1998), 406–407 and note 228. 15 Cf G Nolte, ‘From Dionisio Anzilotti to Roberto Ago. The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-State Relations’ (2002) 13 EJIL 1083. 16 Cf B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 229–233. 17 H Kelsen, Principles of International Law (RW Tucker (ed), 2nd rev edn, New York, Holt, Rinehart & Winston, 1966), 9, 195–199. 18 Cf A Paulus, Die internationale Gemeinschaft im Völkerrecht. Eine Unitersuchung zur Entwicklung des Völkerrechs im Zeitalter der Globalisierung (Munich, Beck, 2001), 329–432. 19 B Graefrath, ‘Responsibility and Damages Caused: Relationship between Responsibility and Damages’ (1984-II) 185 Recueil des cours 23–33. 20 Dionisio Anzilotti, Cours de droit international, Premier volume (G Gidel (trans), Paris, Sirey, 1929), 468. 21 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 183, 212. 22 R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 45–54. 23 Cf J Crawford, J Peel, & S Olleson, ‘The ILC Articles on Responsibility of State for Internationally Wrongful Acts: Completion of the Second Reading’ (2001) 12 EJIL 963. 24 Cf generally M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge, CUP, 2005). 25 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 221; R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, 38.

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26 H Grotius, De jure belli ac pacis. Libri tres (Oxford, Clarendon, 1925), Bk II, Ch XX.1, 436. 27 H Lauterpacht, Private Law Sources and Analogies of International Law (London, Longmans, 1927), 140. 28 Cf especially I Brownlie, State Responsibility, Part I, System of the Law of Nations (Oxford, OUP, 1983), 40–48. 29 Cf P-M Dupuy, La responsabilité des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976). 30 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 120. 31 H Charlesworth & C Chinkin, The Boundaries of International Law. A Feminist Analysis (Manchester, Manchester University Press, 2000), 148–151. 32 For the history of the project, see Report of the International Law Commission, 53rd Session (2001), 366–370; and see below Chapter 10. 33 See now ILC Draft Principles of Allocation of Loss in the Case of Transboundary Harm Resulting out of Hazardous Activities, Report of the ILC on the Work of Its 58th Session (2006), A/61/10, 106– 182.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.6 Private Codification Efforts Lucie Laithier From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Diplomatic protection — Wrongful acts — Responsibility of international organizations — Codification

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(p. 53) Chapter 6 Private Codification Efforts 1 Overview 53 2 Private drafts limited in scope to particular topics 54 (a) Drafts prior to the ILC codification 54 (b) The increase in private initiatives generated by codification 56 3 Private drafts codifying the law on responsibility of international organizations 57 4 Assessing the impact of the private drafts on the process of codification 58 5 Attempting a summary 58 Further reading 59

1 Overview State responsibility is one of the areas of international law that has generated the most interest for learned societies and other academic bodies which wish to contribute to the codification movement. The most important private codification efforts in this area were compiled by García Amador in 19561 and later by Ago in 1969,2 which together compiled a total of 12 drafts. Two main approaches have been taken in these private codification drafts. About half are concerned with the specific case of State responsibility for injury caused on its territory to foreigners and foreign property. The remaining drafts deal with aspects of the specific rules (such as the rule of exhaustion of local remedies). The study of State responsibility has therefore mainly been tackled from the viewpoint of specific topics. In contrast, the responsibility of international organizations initially evoked little interest. Not until 1995 were there any drafts similar to those on State responsibility. Six works should be noted in particular. They are all private drafts concerned solely with the responsibility of States for injury caused on their territory to the person or property of foreigners: • the draft ‘Code of International Law’ jointly adopted by the Japanese Branch of the International Law Association and the Association of International Law of Japan in 1926; 3 (p. 54) • the draft Resolution concerning International Responsibility of States for Injuries on their Territory to the Person or Property of Foreigners adopted by the Institut de Droit International in 1927; 4 • the Harvard Research on ‘responsibility of States for damage done in their territory to the person or property of foreigners’ of 1929; 5 • the draft convention on the responsibility of States for injuries caused in their territory to the person or to the property of aliens prepared by the German International Law Association in 1930; 6 • the draft relating to the responsibility of governments prepared by the American Institute of International Law in 1925 (dealing exclusively with the responsibility of governments towards foreigners); 7 • the Declaration on the Foundations and Leading Principles of Modern International Law, approved by the International Law Association, the Académie diplomatique internationale and the Union juridique internationale in 1938 (Title VII deals with the rights and obligations of foreigners). 8 Another category of private drafts deals with specific areas or aspects of State responsibility. There are three such drafts: the draft articles on ‘diplomatic protection’ prepared by the American

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Institute of International Law in 1925; the resolution on ‘the rule of the exhaustion of local remedies’ adopted by the Institut de Droit International in 1956; and the resolution on the ‘National Character of an International Claim Presented by a State for Injury Suffered by an Individual’, adopted by the Institut de Droit International in 1965. Furthermore, two drafts which deal with State responsibility adopt an objective approach: the draft treaty concerning the responsibility of a State for internationally illegal acts, prepared by Strupp in 1927; and the draft convention on the responsibility of States for international wrongful acts, prepared by Roth in 1932. After the commencement of the ILC’s codification work, two further drafts were proposed: the Harvard Research of 1929 was revised as a Draft Convention on the international responsibility of States for injuries to aliens and published in 1961; and the Institut de Droit International published a resolution on ‘Responsibility and Liability under International law for Environmental Damage’ in 1997. Finally, there have been five studies concerning the responsibility of international organizations: the resolution of the Institut de Droit International on ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’ in 1995 and the four reports on the Accountability of International Organizations prepared by the ILA in 1998, 2000, 2002, and 2004.

2 Private drafts limited in scope to particular topics (a) Drafts prior to the ILC codification The drafts which preceded the ILC codification were limited in two ways. The first point to note is that these private drafts deal mainly with responsibility incurred where a State (p. 55) breaches a primary obligation with respect to foreigners. ‘Primary obligations’ are those which ensue from substantive rules governing the rights and obligations of the State in relation to foreigners. It is telling that six of the 12 drafts concern responsibility of States for injuries caused on their territory to the person or property of foreigners. In these six drafts the authors stipulate that responsibility will be engaged as soon as the State has caused injury to foreigners. Each draft then goes on to define this principle more precisely, for example by adding ‘by any action or omission contrary to its international obligations’.9 The Harvard Research merits special attention since it appears to be the most complete draft and was widely debated even in the ILC, in particular the second version of the draft. During the preparation of the Hague Conference, members of Harvard Law School drew up, in 1929, a ‘Draft Convention on Responsibility of States for Damage Done in their Territory to the Person or Property of Foreigners’.10 The project deals with the same questions which were tackled by the Institut de Droit International, and its conclusions in favour of a subjective view of State responsibility are similar (according to the first articles of both drafts, a State only incurs responsibility for the damage it causes to foreigners). The draft maintains a broad definition of the notion of the State, which includes State organs and its political subdivisions, colonies and so on. State responsibility may be engaged by acts or omissions of its officials and it requires the exhaustion of local remedies in order to be triggered on an international level. None of the six drafts contemplate State responsibility from an objective point of view, meaning that they all create a link to the individual. This attachment to the subjective view, no doubt an essential concern in international law at the beginning of the last century, was the subject of fierce criticism within the ILC. Even though the subjective view was subsequently taken up by García Amador, in the end it was not retained by the ILC. The second main characteristic of the drafts preceding the ILC codification is that nearly half of them propose a codification of only some aspects of the area. The other five important drafts seem even more incomplete, given the vast area that is State responsibility. In practice, they either consider concrete situations or specific procedures, such as the exhaustion of local remedies11 or 12

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certain aspects of diplomatic protection.12 Where they are more general, the reports are relatively succinct. The subject of diplomatic protection has now been the object of separate codification by the ILC.13 As far as more general drafts are concerned, the works of Strupp (1927) and Roth (1932) are of interest. They both deal with State responsibility for internationally wrongful acts. The first article of Strupp’s draft treaty states that: A State is responsible to other States for the acts of persons or groups whom it employs for the accomplishment of its purposes (its ‘organs’), in so far as these acts conflict with the duties which arise out of the State’s international legal relations with the injured State.14 (p. 56) The first article of Roth’s draft is similar. In contrast to the other drafts, these drafts set out rules which govern State responsibility in general, whatever the content of the primary obligation may be, and are not limited to breaches of obligations which are concerned with the treatment of foreigners.15 Thus, article 8 of Roth’s draft requires that ‘Compensation shall in every case be provided for the injury caused by the acts contrary to inter national law’, setting out a fundamental consequence to the wrongful act.16 However, these drafts are very succinct: consisting of 11 articles each, they are clearly incomplete and do not consider the whole theory of State responsibility.

(b) The increase in private initiatives generated by codification Following a suggestion by the Secretary of the International Law Commission in 1956, the Harvard Research was completely re-thought.17 The definitive draft published in 1961 preserved the restrictive title: ‘Draft Convention on the International Responsibility of States for Injuries to Aliens’.18 According to Sohn (the co-author who was responsible for the revision of the draft, together with Baxter), the issues examined in the 1961 Draft Convention overlapped with the subject of State responsibility and the law on the treatment of foreigners.19 The draft which was presented to the ILC in 1959 was innovative in that it defined the principal obligations of States in regard to foreigners and even anti cipated the (much debated)20 possibility that individuals could present an international claim directly (article 20). However, a careful reading of the criticisms made by ILC members of this second draft21 reveals the incomplete consideration given to these questions and the scale of the research still to be conducted, especially as far as the existing law was concerned.22 Several members of the ILC did indeed point out deficiencies and a lack of precision with regard to the definitions provided and the situations governed by some of the dispositions.23 Finally, the subjective approach was maintained in the second Harvard Research. This was criticized by Ago, who pointed out that the test of the State’s responsibility is not the injury to the alien, but the violation of an obligation.24 In this context the 1997 resolution by the Institut de Droit International on ‘Responsibility and Liability under International Law for Environmental Damage’ should also be mentioned. It states that the ‘breach of an obligation of environmental protection established under international law engages responsibility of the State (international responsibility)’.25 The adoption of the resolution was made possible by taking into account ‘the evolving principles and criteria governing State responsibility’ under international law.26 It seems therefore that the advances made possible by the ILC’s codification have in turn allowed for the creation of new drafts. Another relevant resolution of the Institut de droit international in 1995, discussed below, deals with ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligation toward Third Parties’.

(p. 57) 3 Private drafts codifying the law on responsibility of international organizations The responsibility of international organizations has only recently been examined by private

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bodies. The study of this topic by the Institut de Droit International resulted in a resolution on ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligation toward Third Parties’27 In article 3, the resolution states that ‘[a]n international organization within the meaning of Article 1 is liable for its own obligations towards third parties.’ The resolution deals with international organizations which possess an international legal personality distinct from that of its members (article 1). Third parties are defined as persons other than the organization itself, whether they are private parties, States, or organizations (article 2). The last part of the resolution is titled ‘Desirable Developments’ and militates against ‘the development of a general and comprehensive rule of liability of member States to third parties for the obligations of international organizations’ (article 8). The objective of the resolution is not so much to create general rules on the responsibility of international organizations, but to include ‘… support for the credibility and independent functioning of international organizations and for the establishment of new international organizations …’28 The ILA has also studied the subject and established a Committee on the Accountability of International Organizations for this purpose in 1996. After having delivered its fourth report in 2004, the Committee was dissolved.29 A study group is at present entrusted with the issue of the Responsibility of International Organizations: it has fewer members and follows the work of the ILC. In its final report in 2004, the Committee on the Accountability of International Organizations set out rules and recommended practices in a four-part structure.30 The Committee starts with the postulate (Part One) that the first level is that of having a duty to give an account of one’s conduct. The second part concerns the second and third levels of accountability, that is to say responsibility for injurious consequences not involving a breach of international law, and responsibility for acts or omissions which do constitute such a breach. In the third part the Committee deals with the complex issue of attribution; among other matters. In order for an international organization to incur responsibility, it is necessary to identify a volonté distincte of the organization in relation to that of its member States. The last part is dedicated to the implementation (mise en œuvre) of the responsibility of international organizations. In both these private drafts certain legal problems have been highlighted, allowing the members of the ILC to quickly identify the issues which need to be discussed. Thus, both the 1995 resolution of the Institut de Droit International and the final report of the ILA in 2004 point out the problems of concurrent responsibility and subsidiary responsibility of the international organization and member States.31 This research constitutes a useful tool (p. 58) for the members of the ILC, which is demonstrated by the references made in the reports of the Special Rapporteurs and two further references in the 2005 ILC report.32 The problematic points in the ILA’s draft concern the difficulty of attribution, which is an essential issue. Where a wrongful act is committed and the international organization has given one or more of the member States an authorization to act, to which entity should the act be attributed? This point is taken up by the ILA Committee under the rubric ‘Attribution of wrongful acts to international organizations and responsibility of States for defaults or wrongful acts in situations of delegation and authorization’.33 The authors stress the difficulty of balancing a necessary margin for the work of an inter national organization with the need to hold it responsible for its acts. In some cases it will be appropriate to proceed on a case by case basis in attributing an act to an international organization or a State; the example given is that of peace-keeping forces.34

4 Assessing the impact of the private drafts on the process of codification In general it is difficult to assess the influence that the private drafts have had on the law that has been codified by the ILC. The private drafts, at least the ones that deal with State responsibility, are no exception. In general, the private drafts can be criticized for failing to cover the entire subject area. The confusion between norms which concern international responsibility and those which concern the legal position of foreigners constituted a false starting point for these private drafts. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Other reservations have been expressed concerning the idea that it is the individual, not the State which is the holder of the subjective international right violated by an internationally wrongful act.35 This criticism is the same as the one aimed at García Amador’s reports, which were all concerned with primary obligations, obligations to act or not to act, neglecting secondary obligations which are the consequences of the breach of primary obligations.

5 Attempting a summary At any rate, these projects are interesting because they shed light on some of the problems that exist in the area being codified. Thus, the private codification drafts (some of them short or incomplete) have contemplated a comprehensive array of cases where State responsibility will be incurred, anticipating the case of agents acting outside the scope of their function as well as insurrections or riots.36 In the same manner, they have made a distinction between different forms of reparation: satisfaction, restitution, guarantee of non-repetition; furthermore, the definition of injury has been considered. (p. 59) Moreover, these drafts reflect an effort to compile ‘treaties, judicial decisions and writings of authors relied on’.37 The most striking example is provided in the Harvard Research, presented as a restatement, where each proposed article is accompanied by a commentary that mentions these precedents.38 These projects, as well as the contribution by García Amador, have undeniably added to the development of the theory of inter national State responsibility: they have nevertheless made a valuable contribution to the exploration of the subject, a contribution which has, in particular, helped to clarify ideas and to provide some guidance regarding the changes of approach that should be adopted in the new stage on which we are to embark.39 Further reading J Crawford & TD Grant, ‘Responsibility of States for Injuries to Foreigners’, in JP Grant & JC Barker (eds), The Harvard Research in International Law: Contemporary Analysis and Appraisal (Buffalo, WS Hein, 2007) 77 Draft of the Harvard Law School of 1929, revised as a Draft Convention on the international responsibility of States for injuries to aliens, published in 1961, reproduced in R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 128 Resolution of the Institut de Droit International of 1997 on ‘Responsibility and Liability under International Law for Environmental Damage’, available at Resolution of the Institut de Droit International of 1995 on ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’, available at Final Report of the International Law Association on Accountability of International Organisations, Report of the Seventy-first conference, Berlin, 2004, available at (p. 60)

Footnotes: 1 ILC Yearbook 1956, Vol II, 221. 2 ILC Yearbook 1969, Vol II, 125–126. 3 Draft ‘Code of international Law’: R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, Annex II, 141. 4 ILC Yearbook 1969, Vol II, Annex II, 142. 5 FV García Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, Annex 9, 229. 6 ILC Yearbook 1969, Vol II, Annex VIII, 149.

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7 FV García Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, Annex 7, 227. 8 Ibid, Annex 10, 230. 9 Article I of the Draft on ‘International Responsibility of States for Injuries on their Territory to the Person or Property of Foreigners’ prepared by the Institut de Droit International in 1927: ILC Yearbook 1956, Vol II, Annex 8, 227. 10 ILC Yearbook 1956, Vol II, Annex 9, 229. 11 Resolution on the rule of the exhaustion of local remedies, adopted by the Institut de Droit International in 1956: ILC Yearbook 1969, Vol II, Annex IV, 142. 12 Draft on ‘diplomatic protection’ prepared by the Institute of International Law in 1925: ILC Yearbook 1969, Vol II, 141. 13 See the ILC Draft Articles on Diplomatic Protection, adopted in 2006: Report of the ILC, 58th Session, 20 06, A/61/10. 14 ILC Yearbook 1969, Vol II, 151. 15 R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 128. 16 Draft convention on the responsibility of States for international wrongful acts, prepared by Roth in 1932 in ILC Yearbook 1969, Vol II, 152. 17 This suggestion is indicated in ILC Yearbook 1969, Vol II, 128 (para 12). 18 Ibid. 19 ILC Yearbook 1959, Vol I, 153. 20 Ibid, 161. 21 Ibid, 147–153. 22 Ibid, 152. 23 See in particular the Chairman’s criticisms: ibid, 148. 24 Ibid, 150 (para 35). 25 Institut de Droit International, 1997, ‘Responsibility and Liability under International Law for Environmental Damage’, art 1. 26 Third paragraph of the preamble to the resolution. 27 Session of Lisbon, 1995, available at . 28 Ibid, art 8. 29 Final Report of the Committee on Accountability of International Organisations, International Law Association, adopted by Resolution No1/2004, in International Law Association, Report of the Seventy-first conference, Berlin (London, ILA, 2004), 164. 30 Ibid. 31 See art 2 of the resolution and the introduction as well as International Law Association, Report of the Seventy-First Conference (held in Berlin, 16–21 August 2004), Section Two of Part Three Attribution of wrongful acts to IO-s and responsibility of States for defaults or wrongful acts of an IO, 196–205. 32 For example G Gaja, Third Report on Responsibility of International Organizations, 2005, A/CN.4/553, 11, note 34; Report of the ILC, 57th Session, 2005, A/60/10, 87, 94. 33 Ibid, 204. 34 Ibid, 202. 35 See the second Harvard Research, ILC Yearbook 1959, Vol II, 147; for the criticism concerning the ‘colonial’ concept inspiring the rules on the conditions of foreigners, see ibid, 149.

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36 See especially the draft of the Institut de Droit International of 1927, the draft convention on the responsibility of States … of the Deutsche Gesellschaft für Völkerrecht in 1930, and the Harvard Research (1961). 37 ILC Yearbook 1956, Vol II, 180 (para 33). 38 See also the assessment of J Crawford & TD Grant, ‘Responsibility of States for Injuries to Foreigners’, in JP Grant & JC Barker (eds), The Harvard Research in International Law: Contemporary Analysis and Appraisal (Buffalo, WS Hein, 2007), 77. 39 R Ago, First Report on State Responsibility, ILC Yearbook 1969 Vol II, 127 (para 3).

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Part II International Responsibility—Development and Relation with Other Laws, Ch.7 The Hague Conference of 1930 Clémentine Bories From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Aliens, treatment — League of Nations — Codification — Opinio juris

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(p. 61) Chapter 7 The Hague Conference of 1930 1 The Hague Conference: a first attempt at codifying the law of responsibility 62 (a) The object of codification: a daring choice 62 (b) The chaotic organization of the codification work 63 2 Assessment of the Hague Conference in relation to State responsibility 64 (a) Agreement on certain rules of international law 64 (b) Legal grey areas requiring further clarification 65 Further reading 67 The work of the Third Commission of the Hague Conference, entrusted with the question of the responsibility of States for damage done in their territories to foreigners and alien property, is frequently remembered only because of the recognition of failure presented to the Conference by the Commission’s President, Basdevant, with a lacunary formulation: ‘the Third Commission is not in the position to present to the Conference any conclusions on this subject’.1 And yet a number of lessons were drawn from this attempt of codification of customary rules within the framework of the League of Nations. In 1924 the Assembly of the League of Nations, which had realized the importance that the codification of international law represented for the organization,2 requested the Council of the League to convene a Committee of Experts to draft a list of the subjects of international law ‘the regulation of which by international agreement would seem to be most desirable and realizable at the present moment’.3 The Committee forwarded questionnaires to the Members of the League, and on the basis of the replies received—though they were few and sometimes incomplete—proceeded to draft ‘bases of discussion’ on the three subjects retained for codification by the Conference: nationality, territorial waters, and State responsibility for damage done in their territories to foreigners and alien property. Under the influence of the Expert Sub-Committee constituted in 1925, the scope of the study on State responsibility was limited to the subject on which most precedent existed.4

(p. 62) 1 The Hague Conference: a first attempt at codifying the law of responsibility The Conference, which was the first institutional attempt at the codification of the law of responsibility, did not take advantage of the momentum achieved in the field of humanitarian law at The Hague in 1899 and 1907. It suffered from the difficulties intrinsic in the subject and the method chosen for codification.

(a) The object of codification: a daring choice The members of the Third Commission soon realized that it would be impossible to bring to fruition the initial ambitious project for the codification of the law of responsibility. Despite the preliminary assessments of the Committee of Experts, the codification of the law of responsibility, the ‘constitutive order’ of the international community,5 ran up against the insufficient maturity of its rules and the absence of consensus among States, due to their divergent interests. The debates of the Conference evidenced that, as at 1930, a number of principles had yet to achieve the degree of precision and generality required for their crystallization as norms of general international law. By limiting the object of codification to the question of the responsibility of States for damage done in their territories to foreigners and their property, it could be thought that the Third Commission had facilitated the task of the negotiators, who could, in addition, rely on recent drafts by the 6

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International Law Institute (1927) and Harvard University (1929).6 To the contrary, no unanimity could be achieved as to the definition of the material scope of application of the convention, with certain States requesting, for instance, that the ius in bello be considered and others requesting the inclusion of the problem of acquired rights of foreigners.7 Also, the necessity to give priority to the fundamental principles of the law of responsibility quickly became obvious. The Conference thus began by considering matters outside the scope of the Committee of Experts’ Bases of Discussion. It proposed a general rule: ‘International responsibility is incurred by a state if there is any failure on the part of its organs to carry out the international obligations of the state which causes damage to the person or property of a foreigner on the territory of the state’.8 In the end, since all the Bases of Discussion could not be fully examined in the short time available, the Commission quickly concentrated on the points considered capable of being agreed on, that is, the central questions of the law of responsibility.9 Consequently, despite

References (p. 63) the fact that the bases of discussion covered a large number of rules and specific situations, the Conference’s study was much reduced in scope. It has also been argued that the difficulties in achieving consensus among the Conference participants were the consequence of the sensitive and eminently political character of the question of State responsibility for injuries to foreigners.10 While having hardly replied to the Committee of Experts’ questionnaires, the South American States, sustained by a common vision of international law, turned out to be relentless interveners during the negotiations.11 The eight South American States constituted a significant opposing force in the negotiations, pushing for a limited scope of State responsibility.12 Finally, references to specific situations at times complicated the task of evidencing general rules.13 The subject of the Conference’s study, chosen by experts, proved to be hardly appropriate for codification by State representatives.

(b) The chaotic organization of the codification work During the Conference the guidelines proposed by the Committee in relation to the order in which the items were to be addressed and their formulation were rarely followed. The progress of the Third Commission’s work was quite chaotic. The debates were interrupted to introduce substantive amendments, new propositions, and points of order, all of which further contributed to delay the work. The schedule for the examination of the various items changed constantly. Matters which were initially considered of the utmost priority were often set aside due to their sensitive character.14 The allocation of issues among the various Bases of Discussion was continuously called into question by participants.15 Due to the lack of time and to the numerous disagreements over the substance and form of the provisions, the Commission set up three sub-commissions to draft provisions whose wording would be generally acceptable. The work of the sub-commissions was nevertheless the subject of heated debate in plenary, which did not manage to examine all of the provisions drafted by the sub-commissions. Finally, there were frequent discussions of issues which should have been resolved during the preparatory phase. The participating States, insufficiently consulted during the preparatory stages of the Conference, found frequent opportunities to express their diverging views in plenary. Everything, then, supported the conclusion that the Conference had been insufficiently prepared. (p. 64) It is possible that the codification and progressive development of the law of responsibility by the Conference would have been assisted had the objective of the Conference not been the preparation of a conventional instrument. State responsibility for damages done in their territories to foreigners and their property was a very sensitive topic: the drafting of a declaration, rather than a convention, would have been an easier task. The process of codification struck against the difficulties intrinsic in the formulation of rules frequently interpreted differently by States, especially due to the participants’ refusal to adopt more nuanced wordings.

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The League of Nations hoped to learn from the experience. Thus, the Final Act of the Conference already hints at a different modus operandi, by increasing the States’ involvement in the choice of subjects (their opportunity and ripeness) and the initial formulations of customary law, by assuring better participation and by encouraging the adherence of most participants to the eventual text.16 Similarly, to ensure better preparation for codifi cation efforts, the 11th League Assembly proposed the creation of a technical organization dedicated to the codification of international law. Beyond the efforts to agree on methodology, the failure of the Third Commission to present its work to the Conference can only be explained through a convergence of factors. Indeed, the same modus operandi was used to successfully achieve the codification of the law on territorial waters and on nationality. More than acknowledgment of failure, the assessment of the Third Commission constitutes a confession of impotence in relation to rules which had not yet become the object of a general opinio iuris. But this failure should not also lead to an underestimation of the influence that this first experience had on the further developments of the codification of the law of responsibility.

2 Assessment of the Hague Conference in relation to State responsibility The Hague Conference initiated the process of universal codification of the law of State responsibility. The Conference brought light to certain rules, mainly centred on the general regime of State responsibility.

(a) Agreement on certain rules of international law The normative contributions of the Hague Conference are not nil. The agreement on the draft project, adopted through majority vote on first reading, corresponds to the recognition of certain customary rules. Indeed, the opinio iuris of the participating States, added to the statement of previous State practice, tended to confirm the existence of binding rules. Some general principles of the international law of State responsibility as well as some rules more specifically related to the question of the State’s responsibility for damages caused in its territory to foreigners and alien property were among these rules. The act triggering a State’s responsibility was defined as any ‘failure’ on the part of any State organ, legislative,17 executive,18 or judicial,19 to carry out the State’s international obligations.20 At the end of long debates, denial of justice, an act of the judiciary which (p. 65) engages the responsibility of the State, was given a strict definition (access to justice) and was accompanied by a time limit for the filing of an international claim. The participants similarly agreed that a State’s responsibility would be engaged by acts and omissions of its officials, even when their acts or omissions fell outside the scope of their functions, provided they had acted ‘under cover of their official character’.21 It was acknowledged that breach by the State could also consist in its failure to act when faced with a situation where one of its nationals has caused damage to a foreigner or to foreign property.22 In view of the uncertainties surrounding the scope of article 38 of the Statute of the Permanent Court of International Justice, the source of international obligations was defined by means of a specific mention to treaties, custom and general principles of law: the international obligations envisaged by the present Convention are those which, by virtue of conventional or customary law, as well as general principles of law, have the object to ensure to individuals and their goods a treatment in accordance with the rules accepted by the international community.23 The notion of the internationally wrongful act will later allow more economy of expression. The rule that a State may not invoke provisions of its internal law to deny its international responsibility24 and the requirement to exhaust local remedies before resorting to inter-state 25

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procedures25 were also agreed on at the Conference. At the instance of the Third Sub-Commission, the obligation to make reparation was stated in the simplest and shortest possible way; thus envisaged, the provision on reparation corresponded solely to damages caused by the State’s failure to comply with its international obligations.26

(b) Legal grey areas requiring further clarification Certain items were not addressed by the Conference due to the lack of time; some turned out to be too imprecise and others were not susceptible to agreement between the negotiators. The Third Commission did not examine certain characteristic questions, such as responsibility for breaches of contract, concessions, debts, and damage caused by disturbances or revolutions (the object of the Second Sub-Commission’s mandate), deficiencies in protection of foreigners by local police and issues concerning reparation for damage (addressed by the Third Sub-Commission). In particular, the Third Commission was not able to study certain fundamental rules, such as circumstances precluding wrongfulness, the form of reparation or the definition of injury. The silence of a codification convention on this latter point could have cast doubt on the customary character of the then recent practice of international tribunals of taking into account moral damages.27 Some fundamental questions which were debated showed opinions to be so divergent as to preclude any possible agreement. This was notably the case with the date at which the State responsibility arises28 and the sources of international law. The possibility of (p. 66) formulating reservations to the provisions on the responsibility of States was raised at the last minute and was very rapidly discussed: but the incompatible positions expressed led to the immediate abandonment of the issue.29 Finally, some sections of the law of State responsibility for damages in its territory to foreigners or alien property were dealt with in an incomplete manner. The Conference did not proceed to an exhaustive enunciation of the cases in which responsibility was imputable to the State. For instance, the case of acts and omissions by collective entities was not examined. Nor was the adoption at The Hague of a sole text containing such scattered principles desirable: the rules put forward were not capable of constituting, together, a coherent normative system.30 Despite these difficulties, the Hague Conference set in motion the long process of codifi cation of the law of State responsibility as a whole. The League of Nations immediately sought to take advantage of the experience gained in this first codification attempt, and adopted Resolution III at its following session. However, it was not until the appearance of the ILC that this unfinished endeavour was pursued effectively.31 The ILC’s first Special Rapporteur, who wished to conclude the work initiated at the Hague Conference, limited the scope of his study to the rules relating to damages caused to foreigners and their property, the field most developed by both legal scholarship and practice.32 García-Amador intended to include in the work of the ILC some aspects not considered in 1930. His draft dealt with the question of the forms of reparation33 and included as a subsidiary matter, the question of calculation of damages and interest.34 Similarly, he considered certain characteristic questions concerning the responsibility of the State for damages to foreigners and their property which it had not been possible to address at The Hague Conference; this was the case, for example, of non-performance of debts, of contractual obligations and of expropriation.35 García-Amador’s study took note of the development in international law of the partial legal personality of individuals as a consequence of the developments in the fields of international criminal law36 and international human rights law.37 His work thus took the draft articles adopted during the debates in the Third Commission of the Hague Conference and further developed, completed, and updated that draft. However, the next Special Rapporteur, Roberto Ago, adopted a completely different approach and interpreted the mandate of the Commission as a renvoi to the responsibility of States stricto sensu,38 rejecting the fragmentary method of study which had been followed until then. Ago avoided many of the difficulties encountered by previous codification attempts related to the establishment of the obligations concerning the treatment of foreigners and their property by 39

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making a distinction between primary and secondary rules.39 In this way, he gave the codification of the law of State responsibility the impetus (p. 67) necessary to achieve the final adoption of the Articles on the Responsibility of States for International Wrongful Acts, which occurred in 2001, an end-product which is very far from the work of the 1930 Hague Conference. Further reading A Alvarez, Les résultats de la première conférence de codification du droit international, Communication à l’Académie des Sciences Morales et Politiques (Séance du 15 novembre 1930) (Paris, Pedone, 1931) EM Borchard, ‘ “Responsibility of States” at the Hague Codification Conference’ 24 AJIL 517 (1930) Y Daudet, ‘Rapport général’, in SFDI, Les méthodes et pratiques de la codification (Paris, Pedone, 1999) 129 RP Dhokalia, The Codification of Public International Law (Manchester, Manchester University Press, 1970) JG Guerrero, La codification du droit international. La Première Conférence (La Haye, 13 mars–12 avril 1930) (Paris, Pedone, 1930) GH Hackworth, ‘Responsibility of States for Damages Caused in their Territory to the Persons or Property of Foreigners. The Hague Conference for the Codification of International Law’ (1930) 24 AJIL 500 MO Hudson, ‘The First Conference for the Codification of International Law’ (1930) 24 AJIL 447 H Lauterpacht, ‘Codification and Development of International Law’ (1955) 49 AJIL 16 M Liais, ‘Considérations sur l’œuvre de la Conférence de codification’ (1931) 38 RGDIP 215 A Pellet, ‘La codification du droit de la responsabilité internationale: tâtonnements et affrontements’, in L Boisson de Chazournes & V Gowlland-Debbas (eds), L’ordre juridique international, un système en quête d’équité et d’universalité. Liber Amicorum Georges AbiSaab (The Hague, Martinus Nijhoff, 2001) 285 S Rosenne, League of Nations Conference for the Codification of International Law (Dobbs Ferry, NY, Oceana Publications, 1975)(p. 68)

Footnotes: 1 League of Nations, Actes de la Conférence pour la Codification du Droit International tenue à la Haye du 13 Mars au 12 Avril 1930: Séances des Commissions. Vol. IV, Procès Verbaux de la Troisième Commission: Responsabilité des États en ce qui Concerne les Dommages causés sur leur Territoire à la Personne ou aux Biens des Étrangers (Geneva, Service des Publications de la Société des Nations, 1930), 44. 2 Resolution of 22 September 1924, reprinted in ‘Collaboration of the American Society of International Law with the League of Nations’ Committee of Experts’ (1926) 20 AJIL Special Supplement 1, 2–3. 3 Ibid, 2 (para 2). 4 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 177–178 (paras 16–23). 5 J G Guerrero, La codification du droit international. La Première Conférence (La Haye, 13 mars– 12 avril 19 30) (Paris, Pedone, 1930), 89. 6 See above, Chapter 6. 7 See interventions by MM Veli Bey (Turkey) and Erich (Finland), League of Nations, Actes de la Conférence pour la Codification du Droit International tenue à la Haye du 13 Mars au 12 Avril 1930: Séances des Commissions. Vol. IV, Procès Verbaux de la Troisième Commission: Responsabilité des États en ce qui Concerne les Dommages causes sur leur Térritoire à la

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Personne ou aux Biens des Étrangers (Geneva, Service des Publications de la Société des Nations, 1930), Vol IV, 20ff. 8 See EM Borchard, ‘ “Responsibility of States” at the Hague Codification Conference’ (1930) 24 AJIL 517, 518. 9 See, especially, the position of the President at the end of the 7th Meeting, League of Nations, Actes de la Conférence pour la Codification du Droit International tenue à la Haye du 13 Mars au 12 Avril 1930: Séances des Commissions. Vol. IV, Procès Verbaux de la Troisième Commission: Responsabilité des États en ce qui Concerne les Dommages causés sur leur Territoire à la Personne ou aux Biens des Étrangers (Geneva, Service des Publications de la Société des Nations, 1930), Vol II, 92. 10 See, for instance, M Liais, ‘Considérations sur l’œuvre de la Conférence de codification’ (1931) 35 RGDIP 255; A Pellet, ‘La codification du droit de la responsabilité internationale: tâtonnements et affrontements’, in L Boisson de Chazournes & V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff, 2001) 287. 11 See eg League of Nations, Actes de la Conférence pour la Codification du Droit International tenue à la Haye du 13 Mars au 12 Avril 1930: Séances des Commissions. Vol. IV, Procès Verbaux de la Troisième Commission: Responsabilité des États en ce qui Concerne les Dommages causés sur leur Territoire à la Personne ou aux Biens des Étrangers (Geneva, Service des Publications de la Société des Nations, 1930), 121–125, 144, 162ff. 12 Cf EM Borchard, ‘ “Responsibility of States” at the Hague Codification Conference’ (1930) 24 AJIL 517. 13 See eg the recurring reminder by Egypt of the specific case of capitulations: League of Nations, Actes de la Conférence pour la Codification du Droit International tenue à la Haye du 13 Mars au 12 Avril 1930: Séances des Commissions. Vol. IV, Procès Verbaux de la Troisième Commission: Responsabilité des États en ce qui Concerne les Dommages causés sur leur Territoire à la Personne ou aux Biens des Étrangers (Geneva, Service des Publications de la Société des Nations, 1930), 97, 122–123. 14 See eg the reference to the limitation of a State’s responsibility in case of provocation by the victim, rejected at the proposal of the Third Sub-Commission, charged to deal with this question: ibid, 129–130. 15 See, notably, ibid, 39, 87. 16 League of Nations, Acte final de la Conférence pour la codification du droit international tenue à La Haye en mars–avril 1930, in Actes de la Conférence pour la Codification du droit international, tenue à La Haye, du 13 mars au 12 avril 1930. Vol. I, Séances plénières (Geneva, Service des publications de la Société des Nations, 1930). 17 Ibid, 48. 18 Ibid, 63. 19 Ibid, 159. 20 Ibid, 31. 21 Ibid, 248. 22 Ibid, 190. 23 Ibid, 161. 24 Ibid, 128. 25 Ibid, 169. 26 Ibid, 142.

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27 Cf The Lusitania, United States/Germany Mixed Claims Commission, 1 November 1923, 7 RIAA 32. 28 League of Nations, Actes de la Conférence pour la Codification du Droit International tenue à la Haye du 13 Mars au 12 Avril 1930: Séances des Commissions. Vol. IV, Procès Verbaux de la Troisième Commission: Responsabilité des États en ce qui Concerne les Dommages causés sur leur Territoire à la Personne ou aux Biens des Étrangers (Geneva, Service des Publications de la Société des Nations, 1930), 63–68. 29 Ibid, 190–191. 30 See the draft Report of the Rapporteur de Visscher (Belgium), prepared at the request of the President, in ibid, Annex V, 239. 31 GA Resolution 799(VIII), 7 December 1953, para 2. 32 FV García-Amador, Memorandum on State Responsibility, ILC Yearbook 1954, Vol II, 21, 25 (para 18). 33 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 180 (para 35). 34 Cf FV García-Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 48 ff. 35 Ibid. 36 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 188–189 (paras 76–82). 37 Ibid, 193–195 (paras 106–116). 38 R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125, 136 (para 67), 134 (para 56). 39 Cf Report of the Sub-Committee on State Responsibility, ILC Yearbook 1963, Vol II, 227.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.8 The Work of García Amador on State Responsibility for Injury Caused to Aliens Daniel Müller From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Damages — Nationalilty of individuals — League of Nations — United Nations (UN) — Codification

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(p. 69) Chapter 8 The Work of García Amador on State Responsibility for Injury Caused to Aliens 1 The limited approach and content of García Amador’s draft articles 69 (a) Choosing a particular aspect of responsibility 70 (b) Principles governing State responsibility for damage caused to foreigners 71 2 Criticisms and rejection of García Amador’s draft 72 (a) Criticisms concerning the place accorded to the individual 72 (b) An unsuitable approach to codification 73 Further reading 74 The codification efforts earlier undertaken by the League of Nations, and described in the preceding Chapter, were taken up by the United Nations as soon as it was founded. The ILC was mandated by the General Assembly to codify and progressively develop inter national law, and from its first session in 1949 the ILC placed the subject of State responsibility on the list of provisional topics considered suitable for codification.1 The ILC appointed FV García Amador as Special Rapporteur in 1955 when the General Assembly relaunched the idea and invited the ILC ‘to undertake the codification of the principles of international law governing State responsibility’.2 Between 1956 and 1961, García Amador presented six reports to the ILC, embodying a complete set of draft articles. But this significant work provoked strong criticism and was not taken into account by subsequent Special Rapporteurs. Its relevance should nevertheless not be neglected in order to understand the travaux of the ILC on responsibility, in particular the approach chosen as well as the form and content finally adopted.

1 The limited approach and content of García Amador’s draft articles At the 8th Session of the ILC, García Amador presented a preliminary report,3 containing a general survey of the state of the law and analysing its development. García Amador stressed that international responsibility does not merely entail a duty to make reparation for injuries caused, but that it can equally have the consequence of sanctions or punishment (p. 70) of the responsible entity. However, given important criticisms on this point, the idea of ‘criminal’ responsibility was not further developed by the Special Rapporteur.4 According to García Amador, the dominant feature of the development of the law of responsibility concerned the intervention of international organizations and of individuals on the international level. The choices made by the Special Rapporteur in determining the scope of his work, and in developing the content of his draft articles was clearly influenced by a consistent tendency to accord a special place to individuals in the international legal order.

(a) Choosing a particular aspect of responsibility García Amador thought that a complete codification of the subject area was not immediately possible due to the workload of the ILC as well as the size and diversity of the problems that international responsibility entailed. He therefore proposed that the Commission should carry out the task employing a gradualist approach. Thus, he preferred to focus on a particular aspect of State responsibility and limited his work and research to the ‘responsibility of States for damage caused to the person or property of aliens’.5 He justified this approach partly on the basis of the development of international law as he had set it out in his preliminary report and partly by the fact that this aspect of responsibility was most apt for codification.6 In fact, he considered these specifi From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

c rules to be the ones which were most developed in doctrine, private codifications and international case law. The most significant crystallization of rules on international responsibility derived from the arbitration case law at the beginning of the 20th century and after the World Wars. This case law, developed by mixed commissions and tribunals, is essentially the result of a struggle involving ‘the relations between the strong and the weak’,7 ie between North American and Latin American States. The arbitrators or commissioners were principally concerned with claims based on harm caused to foreigners after uprisings or internal revolutions. On the basis of this case law, private codifications and international legal doctrine both concentrated their efforts on this specific aspect of responsibility. Moreover, in 1956 the ILC Secretariat asked the Research Centre of Harvard Law School to revise and potentially update a draft convention8 which had already been drawn up in 1929 in preparation for the Hague Conference of 1930.9 The approach chosen for the codification was therefore not revolutionary. It simply integrated the trends and legal issues of the time, which were marked by the case law of the early mixed commissions resolving conflicts between Northern States and Latin American States. However, the approach remained controversial and risky, especially because the Latin American States regarded the case law as having been effectively imposed upon them.

(p. 71) (b) Principles governing State responsibility for damage caused to foreigners According to García Amador’s draft articles, State responsibility is engaged if damage is caused by an act or omission contrary to international law (article 2).10 Damage remained central to his conception of responsibility, which understood responsibility as comprising only a duty to make reparation. But this classical conception of responsibility was nevertheless limited to the specific area of codification chosen by the Special Rapporteur. The basis for responsibility does not lie in the violation of any rule of international law, but only in the violation of those rules directly concerned with individuals. Emphasis was therefore placed on the idea of human rights and fundamental liberties that constitute, in the opinion of García Amador, the conciliation of the more classical principles of the protection of foreigners—equality of treatment between foreigners and nationals—and the minimum standard of protection. Nevertheless, his draft did not confine itself to setting out this principle. García Amador thought that these different fundamental rights and liberties and the acts and omissions that give rise to their violation should also be codified in detail. This approach was favoured since he was of the opinion that ‘the draft prepared by the Commission should be self-sufficient, and should not constitute a merely subsidiary instrument which leaves the final solution of the problems to the very principles and rules of international law which it is supposed to assemble and formulate in an ordered and systematic form’.11 His draft therefore specified the legal rules which govern the conduct of the State in relation to foreigners and defined the acts and omissions that will engage State responsibility. These were denial of justice and certain cognate acts (articles 3 to 6), negligence and other omissions that concern the protection of foreigners on the territory of the State (articles 7 and 8), and breaches of economic rights of foreigners, such as measures of expropriation and nationalization (article 9), non-performance of contractual obligations (article 10), and repudiation or cancellation of public debts (article 11). Essentially, the emphasis was placed on the codification of primary rules of public international law, which turned out to be an impossible task (see Chapter 9). Another consequence of this approach appears in the rules concerning international claims which are the only mechanism that may result in the implementation of the kind of responsibility envisaged in García Amador’s draft. In fact, he criticized the traditional procedure of diplomatic protection (which consists of the simple endorsement of the claim by the State of nationality) as a legal fiction that created many technical difficulties. Thus he only maintained it as a subsidiary procedure (article 22). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Bearing in mind the development of international law and the coherence of the system of responsibility, García Amador was convinced that it was necessary to give a new status to the individual. Consequently, he proposed to accord the individual, as the holder of the breached right and the resulting claim, a right of direct recourse before competent international bodies (article 21). These bodies would, however, be created by treaty for this purpose between the defendant State and the State of nationality of the individual, or by agreement between the individual and the defendant State. In this way, the discretionary power of States to accept such direct claims would not be undermined. The holder of the international claim would however not be the State, but the injured individual.

References (p. 72) Despite the importance of the work, the ILC, being at the time preoccupied with the codification of other areas of international law, only briefly and superficially discussed García Amador’s reports and proposals.12 Admittedly, the Commission was at the time dealing with other subjects of at least the same complexity, such as the law of the sea, the law of treaties, and diplomatic and consular relations. Nevertheless, the justification given for the persistent neglect of García Amador’s work is not entirely satisfactory. It was probably a polite way of getting rid of a draft that was highly criticized and was bound to fail. This is confirmed by the fact that the work of García Amador was not retained at all as a basis for the future work of the Commission in relation to the topic of State responsibility.

2 Criticisms and rejection of García Amador’s draft García Amador’s work attracted many criticisms. These criticisms were expressed both by the members of the ILC in the rare recorded discussions on the draft and by the Member States of the United Nations. They were directed at the content of the draft and at the underlying approach.

(a) Criticisms concerning the place accorded to the individual The position that García Amador accorded to the individual on the international level was the subject of strong criticism. His stance concerning the evolution of international law as set out in his preliminary report met with significant disagreement within the ILC. It was especially the question of recognizing subjective rights of the individual in international law (a development in international law that he strongly approved of )13 that caused important objections on part of other members. Elevating the individual to the rank of a subject of international law14 clearly went beyond the ILC’s mandate. ILC members equally opposed the idea that State responsibility for injuries caused to foreigners could only be invoked as a result of the violation of a fundamental human right. Only very few legal instruments recognized specific rights for individuals at the time. García Amador’s attempt to accord greater importance to these rules by integrating them into general international law went beyond his codification mission and even beyond the progressive development of the law at that time. The same is true for the proposed innovations in the procedures for international claims. The idea of considering the individual as the claimant in title (reducing diplomatic protection to a subsidiary level) was seen to overturn the international legal order, even though the principle of direct access for individuals to international courts and tribunals seemed to be counter-balanced by specific conditions that governed the initiation of these proceedings, in particular the consent of the concerned States. García Amador justifi ed his proposals by his analysis of specific courts, such as the Central American courts and the mixed arbitration tribunals.15 But these mechanisms in no way expressed the (p. 73) opinio juris of the time and were even in contradiction with the consistent case law of the PCIJ and the ICJ.16

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(b) An unsuitable approach to codification The draft articles were not only criticized for the rules set out by the Special Rapporteur, but also for the general approach he had chosen. Opinions were divided on whether the limitation of the draft to a system of State responsibility for injuries caused to foreigners was appropriate. On the one hand it was clear that a codification of international responsibility in its entirety was a considerable project. García Amador’s limited approach was therefore supported by various members of the ILC, as well as in the Sub-Committee on Responsibility chaired by Ago in 1963.17 But on the other hand, reservations concerning the absolute exclusion of other aspects of international responsibility were expressed. The draft seemed unsatisfactory in light of General Assembly Resolution 799(VIII) since it did not deal with the consequences of the violation of norms of international law that exclusively concern States, such as, for example, the violation of international treaties, or, more specifically, violation of the United Nations Charter and the law relating to international peace and security. Another criticism concerned the fact that the draft only briefly mentioned the causes, forms, and fundamental problems of State responsibility. In fact, the Special Rapporteur refused to take a stance on several sensitive issues, such as the character of international responsibility (objective responsibility or responsibility for fault), State responsibility for the act of another State, or the consequences of an internationally wrongful act other than reparation. For García Amador these were academic issues: only a few articles concerning general problems of responsibility were included in his draft: imputability (articles 12–16), exonerating and extenuating circumstances (article 17), and the nature and amount of reparation (article 26). Nevertheless, the choice of a pragmatic approach and the limitation to obligations relating to the treatment of foreigners could not excuse the failure to examine these core problems in the general system of responsibility. Moreover, the codification work was rendered more difficult by the fact that the substantive rules (concerning the treatment of foreigners and their breach) were not categorically separated from the study of rules concerning responsibility properly so-called. Even though the Special Rapporteur was conscious of the distinction between these two types of rules (which would come to be called primary and secondary rules), he preferred to mix them since he was anxious to construct a selfsufficient draft. Such an approach was impossible to carry out as well as illusory, especially in an area that concerns the treatment of foreigners: it added to the difficulties in determining general rules on State responsibility, those concerning the specific area chosen by the Special Rapporteur, ie the treatment of aliens. The issue of the treatment of foreigners not only caused opposition on the part of Latin American States, which are traditionally sensitive in that regard, but also the opposition of socialist States that were hostile to the idea of any individual rights of an exclusively economic character.

References (p. 74) García Amador’s approach and his draft still constitute a considerable and significant work. But for the purpose of codifying the rules and principles governing State responsibility, the ILC had reached a cul-de-sac. At the end of García Amador’s term in 1962, the ILC decided not to take up his reports, commentaries, and proposals in its future work on State responsibility but to start work afresh.18 García Amador’s work was shelved. Further reading J Dehaussy, ‘Travaux de la Commission du Droit international des Nations Unies’ (1957) 3 AFDI 359; (1958) 4 AFDI 440; (1959) 5 AFDI 491; (1961) 7 AFDI 416 FV García Amador, ‘State Responsibility—Some New Problems’ (1958-II) 94 Receuil des cours

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369–491 A Pellet, ‘La codification du droit de la responsabilité internationale: Tâtonnements et affrontements’, in L Boisson de Chazournes & V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (The Hague: Kluwer, 2001), 285 A Pellet, ‘Remarques sur une révolution inachevée. Le projet de la CDI sur la responsabilité des États’ (1996) 42 AFDI 7 M Spinedi and B Simma, United Nations Codification of State Responsibility (New York, Oceana Publishers, 1987) M Spinedi, ‘From one Codification to another: Bilateralism and Multilateralism in the Genesis of the Codification of the Law of Treaties and the Law of State Responsibility’ (2002) 13 EJIL 1099

Footnotes: 1 ILC Yearbook 1949, 11. 2 GA Res 799 (VIII), 7 December 1953. 3 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173. 4 FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104, 105 (para 2). 5 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 221. 6 Ibid. 7 PC Jessup, A Modern Law of Nations (New York, MacMillan, 1958), 96. 8 See the draft presented in 1961, reproduced in R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125, 142. 9 Reproduced in FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 229–230. 10 See the final draft and commentaries, FV García-Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 46ff. 11 FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104, 107 (para 10). 12 Report of the ILC, 21st Session, ILC Yearbook 1969, Vol II, 203, 229–230 (para 67). 13 FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 197ff. 14 See FV García Amador, ‘State Responsibility—Some New Problems’ (1958-II) 94 Recueil des cours 421. 15 Ibid, 467. 16 Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No 2, p 7, 12; Serbian Loans, 1929, PCIJ, Series A, No 20, p 6, 17; Panevezys-Saldutiskis Railway, 1939, PCIJ, Series A/B, No 76, p 4, 16; Nottebohm, Second Phase, Judgment, ICJ Reports 1955, p 4, 24. 17 ‘Report of the Sub-Committee on State Responsibility ’, ILC Yearbook 1963, Vol II, 227, 228 (para 5). 18 Report of the ILC, 21st Session, ILC Yearbook 1969, Vol II, 203, 231ff (paras 72ff).

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Part II International Responsibility—Development and Relation with Other Laws, Ch.9 The ILC’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts Alain Pellet From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Responsibility of international organizations — Wrongful acts — Diplomatic protection — League of Nations — Countermeasures

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(p. 75) Chapter 9 The ILC’s Articles on State Responsibility for Internationally Wrongful Acts and Related Texts 1 The Articles on State Responsibility for Internationally Wrongful Acts 76 (a) The ‘Ago revolution’ 76 (b) Adoption of the draft at the first reading 79 (c) The definitive adoption of the Articles in 2001 83 (d) The form of the Articles 86 2 The extension of the Articles on Responsibility—Diplomatic Protection and Responsibility of International Organizations 87 (a) The Draft Articles on Diplomatic Protection (2006) 88 (b) The Draft Articles on Responsibility of International Organizations 90 Further reading 92 On 31 May 2001 the ILC adopted the 59 articles of its draft on ‘Responsibility of States for Internationally Wrongful Acts’ on second reading.1 This was the provisional success of an intellectual epic that started in the time between the World Wars, the subject already being on the agenda at the Codification Conference of the League of Nations in 1930. However, the issue at that time was too sensitive, the opposition between States, especially between European and Latin American countries, too strong, so that the endeavour failed (see Chapter 7). The ILC nevertheless included the topic of State responsibility in the initial list, adopted at its first session in 1949, of 14 subjects for codification. But it was not until 1955 that the ILC made its Cuban member, García Amador, Special Rapporteur for the topic. The ILC only superficially examined the six reports presented by García Amador between 1956 and 1961. It did so under the pretext of being occupied with the codification of other areas of international law,2 a polite representation of a more complex reality. The Special Rapporteur limited his study to ‘Responsibility of the State for injuries caused (p. 76) in its territory to the person or property of aliens’3 and therefore trapped himself in the problems that had caused the failure of the original League of Nations project, making success unlikely (see Chapter 8). Reaffirmed as a priority by the General Assembly and the ILC itself in the early 1960s, the project was nevertheless started afresh in 1963 after García Amador had ceased to be a member of the ILC; however, a very different angle was taken. This new angle was outlined by a Sub-Committee under Ago’s chairmanship; Ago became the new Special Rapporteur for the topic that same year, and gave it a decisive momentum as of 1969. Under his influence and that of his successors, Riphagen and Gaetano Arangio Ruiz, the draft was adopted on first reading in 1996, and the second reading was completed in 2001 thanks to the energy and pragmatism of Crawford, fifth and last Special Rapporteur on the topic. During his tenure as Special Rapporteur, Ago defined some aspects that, from his point of view should be detached, even though they undoubtedly constituted part of the topic, in particular responsibility without breach (see Chapter 10) and diplomatic protection (see Chapter 73). The responsibility of international organizations has been the subject of a different study that has resulted in the adoption by the ILC of draft Articles on that topic on first reading in 2009 (see Chapters 22, 66).

1 The Articles on State Responsibility for Internationally Wrongful Acts

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(a) The ‘Ago revolution’ Ago distanced himself from the approach taken by García Amador in the debates of 19634 that preceded his appointment as Special Rapporteur, as well as in his note of 19675 and in his First (and late!) Report of 1969.6 This is hardly surprising: García Amador’s approach had been the subject of fierce criticism, and even though his proposals were limited to reflecting the ‘positive’ law created by arbitration case law of the late 19th and early 20th century—or rather because of this— the proposals were not well received by the representatives of Third World countries as well as Eastern European States, particularly at the Sixth Commission of the General Assembly. Distancing himself from this debate was Ago’s first stroke of genius. It is not easy to determine when exactly the myth of ‘secondary norms’ was created. The idea is that abstract ‘consequential’ rules must be rigorously followed and that these secondary norms determine the consequence of the breach of a substantive (‘primary’) rule. It turned into a veritable credo at the ILC. It is clear however that the idea was already contained in the first statements by Ago, even though, back in 1963, 1967, or 1969 it did not in any way refer to the famous distinction by Hart7 and kept to a simpler idea that is undoubtedly sufficient. It was expressed in his First Report as follows: ‘the Commission should, with a view to the codification of the topic, give priority to the definition of the (p. 77) general rules governing the international responsibility of States.’8 This approach was already retained by the famous course which the very young Italian professor had given at The Hague Academy of International Law in 19399 and which constituted the manifesto for what can without exaggeration be called the ‘Ago revolution’. This idea he defended from 1963 to 1980, when he left the Commission for good; it can thus clearly be attributed to Ago himself and not, as it is often suggested, to his capable and talented assistants, especially Marina Spinedi. Even though their support should not be underestimated, Ago indisputably remained the designer of the draft. In the introduction to his Hague course, which is key to his ideas on the topic he has so much influenced, Ago states that one should note that the existing studies of international delicts all start from the viewpoint of responsibility, that is, the viewpoint of the consequences of the delict rather than its characteristics or constitutive elements.10 True, there is some terminological hesitation; in the same sentence Ago concedes something to the very idea he challenges, since he likens responsibility to its consequences, and seems to exclude the generating act (the delict or rather the internationally wrongful act). This hesitation can also be found in his first reports.11 But the essential point is there: responsibility should not be reduced to its consequences, especially not just to the consequences of the obligation to make reparation. It is on this point that the ‘revolution’ occurred. It was expressed in the famous first article, adopted in 1973, and was confirmed in 1980 through the adoption of the first part of the draft; it was kept unchanged in the final version of the whole draft that was adopted at its first reading in 1996, then at the second reading in 2001: ‘Every internationally wrongful act of a State entails the international responsibility of that State.’ This is a conceptual revolution: injury (ie material or moral damage), which was the centre of the traditional analysis by García Amador, has been dropped as the generator of responsibility. This approach benefits from near unanimous approval in academic writing (a regrettable exception are some of the French internationalists, especially Jean Combacau, Gilles Cottereau, and Emmanuel Decaux).12 No ILC member has questioned it and none of the States that submitted observations on the adopted draft to the Secretariat at the first reading opposed it,13 except for Argentina and France who felt it had to draw up a complete counter-draft that reintroduced injury (‘dommage’) as the generator of responsibility.14 In spite of this attack, Crawford, fifth and last Special Rapporteur for the topic, took a firm stance against reintroducing damage as an ‘autonomous condition’ for an internationally (p. 78) wrongful act,15 and the ILC fortunately did not question what must surely be regarded as a fundamental progress, if not for international law itself, at least for the idea that we have of it. Throughout this approach to State responsibility there remains the idea that international law is not

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a network of inter-subjective norms dedicated above all to the protection of particular State interests, but a system16 that guarantees the coexistence of States in their common interest. There is more than one nuance of this: it could be said that this analysis reflects an excessively optimistic vision of international society, but, unlike its precursor, which was exclusively sovereigntist, it does take into account the emergence of communitarianism on the international level, however modest this development may be. This approach is based on the observation that, however fundamental the breached rule may be and however serious the breach is, it is possible that no damage is caused to any particular State (for example where genocide is committed by a State against a part of its population, as happened in Rwanda). Crawford’s Third Report (in 2000) endeavoured to clarify (and in some sense went beyond) the notion of ‘victim’ and article 40 of the 1996 draft.17 This justifies the fact that certain violations of the law are so serious that they threaten the interest of not just one or several victim States (if any there be), but the international community as a whole, whose members should be able to draw certain consequences. Thus, on proposal by the Special Rapporteur, the Commission introduced the famous distinction between crimes and delicts, a distinction that was confirmed in draft article 19 on first reading.18 In any case, it is undeniable that Ago’s intuition freed the draft from the deadlock caused by the strategic clumsiness of García Amador (rather than a weakness that was mistakenly attributed to his reports). Thanks to the ‘secondary’ and general approach, the opposition by the most sceptical States (and among the members of the ILC) was overcome and the study of the subject could continue on a more promising basis. Admittedly, it continued very slowly. This can probably be explained by the multiple occupations of the Special Rapporteur who was involved with the Barcelona Traction case before the International Court of Justice. Even though the general concept as defended by Ago had been approved by the Commission in 1963,19 it was not until 1969 that he wrote his first report20 and not until 1971 that he proposed his first draft articles.21 This slow maturation also had benefits, it probably explains the theoretical rigour of the first part of the draft which, by using as a starting point the breach of obligation (‘manquement’) (rather than the injury as in García Amador’s draft), draws very rigorous conclusions, even though, from time to time, an article may denote some inconsistency.

References

(p. 79) (b) Adoption of the draft at the first reading In 1969, the ILC, after having discussed Ago’s First Report (a historical account of the work completed until then22 ), took several decisions that would definitively orientate its approach. First, it limited its study to State responsibility, excluding other areas of the international law of responsibility such as responsibility of international organizations and of individuals (but the latter topic was at the same time dealt with in the draft Code of Crimes against Peace and Security of Mankind, adopted on second reading in 1996).23 Second, it excluded ‘liability for risk arising out of the performance of certain lawful activities, such as spatial and nuclear activities’: this topic was nevertheless put on the ILC’s agenda in 1978 under the rather esoteric title of ‘International liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law’; it resulted in two drafts adopted in 2001 and 2006, titled ‘Prevention of Transboundary Harm from Hazardous Activities’24 and ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities’25 respectively. Finally, on this basis the ILC adopted the outline of its study; as explained in Ago’s 1975 Report (more clearly than in the 1969 Report), the first part of the draft: will be concerned with the origin of international responsibility and the second with the

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content, forms and degrees of international responsibility. Once these two essential tasks are completed, the Commission may, if it seems fit, decide to add a third part to the draft, in which to consider certain problems concerning settlement of disputes and what has been term the ‘implementation’ (mise en oeuvre) of the international responsibility of the State.26 Thus the ILC adopted between 1973 and 1981 the 35 articles of the first part of the draft on the basis of seven consecutive reports by Ago.27 They were structured in five chapters according to a rigorous and logical plan: I. General Principles; II. The ‘act’ of State according to international law; III Breach of an international obligation; IV Implication of a State in the internationally wrongful act of another State; V Circumstances precluding wrongfulness, Ago’s title for Part 1 as a whole was ‘The Origin of Responsibility’. Incidentally, the heading of the first Part was not without ambiguity and seemed to show that, as if scared by their own audacity, the Special Rapporteur and the Commission had not dared to follow their logic to the end, while the second Part, entitled ‘Content, forms and degrees of international responsibility’ dealt in reality with the consequences of responsibility, which is engaged as soon as the conditions mentioned in article 1 and set out in detail in article 2 (originally draft article 3) are met. This is actually the true ‘content’ of international responsibility. The 2001 Articles do not any more take the plunge; the first part is titled ‘The inter nationally wrongful act of a State’ (which is not very meaningful but not erroneous; however the term ‘Engagement of responsibility’ would have been more appropriate). The content of the old second part content was split into two new parts, one again titled ‘Content of the International Responsibility of a State’ and the other ‘Implementation’.

References (p. 80) A fourth and last part is dedicated to ‘General Provisions’. The third part of the first draft ‘Settlement of disputes’ was discarded at the second reading. Apart from this reservation, which is only of doctrinal importance, it must be stressed with how much skill Ago managed to convince his colleagues of his ideas—all the more so considering that his ideas were not self-evident, that the members of the Commission were mostly great jurists with strong personalities and convictions, and also considering that this occurred in the middle of the Cold War. Thus, as much as the draft is conceptually revolutionary, it is at the same time practically and technically conservative, apart from the part concerned with crime. It is true that it was probably not easy to escape the Special Rapporteur’s persuasiveness; the approach he defended ‘rubbed out’ political and ideological oppositions, at least as to Part One. No doubt this is why the draft articles presented by Ago were little modified by the Commission despite the very long discussions they generated. One of the characteristics of Ago’s Part One is certainly the impressive meticulousness of the articles and their commentaries. Undoubtedly one could have concerns over some details, for example over distinctions that may be too subtle to be operational, between different categories of violated obligations.28 The same could be said for the legal institutions that feature in chapter V, ‘Circumstances precluding wrongfulness’, such as consent or force majeure, which do not necessarily fall under this rubric. The fact remains however that all this, especially the commentaries, were and still are very useful for practitioners of international law, a fact that has certainly been mitigated by the conciseness of the commentaries finally adopted in 2001. After he left the Commission in 1978 (or rather in 1980, since he presented his Eighth Report to the Commission in 1979 and 1980 even though he had been elected to the Court in 197829 ), Ago could not lead to its end the work of progressive development and codification of State responsibility, even in the limited way it had been circumvented. His election prevented—or spared?—him from guiding the ILC on consequences of responsibility and its implementation (Parts Two and Three) which, more than Part One would certainly unleash political opposition. It is not an insult to observe that the seven reports presented between 1980 and 1986 by the third Special Rapporteur, Riphagen (who was nominated in 1979) constitute a parenthesis. Strongly From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

constructed and extremely theoretical, his work is above all difficult, and its excessive abstraction seemed to have discouraged the other members of the Commission, who sent 21 of his proposed articles to the Drafting Committee but only provisionally adopted30 the first five articles of Part Two before Riphagen left the ILC in 1986. The appointment of a new Special Rapporteur, the Italian professor Gaetano Arangio-Ruiz, resulted not only in a change of style. The fourth Special Rapporteur belonged to an old school of thought as far as the concept of international responsibility itself was concerned, even though he sometimes claimed Ago’s heritage (to which Riphagen had closely adhered).31 From then on, it was all the more likely that he would make an effort to

References (p. 81) deeply influence the ILC’s work; though he paid lip service to his immediate predecessor, he did not hide his intention to start afresh and take up the task of starting the study for the second and third parts ab initio.32 In truth, the fourth Special Rapporteur was more a moralist (in the respectable sense) than a doctrinalist. While Ago knew how to construct a coherent system of responsibility, Arangio-Ruiz was above all inspired to moralize international law, and this deeply influenced his approach. The emphasis Arangio-Ruiz placed on grand utopian principles (on which he insisted in particular during the discussion of Part Three concerning the settlement of disputes) resulted in a certain indifference to other, more technical aspects of the draft. As a consequence, the provisions of Part Two of the 1996 text, and especially the second chapter concerning the rights of the injured State and reparation, are sometimes very short, not to say cryptic. The Special Rapporteur’s moralism led him to a belated but enthusiastic dedication to the idea of international crimes of States even though he had initially been suspicious towards it, in accordance with his inorganic conception of international society. Nevertheless, in his First Report, Arangio-Ruiz did not challenge the distinction between crime and delict in principle; he considered the study of the consequences of the latter premature,33 which is not without paradox. Whatever one may think of the concept of State crime, one thing is certain: such a notion is unconceivable unless one adheres to a ‘communitarian’ or social idea of the law on responsibility. The distinction between crimes and delicts is not an inexorable consequence of the idea that responsibility arises from an internationally wrongful act, but on the other hand it is inconceivable if the triggering factor of responsibility is the injury or the damage and not the failure to act or prevent. In other words, if there is such a thing as State crime, this can only arise because the breached rule is of a different character than the rule whose violation constitutes a simple delict. One could consider this as due to the fact that the rule in question is a peremptory norm. It could be thought that, as draft article 19 on first reading set out, the violation concerns an obligation that should be respected in the interest of the international community as a whole, which is approximately the same idea. What is certain is that the notion of crime is wholly incompatible with an inorganic conception of responsibility, or more generally, of international law, to which Arangio-Ruiz strongly adheres. Nevertheless, the Special Rapporteur’s dedication to crime reflected a coherence that was at least ideological, if not doctrinal, the aim being to moralize international life and international law. As with jus cogens, the notion of crime can contribute to this, which was in the end recognized by ArangioRuiz. However, he did not approach the issue until his Fifth Report.34 Previously he had studied the consequences of international crimes and delicts in an undifferentiated way—the same method was employed by Crawford in his first three reports. An excessive inflation of the consequences of delicts was the result, while the consequences that are particular to crimes have been reduced to a shadow. Thus, draft article 45 on first reading, devoted to satisfaction, envisaged the possibility of punitive damages in the case of simple delicts, however, they could only conceivably be justified for crimes. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

References (p. 82) Conversely, the specific consequences that the draft drew from State crimes were limited and full of deficiencies: draft articles 51 to 53 were concerned with the issue and did not foresee any specific legal regime of countermeasures. One of the most important effects of the commission of a crime—the transparency of the State (the fact that the responsibility of its leaders can be pursued, not withstanding the immunities they would otherwise enjoy)—is not mentioned at all (it was once again silenced in the 2001 Articles). But it is in Part Three of the draft on first reading, concerned with the settlement of disputes, that Special Rapporteur Arangio-Ruiz’s rather utopian moralism became most evident. This established an obligatory conciliation mechanism for all disputes concerning the application of the draft, and an obligation to resort to arbitration for all disputes arising from the implementation of countermeasures. As a result, virtually all international disputes could become justiciable, since there are hardly any that cannot come down to issues of responsibility. It would therefore suffice that one State took countermeasures, however arbitrary they might be, to push the victim towards arbitration. One of the perversities of the system was that the resort to countermeasures was further encouraged. Arangio-Ruiz also showed a certain ‘angelic idealism’ in this regard. He was always hostile towards this form of ‘private justice’ (which is nevertheless logical in an inorganic system35), stressing that countermeasures are the privilege of the strongest [State]; 36 however, at the same time his draft articles on the subject were, at least in their initial formulation, very libertarian and contained almost no safeguards against abuse.37 The Special Rapporteur in effect blindly trusted the obligatory arbitration mechanism that he sought to establish, and it is only because of a last minute amendment proposed by Mohamed Bennouna38 that a true limitation was established in form of the requirement for preliminary negotiations under draft article 48. Unfortunately, all this was improvisation; and the obligation to negotiate was accompanied, in the same draft article, by the recognition of the lawfulness of provisional or conservatory measures that the draft did not even define or a fortiori regulate. In any case, it was evidently unacceptable to limit the arbitrariness of resort to countermeasures by reference to a dispute settlement mechanism knowing that this mechanism would be completely unacceptable for the great majority of States. Under these conditions it is not surprising that the draft articles concerning countermeasures were among the most controversial during the discussions in the Sixth Committee in 1996 and 1997, as well as in the observations addressed to the Secretariat, along with the (closely linked) provisions for the settlement of disputes and of course also the provisions concerning crimes.39 The obligatory resort to arbitration in the case of dispute related to the use of countermeasures, provided for in draft article 58(2) on first reading, only seemingly offered protection. Apart from the fact that this was very clearly unacceptable to States,40 it did

References (p. 83) not take into account the general context in which countermeasures are taken: the interests of the victim State (the State which has committed the alleged breach) will in many cases have been irrevocably affected when waiting for the judgment or award. Everything indicates that the victim State would prefer to surrender rather than submit itself to a lengthy arbitral procedure with an outcome all the more uncertain, given that the substantive rules in the draft that determine the legality of countermeasures are rather lax. In a more general way, Part Three of the 1996 draft, drawn up in haste, reflected the endearing but unrealistic idealism of the Special Rapporteur. Considering that he was entirely occupied with the articulation of countermeasures and the settlement of disputes, it is curious that he never officially presented general draft articles on the latter.41 However, Part Three in itself could not convince, if From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

only because it aimed at (or in any case resulted in) a profound change to the present system of international law that allows States to settle their disputes by peaceful means of their choice. It may be asked whether 34 independent experts, lacking a specific mandate, would have strayed beyond their role of codification and progressive development of international law in proposing to introduce such fundamental changes to the international legal order. Besides, the mere existence of Part Three of the first reading text, at least as it was planned, was debatable. Dispositions on implementation would of course have been useful; they could above all have dealt with the mechanism of diplomatic protection which undoubtedly belongs to the subject of responsibility. But this was not the case for the settle ment of disputes, which could have been added to any and all ILC texts. This has not been the practice; the ILC has rightly treated these kinds of provisions as a matter for the purely political appreciation of States. These considerations caused the ILC simply to drop Part Three of the 1996 draft when finally adopting the Articles in 2001.

(c) The definitive adoption of the Articles in 2001 Arangio-Ruiz resigned as Special Rapporteur just before the adoption of the first reading draft in 1996. His membership of the ILC not having been renewed, James Crawford was nominated Special Rapporteur for the subject in 1997. Even though he was an Australian professor teaching in Cambridge and (unlike all his predecessors) educated in the common law system, he still endorsed Ago’s approach and the whole of Chapter One of Part One on first reading. This was so even though the draft was replete with Roman law as well as deriving from continental doctrinal discussions in which Anglo Saxon lawyers had not really taken part. The method that the fifth Special Rapporteur on State responsibility adopted to conclude a definitive text was however marked by Anglo Saxon pragmatism. Unlike his predecessors, he did not start from any doctrinal, ideological, or moral presupposition. He had been given the mandate of completing a final, generally acceptable draft by 2001 (the duration of the mandate of the members of the ILC). He successfully went to work, sometimes feeling his way, never hesitant to contradict himself, he made an effort to gain the largest possible support for every controversial provision. He patiently defused criticisms, but unlike Arangio-Ruiz he always listened attentively and accepted them if they did not seem to disturb the general equilibrium of the draft. Even though the influence of ILC Special Rapporteurs on their drafts is always important, Crawford’s influence was clearly crucial. (p. 84) To assist him in his task, the Special Rapporteur found support in several successive working groups. He presented four reports between 1998 and 2001 in light of observations by governments. The first group, constituted in 1997, concentrated on the method that should be used to complete the work on the subject in the following four years.42 The 2001 working group, with an open composition, discussed the most controversial questions of the 1996 draft: the notion of State international crime, countermeasures, settlement of disputes and the form of the definitive text.43 In the same year, the ILC created a working group of 11 members that was charged with reviewing the commentaries to the draft articles that had been prepared by the Special Rapporteur. The Commentaries that were finally adopted are reproduced in the report of the Commission on its 53rd Session.44 They are invaluable to determine the meaning of the provisions that are necessarily concise and often complex but nevertheless integral to the Articles. The 2001 Commentaries are more complete and enlightening than those that were added to the articles of the Parts Two and Three on first reading. On the other hand, the Commentaries on Part One are not equal to those written by Ago between 1973 and 1980, which remain an unrivalled model. The same is true for the articles themselves: ceding to some criticisms by governments and pressed for time, the Commission completed the text with some of the articles ending up slightly short (especially as far as forms of reparation are concerned). It simplified and pruned, sometimes excessively, the articles contained in Part One, reducing the number from 35 to 27. Some deletions were without any consequences, but others are more questionable. This is the case with the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

simplification of the old draft articles 18 and 24–26, which became new articles 13–15 concerning the occurrence and duration of the breach. The new provisions are admittedly simpler and easier to comprehend, but they do not provide such a complete answer to the questions in this area. On the other hand, it should be noted with how much care the ILC revised the draft articles dealing with circumstances precluding wrongfulness (articles 20–27); these commend themselves for their conciseness and clarity.45 Unlike the other articles of Part One, the rest of the draft clearly benefited from the re-examination that the ILC undertook following observations by States and under Crawford’s vigorous impetus. The structure of the draft was reviewed and rationalized. The articles concerning reparation were taken up again and completed in a more rigorous way. Furthermore, the ILC changed its view on the implementation (‘mise en oeuvre’) of State responsibility: instead of focusing on the obligations of the responsible State, it emphasized the invocation of the State’s responsibility by other States. It is one of Crawford’s great achievements that he suggested a new approach which takes as a starting point not the abstract and controversial definition of the injured State,46 but the various situations in which responsibility may be invoked.47 This can be done by the

References (p. 85) injured State or, less frequently, by a State other than the injured State, especially when the obligation that has been breached is owed to the international community as a whole, in particular the grave violation of an obligation arising from a peremptory norm of general international law.48 This slightly cumbersome expression is the discreet equivalent of the word ‘crime’ as it was used in the first reading draft; its penal connotation resulted in resistance from several States49 and criticism from some academic commentators; 50 it was therefore replaced by a definition. This circumvention originates in the third report of the Special Rapporteur where he considers the question ‘whether further consequences can be attached to the category of gross, egregious or systematic breaches of obligations to the international community as a whole’.51 He answered this question in the affirmative, considering that ‘leaving to one side the controversial terminology of crimes, [the consequences drawn from crimes by articles 52 and 53 of the draft adopted at the first reading] are broadly acceptable … ’.52 This was a partial and covert conversion on his part to the concept of crime, the word excepted. At first, the Special Rapporteur had shown strong hostility towards the concept of crime as used in the 1996 draft, on the (mistaken) pretext that it was aiming to establish the criminal responsibility of States. He sought to neutralize it by not excluding the existence of criminal State responsibility from the draft, and at the same time suggesting that it should be the subject of a different codification project.53 This would inevitably have buried the problem.54 On this basis, the drafting Committee adopted in 2000, in a preliminary form, draft articles 41 and 42, that form Chapter III of Part Two on the ‘Content of International Responsibility of a State’ and substituted for the old draft articles 51 and 53 of the 1996 draft.55 However, the distinction between two degrees of unlawfulness was abandoned in the first part of the 2001 articles. This is logical since the responsibility of the State is engaged regardless of the character of the obligation (article 12 of the 2001 articles). The evolution of the Special Rapporteur’s position on this point has saved the notion of crime, albeit not the term itself.56 Nevertheless, the consequences that the Draft Articles on second reading draw from these serious breaches are deceptive, and they are no more explicit than the 1996 articles

References (p. 86) with regard to countermeasures (but see the important saving clause in article 54, a sanitized version of the more definite draft proposed by the Special Rapporteur and adopted by the Drafting Committee in 2000).57 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

The simplest solution to avoid these problems would have been to exclude the regulation of countermeasures entirely; this was advocated by France. But since the Articles intended to cover all consequences of the internationally wrongful act, such an omission would have seriously unbalanced the final text. Moreover, paraphrasing the words of the International Court of Justice on intervention, countermeasures are only a ‘manifestation of a policy of force, such as has, in the past, given rise to most serious abuses’, especially if, in theory, all States can have recourse to it, ‘from the nature of things, it would be reserved for the most powerful States’.58 A refusal to regulate the exercise of countermeasures would have been equivalent to covering up abuse; there is nothing that disadvantages the weak more than the absence of law. The articles that deal with countermeasures (articles 49 to 53) generally deal with the issue in an adequate way, even though they may have given rise to some fierce debates.59

(d) The form of the articles By resolution 56/83 of 12 December 2001, adopted without a vote, the General Assembly took note of the Articles on Responsibility of States for Internationally Wrongful Acts, presented by the ILC, the text of which it annexed to the resolution, and recommended them to the attention of Governments, without prejudice to the question of their future adoption or other appropriate action60 which could be adopted in 2004.61 By doing this it responded to the ILC’s wishes. The ILC had recommended annexing the draft to the resolution (by employing article 23(b) of the ILC Statute, Resolution 174(II) of the General Assembly), and had asked the General Assembly to consider ‘at a later stage, and in the light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries to examine the draft articles … with a view to concluding a convention on the topic’.62 This was a compromise, its first proposal corresponded to the wish of the Special Rapporteur Crawford,63 the second corresponded to article 23(c) or (d) of the Statute of the Commission, and to the position of the majority of ILC members who mistakenly believed that the success of an ILC draft could only be measured by a treaty law yardstick and that there could be no salvation without a treaty. By resolution 59/35, the General Assembly again adjourned its definitive decision on the final form of the Articles to the 62nd Session of the General Assembly in 2007, and then by resolution 62/61, it again adjourned it to the 65th Session in 2010. Generally, the States that commented showed reservations towards the appropriateness of a convention. 64 It should nevertheless be noted that only a very small number of States (mainly Western, with the exception of France) made the effort to respond to the request of the Secretary-General. As the United Kingdom excellently put it:

References (p. 87) It is difficult to see what would be gained by the adoption of a convention. Resolution 56/83 provided the draft articles with a firmer standing than if the draft articles had not been annexed, and resolution 59/35 enhanced this standing. The draft articles are already proving their worth and are entering the fabric of international law through State practice, decisions of courts and tribunals and writings. They are referred to consistently in the work of foreign ministries and other Government departments. The impact of the draft articles on international law will only increase with time, as is demonstrated by the growing number of references to the draft articles in recent years. This achievement should not be put at risk lightly […] Our view remains that any move at this point towards the crystallization of the draft articles in a treaty text would raise a significant risk of undermining the currently held broad consensus on the scope and content of the draft articles… . If few States were to ratify a convention, that instrument would have less legal force than the draft articles as they now stand, and may stifle the development of the law in an area

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traditionally characterized by State practice and case law. In fact, there is a significant risk that a convention with a small number of participants may have a de-codifying effect, may serve to undermine the current status of the draft articles and may be a ‘limping’ convention, with little or no practical effect.65 It is a fact that the influence of ILC texts is not dependent on the conclusion of a convention; this has already been shown by the influence of the Articles on State responsibility. In addition, the ‘Compilation of decisions of international courts, tribunals and other bodies’ which refers to the ILC Articles on State Responsibility and was carried out by the Secretary-General by applying resolution 59/35 of the 2nd December 2004, contains no less than 129 cases in which the Articles (or the draft on first reading) and the commentaries are cited.66 There is therefore hardly any doubt that a convention would pose a strong risk to the ‘fragile balance contained in the articles’, the result of a long maturation period and delicate compromises.67

2 The extension of the Articles on Responsibility—Diplomatic Protection and Responsibility of International Organizations In the same way that the Vienna Convention of 1969 did not mark the end of the ILC’s work on the law of treaties,68 the codification and progressive development of the law on international responsibility did not come to an end with the adoption of the 2001 Articles. Apart from the issue of ‘liability’,69 the work has been extended in the Draft Articles on Diplomatic Protection, adopted on second reading in 2006, and also in the work in progress of the draft on Responsibility of International Organizations, adopted on first reading in 2009.

References

(p. 88) (a) The Draft Articles on Diplomatic Protection (2006) The most traditional way of implementing State responsibility is without doubt diplomatic protection. However, the Articles on State Responsibility are nearly silent on this matter (with the exception of article 44). It seems that Ago had this in mind when writing his first reports; 70 it would have its place in Part Three which he anticipated to be on the implementation of responsibility, rather than the settlement of disputes, which is not specific to the law of State responsibility. Diplomatic protection is actually a form of implementation since it is a mechanism through which a State espouses the cause of one of its nationals injured by an internationally wrongful act committed by another subject of international law. The idea was not on the cards, neither Riphagen or Arangio-Ruiz took it up and it was not until 1997 that the Commission nominated a Special Rapporteur, on the topic, Mohamed Bennouna (Morocco), who was replaced by the South African Professor John Dugard after Bennouna’s election to the ICTY. In his first and only report, Bennouna immediately asked the question: about the legal nature of diplomatic protection, i.e. of the holder of the underlying rights. It has been argued that owing to the development of the rights of the individual, who is increasingly recognized as a subject of international law, the Commission should reconsider classic law in this regard, as was forcefully stated by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case.71 In consequence, he expressed the wish that ‘the Commission could answer the following question: when bringing an international claim, is the State enforcing its own right or the right of its injured national?’,72 while clearly favouring the second solution.73 After inconclusive discussions,74 the ILC formed a working group whose response to this essential question reflected the division of its members, a majority adhering to the traditional fiction: ‘The exercise of diplomatic protection is the right of the State. In the exercise of this right, the State From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

should take into account the rights and interests of its nationals for whom it is exercising diplomatic protection.’75 The uncertainty on this crucial point would influence the whole work of the ILC up to the adoption of the Draft Articles on second reading in 2006. After his nomination as Special Rapporteur, Dugard strongly criticized the reservations of his predecessor regarding the Mavrommatis formula,76 and encouraged the Commission to accept it, which it did in draft article 1; but it was not adopted until 200077 after long discussions and unofficial consultations.78

References (p. 89) This article was confirmed with the adoption of the text at the first reading in 2004.79 It set out that the State acts ‘in its own right’ when it exercises diplomatic protection.80 It was not until the very end, at the second reading of the draft in 2006 that the discussion was reopened because of an error in the French translation of the English original81 (following an Italian proposal that was quite ambiguous).82 This led to the adoption of a formulation that, without renouncing the Mavrommatis fiction directly, leaves at least ‘open the question whether the State exercising diplomatic protection does so in its own right or that of its national—or both’.83 As far as the rest of the Articles are concerned, the text adopted on second reading in 2006 contains some advances, many half-measures, and a number of regrettable deficiencies.84 As far as the advances are concerned, article 8 must be mentioned. It extends the benefit of diplomatic protection to stateless persons and refugees, and envisages the possibility of a joint exercise of diplomatic protection by the States of nationality in cases of double or multiple nationalities (article 6(2)) or even by a State of nationality against another State if the nationality of the protected person is mainly (and continues to be) that of the first State (article 7). Other articles undoubtedly head in the right direction, but because of an absence of any clear theoretical viewpoint, the ILC often stopped short of removing the cobwebs from the venerable institution of diplomatic protection. Thus, even though it is certainly positive that the ILC has softened the rule of continuous nationality, it is regrettable that it has maintained the principle, which cannot be justified on any practical or theoretical ground (article 5). In a general fashion, the rules on diplomatic protection of legal persons (corporations) and shareholders, show an overcautious conservatism. It is regrettable that the ILC did not follow the Special Rapporteur who had proposed in a very well argued report85 that the useful theory of the voluntary link, an essentially Anglo Saxon concept, should be accepted. Instead, the Commission substituted the vaguer notion of ‘pertinent link’ (article 15(c)) as an exception to the requirement of exhausting local remedies. But the deficiencies that most seriously damage the credibility of the Draft Articles are the following. In truth, it does not codify (nor progressively develop) all the law on diplomatic protection, instead, at the instigation of the Special Rapporteur, it restricts itself to stating the rules on the admissibility of claims to diplomatic protection.86 This does not cover the entire subject area: the forms of exercising protection and, more worrying, its effect are nearly entirely left out. The draft does not even mention the fundamental question of the effects of the renunciation of diplomatic protection (cf the Calvo clause), with

References (p. 90) regard to which Dugard had included important developments in his third report.87 It is also deafeningly silent on how direct recourse on the part of private persons can be combined (in the area of human rights or foreign investments) with diplomatic protection. It also remains ambiguous (or at least very concise) with regard to the rights of the private person protected, which is then curiously the subject of the recommendations in article 19 of the second reading draft. The first reading draft was entirely silent on the issue and it was not until his Seventh Report in 2006 that Dugard changed his mind in part and examined the issue of ‘the right of the injured 88

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national to receive compensation’.88 This led in the end to the inclusion of an article 19, entitled ‘Recommended Practice’, according to which a State ‘should take into account, wherever feasible, the views of injured persons’ and ‘transfer to the injured person any compensation obtained for the injury from the responsible State …’ This is slightly better than nothing … By resolution 61/35 of 18 December 2007 the General Assembly took note of the Draft Articles on Diplomatic Protection without excluding the elaboration of a convention on the basis of the draft, just as the ILC had recommended. It is nevertheless illogical—and would be regrettable—if this not very convincing and deficient draft could give rise to a treaty while the Articles on State Responsibility remain in their current form, which is a likely prospect.89

(b) The Draft Articles on Responsibility of International Organizations Following an established pattern,90 the Commission, having completed its opus magnum of rules applicable to States, embarked on examining how these rules can be adapted to international organizations. This was particularly necessary since article 57 of the Articles on State Responsibility states that: These articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization. Consequently, the Commission decided to put responsibility of international organizations on its work programme in 2002, and nominated its Italian member, Professor Giorgio Gaja, as Special Rapporteur. Gaja presented seven reports between 2003 and 2009, which were often dense and always concise. They conformed to the general orientation in the Report of the Working Group that was constituted in 2002 and over which he presided.91 In the reports, he followed the plan of the Articles on State Responsibility, which permitted him to cover all questions in short order; in consequence the Draft Articles on the Responsibility of International Organizations were adopted on first reading in 2009.92 Even though the adaptation of the rules applicable to State responsibility does not cause particular problems, it is impossible to transpose them directly, especially because international organizations are themselves mostly composed of States. The inevitable question is what role these States have with regard to the origin of responsibility (can they or must they

References (p. 91) be held responsible for internationally wrongful acts of an organization of which they are a member?) and its consequences (especially as far as reparation is concerned). Moreover, it was necessary to first define the notion of an international organization. Gaja dealt with this in his first report.93 But the definition he proposed was based on the idea of certain governmental functions,94 and it was discarded in favour of a more classic concept that is probably more operational.95 As for the rest, the draft adopted in 2009 follows the Articles on State Responsibility very closely, but is different on three issues that have caused long discussions at the Commission. Draft article 16 differentiates between situations where member States commit an internationally wrongful act in applying the decision of an organization or following the authorization or recommendation; 96 draft articles 60 and 61, which are included in a new Part 5 on ‘Responsibility of a State in connection with the act of an international organisation’, are related to the responsibility of a State that is a member of an international organization when the organization commits an internationally wrongful act, if the State has given it competence to shield it from an obligation or if it has expressly or implicitly accepted responsibility for the act; 97 and above all draft article 39 deals with measures ‘[e]nsuring the effective performance of the obligation of 98

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reparation’.98 It is on this last issue that the debates were particularly intense during the 59th Session of the ILC. Gaja’s Fifth Report99 did not envisage the possibility that an international organization that has incurred responsibility could find itself incapable of bearing the consequences, especially the financial ones; a question that is far from being purely theoretical. Since the debates made it clear that a majority of the members thought that the issue could not be left aside, an additional article was proposed that obliged member States to provide the organization with the means to discharge itself of any obligations in regard to reparation.100 After some discussion, the draft was adopted in a more ambiguous version since it had been pointed out that this obligation for member States could only exist in accordance with the rules of the organization.101 Furthermore, Valencia Ospina, the Colombian member of the Commission, made a potentially complementary proposal in the Drafting Committee to the effect that [t]he responsible international organization shall take all appropriate measures in accordance with its rules in order to ensure that its members provide the organization with the means for effectively fulfilling its obligations under this chapter.102 The proposal was not adopted because of lack of support.

References (p. 92) While awaiting the completion of the draft on second reading, it is evidently premature to predict its exact fate. It seems reasonable to assume that it will be similar to that of the 2001 Articles on State Responsibility. Further reading The various reports of the Special Rapporteurs and texts of the ILC are listed at pp. lxi–lxiii above. See also the Analytical Guide to the Work of the International Law Commission, available at . 1 State responsibility C Annacker ‘Part Two of the ILC’s Draft Articles on State Responsibility’ (1994) 37 GYBIL 206 HP Aust, ‘Through the Prism of Diversity: the Articles on State Responsibility in the Light of the ILC Fragmentation Report’ (2006) 49 GYBIL 165 F Belaïch, ‘Les réactions des gouvernements au projet de la CDI sur la responsabilité des États’ (1998) 33 AFDI 512 J Breart de Boisanger, ‘Travaux de la Commission du Droit international des Nations Unies’ (1969) 15 AFDI 458 (esp 459–460) J Crawford, The ILC Articles on State Responsibility (Cambridge, CUP, 2002) J Crawford, ‘Revising the Draft Articles on State Responsibility’ (1999) 10 EJIL 435 J Crawford, P Bodeau & J Peel, ‘La seconde lecture du projet d’articles sur la responsabilité des États de la C.D.I.’ (2000) 104 RGDIP 911 (in English: (2000) 94 AJIL 660) J Crawford & S Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’ (2005) 54 ICLQ 959 W Czaplínski, ‘UN Codification of Law of State Responsibility’ (2003) 41 Archiv des Völkerrechts 62 Y Daudet, ‘Travaux de la Commission du Droit international des Nations Unies’ (1970) 16 AFDI 552 (esp 562–564); (1971) 17 AFDI 630 (esp 637); (1972) 18 AFDI 584 (esp 586);

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(1973) 19 AFDI 679 (esp 683–687); (1974) 20 AFDI 553 (esp 573–576); (1975) 21 AFDI 598 (esp 600–607); (1976) 22 AFDI 387 (esp 392–401); (1977) 23 AFDI 610 (esp 611–614); (1978) 24 AFDI 569 (esp 576–581); (1979) 25 AFDI 555 (esp 559–561); (1980) 26 AFDI 466 (esp 469–473); (1981) 27 AFDI 456 (esp 460–461); (1982) 28 AFDI 701 (esp 705–706); (1983) 29 AFDI 499 (esp 499–500) Y Daudet, ‘Travaux de la Commission du Droit international des Nations Unies’ (1994) 40 AFDI 575 (esp 590–593); (1995) 41 AFDI 561 (esp 570–576); (1996) 42 AFDI 589 (esp 598–605); (1997) 43 AFDI 529 (esp 539–541); (1998) 44 AFDI 494 (esp 504–507); (1999) 45 AFDI 685 (esp 686–689) J Dehaussy, ‘Travaux de la Commission du Droit international des Nations Unies’ (1962) 8 AFDI 624 (esp 627–628) J Dehaussy, ‘Travaux de la Commission du Droit international des Nations Unies’, (1984) 30 AFDI 607 (esp 612–613); (1985) 31 AFDI 592 (esp 592–609); (1986) 32 AFDI 558 (esp 563–565); (1987) 33 AFDI 434 (esp 445–446); (1988) 34 AFDI 523 (esp 523–525); (1989) 35 AFDI 636 (esp 644–645); (1990) 36 AFDI 587 (esp 598–601); (1991) 37 AFDI 668 (esp 686–687); (1992) 38 AFDI 737 (esp 747–754); (1993) 39 AFDI 726 (esp 737–744) C Economides, ‘Le projet définitif de la C.D.I. sur la responsabilité des États pour faits internationalement illicites’ (2001) 54 RHDI 373 G Hafner, ‘The Draft Articles on the Responsibility of States for Internationally Wrongful Acts —The Work of the ILC’ (2000) 5 ARIEL 189 (comparison of different stages of the draft) K Kawasaki, ‘Draft Articles on State Responsibility Adopted by the ILC in 2001: A Brief Overview’ (2002) 30 Hitotsubashi J. of L. and Politics 35 (p. 93) A Nissel, ‘The ILC Articles on State Responsibility: Between Self-help and Solidarity’ (2005–2006) 38 NYU J of Int’l L and Politics 355 A Pellet, ‘Les articles de la C.D.I. sur la responsabilité de l’État pour fait internationalement illicite; suite—et fin?’ (2002) 50 AFDI 1 A Pellet, ‘Les rapports de Roberto Ago à la C.D.I. sur la responsabilité des États’ (2002) 4 Forum du droit international 222 A Pellet, ‘La codification du droit de la responsabilité internationale: Tâtonnements et affrontements’, in L Boisson de Chazournes & V Gowlland-Debbas (eds), L’ordre juridique international, un système en quête d’équité et d’universalité, Liber Amicorum Georges AbiSaab (The Hague: Kluwer, 2001), 285 A Pellet, ‘Remarques sur une révolution inachevée—Le projet de la C.D.I. sur la responsabilité des États’ (1996) 42 AFDI 7 P Reuter, ‘Trois observations sur la codification de la responsabilité internationale des États pour fait illicite’ in Le droit international au service de la paix, de la justice et du développement—Mélanges Michel Virally (Paris: Pedone, 1991), 389, reproduced in P Reuter, Le développement de l’ordre juridique international—Écrits de droit

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international (Paris, Economica, 1995), 573 S Rosenne (ed), The ILC’s Draft Articles on State Responsibility—Part 1, Articles 1–35 (Dordrecht, Nijhoff, 1991) (p. 94) C Santulli, ‘Travaux de la Commission du Droit international des Nations Unies’ (2000) 46 AFDI 403 (esp 404–411); (2001) 47 AFDI 349 (esp 349–358) M Spinedi & B Simma (eds), UN Codification of State Responsibility (New York, Oceana Publications, 1987) M Spinedi, A Gianelli, & ML Alaimo (eds), La codificazione della responsibilità internazionale degli stati alla prova dei fatti (Milan, Giuffrè, 2006) Symposium (D Bodansky et al): ‘The ILC’s State Responsibility Articles; Introduction and Overview’ (2002) 96 AJIL 773 Symposium (P-M Dupuy et al): ‘Assessing the Work of the ILC on State Responsibility’ (2002) 13 EJIL 1053 C Tams, ‘All’s Well That Ends Well: Comments on the ILC’s Articles on State Responsibility’ (2002) 62 ZaöRV 759 S Wittich, ‘The ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading’ (2002) 15 Leiden JIL 891 C Yamada, ‘Revisiting the ILC’s Draft Articles on State Responsibility’, in M Ragazzi (ed), International Responsibility today: Essays in Memory of Oscar Schachter (Leiden: Brill, 2005), 117 2 Diplomatic protection C Amerasinghe, Diplomatic Protection (Oxford, OUP, 2008) J Crawford, ‘The ILC’s Articles on Diplomatic Protection’ (2006) 31 South African Yearbook of International Law 19 E Crespo Navarro, ‘El Proyecto de artículos de la Comisión de Derecho Internacional sobre la protección diplomática: la protección de las personas físicas’ (2006) 57 Revista española de derecho internacional 221 Y Daudet, ‘Travaux de la Commission du droit international des Nations Unies’ (1997) 43 AFDI 529 (especially 541–542); (1998) 44 AFDI 494 (especially 500–501) J Kateka, ‘John Dugard’s Contrbution to the Topic of Diplomatic Protection’ (2007) 20 LJIL 941 A Pellet, ‘Le projet d’articles de la C.D.I. sur la protection diplomatique: une codification pour (presque) rien’, in MG Kohen (ed), La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international—Liber Amicorum Lucius Caflisch (Leiden, Brill, 2007), 1133 A Pellet, ‘La seconde mort d’Euripide Mavrommatis? Notes sur le projet de la C.D.I. sur la protection diplomatique’, Droit du pouvoir, pouvoir du droit—Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 1357 R Rivier, and P Lagrange, ‘Travaux de la Commission du droit international des Nations Unies’ (2005) 51 AFDI 340 (esp 357–358) C Santulli, ‘Travaux de la Commission du droit international des Nations Unies’ (2000) 46 AFDI 403 (esp 424–427); (2001) 47 AFDI 349 (esp 369–378); (2002) 48 AFDI 553 (esp 561–564); (2003) 49 AFDI 431 (esp 442–446); (2004) 50 AFDI 564 (esp 568–572) 3 Responsibility of international organizations FV García Amador, ‘La responsabilité internationale de l’État, la responsabilité internationale des organisations’ (1956) Rev dt intl sc dipls 146 M Mendelson, ‘The Definition of ‘International Organization’ in the International Law Commission’s Current Project on the Responsibility of International Organizations’, in M

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Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden, Brill, 2005), 371 C Santulli, ‘Travaux de la Commission du droit international’ (2002) 48 AFDI 553 (esp 565); (2003) 49 AFDI 431 (esp 447–450); (2004) 50 AFDI 564 (esp 574–575) R Rivier and P Lagrange, ‘Travaux de la Commission du droit international’ (2005) 51 AFDI 340 (esp 358–364)

Footnotes: 1 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 26–143; see also J Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge, CUP, 2002). 2 ILC Yearbook 1969, Vol II, 229 (para 67). 3 See FV García-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 221; FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104. 4 ILC Yearbook 1963, Vol II, 227 (Report by R Ago, Chairman of the Sub-Committee on State Responsibility, A/CN.4/152). 5 ILC Yearbook 1967, Vol II, 325. 6 ILC Yearbook 1969, Vol II, 125, esp 133–141. 7 HLA Hart, The Concept of Law (Oxford, Clarendon Press, 1961), 77; cf 2nd edn, 1994, 79. 8 Emphasis added, ILC Yearbook 1969, Vol II, 139 (para 90). 9 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 415. 10 Ibid, 420. 11 Cf A Pellet, ‘Remarques sur une révolution inachevée. Le projet de la CDI sur la responsabilité des États’ (1996) 42 AFDI 7, 11–13. 12 J Combacau & S Sur, Droit international public (Paris, Montchrestien, 2004), 519; G Cottereau, ‘Systèmes juridiques et notion de responsabilité’ in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 21; or E Decaux, ‘Responsabilité et réparation’, ibid, 147. For a much more nuanced view see P Reuter, ‘Le dommage comme condition de la responsabilité internationale’, in Estudios de Derecho Internacional—Homenaje al Profesor Miaja de la Muela (Madrid, Tecnos, 1979), reproduced in P Reuter, Le développement de l’ordre juridique international—Écrits de droit international (Paris, Économica, 1995), 561–571, esp 569–571. 13 See ‘Comments and observations received from Governments’, A/CN.4/488, Add.1, Add.2 and Add.3; A/CN.4/492. 14 ‘Comments and observations received from Governments’, A/CN.4/488, esp 22 and 31–32. 15 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 28–29 (paras 112–117). 16 Cf J Combacau, ‘Le droit international, bric à brac ou système?’ (1986) 31 Archives de philosophie du droit 85. 17 See art 48 of ARSIWA. 18 In the words of art 19(2) of the 1996 draft: ‘An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime.’ Draft art 19(4) stated: ‘Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict.’ 19 ILC Yearbook 1963, Vol II, 227.

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20 R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125. 21 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199. 22 R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125. 23 Draft Code of Crimes Against the Peace and Security of Mankind, ILC Yearbook 1996, Vol II(2), 15. 24 See Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 146–170. 25 See Report of the ILC, 58th Session, 2006, A/61/10, 106–182). See Chapter 10. 26 ILC Yearbook 1975, Vol II, 56 (para 41). 27 See A Pellet, ‘Les Rapports de Roberto Ago à la CDI sur la responsabilité des États’ (2002) 4 Forum du droit international 222. 28 Cf draft arts 20–28 as adopted on first reading—esp arts 20 and 21—reflect Ago’s special concept of the distinction between obligations of result on the one hand and obligations of conduct on the other. 29 Cf ILC Yearbook 1979, Vol I, 3 (1531st meeting (15 May 1979)); and ILC Yearbook 1980, Vol I, 153 (paras 34–35) (1612th meeting (16 June 1980)). 30 ILC Yearbook 1986, Vol II(2), 38. 31 See the approval that he gave at the SFDI colloquium of Le Mans in 1990 to the inorganic approach of responsibility, put forward by several participants: La responsabilité dans le système international (Paris, Pedone, 1991), 317. 32 See G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 5, 7–8 (para 8). 33 Ibid, 8 (paras 10–18). 34 G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1), 1, 30ff. 35 D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 503. 36 See in particular G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, 7 (para 4). 37 See eg draft art 12: G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 22. 38 See the discussions in the 2454th, 2455th and 2456th meetings (5, 9 and 10 July 1996), ILC Yearbook 1996, Vol I, 151ff. 39 See ‘Comments and observations received from Governments’, A/CN.4/488, 123, especially the comments of Ireland (129), the United Kingdom (132), Czech Republic (134), and the United States (128). 40 See ‘Comments and observations received from Governments’, A/CN.4/488, 142–146 and A/CN.4/488/Add.1, 9. 41 See G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1), 1, 7, 28. 42 Report of the ILC, 49th Session, ILC Yearbook 1997, Vol II(2), 58 (paras 158–161). 43 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 21 (paras 43–44). 44 Ibid, 26–143; see also J Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge, CUP, 2002). 45 For a more detailed comparison of the two drafts, see A Pellet, ‘Les Articles de la CDI sur la responsabilité de l’État pour fait internationalement illicite; Suite—et fin?’ (2002) 50 AFDI 1. 46 Especially in the case of crime; according to this theory article 40(3) of the draft of the first reading states that ‘ “injured state” means … any other State’, which is hardly satisfying, as

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Arangio-Ruiz pointed out: G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 27. 47 See especially J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 97– 118; and 373–375 and J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, paras 27–42. 48 Cf art 48 ‘Invocation of responsibility by a State other than an injured State’. 49 See ‘Comments and observations received from Governments’ A/CN.4/488 and Add.1 to 3, and Crawford’s summary in his First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 11– 14 (paras 52–54). 50 See especially R Rosenstock, ‘An international Criminal Responsibility of States?’, in A Pellet (ed), Le droit international à l’aube du XXIème siècle—Réflexions de codificateurs /International Law on the Eve of the Twenty-First Century (New York, United Nations, 1997), 276–284; or J Barboza, ‘State Crimes: A Decaffeinated Coffee’, in L Boisson de Chazournes and V GowllandDebbas (eds), L’ordre juridique international, un système en quête d’équité et d’universalité— Liber Amicorum Georges Abi-Saab (The Hague, Nijhoff, 2001), 358–359. 51 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 407. 52 Ibid, para 410. 53 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 23 (para 94). 54 See the lively debates at the Commission on this point ILC Yearbook 1998, Vol I, 87–158 (2532nd to 2540th meetings (19 May–3 June 1998)), and the summary in the Report of the ILC, 50th Session, ILC Yearbook 1998, Vol II(2), 70ff (paras 283–331). 55 ILC Yearbook 2000, Vol II(2), 69; the articles of the preliminary draft became, in a slightly modified form, arts 40 and 41 of the definitive draft. 56 See A Pellet, ‘Le nouveau projet de la CDI sur la responsabilité de l’État pour fait internationalement illicite: Requiem pour le crime?’, in LC Vohrah et al (eds) Man’s Inhumanity to Man—Festschrift Antonio Cassese (The Hague, Kluwer, 2002), 654–681, or in English (2001) 32 NYBIL 55. 57 ILC Yearbook 2000, Vol II(2), 70. 58 Corfu Channel, Merits, ICJ Reports 1949, p 4, 35. 59 ILC Yearbook 2000, Vol I, 257–341 (2645th to 2654th meetings (25 July to 10 August 2000). 60 GA Res. 56/83, 12 December 2001, (para 3). 61 Ibid (para 4). 62 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 25 (paras 72–73). 63 Cf J Crawford, International Law Commission’s Articles on State Responsibility (Cambridge, CUP, 2002), 58–59. 64 ‘Comments and information received from governments’, A/62/63 (9 March 2007) and Add.1 (12 June 2007). 65 A/62/63, 6 (paras 6–8), see also the comments of Norway on behalf of the Nordic countries at 3 (para 4) and the United States Add.1, 2 (para 4). 66 See A/62/62 and Add.1; see also the decisions of tribunals and national courts communicated to the Secretary General A/62/63 and Add.1. 67 Comment by Norway (on behalf of the Nordic Countries), A/62/63, 4 (para 4). 68 See especially the Vienna Convention on Succession of States in respect of Treaties, 23 August 1978, 1946 UNTS 3, and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543, the 1978 Draft articles on Most-Favoured-Nation Clauses and the work in progress on the reservations From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

to treaties and the effect of armed conflicts on treaties. 69 See Chapters 10, 34, 35. 70 Report of the ILC, 27th Session, ILC Yearbook 1975, Vol II, 56 (para 44). 71 M Bennouna, Preliminary Report on Diplomatic Protection, ILC Yearbook 1998, Vol II(1), 309 (para 2). 72 Ibid (para 54). 73 See also the First and Third Reports by García Amador, ILC Yearbook 1956, Vol II, 127 (para 123), 214 (para 217); ILC Yearbook 1958, Vol II, 65 (para 18). 74 ILC Yearbook 1998, Vol I, 4–32 (2520th to 2523rd meetings, 28 April to 1st May 1998). 75 Report of the ILC, 50th Session, ILC Yearbook 1998, Vol II(2), 49 (para 108 c). 76 J Dugard, First Report on Diplomatic Protection, 2000, A/CN.4/506, para 17. 77 Report of the ILC, 54th Session, 2002, A/57/10, 169. 78 See Report of the ILC, 52nd Session ILC, ILC Yearbook 2000, Vol II(2), 85; see also the debates at the Commission, ILC Yearbook 2000, Vol I, 38–78 (2617th to 2620th meetings) and, 100–102 (paras 1–21) (2624th Session, 19 May 2000). 79 Report of the ILC, 56th Session, 2004, A/59/10, 17–93 (paras 59–60). 80 Articles on Diplomatic Protection, art 1. 81 J Dugard, Seventh Report on Diplomatic Protection, 2006, A/CN.4/567, para 21. 82 ‘Comments and observations received from Governments’, A/CN.4/561/Add.2, 2; see also A/CN. 4/SR.2868 to 2871 (2–5 May 2006) and the report of the drafting Committee, A/CN.4/SR.2881 (30 May 2006). 83 Articles on Diplomatic Protection (2006), Commentary to Article 1, para 5; Report of the ILC, 58th Session, 2006, A/61/10, 26; see Chapter 73. 84 Report of the ILC, 58th Session, 2006, A/61/10, 16–103 (paras 49–50). 85 J Dugard, Third Report on Diplomatic Protection, 2002, A/CN.4/523, paras 65–89. 86 See J Dugard, First Report on Diplomatic Protection, 2000, A/CN.4/506, para 35 and J Dugard, Third Report on Diplomatic Protection, 2002, A/CN.4/523, para 15; see also Report of the ILC, 57th Session, 2005, A/60/10, 115–116 (paras 239–240). 87 J Dugard, Third Report on Diplomatic Protection, 2002, A/CN.4/523. 88 J Dugard, Seventh Report on Diplomatic Protection A/CN.4/567, 37 (paras 93–103). 89 Report of the ILC, 58th Session, 2006, A/61/10, 15 (para 46). 90 Cf the precedents concerning the law of treaties and immunities. 91 Report of the ILC, 54th Session, 2002, A/57/10, 228 (paras 465–488). 92 For the draft Articles on Responsibility of International Organizations and accompanying draft Commentaries, see Report of the ILC, 61st Session, 2009, A/64/10, 13–178. 93 G Gaja, First Report on Responsibility of International Organizations, 2003, A/CN.4/532, 7 (paras 12–34). 94 Ibid, 18 (para 34). 95 Draft Articles on Responsibility of International Organizations, art 2(a); see also the definitions of the terms ‘agent’ and ‘rules of the organization’ in art 2(b) and (c). 96 For the debates on this question see A/CN.4/SR.2839-2844 (17–25 May 2005). 97 For the debates see A/CN.4/SR.2891-2895 (11–18 July 2006) and A/CN.4/SR.2902 (28 July 2006).

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98 Report of the ILC, 59th Session, 2007, A/62/10, 197; and see A/CN.4/SR.2935 (12 July 2007) and A/CN.4/SR.2938 (18 July 2007). 99 G Gaja, Fifth Report on Responsibility of International Organizations, 2007, A/CN.4/583. 100 See A/CN.4/SR.2935(e), (12 July 2007), 21 (A Pellet). 101 For the debates, see A/CN.4/SR.2938 (18 July 2007); for the relevant provision as adopted on first reading, see Draft Articles on Responsibility of International Organizations, draft art 39; for the draft Commentary, see Report of the ILC, 61st Session, 2009, A/64/10, 123–125. 102 See Commentary to draft art 39, para 4, ibid, 124.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.10 Liability for Injurious Consequences of Acts Not Prohibited by International Law Alan Boyle From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Responsibility of international organizations — Damages — Exhaustion of local remedies — UNCLOS (UN Convention on the Law of the Sea) — United Nations (UN)

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(p. 95) Chapter 10 Liability for Injurious Consequences of Acts Not Prohibited by International Law 1 The development of the topic 95 2 A rationale for liability principles? 98 3 The ILC’s 2006 Liability Principles 99 4 The core principle: prompt, adequate, and effective compensation? 101 5 Conclusions 104 Further reading 104

1 The development of the topic The ILC’s involvement with this improbably-titled topic arose out of its deliberations on the law of State responsibility and requires some explanation in order to understand its subsequent tortured history. The word ‘tortured’ is used advisedly, this being one of the most laboured and confusing studies the ILC has ever undertaken. Having defined the law of State responsibility as applying only to the breach by a State of its international obligations, it was then thought necessary to cater separately for harm caused without breach of obligation.1 The ILC preferred to use the term ‘liability’, rather than ‘responsibility’, to cover such cases because it believed that liability arose as a primary obligation, unlike responsibility, which concerned only the secondary obligations consequential on the breach of a primary obligation. In principle there was nothing wrong with this distinction, but the ILC went on to assume that there could be responsibility for harmful activities only if these were prohibited, whereas liability would arise only in respect of non-prohibited or ‘lawful’ activities. Much of the early work on the topic deals with conceptual issues of this kind and, in the view of many commentators, was based on a fundamentally confused view that no other body trying to develop the law in this field seemed to share.2 In effect, the ILC appeared (p. 96) to believe that no primary obligations of protection from transboundary harm existed: it seemed unable to grasp that international law might, as in Part XII of the 1982 UN Convention on the Law of the Sea, impose obligations of regulation, diligent control, and prevention of harm even on lawful activities without either prohibiting the activity or excluding the possibility of responsibility for breach. Even in 1978 the ILC’s view of the law seemed extraordinary. Although environmental harm was regarded from the outset as providing one example of this form of liability, the ILC initially saw the topic in broader terms.3 It was suggested at first that economic damage, arising for example on the devaluation of another State’s currency, fell within the topic. Liability was also thought to arise when harm was caused in breach of obligation but the wrongdoing State had a defence, such as necessity, which precluded responsibility. Once the difficulty of including all these categories in a single topic was appreciated, the ILC quickly decided to concentrate on the one area for which some precedents seemed to exist: transboundary harm to persons or property in or to the environment of another State.4 Even then there continued to be differences of opinion on whether the topic should cover only liability or also deal with prevention of harm and risk avoidance. It remained unclear whether activities which caused transboundary harm were or were not prohibited in international law. Nor was it clear that the cases and precedents on which the Special Rapporteurs sought to rely really did support a concept of liability for acts not prohibited by international law rather than responsibility for breach of obligation. Not surprisingly, the ILC remained uncertain about the title, content and scope of the topic. Although the first two Special Rapporteurs delivered 17 reports up to 1995, and a set of 33 draft articles was proposed in 1990 (18 of which were provisionally adopted in 1994 and 1995), the inherent problems remained unresolved and the Sixth Committee of the General Assembly continued to

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have great difficulty with the topic. In 1996, the ILC appointed another working group to reconsider the topic. This group quickly produced 22 proposed articles in what might be described as a desperate act of synthesis.5 There were three elements in this draft: prevention, co-operation, and strict liability for damage. The articles on liability for damage were conceived as an integral element of the overall scheme for accommodating the conflicting interests of neighbouring States on an equitable basis, but they were avowedly more in the character of progressive development than codification, and proved too controversial. Although the ILC found the 1996 articles to be ‘a substantial advance’ on previous work, it was nonetheless decided to divide the topic into two parts and deal separately with prevention of harm and liability for harm. A new Special Rapporteur was appointed to deal with the first of these sub-topics; further work on liability would follow later. It took only one report from the new Special Rapporteur to enable the ILC to adopt draft articles at its 1998 session in New York and refer

References (p. 97) them to governments for comment.6 The Amended Articles on the Prevention of Transboundary Harm from Hazardous Activities were finally adopted by the ILC in 2001, and recommended to the UN General Assembly.7 The Draft Articles adopted in 2001 thus brought to an end the first phase of the project which had begun in 1978. They codify only the legal framework for regulation and management of activities which pose a risk of transboundary harm. There is little in them of relevance to liability, except for a non-discrimination principle which governs transboundary access to ‘judicial or other procedures’ for preventive remedies and redress (draft article 15) and a savings clause for obligations under other treaties or customary international law (draft article 18). Certain governments and some members of the ILC believed, and continue to believe, that liability has been adequately dealt with in the ILC’s Articles on State Responsibility.8 Nevertheless, in 2001, largely at the behest of developing States, the General Assembly requested the ILC to resume work on liability, ‘bearing in mind the interrelationship between prevention and liability, and taking into account the developments in international law and comments by Governments’.9 Faced with an express request from the General Assembly, however unwelcome, the ILC had little choice but to agree to reinstate the topic on its agenda in 2002. The ILC proceeded quickly and in 2004 a set of draft Principles was adopted and sent to States for consultation; 10 these were finally adopted in 2006 in the form of ‘Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities’.11 The essential elements of the ILC scheme can be summarized as: (i) prompt, adequate and effective compensation for victims of transboundary damage, broadly defined; (ii) no-fault liability of the operator or ‘where appropriate’ some other person or entity, supported where necessary by additional compensation funding; and (iii) response measures to mitigate or eliminate transboundary damage.12 If they prove acceptable, the ILC’s Principles may establish for the first time a genuinely global regime of liability for transboundary damage. Although not confined to environmental claims, these are likely to constitute the most significant category covered by the draft Principles.

References

(p. 98) 2 A rationale for liability principles? From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Why should the ILC address the question of liability for transboundary damage and why is its concluded work on State responsibility not sufficient for this purpose? There are at least two answers. First, it is far from clear that States are fully responsible in international law for damage to neighbouring States. Transboundary damage resulting from the activities of industry or business will not in normal circumstances be attributable to the State in international law. State responsibility will usually be based on breach of an obligation of due diligence in the regulation and control of potentially harmful activities. This will not cover damage resulting from events that are either unforeseeable or unavoidable.13 Accidents may happen however diligent the State has been. In these circumstances the State is not at fault and the loss will lie where it falls. Secondly, even where a State is potentially responsible in international law for transboundary damage, it is also far from clear that States should constitute the only or even the principal recourse for those injured by transboundary damage. It may be simpler, quicker, and economically more efficient to make polluters or those who cause harm pay rather than States. From this perspective, State responsibility and the liability of States are and should be no more than residual sources of redress. Any scheme of liability for transboundary damage should thus address the liability of private parties as well as States. The ILC’s 1996 Draft Articles would have made States liable for significant transboundary harm caused by an activity covered by the Articles.14 The obligation to compensate other States would thus have included harm which the source State could not prevent by exercising due diligence.15 The level of compensation would in such cases be determined by negotiation, having regard to various factors. In effect what was required, as part of a balance of interests between the parties, was equitable rather than full compensation. However meritorious the idea may have been in theory, few governments, in whatever context, have shown any enthusiasm for accepting that no-fault liability for damage caused by activities within their jurisdiction should fall on States themselves. The ILC has not returned to this model of loss allocation. Thus, for essentially pragmatic rather than principled reasons, the question of liability of States (in whatever form) for transboundary harm not resulting from a breach of obligation has, for the moment, been laid to rest. The ILC has chosen instead to concentrate on alternative approaches, with the intention that States should make provision for other actors involved in the operation of hazardous activities to compensate transboundary damage through national law. States would, however, remain responsible for their own fault in international law: the State’s duty would not be to provide reparation but to ensure that polluters and others who cause damage do so.

References

(p. 99) 3 The ILC’s 2006 Liability Principles Certain political realities have thus limited the ILC’s room for creativity. Making States liable for all transboundary damage, or going beyond the existing limits of State responsibility as already codified, do not appear likely to become acceptable to many governments for the reasons already outlined above. Drafting a complex harmonization convention along the lines of the 1993 Lugano Convention seems unlikely to attract greater support at a global level than it has attracted in Europe. The Liability Principles sent to governments for comment in 2004 and finally adopted with some revisions in 2006 are far from radical, and in that respect they fully reflect the ILC’s traditional conservatism and caution. Principle 3 sets out the objectives: The purposes of the present draft principles are: (a) to ensure prompt and adequate compensation to victims of transboundary damage; and (b) to preserve and protect the environment in the event of transboundary damage,

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especially with respect to mitigation of damage to the environment and its restoration or reinstatement. There are two related objectives identified here: compensation for transboundary damage, and cleaning up or restoring the environment. The most significant change to the ILC’s 2004 draft is that Principles 5 and 6(1) of the 2006 text quite rightly formulate both objectives in obligatory terms.16 Three preliminary points are important when considering the ILC’s treatment of compensation for transboundary damage. First, although States themselves are not made directly liable, the commentary says that the Principles are ‘without prejudice to the rules relating to state responsibility and any claim that may lie under those rules.’17 It seems clear that the ILC envisages civil liability and State responsibility as potentially complementary regimes. The preference of States and the ILC for non-discriminatory access to national remedies, civil liability, and compensation schemes as a means of dealing with transboundary environmental nuisances is already well established.18 The view that local remedies should be exhausted when adequate and available would leave inter-State claims as a residual option to be exercised only when other remedies have been exhausted or do not exist. However, it has been suggested that the local remedies rule is inapplicable to cases of transboundary environmental harm. The underlying idea is that the injured party must have assumed the risk of being subject to the jurisdiction of a foreign State: … even where effective local remedies exist, it would be unreasonable and unfair to require an injured person to exhaust local remedies where his property has suffered environmental harm caused by pollution, radioactive fallout or a fallen space object emanating from a State in which his property is not situated …19 The ILC Draft Articles on Diplomatic Protection thus exclude the local remedies rule where there is no ‘relevant connection’ between the injured party and the State

References (p. 100) responsible.20 On this view, governments would remain free to make an inter-State claim on behalf of anyone affected by transboundary damage without first exhausting local remedies. Particularly in cases where the damage is widespread, and the victims are numerous and poor, governmental action at inter-State level may well be the only realistic option and should not be excluded. The procedures of the United Nations Compensation Commission (UNCC) for bringing compensation claims against Iraq are the most recent example of governments espousing claims on behalf of a mass of individual victims.21 Whether such claimants should be left to their local remedies would in that type of case be a matter for their own government to decide. But in more typical cases of transboundary nuisances it is not obvious why the absence of a relevant connection with the respondent State should exclude the local remedies rule even where the injured victims would suffer no hardship in pursuing local remedies and it would be feasible to do so. This will especially be true where the victim has the choice of suing in the place where the injury has occurred or would occur, rather than in the respondent state. For reasons elaborated at some length by the present author,22 States have clearly found it desirable to encourage resort to local remedies as a means of deescalating such transboundary disputes, and the logic of this policy is implicit in Principles 10 and 16 of the Rio Declaration. The ILC accepts that the authority in support of its relevant connection requirement is limited and contradictory, and its conclusion is tentative.23 In Trail Smelter there were no local remedies that could be exhausted in Canada because of the extra-territorial location of the damage and the narrowly territorial jurisdiction of Canadian courts: inter-State arbitration was the only possibility.24 Given this admittedly shaky foundation and the absence of any compelling justification, the ILC’s blanket dismissal of the rule in transboundary pollution cases appears questionable.

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Secondly, and unusually for the ILC, the final text is partly in soft law form, employing the term ‘should’ rather than ‘shall’25. The commentary explains that: the ILC concluded that recommended draft principles would have the advantage of not requiring a potentially unachievable harmonisation of national laws and legal systems. It is also of the view that the goal of widespread acceptance of the substantive provisions is more likely to be met if they are cast as recommended draft principles.26 In its 2004 form the ILC draft would have been a wholly soft law text. States were thus given guidance on what a liability regime ‘should’ look like, but they had no obligation to make any form of redress available to injured claimants and thus no responsibility for failing to do. Due no doubt to comments from States and academic criticism the 2006 text now acknowledges that the core elements of compensation and restoration are obligatory. This (p. 101) is certainly wise: as we note below, the ILC’s own reports suggested that there were enough precedents on which to build something more than a soft law compensation principle. Thirdly, the principles remain applicable only to physical damage caused by ‘activities which involve a risk of causing significant transboundary harm …’27 This is the same test used in the ILC’s 2001 Articles on Prevention of Transboundary Harm. The most important consequence is that, like the House of Lords’ decision on strict liability in the Cambridge Water case,28 there will be no liability where damage could not have been foreseen.29 To that extent some damage will still go uncompensated, and the innocent victims must continue to bear such losses. The focus on ‘victims’ of transboundary damage reflects the wording of Principle 13 of the 1992 Rio Declaration on Environment and Development: it raises the obvious question of who is entitled to compensation.30

4 The core principle: prompt, adequate, and effective compensation? Principle 6(1) sets out the core obligation of ensuring prompt, adequate, and effective compensation: States shall provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensure that these bodies have prompt, adequate and effective remedies available in the event of transboundary damage caused by hazardous activities located within their territory or otherwise under their jurisdiction or control. Here we can see immediately that the ILC envisages more than simply opening up national procedures to non-discriminatory access. At the heart of its scheme is an international standard for compensation—a standard of promptness and adequacy which affects not only the compensation itself but also the procedures and remedies through which it is to be obtained. Underlying this formulation is the understanding that non-discriminatory access to national remedies may not be enough to satisfy an international standard of access to justice.31 The ILC refers to the Trail Smelter arbitration as authority, noting that ‘the basic principle established in that case entailed a duty of a State to ensure payment of prompt and adequate compensation for any transboundary damage’.32 Moreover, in requiring ‘effective redress’, ‘adequate and effective remedies’, or ‘prompt and adequate compensation or other relief ’, Principle 10 of the 1992 Rio Declaration, article 9(4) of the 1998 Aarhus Convention, and article 235(2) of the 1982 Law of the Sea Convention all suggest that there are international standards of compensation and remedy for victims of environmental damage. The failure of a State to provide adequate redress to its own citizens for pollution or other forms of damage may in sufficiently serious cases also violate the rights to life, health, private life, property, and freedom to dispose of natural resources under

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References (p. 102) international human rights agreements.33 An alternative foundation would draw from precedents on the taking of property in international law, making an obvious analogy with damage by pollution.34 These precedents all show that Principle 6(1) builds on existing law. This element of the ILC scheme represents its most significant contribution to the progressive development of the subject. The rest of the scheme then goes on to set out a model for transboundary liability drawn from existing civil liability conventions. These elements are essentially optional and open to implementation in a variety of ways. Three important points about allocation of loss stand out when comparing the ILC Principles to existing civil liability and compensation schemes. First, strict liability is the universally accepted standard,35 albeit with minor variations in the permitted defences. The ILC commentary accepts the argument that hazardous activities carry inherent risks and that it would be unjust and inappropriate to require proof of fault when accidents happen. It notes the adoption of strict liability in treaties and in national law, and on this point refers to its own draft as ‘a measure of progressive development of international law’.36 Second, as the examples of the Bunker Fuel Convention and the Protocol on Liability for Transboundary Waste show, channelling liability to a single owner or operator is not always a realistic option, and the choice of ‘owner/operator liability’ without more would represent in some cases too simplistic a solution without a broader definition of these terms.37 Significantly, while the ILC scheme chooses to focus liability on operators, it also allows for alternatives. The ‘operator’ of the harmful activity should be primarily liable, not the State, but ‘where appropriate’ liability may be imposed on some other person or entity.38 In practice the ILC’s draft seems to assume that there may be more than one operator and, by implication, that liability may be joint and several. Third, while most liability schemes spread the burden of loss through additional compensation funds,39 each scheme has its own unique funding arrangements. There is no common

References (p. 103) pattern. In some cases, States carry the ultimate burden of residual compensation funding, as well as a residual liability in the event of operator insolvency; in others the costs are borne wholly by industry. This makes them difficult models from which to derive any general scheme of loss allocation that might secure universal agreement beyond the proposition that some such provision should be made. It may also suggest that different contexts require different solutions. Again, the ILC scheme allows for such diversity. In ‘appropriate cases’ additional compensation funding should be provided by industry, or if necessary by States.40 The ILC’s text also replicates the definition of ‘environmental damage’ in the more modern liability treaties, and is consistent with the practice of the UNCC and developments in national law.41 Thus Principle 2(a) expressly includes damage to cultural property, the costs of reasonable measures of re-instatement of the environment, and reasonable response measures. In one respect the ILC Principles are potentially more progressive, however, because Principle 2(a)(iii) envisages liability for environmental damage per se, unrelated to the cost of response or restoration measures.42 While some national laws already allow recovery of compensation for pure environmental damage, no previous liability agreement has gone this far.43 Significantly the UNCC has also found no legal basis for excluding pure environmental damage that has no commercial value.44 To that extent the approach of both bodies is comparable to the IOPC Fund’s practice of allowing reasonable reinstatement measures aimed at accelerating natural recovery of environmental damage.45 The ILC says nothing on the question of valuation of such damage, although it notes that damages awarded do not have a punitive function. It defines ‘victim’ as the person or state that suffers damage, but its Commentary notes that the term can include groups of local authorities, nongovernmental organizations, or public trustees.46 To that extent a limited form of actio popularis

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may in some cases be required.

References

(p. 104) 5 Conclusions While the 2006 ILC Principles on Allocation of Loss as a whole cannot be viewed as an exercise in codifying customary international law, they show how the ILC has made use of general principles of law as ‘an indication of policy and principle’.47 The draft successfully reflects the modern development of civil liability treaties, without in any way compromising or altering those which presently exist, or the right of victims to sue in their own State.48 This is a notable achievement, but it may also be a double-edged attribute. On the one hand it is prudent to build on what States themselves have already negotiated. On the other, the reluctance of States to ratify those same treaties may indicate a less than wholehearted commitment to the idea of shifting the focus away from State responsibility for transboundary harm in favour of civil liability and individual access to justice. Given the unwillingness of States to extend their own liability on a no-fault basis, it is difficult to see what other choice the ILC could have made. The ILC’s Principles are not necessarily an obstacle to an international court holding States liable without fault for transboundary damage in international law. Given that the decision is one of legal policy, an argument based on strict liability as a general principle of law cannot be dismissed. But international courts have been cautious in making use of this source of law, mainly because it constitutes a form of judicial lawmaking independent of the will of States. References to national law in the Trail Smelter case were carefully controlled by the compromis and agreed by the parties.49 Where this is not the case, it seems likely that an international court would hesitate to impose a general principle of strict or absolute liability on States, however widely evidenced in national law, in the face of the contrary evidence of State claims and treaty formulations referred to earlier. For this reason objective responsibility for breach of obligation remains a firmer foundation for a standard of State liability for environmental damage in international law. That also appears to represent the final view of the ILC. Further reading A Bianchi, ‘Harmonisation of Laws on Liability for Environmental Damage in Europe’ (1994) 6 Journal of Environmental Law 21 L Bergkamp, Liability and the Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (The Hague, Kluwer, 2001) E Brans, Liability for Damage to Public Natural Resources (The Hague, Kluwer, 2001) P W Birnie, AE Boyle, & C Redgwell, International Law and the Environment (3rd edn, OUP, 2009), 214–225, 303–326 J Brunnée, ‘Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection’ (2004) 53 ICLQ 351 RR Churchill, ‘Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems and Prospects’ (2001) 12 Yearbook of International Environmental Law 3 L de la Fayette, in M Bowman & AE Boyle (eds), Environmental Damage in International and Comparative Law (Oxford, OUP, 2002), ch 9 C McLachlan & P Nygh, Transboundary Tort Litigation (Oxford, OUP, 1996), ch 12 R Lefeber, Transboundary Environmental Interference and the Origin of State Liability (The Hague, Kluwer, 1996) H Xue, Transboundary Damage in International Law (Cambridge, CUP, 2003), esp ch 2

References

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Footnotes: 1 See ILC Yearbook 1969, Vol II, 229; ILC Yearbook 1971, Vol II(1), 200 (para 5), 203 (para 20). 2 See M Akehurst, ‘International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law’ (1985) 16 Netherlands YBIL 3, 8; AE Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?’ (1990) 39 ICLQ 1; M Fitzmaurice, ‘International Law as a Special Field’ (1994) 25 Netherlands YBIL 181. For more favourable views see G Handl, ‘Liability as an Obligation Established by a Primary Rule of International Law’ (1985) 16 Netherlands YBIL 49; D Magraw, ‘Transboundary Harm: the ILC’s Study of International Liability’ (1986) 80 AJIL 305; R Lefeber, Transboundary Interference and the Origin of State Liability (The Hague, Kluwer, 1996), ch 6. 3 See ILC Yearbook 1980, Vol II(1), 160 (paras 138–139); ILC Yearbook 1981, Vol I, 224 (para 10); and the Special Rapporteur’s first schematic outline in ILC Yearbook 1982, Vol II(1), 62; ILC Yearbook 1983, Vol II(I), 204 (para 10). 4 Draft art 2, reproduced in Report of the ILC, 53rd Session, 2001, A/56/10, 151. See the Special Rapporteur’s 4th and 5th Reports in ILC Yearbook 1983, Vol II(1), 201; ILC Yearbook 1984, Vol. II(1) 155 and the Survey of State Practice Relevant to International Liability for Injurious Consequences (etc.) (1984) UN Doc ST/LEG/15. 5 The report of the working group and their draft articles are in ILC Yearbook 1996, Vol II(1), 100– 132. 6 PS Rao, First Report on Prevention of Transboundary Damage from Hazardous Activities, ILC Yearbook 1998, Vol II(1) 175, PS Rao, Second Report on Prevention of Transboundary Damage from Hazardous Activities, ILC Yearbook 1999, Vol II(1) 111; PS Rao, Third Report on Prevention of Transboundary Damage from Hazardous Activities, ILC Yearbook 2000, Vol II(1). 7 See ILC Yearbook 2001, Vol II(2), 144–170. 8 Report of the ILC, 55th Session, 2003, A/58/10, 114 (para 178). See also Report of the ILC, 54th Session, 2002, A/57/10, 220–227 (paras 430–457). 9 GA Res 56/82, 12 December 2001. 10 See Report of the ILC, 56th Session, 2004, A/59/10, 143–157 (paras 158–176); for preparatory work see Report of the ILC, 54th Session, 2002, A/57/10, 220–227 (paras 430–457); PS Rao, First Report on the Legal Regime for Allocation of Loss in Case of Transboundary Harm arising out of Hazardous Activities, Report of the ILC, 55th Session, 2003, A/CN.4/531; Report of the ILC, 55th Session, 2003, A/58/10, 103–130 (paras 154–231); PS Rao, Second Report on the Legal Regime for the Allocation of Loss in Case of Transboundary Harm arising out of Hazardous Activities, 2004, A/CN.4/540. 11 Report of the ILC, 58th Session, 2006, A/61/10, 101–182 (paras 51–67). 12 See Principles 4 and 5. 13 See eg Corfu Channel Case (United Kingdom v Albania), Merits, Judgment, ICJ Reports 1949, p 1; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 139. 14 1996 ILC draft art 5, on which see ILC Yearbook 1996, Vol II(1), 100, 270. 15 Under 1996 draft art 1 this obligation would apply both to activities where there was a risk of harm and those which merely caused harm. Cf Corfu Channel Case (United Kingdom v Albania), Merits, Judgment, ICJ Reports 1949, p 1, in which it was held that Albania both knew of the risk and could have prevented the harm. Similarly, the Trail Smelter case appears to be an example of liability for harm which was foreseeable and preventable, although it is true that the arbitral award also makes provision for future liability which is not dependent on failure to take preventive measures: Trail Smelter Arbitration (United States v Canada) (1938–1941) 1 International Environmental Law Reports 231. 16 For criticism of the 2004 draft on this point see A Boyle, ‘Globalising Environmental Liability: The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Interplay of National and International Law’ (2005) 17 Journal of Environmental Law 3. 17 Report of the ILC, 58th Session, 2006, A/61/10, 111 (para 7). 18 See eg 2001 Articles on Prevention of Transboundary Harm, art 15; 1997 UN Convention on International Watercourses, art 32; United Nations Convention on the Law of the Sea, 10 December 1982, 18 33 UNTS 3, art 235(2). 19 Report of the ILC, 58th Session, 2006, A/61/10, 80–1 (para 7). 20 Articles on Diplomatic Protection, General Assembly, Official Records, 61st Session, Supplement No 10, A/61/10, 16, art 15(c). 21 See M Kazazi, ‘Environmental Damage in the Practice of the UN Compensation ILC’, in M Bowman and A Boyle (eds), Environmental Damage in International and Comparative Law (Oxford, OUP, 2002) 111. 22 See P Birnie, A Boyle, & C Redgwell, International Law and the Environment (3rd edn, Oxford, OUP, 2009), 303–315. 23 Report of the ILC, 58th Session, 2006, A/61/10, 82 (para 9). 24 JE Read, ‘The Trail Smelter Dispute’ (1963) 1 Canadian YBIL 213, 222. The ILC commentary appears not to appreciate this point. In the Chernobyl disaster there were also no local remedies because there was no liability under Soviet law. But in the Sandoz pollution disaster on the Rhine, and the Handelskwekerij Case, local remedies did exist and were used. 25 See in particular Principles 4, 5(c) and (e), 6(2), 7, and 8. 26 Report of the ILC, 56th Session, 2004, A/59/10, 160, General Commentary (para 14). 27 Principles 1 and 2(c). 28 [1994] 1 All ER 53. 29 Commentary to Principle 1, para 10. 30 On which see below. 31 Compare ILA, 67th Conference Report (1996), 401–415, International Watercourses, art 2(1): ‘States, individually or jointly, shall ensure the availability of prompt, adequate and effective administrative and judicial remedies for persons in another State who suffer or may suffer damage …’ 32 Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 4, 197 (para 11); see also commentary to Principle 6, 213 (para 7). 33 SERAC v Nigeria (2002) ACHPR Comm 155/96 (2002) para 69; Maya indigenous community of the Toledo District v Belize, Case 12.053, Report No 40/04, IACHR OEA/Ser.L/V/II.122 Doc 5 rev 1 (2004); Fadeyeva v Russia (App No 55723/00) ECHR Reports 2005-IV; Taskin v Turkey [2006] 42 EHRR 50, para 119. 34 See eg Sporrong and Lönnroth v Sweden (1983) 5 EHRR 617, where planning blight was held to constitute a taking of property without compensation, contrary to art 1 of Protocol 1 of the European Convention on Human Rights. The ‘prompt, adequate and effective’ standard of compensation for expropriation is not universally accepted, however. See CF Amerasinghe, ‘Issues of Compensation for the Taking of Alien Property in the Light of Recent Cases and Practice’ (1992) 41 ICLQ 22. 35 See ILC Principle 4. But the 2003 Kiev Protocol retains additional fault-based liability as provided for by national law: Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc MP.WAT/2003/1, CP.TEIA/2003/3. See also the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage 1969, 27 November 1992, arts 3 and 5(2); Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480, art 8(b); and the 1999 Basel Protocol on Liability and Compensation for Damage From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999, UN Doc UNEP/CHW.5/29. 36 Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 4, 199 (paras 15–17). 37 The 2001 Bunker Fuel Convention makes the shipowner, charterer, manager and operator jointly and severally liable: 2001 International Convention on Liability and Compensation for Bunker Oil Spills, IMO Doc LEG/CONF 12/19 (2001), 341. Under the 1999 Transboundary Waste Protocol generators, exporters, importers and disposers are all potentially liable at different stages of the wastes’ journey to its eventual destination (Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 10 December 1999, UN Doc. UNEP/CHW.5/29. 38 ILC Principle 4. 39 The 1993 Lugano Convention (Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480) and the 2003 Kiev Protocol (Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc. MP.WAT/2003/1, CP.TEIA/2003/3) are notable exceptions. 40 ILC Principle 7. 41 Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 2, 170–182 (paras 1– 21). For fuller analysis of recent trends see Bowman and Boyle (eds) Environmental Damage in International and Comparative Law (Oxford, OUP, 2002). 42 Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 2, 177 (para 12); ILC Report (2006): Report of the ILC, 58th Session, 2006, A/61/10, commentary to Principle 2, 129–130 (paras 13–15); see also Special Rapporteur’s Second Report, ILC Yearbook 1999, Vol II(1), para 31. 43 Compare the 2004 Protocol to Amend the Paris Convention on Third Party Liability in the Field of Nuclear Energy, art IB; 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage, art 1(6); de La Fayette, 20 IJMCL (2005) 167, at 202–205, and see generally P Bowman & A Boyle, Environmental Damage in International and Comparative Law (Oxford, OUP, 2002), 213– 322. 44 UNCC F4 Claims 5th Decision (2006) para 57. 45 IOPC Fund Resolution No 3 on Pollution Damage (October, 1980). See also the claims made in respect of the Antonio Gramsci (No 2) and the Patmos, reported in IOPC Fund, Annual Report (1990) 23 and 27, and the Haven, Annual Report (1999) (para 10.2). In all three cases the Fund rejected claims for unquantified environmental damage. 46 Report of the ILC, 56th Session, 2004, A/59/10, commentary to Principle 3,186–188 (paras 3–6); ILC Report (2006), Report of the ILC, 58th Session, 2006, A/61/10, commentary to Principle 2, 176– 178 (paras 11–14). Compare the 2005 Antarctic Liability Annex under which states parties may sue the operator for the cost of environmental response and cleanup measures, but not for environmental damage per se. For comprehensive analysis of valuation of environmental damage and standing to sue see E Brans, Liability for Damage to Public Natural Resources (The Hague, Kluwer Law International, 2001). 47 See South West Africa, Advisory Opinion, ICJ Reports 1950, p 128, 146,148 (separate opinion of Judge Mc Nair). 48 See Principles 6(3) and 7. 49 See the Tribunal’s award at (1941) 35 AJIL 684, 698, 714ff.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.11 The Law of Responsibility and the Law of Treaties Joe Verhoeven From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Reparations — Responsibility of states — Circumstances precluding wrongfulness — Wrongful acts — Treaties, conclusion — Vienna Convention on the Law of Treaties — Treaties, interpretation — Countermeasures — Peremptory norms / ius cogens

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(p. 105) Chapter 11 The Law of Responsibility and the Law of Treaties 1 The law of treaties and wrongfulness 107 2 The law of treaties and reparation 109 (a) Reparation and violation of a treaty 109 (b) Reparation and conclusion of the treaty 110 3 Law of treaties and countermeasures 110 (a) The principle 111 (b) The exceptions 111 (i) Obligations arising from peremptory norms of general international law (jus cogens) 111 (ii) Diplomatic or consular inviolability and the settlement of disputes 111 (iii) A contrary convention 112 (iv) Article 60 of the Vienna Convention on the Law of Treaties 112 Further reading 113 As the Tribunal in Rainbow Warrior pointed out, ‘in the international law field there is no distinction between contractual and tortious responsibility’.1 In his fifth report on State responsibility, Ago explained the absence of such a distinction in ‘the legal order of the international community’ by the non-existence of an ‘instrument like legislation, which is at the same time voluntary and authoritative’.2 Twenty-five years later, Ago’s view appears to have been endorsed by the ILC in the final text of the Articles on State Responsibility. In the report of the ILC, it is indeed pointed out that the absence of any reference to such a distinction in the draft is a consequence of article 12, which states: There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.3 The Commentary to article 12 notes that the articles ‘apply to all international obligations of States, whatever their origin’.4 This affirmation is ambiguous. In the domestic laws where it is applied the distinction does not deny the rule according to which all breaches of an obligation engage the responsibility of the actor, rather only implies that the legal regime may be different depending

References (p. 106) on whether a contract is at issue. And in the ones where it does not exist, its absence can either be explained by the fact that the responsibility that results from the breach of a contractual obligation is subject to the general (droit commun) law or because of a lack of a general duty of care, which makes it necessary to resort to particular torts. It is true that international law now does not differentiate the legal regime of responsibility according to the (general) customary or treaty character of the breached violation. This is however not because this duality of regimes has been regarded as ill-timed. It is simply that there has been hardly any opportunity—or none has been seized—to make a statement of the established distinction between contractual responsibility and quasi-delictual responsibility. The situation would have been different had those issues been

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discussed in the Articles on State Responsibility adopted by the ILC. They were not. At the very most, the 1996 Draft Articles adopted on first reading subjected the reparation resulting from a crime (under former article 195) to rules partly applicable to other wrongful acts,6 introducing a distinction between criminal and delictual responsibility, if not between contractual and delictual responsibility. But the distinction was removed on second reading, which makes no mention of an international ‘crime’. Consequently, the rules applicable to responsibility are identical in respect of both categories. Of course, it cannot be excluded that a different approach will be taken in the future, even if the mutual relationship existing between a treaty rule and a customary rule should still remain different from the one existing in domestic law between a statute and a contract. Any doubt concerning their binding force reserved, the provisions of the Articles are not such that they categorically exclude that a distinction be made as far as reparation is concerned on the basis of the contractual or statutory character of the breached obligation. If international law presents some specific characteristics in this respect, it is simply that it ignores the distinction made under domestic law between civil as opposed to criminal liability. Such a distinction was made in the famous article 19 of the first reading draft, referring to international delicts as distinguished from international crimes. Its exact scope remained largely uncertain, but it need not now be clarified. The ‘crime’ indeed was abandoned on second reading, as a result of a proposal of the new Special Rapporteur, James Crawford. There still remains a reference to ‘serious breaches of obligations under peremptory norms of general international law’, whose demarcation from ‘crimes’ remains unclear. But in any case the ‘particular consequences’ of such ‘serious breaches’, as specified in article 41 of the final Articles, are unable to give any consistency to a concept of ‘criminal’ responsibility in international law. Consequently there is no need to enter into the diffi culties traditionally related to that category under domestic law, including the identity of criminal as opposed to civil fault and the duality of the procedure and related problems (electa una via etc) for obtaining reparation. These remarks do not imply that the responsibility envisaged by the ILC is of a civil character, equivalent to that category usually found in domestic legal system. Clearly, the ILC draft is concerned with reparation for the injury caused by an ‘internationally wrongful act’. But it deals also with countermeasures which might be taken against the State responsible for that act, which also pertains to ‘responsibility’ notwithstanding the contrary conclusion apparently suggested by the restrictive wording of article 28. Punishing a State which does

References (p. 107) not comply with its obligations is not the point; it is only to obtain their fulfilment in a system which does not entail any type of forced execution. It comes close to a sanction, even though it does not require any criminal responsibility. The relationship between the law of treaties and the law of responsibility must be examined with this in mind. The relationship between the law of treaties and the law of responsibility has not been specifically addressed in any codification projects. Article 73 of the Vienna Convention on the Law of Treaties provides that ‘shall not prejudge any question that may arise in regard to a treaty … from the international responsibility of a State’,7 while article 56 ARSIWA makes clear, according to its Commentary, ‘that the present articles are not concerned with any legal effects of a breach of an international obligation which … stem from the law of treaties’ or other legal fields.8 It is therefore necessary to refer to international practice or possibly to the respective logic of articles 56 and 73 to examine the relationship between the law of treaties and the law of responsibility. It is common to emphasize that ARSIWA refer to secondary obligations, ie those that result from breach of a primary norm. The distinction between primary and secondary rules for the purposes of ARSIWA does not shed any light on the relationship between the law of responsibility and the law of treaties. Neither is it clear that a violation of a treaty will necessarily entail breach of a primary obligation; that violation indeed calls into question the rule conferring a binding force to a pactum

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between States, as expressed in article 26 of the Vienna Convention, much more than the treaty whose provisions are breached. Sure, article 26 is without any practical purpose as long as promises are not exchanged, but it is still the first to be breached when those promises are not fulfilled. This ought to be prevent one from giving too much importance to approximate categorizations.

1 The law of treaties and wrongfulness There is a wrongful act when a State (or any other subject of international law) fails to respect its obligation. This entails the responsibility of a State.9 The law of responsibility determines the content of that responsibility, that is to say, the consequences of the breach of the obligation. The law of treaties is not normally concerned with the content of a State’s responsibility; in principle it is limited to the question of ‘the existence, content and duration of the obligations’.10 As the International Court confirmed in the Gabcíkovo-Nagymaros Project case: Nor does the Court need to dwell upon the question of the relationship between the law of treaties and the law of State responsibility, to which the Parties devoted lengthy arguments, as those two branches of international law obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of state responsibility.11

References (p. 108) While this conclusion may be justified (and it may be relevant beyond issues of denunciation or suspension), it does not preclude certain consequences of wrongful acts being drawn from the law of treaties, principally the invalidation or termination of certain engagements. Four articles of the Vienna Convention12 refer expressly to wrongful conduct, as they are concerned with nullity: these are articles 49 (fraud), 50 (corruption), 51, and 52 (coercion). The purpose of these provisions is to determine the circumstances under which consent can be invalidated, without prejudging the consequences in terms of the responsibility which may arise from those same circumstances. Neither do the provisions the Vienna Convention relating to the consequences of violations of obligations for the maintaining into force of a treaty prejudge their consequences in terms of responsibility. Article 60, which incorporates the exceptio non adimpleti contractus, implies that the treaty sought to be suspended or terminated has been violated by a State party. Such is not the case as far as articles 61 and 62, which deal with impossibility of execution and fundamental change of circumstances, are concerned since they do not necessarily imply the existence of a fault. Those articles simply provide for that a State is prevented from terminating the treaty when such an impossibility or such a change is the result of a violation by that State of its obligations. In principle there is no intersection between this area of the law of treaties and the law of responsibility, subject to two reservations. The first concerns the circumstances precluding wrongfulness in articles 20–25 ARSIWA. From the moment the wrongfulness of an act is precluded as it results from the Vienna Convention, the ‘violation’ of the treaty referred to in its articles 60, 61, and 62 should not be taken as established. Any other conclusion would be incoherent. The second reservation relates to the confl ict between article 61 of the Vienna Convention (impossibility of performance) and article 23 ARSIWA relating to force majeure, which embraces, but is not restricted to, impossibility of performance. It necessarily results from this that force majeure may operate where there is no impossibility of performance. But the contrary is not true. The impossibility to perform necessarily constitutes force majeure, at least when it does not result from

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a breach by the State invoking it of its obligations. Such a radical dissociation between those rules logically results in accepting that any suspension or termination of a treaty must be excluded as long as there is no impossibility of performance, even when the contracting State not complying with its obligations cannot be reproached for acting wrongfully if it establishes force majeure. This is not contradictory in itself. There is a certain logic in maintaining a treaty law link while excusing the provisional non-fulfilment of obligations contained in that treaty. Nevertheless it seems reasonable to consider that the impossibility of performance that justifies the termination of the treaty under article 61 of the Vienna Convention is fulfilled when force majeure under article 23 is definitive, even if it is true that this leads to a particularly flexible interpretation of the notion of ‘object indispensable for the execution of the treaty’. And it goes without saying that if the temporary impossibility of execution of the treaty suspends its application, then the temporary lack of respect for its dispositions should not be regarded as wrongful in the sense of ARSIWA. But it would have been more coherent to specify in the Vienna Convention that temporary force majeure may also authorize the suspension of the treaty, instead of excusing its violation on the basis of article 23 ARSIWA.

References

(p. 109) 2 The law of treaties and reparation It is mainly the violation of the provisions of a treaty which raises the issue of reparation, when it has turned out to be harmful for another State. It can nevertheless not be excluded that this question can arise from the simple fact that the treaty is concluded as long as the existence of damage is established.

(a) Reparation and violation of a treaty The distinction between contractual responsibility and quasi-delictual responsibility rests in domestic law on the separate conditions governing the reparation in case of breach of a contract. Although it is not necessary to examine the domestic regimes in detail, nevertheless, it is interesting to consider their essential characteristics. In countries which apply the Napoleonic code for instance, articles 1381–1383 govern quasi-delictual responsibility, and articles 1384ff contractual responsibility. The case law has since attenuated the differences existing between those regimes, while possibly introducing other distinctions. There is no need to enter into the details of those domestic regimes, as such irrelevant for international law. It nevertheless is interesting to keep in mind their essential characteristics, so as to verify whether such a distinction is compatible or not with international rules. Globally, it rests, at least in Napoleonic traditions, on rules that substantively regulate responsibility—limitation of reparation to foreseeable damage in the case of a breach of contract; absence of solidarity between debtors in delictual or quasidelictual matters; exclusion of adjustment of responsibility (exemption clauses, etc) in noncontractual matters)—and on dispositions which determine their implementation (mise en oeuvre) such as formal notice, jurisdictional competence, prescription, etc. Clearly, the solutions are not necessarily identical in each domestic system; still these kind of issues always are the ones on which two relatively different regimes of responsibility are based. It has never been contested in international law that the violation of a treaty obliges the State concerned to repair its harmful consequences, no matter whether this violation results from the breach of the provisions agreed on by the parties or of the rules governing their suspension or termination in whole or in part. The provisions of ARSIWA are fully applicable in this respect, for instance to decide on the attribution of a wrongful act to the State, on the circumstances precluding wrongfulness which are without prejudice to the question of compensation for any material loss according to article 27 ARSIWA, or on the forms of reparation. However they do not definitively settle any of those issues. Solidarity between debtors is apparently the only exception in this

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respect. While no reference was made in the Arangio-Ruiz report, this solidarity was clearly dismissed at the initiative of the new Special Rapporteur on second reading. True, the terms of article 47 remain partly unclear; nevertheless, the ILC Commentary is unambiguous in this regard. But subject to this article, the other issues are left unanswered. No conclusion whatsoever could be drawn from such a silence; the fact simply is that no answer is given in the text. It is only relevant to note that in the absence of any mechanism of compulsory settlement of disputes it would in any case be difficult to give any very useful ‘procedural’ content to the distinction between contractual and quasi-delictual responsibility, even if evolutions are possible—and desirable—as was actually suggested in the propositions made by the Rapporteur Arangio-Ruiz. That said, ARSIWA does not incorporate a distinction between contractual and quasi-delictual responsibility, and consequently any separation

References (p. 110) of the consequences between the two. This is not to suggest that such a distinction does not have a place in public international law; it is rather merely that the rules of public international law may be too elementary to usefully support a distinction.

(b) Reparation and conclusion of the treaty It is possible that the mere existence of a treaty can constitute a violation of international law, for instance where it conflicts with peremptory norms of international law (jus cogens) or is incompatible with an agreement previously concluded by all or some State parties. In these circumstances, it can be difficult to apply the usual rules of responsibility and reparation. Still, as a matter of principle, responsibility and reparation if an injury occurred are beyond dispute. It is also possible that the decision of a State to conclude a treaty may have been taken subsequent to the wrongful act of another State; it matters little if the State which committed the wrongful act is a party or not. In such a case, there must also be reparation for the injury caused by the wrongful act from the moment when the causal link is established. Every wrongful act indeed gives rise to an obligation to make reparation for any injury. The only difficulty is that according to articles 49–52 of the Vienna Convention, the victim State might invoke the wrongful conduct as invalidating its consent to be bound by the treaty when it is constitutive of fraud, corruption, or coercion; in consequence the treaty will disappear, at least if it is bilateral. Clearly, the two perspectives are different, and do not normally intersect.13 So while the law of responsibility imposes an obligation to make reparation for injury resulting from a breach of an obligation, the law of treaties determines the existence of that obligation. Nullity results from the non-fulfilment of conditions on which the existence of a valid agreement depends; it is wholly separate from the question of fault. Nullity may therefore be invoked even where there is no fault, in cases of error or incompetence. Where the conclusion of a treaty is wrongful, the law of treaties does not prejudge the consequences. If there is an interference, it results only from the fact that the nullity may possibly suppress the injury by invalidating the consent of the injured State. But this illustrates a purely factual consequence (effet de fait) of the invalidity, as such totally unrelated with the relationship possibly existing between the law on treaties and the law on responsibility. Does this mean that the victim State is free to choose between nullity and reparation? Logically, the answer must be no. In addition to the injured State’s obligation not to contribute to the injury,14 where nullity can be invoked, if it is not invoked this must constitute consent, which is a circumstance precluding wrongfulness; but nullity cannot be ruled out where it cannot be cured (coercion). Needless to say, the obligation to afford reparation nevertheless subsists as long as the injury did not disappear by the mere fact of the nullification of the consent or of the waiver of nullity.15

3 Law of treaties and countermeasures In accordance with the ILC Articles, countermeasures authorize a State to not perform its 16

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obligations, in order to induce another State to comply with its obligations.16 They constitute a kind of reprisal, which as such are far from being praiseworthy but must still be accepted in a system which contains no centralized sanctions. (p. 111) It goes without saying that the obligations which are not performed in the name of countermeasures may arise from treaties. In other words, obligations imposed by treaties can be derogated from by virtue of a countermeasure, just as the countermeasure can be taken to obtain respect for treaty obligations. The conditions on which the lawfulness of countermeasures depends and which are set out in ARSIWA will not be discussed here.17 However, it is necessary to consider the potential relationship between the law on treaties and countermeasures as they exist under the law of responsibility.

(a) The principle In principle, a derogation to any treaty can be taken by a countermeasure in order to induce another State to fulfil its obligations, including its obligations under that treaty. However, the derogation must be provisional: article 49(2) states that ‘[c]ountermeasures are limited to the nonperformance for the time being’ of obligations, even if the severity of this provision is somewhat alleviated by article 49(3) stating that that ‘the resumption of performance of the obligations in question’ will only take place ‘as far as possible’. It is further understood that all other general conditions (injured State, proportionality etc) must be respected. There is nothing in the Vienna Convention on the Law of Treaties which challenges that conclusion. Excluding treaties from the scope of the Articles would indeed have resulted in greatly weakening the effectiveness of countermeasures.

(b) The exceptions As always, there is no principle without exceptions. (i) Obligations arising from peremptory norms of general international law (jus cogens) According to ARSIWA article 50(1), a countermeasure can never undermine a rule of jus cogens. This is readily understandable. How could a unilateral derogation from something that does not allow for treaty derogations be explained? These are the ‘intransgressible principles of international customary law’, to use the words of the International Court.18 The exception does not concern treaties since they should not constitute general international law. It is only true that treaties, especially multilateral, may be declaratory of a general rule of international law. If that general rule has a peremptory character, countermeasures cannot be taken which would derogate from those. It follows that obligations of treaty provisions which do not have a peremptory character can always be derogated from. (ii) Diplomatic or consular inviolability and the settlement of disputes According to ARSIWA article 50(2): A State taking countermeasures is not relieved from fulfilling its obligations (a) under any dispute settlement procedure applicable between it and the responsible State [addressee of the countermeasure] (b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.

References

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(p. 112) The exception is clear. In practice, it has little consequence for multilateral instruments concerning diplomatic and consular relations (principally the Vienna Conventions of 1961 and 1963), since the rules formulated in those treaties have largely acquired customary value. Nevertheless, the exception retains its relevance for bilateral treaties which establish any such inviolability. On the other hand, the importance of the exception does not extend to the settlement of disputes. There is in effect no procedure that is imposed on States as a matter of custom; international law contents itself by prescribing a peaceful settlement. The ‘procedure applicable’ between the State taking the countermeasures and the addressee necessarily implies that an agreement has been concluded between the two, from which article 50(2) prohibits any derogation. (iii) A contrary convention It cannot be excluded that States will make an agreement not to use the law on countermeasures in their mutual relations to derogate from certain treaties, or even renounce in a more general manner recourse to countermeasures. This is for example implicit in the constitutive treaty of various international organizations or other associations, notably the European Union. The exception finds its full meaning when a treaty mechanism of sanctions is complementing the rejection or limitation of countermeasures. It is not explicitly confirmed by the draft articles. Nevertheless, it is difficult to see that anything puts this exception into doubt. (iv) Article 60 of the Vienna Convention on the Law of Treaties Article 60 of the Vienna Convention governs the consequences of ‘material breach’ of a treaty by a State party for the maintaining into force of that treaty. When the treaty is bilateral, the other party can invoke the breach as a ground for terminating or suspending its operation; in principle the same logic is applicable when the treaty is multilateral, although article 60 attempts to retain in force as much of the treaty as possible between some contracting states, an objective which explains the provisions of article 60(2). A particular reading of the Vienna Convention led some authors, previous to the completion of the ILC Articles, to maintain that article 60 constitutes the only lawful basis for the suspension or termination of a treaty when its obligations are breached by a State party.19 In other words, it may not in such a case be derogated from on the basis of the general rules on countermeasures. Why? That remains unclear. Apparently, some internal logic of article 60 would impose such a conclusion. Whatever the merits of such an analysis, two points seem beyond dispute. First, the termination of the treaty can only be decided on the basis of article 60, article 49(3) being reserved. Countermeasures indeed can only justify a temporary non-fulfilment by a State of its obligations; in other words, they only authorize the suspension of a treaty obligation.20 Second, a suspension can only ever be decided on the basis of the law on responsibility when the breached obligation which justifies the recourse to countermeasures is not imposed by the treaty the application of which is suspended.

References (p. 113) Consequently, only two questions remain as between article 60 and the ARSIWA provisions on countermeasures. First, does the law of countermeasures authorize the suspension of a treaty by one of the contracting States, when the breach of its obligations by one of the other State parties is not material in the sense of article 60(1) and 60(3)? Second, when the breach is material, is the State party able to invoke either article 60 or the law of countermeasures in order to suspend application of the treaty in question? One might say that this question has no practical importance, but the procedural requirements of the Vienna Convention are more restrictive than those in ARSIWA.21 These questions do not appear to have a clear answer, although they have been From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

mentioned several times in the ILC. There would be a certain logic in prioritizing the law on treaties in this area. This appears to be confirmed by the spirit of the ICJ judgment in Gabcíkovo-Nagymaros Project. In a context where general rules are lacking, which is increasing the importance of treaty agreements, it would be perfectly understandable that the suspension of a treaty was not permitted on the basis of the law of countermeasures in the situation envisaged by article 60, particularly where other countermeasures are usually available. It is easy to see that it makes no difference whether the breach of the obligations is of a material character. But this conclusion finds no express support in the Vienna Convention or ARSIWA—even if these instruments do not explicitly regulate this issue—or in the prevailing doctrine—whose commentaries are far from being exempt from all ambiguity—or in the case law—especially since no international arbitrator or judge has ever expressed anything on the issue. And it seems contradicted by the elation with which States apparently breach their obligations in order to protest against breaches by other States. Further reading D Bowett, ‘Treaties and State Responsibility’ in Le droit international au service de la paix, de la justice et du développement. Mélanges Michel Virally (Paris, Pedone, 1991), 137 P Dupuy, ‘Droit des traités, codification et responsabilité internationale’ (1997) 43 AFDI 7 M Martin Lopez, ‘La terminación y la suspensión de los tratados internacionales a título de contramedida’ (1999) Anuario de derecho internacional 529 P Reuter, Introduction au droit des traits (3rd edn, Paris, PUF, 1995) L-A Sicilianos, ‘The Relationship Between Reprisals and Denunciation or Suspension of a Treaty’ (1993) 4 EJIL 341 Ph Weckel, ‘Convergence du droit des traités et du droit de la responsabilité internationale’ (1998) 102 RGDIP 647 P Weil, ‘Droit des traités et droit de la responsabilité’, in R Rama Montaldo (ed), Liber amicorum en hommage au Pr. Eduardo Jimenez de Aréchaga. Le droit international dans un monde en mutation (Montevideo, 1994), reproduced in P Weil, Ecrits de droit international (Paris, PUF, 2000) A Yahi, ‘La violation d’un traité: l’articulation du droit des traités et du droit de la responsabilité internationale’ (1993) 26 RBDI 437

References (p. 114)

Footnotes: 1 Rainbow Warrior (France/New Zealand), 30 April 1990, 20 RIAA 215, 251 (para 75). 2 R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 12 (para 30). 3 Art 12, ARSIWA. 4 Commentary to art 12, para 3. 5 See J Crawford, Chapter 29. 6 See art 52, ARSIWA and G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, 6 (para 18). 7 1155 UNTS 311. 8 Commentary to art 56, para 3. 9 Art 1, ARSIWA. 10 ‘[L]’existence, le contenu et la durée des obligations’ conventionnelles: P Weil, ‘Droit des traités et droit de la responsabilité’, in R Rama Montaldo (ed), Liber amicorum en hommage au Pr. Eduardo Jimenez de Aréchaga. Le droit international dans un monde en mutation (Montevideo, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

1994), reproduced in P Weil, Ecrits de droit international (Paris, PUF, 2000), 195. 11 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 38 (para 47). 12 1155 UNTS 331. 13 On the interpretation of art 52 see J Verhoeven, Droit international public (Louvain-la-Neuve, Larcier, 2000), 400. 14 Art 39, ARSIWA. 15 Art 20, ARSIWA. 16 Art 49, ARSIWA. 17 See below, Chapters 79–86. 18 Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p 226, 257 (para 79). 19 See especially D Bowett, ‘Treaties and State responsibility’, in Le droit international au service de la paix, de la justice et du développement. Mélanges Michel Virally (Paris, Pedone, 1991) 137. 20 See B Simma, ‘Reflection on Article 60 of the Vienna Convention on the Law of Treaties and Its Background in General International Law’ (1970) 20 Zeitschrift für öffentliches Recht 14. 21 Arts 65–68, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.12 Responsibility and the United Nations Charter Vera Gowlland-Debbas From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Self-defence — Responsibility of individuals — UN Charter — Vienna Convention on the Law of Treaties — Customary international law — Lex specialis — United Nations (UN) — Other UN Bodies, Agencies, and Committees — International peace and security — Collective security

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(p. 115) Chapter 12 Responsibility and the United Nations Charter 1 Introduction 115 2 The Articles on State Responsibility and the UN Charter 117 (a) The safeguard clause of article 59 117 (i) Antecedents of article 59: the enlisting of Charter mechanisms 118 (ii) Article 59: the exclusion of Charter mechanisms from the scope of the Articles 120 (b) The Articles on State Responsibility and breaches of Charter obligations 122 (i) The elements of an internationally wrongful act and breaches of Charter obligations 122 (ii) Relevance of the Articles to the legal consequences of a breach of Charter obligations 123 3 The Charter provisions for peace maintenance: a special regime of responsibility? 125 (a) The ILC’s approach to the Charter regime 125 (i) The ILC debate over collective measures as a form of responsibility 125 (ii) Sanctions in the framework of State responsibility 125 (b) Collective security and State responsibility 126 (i) Chapter VII mechanisms as sanctions 126 (ii) The practice of the Security Council and issues of State responsibility 128 (iii) Security Council measures and permutations in the concept of sanctions 132 (iv) Limits to the competence of the Security Council and the general rules of State responsibility 134 Conclusions 138 Further reading 138

1 Introduction This Chapter examines the relationship between the United Nations Charter and the customary law regime of State responsibility as codified in the ILC’s Articles of 2001. It does not cover questions arising from the responsibility of international organizations in their own right as international legal persons, nor, or at least not directly, those related to the concurrent responsibility of any State for the conduct of an international organization. These issues are excluded from the scope of the Articles.

References (p. 116) The relationship between the Charter and the ILC Articles can be examined from the perspective of the rules governing the relationship between two distinct sources of international

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law, the conventional Charter regime and the customary rules of responsibility; from that of the relationship between the mainly primary rules of the Charter and the secondary rules of responsibility; and from that of the relationship between the lex specialis of the Charter, containing its own subset of secondary rules, and the general, residual rules of the Articles.1 An important additional dimension, reflected in article 59 of the Articles, is the hierarchical superiority of the UN Charter, flowing from its constitutional character, from its universal membership, as well as from article 103.2 The degree to which this hierarchy operates in relation to customary, as opposed to conventional, international law has been debated. But the law on State responsibility has also been considered to contain foundational rules for international society which are transversal, cutting across different fields of international law, so that we are faced with a potential clash between two sets of rules both of which may be considered constitutional, although in different senses. Finally, from the perspective of the respective functions of the two regimes within the international legal system as a whole, the articulation between State responsibility and the collective security system incorporated into Chapter VII of the UN Charter is particularly pertinent in the light of the development of an international public policy (ordre public). Though these functions are distinct— the one concerned with the legal consequences of internationally wrongful acts, the other with the political function of maintaining and restoring international peace and security—recent developments in each of these regimes have led to areas of potential convergence and conflict. The ILC’s codification of State responsibility was, at an early stage, re-oriented away from its narrow focus on the responsibility of the State for injuries to aliens, and came to adopt a broad vision embracing both reparation and sanctions, which reflects the modern notion of community interests. Initially, this took the form of the concept of ‘international crimes’ incorporated in former article 19 of Part One of the draft Articles. The deletion of this article, and hence the removal of the distinction between delicts and crimes for the purposes of Part One, has nevertheless not resulted in the abandonment of a hierarchy of norms. This has been retained in two overlapping although not identical ways: the notion of serious breaches of obligations under peremptory norms of international law (article 40) and that of obligations owed to the international community as a whole (article 48, on the invocation of responsibility). The Articles thus continue to reflect the principle that there are certain consequences flowing from these concepts within the field of State responsibility. At the same time, as will be shown, the practice of the Security Council under Chapter VII of the Charter may increasingly be viewed as a form of collective response to violations of fundamental community norms considered to threaten the maintenance of international peace and security, thereby raising important issues of State responsibility. In short, both the law of collective security—at least in practice—and the law of State responsibility now provide for legal consequences as the result of violations of such fundamental norms.

References (p. 117) The current debate therefore no longer relates to the existence of such norms, but to the consequences of their breach and, in particular, whether reactions to such breaches should take place within a unilateral or institutional framework, the latter particularly within the framework of the collective security system of the Charter. The ILC’s approach to the relationship between State responsibility and collective security has evolved, from efforts to entrench Charter organs and mechanisms into the framework of State responsibility, to the exclusion of the UN Charter from the scope of the Articles altogether by means of a saving clause in article 59. Nevertheless, even if one upholds the view that State responsibility and collective security are distinct regimes, the question of their coexistence or coordination arises. The following sections examine the relationship between the UN Charter and the Articles on State responsibility, first within the framework of the Articles: looking at the place of the UN Charter within

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these rules, the extent to which State responsibility should be subordinated to collective security, and the points of intersection between the two; second, within the Charter framework, raising the question of whether its collective security system may be seen as providing for a special regime of responsibility for particularly serious wrongful acts, and the degree to which the general rules of State responsibility may be said to continue to apply when States act within the framework of international organizations and in pursuit of the decisions and objectives of the organization.

2 The Articles on State Responsibility and the UN Charter (a) The safeguard clause of article 59 Article 59 of the Articles states: ‘These articles are without prejudice to the Charter of the United Nations.’ The Articles have a general and residual character; they therefore do not exclude the existence and further development of legal consequences of internationally wrongful conduct outside their framework,3 for example, as within the framework of the Charter. Article 59 is situated in Part Four which contains general provisions specifying the scope of the Articles. It covers the Articles as a whole. The UN Charter is distinguished from the concept of lex specialis (including so-called self-contained regimes) in article 55, which constitutes a saving clause in favour of sub-systems which may contain their own secondary rules, recognizing that these prevail over the Articles but only where they have the same subject-matter and only to the extent of any inconsistency. Article 55 is concerned with special rules having the same legal rank as those expressed in the Articles, whereas the special hierarchical relationship of the UN Charter required a separate saving clause. To understand the provisions of article 59 and the reasons for its adoption, it is necessary first to trace the long-standing debate in the ILC regarding the place to be accorded the UN Charter in the Articles. Beginning in 1976, this discussion took place mainly in the context of the debate over a differentiated regime for State responsibility arising from the distinction between delicts and crimes. Initially, under Roberto Ago, and then under Willem Riphagen, an attempt was made to entrench existing UN provisions and procedures relating to the maintenance of international peace and security in the draft Articles, as a form of organized reaction to international crimes, thus subordinating State reactions to them. A second approach, instigated by Special Rapporteur Gaetano Arangio-Ruiz, attempted to

References (p. 118) enlist Charter organs in new procedures for the determination of international crimes and the consequences that should follow as a matter of the application of the law of international responsibility, rather than under the law relating to the maintenance of international peace and security. The Articles in their final form have chosen a third track, which is to consider the Charter’s collective security measures as wholly excluded from their scope, viewing these either as a separate but complementary regime of responsibility, or as a distinct regime of collective security existing in parallel with the Articles. It should be noted that while the initial discussions took place against the backdrop of paralysis of the Security Council, the debate took another turn in 1990 in light of the Council’s renewed activism, with concern over the broad scope of its powers taking central stage. (i) Antecedents of article 59: the enlisting of Charter mechanisms Willem Riphagen had first proposed to deal with the relationship between the UN Charter and the draft Articles as follows: The performance of the obligations entailed for a State by its internationally wrongful act, and the exercise of the rights for other States entailed by such act, are subject to the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

provisions and procedures embodied in the Charter of the United Nations. In revised form, this became draft article 5 in 1983 (renumbered draft article 4 in 1985), and was adopted on first reading as draft article 39 in 1996.4 Draft article 39, which was placed in the chapeau to Part Two of the draft Articles, read as follows: The legal consequences of an internationally wrongful act of a State set out in the provisions of this Part are subject, as appropriate, to the provisions and procedures of the Charter of the United Nations relating to the maintenance of international peace and security. This stipulation engendered much discussion and misgivings both before and after its adoption.5 Draft article 39 appeared to stop short of article 103 of the Charter, regulating only the relationship between the law of State responsibility and the law of collective security. However, it also went beyond article 103 in covering also the customary rules of State responsibility, as well as having effects on Part One of the draft Articles, hence on provisions, inter alia, relating to the existence and attribution of the wrongful act, circumstances precluding wrongfulness, such as countermeasures, and self-defence, as well as the determination of aggression. Thus in fact, it would have subordinated the draft Articles as a whole to the Charter.6 Hence the concern of the Special Rapporteur, Arangio-Ruiz, that this provision, in particular in light of the phrase ‘subject, as appropriate, to the provisions and procedures of the UN Charter …’, would affect the distinction between the customary law of State (p. 119) responsibility and the law of collective security, subjecting the former to the powers of a political organ, thus ‘bring[ing] about a dramatic extension of the Security Council’s influence in a vital area of conventional and customary international law.’7 This was particularly problematic in view of the fact that the relationship between the Charter and customary international law was not clarified. The relationship of the UN Charter to the Articles was also discussed in connection with ‘international crimes’. Former draft article 19 was viewed as the logical outcome of a process in legal thinking which had also been given expression by the Charter’s special regime instituted in Chapter VII.8 In consequence, Charter mechanisms were linked into the Articles as additional consequences of international crimes, although it was recognized that the draft Articles could neither qualify nor derogate from the provisions of the Charter relating to the maintenance of international peace and security.9 In 1984, at the instigation of Willem Riphagen, draft article 14 was introduced, stipulating that the exercise of rights and obligations flowing for all States would be ‘subject, mutatis mutandis, to the procedures embodied in the United Nations Charter with respect to the maintenance of international peace and security’ and expressly referring to article 103 of the Charter.10 Unlike draft article 39, which conditioned States’ reactions to internationally wrongful acts to Charter mechanisms, draft article 14(3) had a different function. It sought to enlist the Security Council as regards responses not implying the use of force even for those crimes falling outside the framework of Chapter VII, for it was pointed out that not all international crimes necessarily affected the maintenance of international peace and security. The jurisdiction of the United Nations, representing the organized international community, over such a situation was therefore considered to be one of four sets of legal consequences common to all international crimes.11 Draft article 15 also stated: An act of aggression entails all the legal consequences of an international crime and, in addition, such rights and obligations as are provided for in or by virtue of the United Nations Charter. This was an implicit renvoi to the collective security mechanisms.12 Since neither draft articles 14 or 15 were finally retained in the 1996 text, draft article 39 came to condition States’ reactions to all 13

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internationally wrongful acts, including international crimes.13 In 1995 and 1996, the Commission also rejected as inappropriate the detailed procedures regarding international crimes outlined de lege ferenda by Gaetano Arangio-Ruiz, which postulated a role for United Nations organs—the General Assembly, Security Council and International Court of Justice— in an eventual convention on State responsibility, outside of the Charter.14 In this scheme, the General Assembly or Security Council would have decided (p. 120) whether States could bring to the attention of the Court an allegation of an international crime, a positive finding leading to a procedure involving compulsory jurisdiction in which the Court would determine with authoritative effect the existence of an international State crime and to which State it was to be attributed, as well as the special consequences which would follow. Finally, the question was raised in 1998 whether the Articles should cover the legal consequences of international crimes at all. Indeed, part of the reasons for dropping the development of a distinct regime of responsibility for international crimes altogether and deleting draft article 19 was the recognition that whereas, on the one hand, the draft Articles could not modify or condition the provisions of the Charter, on the other, action under the Charter could be taken in response to any international crime, seeing that such an act could fall within one or other of the situations envisaged in article 39 of the Charter.15 This policy choice, which departed from the previous approach by the Commission, meant that references to the provisions of the Charter relating to peace maintenance were excised from the Articles. Nevertheless, while the formulation of article 39 and its position in the draft Articles were questioned, the principle underlying article 39 was generally supported by Governments and led to its substitution by the current article 59.16 (ii) Article 59: the exclusion of Charter mechanisms from the scope of the Articles In contrast to former draft article 39, the new saving clause relates to the whole of the Articles and therefore concerns the relationship between the law of State responsibility and the Charter as a whole. Article 59 ‘provides that the Articles cannot affect and are without prejudice to the Charter of the United Nations’ and that they ‘are in all respects to be interpreted in conformity with the Charter’.17 The phrase ‘without prejudice’ reflects the reality that the rules of State responsibility cannot interfere with the Charter, including the Security Council’s action in the field of peace maintenance. Article 59 therefore states the obvious: the Articles cannot change or alter any obligations that States have under the Charter or affect the competence of its organs, and in case of conflict between the two instruments, a priority is established. This of course is an acknowledgement of the hierarchical ranking of the Charter, as reflected in Charter article 103 and recognized in the 1969 Vienna Convention on the Law of Treaties. Other provisions in the Commentaries also indicate that article 59 should be read as meaning that the Articles cease to apply when States are implementing institutional decisions. It is stated clearly, with particular reference to UN action, which is reserved by article 59, that the Articles do not cover ‘such indirect or additional consequences as may flow from the responses of international organizations to such wrongful conduct’, because these are determined within the framework of the constituent instrument.18 This is corroborated by the Commentary to article 54 which clearly deals only with individual measures by non-injured States, whether taken by one State or a group of States, as opposed to institutional reactions in the framework of international organizations:

References (p. 121) The latter situation, for example where it occurs under the authority of Chapter VII of the United Nations Charter, is not covered by the Articles. More generally the Articles do not cover the case where action is taken by an international organization, even though the member States may direct or control its conduct.19

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Moreover, the Commentary to article 40 states that it is not the function of the Articles to establish new institutional procedures for dealing with serious breaches of peremptory norms and recognizes that the latter are likely to be addressed by the competent international organizations including the Security Council and the General Assembly.20 But to what extent does article 59 reflect the existing situation in international law? Unarguably, in case of conflict, the Charter, including the decisions of the Security Council would override (though not invalidate) an eventual convention on State responsibility. In this sense, therefore, the origins of an obligation in the Charter would have important effects on international responsibility.21 But some have pointed out that in such a situation, article 59 would be superfluous.22 If, however, the Articles remain in their non-conventional form, then article 59 goes beyond article 103 of the Charter which relates only to inconsistent treaty obligations, by having the effect of subordinating to the Charter the customary law on State responsibility, including its progressive development, by virtue of the Articles themselves. There is of course no doubt, as the discussions over former draft article 39 had underlined, that these customary rules are affected by the UN Charter, for example, the latter’s dispute settlement provisions and rules regulating the use of force. In any event, the Charter is now quasi-universal and these provisions are recognized as forming part of customary law. The Commentary to article 59 also states instances in which the derivative obligations contained, for example, in Security Council decisions, could affect issues dealt with in the Articles, such as the Security Council’s characterization of State conduct as unlawful (the Lockerbie case is given as a specific example), or where it deals dealing with matters of compensation (for example, the case of Iraq).23 But in this case, surely, article 59 does not go beyond the lex specialis rule endorsed by article 55. For, unless one adheres to the view that article 103 reflects the jus cogens character of the Charter as a whole, the pre-eminence of Charter over customary law—despite its undoubted constitutional traits—stems more from the application of the rules relating to the relationship between treaty and custom than from the hierarchical nature of the Charter. It is a well established fact that parties to a treaty can derogate or contract out from the customary law rules at least in their relations inter se, and so long as that derogation is express and does not run counter to a peremptory norm of international law. At the same time, the International Court of Justice has also stated that rules of customary law retain a separate or parallel existence even if they are identical to conventional obligations and even as between the treaty parties. As a result, they affect such conventional obligations to the extent that they supplement or can be used as interpretative tools for these rules. In the Advisory Opinion concerning the Legality of the Threat or Use of Nuclear

References (p. 122) Weapons, the Court did indeed affirm that the customary law dual conditions of necessity and proportionality applied to article 51 of the UN Charter.24 One could therefore understand article 59 to mean that the customary law rules on State responsibility continue to apply to States in carrying out their Charter obligations to the extent that there is no express derogation from them and that they otherwise do not affect State obligations under the Charter. Moreover, existing in parallel they can supplement or serve as interpretative tools for Charter obligations. This is particularly important in an area where two sets of constitutional rules (taken in different senses) interplay. Nevertheless, the relationship between the customary rules on State responsibility codifi ed in the Articles and the conventional obligations of the Charter remains unclear. It is difficult to determine whether the formulation in article 59 is an improvement on the previous draft article 39 and to what extent it acts as a safeguard to ensure that the rules on responsibility ‘would not be subject as appropriate to derogation by arbitrary, ultra vires decisions of a political body’.25

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Article 59 thus appears to raise the same queries as former article 39. The commentary to the latter had shown the tug of war between upholding the overriding interests of the entire community of States in preserving international peace and security and the concerns of many members of the Commission: that a State’s rights or obligations under the convention that is based on the law of state responsibility— could be overridden by decisions of the Security Council under chapter VII … Would the Security Council be able to deny a State’s plea of necessity (article 33), or countermeasures (47 and 48) or impose an obligation to arbitrate? The Security Council could not as a general rule deprive a state of its legal rights or impose obligations beyond those arising from general international law and the Charter itself. Exceptionally it could call on a State to suspend the exercise of its legal rights …26 That the Articles themselves have not succeeded in entirely excluding the UN Charter from their scope is evident from certain points of intersection between them. While, on the one hand, it is clearly recognized that the Articles are residual, and can be complemented or derogated from by other rules, on the other hand, it cannot be said that the UN Charter is a self-contained regime, thus excluding the application of the entire law of State responsibility. The existence of a safeguard clause in article 59 cannot mean therefore that there is no interplay between the two instruments.

(b) The Articles on State Responsibility and breaches of Charter obligations (i) The elements of an internationally wrongful act and breaches of Charter obligations The rules set out in Part One of the Articles on State Responsibility may apply to a breach of a Charter obligation. Part One lays down a single general regime of State responsibility (p. 123) and is not concerned with distinctions between categories of obligations.27 Article 12 which provides that the breach by a State of any international obligation, regardless of origin or character, gives rise to responsibility under general international law, therefore also covers the treaty obligations of the UN Charter.28 This means that the general conditions of article 2 regarding establishment of a breach and attribution also apply as residual rules to breaches of Charter obligations. Responsibility could also arise under article 16 of the Articles from the aid or assistance given by one State to another in the commission of an act in breach of Charter obligations, for example in order to circumvent sanctions decided by the UN Security Council or to commit human rights violations.29 As to the circumstances precluding wrongfulness detailed in Part One, Chapter V, these seem now to have less relevance in the context of the relationship between Articles on State Responsibility and UN Charter. The Commentary to Article 21 states that: a State exercising its inherent right of self-defence as referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2, paragraph (4)30 but refers back to the applicable primary rules in the Charter. The former draft article 30 on countermeasures had indeed covered institutionalized reactions to violations of international obligations, but the current article 22 is now clearly limited to nonforcible reprisals.31 Finally, whether a State’s plea for exoneration from the implementation of a Security Council decision under article 25 of the Charter, for example on grounds of economic hardship, would meet the requisite conditions laid down in articles 23 and 25 of the Articles is a moot question, since it appears that only the Security Council, under article 48(1) of the Charter, has discretionary competence to dispense particular States from such implementation, the only recourse otherwise being article 50 of the Charter.

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(ii) Relevance of the Articles to the legal consequences of a breach of Charter obligations While the UN Charter does include certain secondary rules relating to consequences of breaches of Charter obligations,32 it does not entirely address breaches of its provisions. Article 41 of the Articles imposes certain duties on States in respect of cooperation, nonrecognition, and non-assistance in response to serious breaches of peremptory norms, many of which are firmly embedded in the purposes and principles of the UN Charter, for example, self determination, the prohibition of the use of force, and certain human rights obligations, such as the principle of non-discrimination. Article 41 recognizes that

References (p. 124) the special duties of States may be carried out both within and outside of the framework of international institutions.33 The practice of the Security Council as well as that of the General Assembly is also taken into account, for example in the field of nonrecognition. Yet the duties stipulated in article 41 are minimal and the Commentary recognizes that: the serious breaches dealt with in this Chapter are likely to be addressed by the competent international organizations including the Security Council and the General Assembly and, in particular, that: [i]n the case of aggression, the Security Council is given a specific role by the Charter.34 The ILC had thus implicitly supported the former draft article 15 introduced by Willem Riphagen in 1982 which had dealt with the consequences of an act of aggression. This does not mean, however, that certain consequences of aggression not expressly dealt with in the Charter, for example reparations, could not be regulated by the Articles on State responsibility. The relationship between article 59—more specifically as regards Security Council enforcement action—and article 54 has also been raised. Would article 59 have, for example, the effect of subordinating to Chapter VII of the Charter, the ‘lawful measures’ taken by States other than the injured State faced with the breach of an obligation owed to the international community as a whole? In short, should the Charter have exclusive monopoly over such measures or should countermeasures by third States be allowed outside its framework, and if so, under what conditions?35 This has been the subject of some debate within the ILC, with the question of the Security Council’s exclusive role only emerging in 1982–1983 when the ILC adopted the forerunner of draft article 39.36 Roberto Ago had stated as early as 1979: It is understandable, therefore, that a community such as the international community, in seeking a more structured organization, even if only an incipient ‘institutionalization’, should have turned in another direction, namely toward a system vesting in international institutions other than States the exclusive responsibility, first, for determining the existence of a breach of an obligation of basic importance to the international community as a whole, and thereafter, for deciding what measures should be taken in response and how they should be implemented.37 The question will not be dealt with here, since article 54 is discussed elsewhere in this volume.38

References

(p. 125) 3 The Charter provisions for peace maintenance: a special regime of responsibility? From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(a) The ILC’s approach to the Charter regime (i) The ILC debate over collective measures as a form of responsibility The question whether the UN Charter provided for a special regime of responsibility applicable to breaches of obligations safeguarding the fundamental interests of the international community was raised in connection with international crimes. In tracing the evolution of legal thinking on this concept, Special Rapporteur Roberto Ago had pointed out that the UN Charter, including the collective measures provided for under Chapter VII relating to threats to the peace, breaches of the peace and acts of aggression, attached specific consequences to particularly serious breaches of fundamental obligations, and had underlined the practice of the Security Council (and General Assembly) in reacting to breaches of fundamental norms.39 There were, however, objections to viewing Chapter VII measures as forms of State responsibility. First, these measures could be taken even against a State which had not acted in violation of international law. Second, the object and purpose of the measures decided upon by the Security Council was not to preserve the law but to maintain or restore international peace and security. Third, even if taken as a consequence against a wrongful act, these measures were coercive, not punitive, their objective being to achieve cessation of the wrongful act. Fourth, the Security Council, which reserves a privileged position to the permanent members, was a political and not judicial organ and consequently determinations made under article 39 were not legal determinations; hence it was inappropriate to entrust it with the task of applying legal sanctions. A clear distinction therefore had to be made between the law of State responsibility and the maintenance of international peace and security.40 (ii) Sanctions in the framework of State responsibility Despite objections to treating the UN’s collective security mechanisms as a form of State responsibility, two developments within the framework of the ILC reinforce this position. First, it is recognized that sanctions are now an integral part of the law of State Responsibility. In defining the scope of the latter, the Articles have compromised between the views of Anzilotti and Kelsen, by adopting a third approach propounded by Roberto Ago: that the consequences of an internationally wrongful act cannot be limited either to reparation or to a ‘sanction’. In international law, as in any system of law, the wrongful act may give rise to various types of legal relations, depending on the circumstances.41 Secondly, the ILC has endorsed the trend in modern international law to reserve the term ‘sanction’ for:

References (p. 126) reactive measures applied by virtue of a decision taken by an international organization following a breach of an international obligation having serious consequences for the international community as a whole, and in particular for certain measures which the United Nations is empowered to adopt, under the system established by the Charter, with a view to the maintenance of international peace and security.42 Sanctions in this sense, unlike the current term countermeasures, include therefore the use of armed force. While this definition of sanctions is of recent origin, it has traditionally been held that true legal sanctions are non-existent in the absence of a centralized system.43

(b) Collective security and State responsibility (i) Chapter VII mechanisms as sanctions

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In the past, only Articles 5, 6, and 19 of the Charter were considered to provide pure forms of sanctions in the Charter.44 The link between Charter mechanisms for peace maintenance and the concept of legal sanction may therefore appear to be tenuous. The system instituted by the League of Nations under article 16(l) and (2) of the Covenant had marked a radical departure in international law by sanctioning infringements of the specific obligation of Member States not to have recourse to war except under the conditions specified in the Covenant in articles 12, 13, and 15 (although a French proposal suggesting the extension of the collective guarantee to cover all violations of international law had not been retained45). Chapter VII measures, however, were not intended to be limited in their application to cases of noncompliance with pre-existing obligations, though they went further than those instituted by the League in being both mandatory, centralized, and collective.46 There has been some support in the doctrine for viewing the mandatory measures under Chapter VII as legal sanctions in the sense of requiring the prior violation of an international obligation. Hans Kelsen had stated that the purpose of enforcement action ‘is not: to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law’.47 Yet he advanced an alternative theory, considering that, since a forcible interference in the sphere of interests of a State—the case in respect of articles 41

References (p. 127) and 42—could only be permitted as a reaction against a violation of the law, then such a measure would have to be interpreted as a sanction if the Charter were to be deemed in conformity with international law. In that case any conduct to which the Council is authorized to react with enforcement action has to have the character of illegal conduct, in other words one could interpret the Charter as imposing an obligation on States not to threaten or breach the peace (aggression being in any case outlawed).48 Others, however, have held that such measures only constitute police measures for the preservation and restoration of the peace.49 Thus Arangio-Ruiz considered that: No provision can be found in the Charter indicating that such a peace-enforcement power includes any competence to determine, declare or enforce international rights or obligations, or for that matter, any competence to apply sanctions …50 Again: Although such measures may well perform—as they frequently do—the practical function of a sanction (for the violation, for example, of … provisions of the UN Charter or of other treaty or customary rules) they cannot be regarded as sanctions in a proper, legal sense.51 Such assertions for and against consideration of Chapter VII measures as legal sanctions revolve around whether there is a prior requirement for action by the Security Council for a violation of a Charter obligation. Enforcement measures provided for under articles 39, 41, and 42 of the Charter, were, however, clearly not intended as a response to the violation of a pre-existing obligation in the Charter. The Council was deliberately given wide discretionary powers in making its preliminary finding under article 39, a prerequisite for the application of Chapter VII measures, for a threat to the peace or breach of the peace, or act of aggression, is nowhere defined (even the Definition of Aggression contained in GA Res 3314(XXIX) is stated as not intended to prejudice or hamper the wide discretion which the Council has in the matter) and clearly goes beyond the scope of article 2(4) of the Charter. Moreover, the Charter does not explicitly require the Security Council to match the gravity of the situation—threat to the peace, breach of the peace, or act of aggression—to a rising scale of severity of the response, since the Council is given a discretionary choice between making recommendations under article 39, calling for provisional measures under article 40 or From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

adopting mandatory non-forcible or military measures under articles 41 and 42. The conclusion therefore can only be that this determination entails a factual and political judgement, which is the outcome of political considerations, not legal reasoning. The practice of the Security Council, however, has shown the applicability of the concept of sanctions in the framework of Chapter VII as well as the permutations to which the concept of sanctions itself can be subjected in terms of its content and purpose. Though the Council is not required to react only to a violation of international law, its decisions in

References (p. 128) numerous cases relating to international peace and security have undoubtedly functioned as collective responses to violations of fundamental norms of international law and have contained many of the legal elements comprising State responsibility. The question that has to be raised is the extent to which they may be analysed through the prism of the customary rules of State responsibility. (ii) The practice of the Security Council and issues of State responsibility The term ‘sanctions’ is now consistently used in conjunction with the enforcement powers of the Council under Chapter VII, including Security Council resolutions and the practice of member States.52 The mandatory measures adopted by the Security Council under article 41 have, in numerous cases, been based not only on a finding of fact but also on one of law. Determinations under article 39 of a threat to or breach of international peace and security (so far there have been no determinations of an act of aggression) have thus been linked to alleged breaches of international (and not only Charter) law, the violation becoming therefore a constituent element of the threat to or breach of the peace. Moreover, the Security Council has singled out serious breaches of those norms that are now considered to be fundamental to the international community, some of which were listed in former draft article 19 of the draft Articles. The practice of the Council has also raised issues of State responsibility such as attribution, circumstances precluding wrongfulness, and legal consequences such as cessation, sanctions not including the use of force, authorizations of unilateral uses of force, guarantees of non-repetition, and reparations.53 It has also, in many cases, attributed these breaches to particular legal entities, whether States or non-State actors. This practice may be traced to the first cases of Southern Rhodesia in 1966, in which the Council considered that the policies of racial segregation and the Unilateral Declaration of Independence by a white minority regime infringed the right to self-determination of the majority of the inhabitants of the territory, and of South Africa in 1977 in relation to its apartheid policies.54 But this trend intensified after 1990, as the select examples from the practice, set out below, will show. Thus, the Council’s determination that the invasion and occupation of Kuwait was contrary to Iraq’s obligations under the Charter was followed by a series of resolutions which referred to Iraq’s additional violations of international law, ranging over human rights and humanitarian law, diplomatic immunities, environmental damage, and the depletion of natural resources.55 In relation to the conflict in the former Yugoslavia, the Security Council reaffirmed that any taking of territory by force was unlawful and unacceptable, and affirmed ‘that any entities unilaterally declared or arrangements imposed in contravention thereof will not (p. 129) be accepted’. Council resolutions were also punctuated by condemnations of the massive and systematic violations of human rights and fundamental freedoms, including those of ethnic minorities, and of the grave breaches of international humanitarian law, including the practice of ‘ethnic cleansing’ and the deliberate impeding of deliveries of food and medical supplies to the civilian population). As for the conflict in Kosovo, although Council concern was triggered by the instability created in the region and the threat of intervention by neighbouring States—a major security concern—the link was also made between the threat to the peace and similar violations of fundamental principles of 56

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international law.56 In the Somalia, Rwandan, and Sudanese crises, which were all internal conflicts, the Council strongly condemned ‘violations of international humanitarian law’ and human rights. It also used the word genocide for the first time—in connection with the massacres in Rwanda (although not in the case of Darfur).57 In the case of the mixed inter national/internal conflict in the Democratic Republic of the Congo, the Council not only deplored the persistence of violations of human rights and international humanitarian law, but referred to a whole range of other violations including the jus ad bellum and the depletion of natural resources, pointing the finger at Rwanda and Uganda, as well as at some of the rebel movements operating within the DRC and elements of the Congolese armed forces themselves.58 In connection with State-sponsored terrorism, in the case of Libya, the link was clearly made between that State’s failure to renounce on international terrorism and threat to international peace and security.59 After the attacks of 11 September 2001, the Council has clearly underlined that ‘terrorism in all its forms and manifestations’ constitute one of the most serious threats to international peace and security and has called on States to criminalize such acts in their domestic law.60 There are numerous other examples in Security Council resolutions on the proliferation of nuclear weapons, though less clearly linked to State responsibility.61 Following the assassination of the former Lebanese Prime Minister Rafik Hariri, the Council, acting under Chapter VII, reaffirmed the link between ‘terrorism in all its forms and manifestations’ and serious threats to international peace and security and endorsed the conclusions of the report of the International Independent Investigating Commission that there was converging evidence pointing at both Lebanese and Syrian involvement in this assassination, which the Council defined as an act of terrorism.62 The Council has also attributed these breaches to particular legal entities, including non-State entities, such as UNITA in Angola, the Bosnian Serbs, the Taliban or Al-Quaeda, or the Janjaweed in the Sudan. In at least one case, that of the condemnation of ETA (p. 130) for the Madrid bombings, it was later established that that attribution had been made erroneously.63 Moreover, the measures which follow this qualification under article 39, despite their evident political origins, function as sanctions, in the sense that they deny all legal effects to the illegal acts of the entity against which they are applied, and also result in the forcible temporary suspension of its subjective legal rights. Thus the Council has qualified the acts of States and non-State entities as illegal and invalid, quasijudicial determinations which have ‘operational design’ in the sense of entailing definitive and farreaching legal effects.64 The Council has called for collective non-recognition of unilateral acts, including domestic acts, for refusal of municipal law benefits such as application of the laws or acts of the sanctioned entity in domestic courts, or the grant of immunity.65 The sanctioned State’s trading relations have been severed under article 41 of the Charter—with the imposition of arms or petroleum embargoes, and other selective or comprehensive economic, financial and diplomatic measures. Its means of communication— by air, sea, or land—has been interrupted. The Council has authorized the seizure of its modes of transportation. States have also been called on to adopt financial measures against the targeted State.66 The latter measures have become part of the Council’s strategy in moving away from comprehensive sanctions with all its concomitant problems to so-called ‘smart’ or targeted sanctions: targeted against individuals, such as government leaders, elites and other specifically designated entities responsible for the policies or acts condemned; targeted against particular commodities or services, involving in particular restrictions on financial and banking operations (asset freezes, blocking of financial transactions or financial services) and travel and aviation bans (including visa restrictions); or directed against specific commodities, such as arms or diamonds. The decisions of the UN Security Council requiring States to apply sanctions within the framework of Chapter VII of the Charter have had the effect of releasing Member States from pre-existing treaty 67

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obligations by virtue of the operation of article 103.67 Security Council resolutions have also resulted in temporarily suspending the (non-imperative)

References (p. 131) rules of customary international law. Member States have sought authorizations from the Security Council where they have deemed their actions contrary to international law,68 for example before resorting to military force, where grounds of self-defence were obviously inapplicable. Thus, the Council has authorized the use of military force for limited purposes, such as naval interdictions at sea, or for wide-ranging purposes, such as protection of humanitarian assistance, enforcement of peace agreements, or to achieve withdrawal from occupied territory.69 Both resort to article 103 of the Charter and authorizations to use military force outside the exceptions in the Charter embedded in Security Council resolutions, have therefore served a very important function, placing the action within the framework of the Charter and thus ensuring that States would not thereby incur international responsibility. This issue was raised in the ILC in passing in regard to whether resolutions not governed by article 25 of the Charter could operate as such a circumstance precluding wrongfulness. It was stated: sanctions applied in conformity with the provisions of the Charter would certainly not be wrongful in the legal system of the United Nations, even though they might conflict with other treaty obligations incumbent upon the State applying them … such measures are the ‘legitimate’ application of sanctions against a State which is found guilty within that system of certain specific wrongful acts. This view would, moreover, seem to be valid … [even] where the taking of such measures is merely recommended.70 While the primary purpose of Security Council measures adopted under Chapter VII is to restore international peace and security, where a wrongful act becomes a constituent part of the determination of the existence of a threat to the peace and, by definition, is an act having a continuing character (since it would not otherwise form part of an actual threat), it is evident that peace could not be restored without putting an end to the violation. Council resolutions have therefore included calls for cessation of the acts in question, such as withdrawal from occupied territory, an end to violations of human rights or humanitarian law, or the renunciation of terrorism. The Council has also set conditions on States which in certain cases go beyond preexisting legal obligations, such as the submission of Iraq, under Resolution 687, to the destruction, removal or rendering harmless of its nuclear, chemical, and biological weapons, the ‘technical’ demarcation of its boundary with Kuwait and the establishment of a demilitarized zone. It would be difficult to justify such conditions, which would otherwise plainly be legislative, if not seen as guarantees against non-repetition within the framework of State responsibility. The Council, while having called for compensation on other occasions,71 established for the first time a compensation mechanism to serve as a comprehensive framework for dealing with Iraqi liability. In para 16 of Resolution 687 (1991), the Security Council reaffirmed Iraq’s liability under international law:

References (p. 132) for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait. Resolution 687 (1991) led to the establishment of a United Nations Compensation Commission and the creation of a fund financed out of a determined percentage of Iraqi oil export revenues for the payment of claims.

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In no other case of sanctions has State responsibility for violations of international law led to the State being subjected to such a wide-ranging regime of reparations. As Pierre-Marie Dupuy notes, while the Council preferred to remain within the framework of civil liability in responding to what may be termed an international crime, this is an interesting example of the institutionalization of the mechanism of compensation, which goes beyond a strictly bilateral relationship, and one which is defined by a political, not judicial, body.72 However, unlike in the case of other claims tribunals, in which responsibility has first to be determined, the issues here were only the damage suffered by the claimant and the causal connection between this damage and the invasion and occupation of Kuwait. Beyond State responsibility, it must be pointed out that the Security Council has also made the link between threats to international peace and security and the core crimes giving rise to individual criminal responsibility under international law, in the process institutionalizing such responsibility with the creation of the two International Criminal Tribunals on Yugoslavia and Rwanda.73 This trend has continued in the resolutions on the combating of terrorism as in the creation of the Special Tribunal for Lebanon. The Rome Statute for an International Criminal Court further engages the Security Council by embedding the Council’s discretionary determinations under article 39 within the Court’s procedures, with potentially important implications for the legal position of individuals, for under the Rome Statute, the Council has been given powers of referral and deferral of the Court’s jurisdiction, as well as a potential role in the determination of the crime of aggression. In conclusion, though the Council’s mandate is geared to maintenance of international peace and security, its decisions in numerous cases have nevertheless functioned as collective responses to particularly serious breaches of fundamental norms of international law, even when these are not embedded in the Charter, as for example, humanitarian law or international terrorism. The concept of international peace and security has thus acquired a meaning that extends far beyond that of collective security (envisaged as an all-out collective response to armed attack), to one in which breaches of fundamental norms are considered component parts of the security fabric. This is the case even where there is no risk of an international armed conflict.74 (iii) Security Council measures and permutations in the concept of sanctions The concept of sanctions lies at the heart of fundamental debates on the nature and function of international law. Yet while there are some commonly agreed elements to what

References (p. 133) constitutes a sanction—they are legal consequences following on a violation of a legal obligation, they infringe the subjective legal rights of the party against whom they are directed, and they are measures which amount to a dispensation of the sanctioning State from a legal obligation —agreement seems to end here. There remain wide differences of views as regards the form they take, their content, conditions for their application and their purpose. Moreover, the traditional concept of sanctions has undergone certain mutations in international law, depending on the field of law in which it operates. This is particularly noticeable in regard to sanctions within the aegis of international organizations. Thus Roberto Ago had pointed out that the use of the word sanction in relation to the Charter was less strict. From the debates which have ensued in the ILC, one can infer that sanctions may be characterized as follows: (1) they function in a majority of cases as reactive measures taken in an institutionalized context to a breach of an international obligation having serious consequences for the international community as a whole; (2) they include measures—enumerated in, or extrapolated from, article 41—which may consist in a temporary suspension of the subjective legal rights of the State against which 75

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they are applied, although they also include measures of retorsion; 75 (3) they are measures the object of which includes cessation of continuous breaches, as a necessary prerequisite for the restoration of international peace, but which have also included reparation in a broad sense, guarantees of non-repetition or, more controversially, have been said to inflict punishment in the sense of causing irreversible harm; 76 (4) they are measures which, under article 25 of the Charter, have amounted to the creation of a duty, not a right, on implementing States, thereby creating a ‘vertical’ relationship between these and the organization, as opposed to the ‘horizontal’ reactions taken unilaterally by States. 77 Unlike unilateral countermeasures, they may infringe the subjective rights of these States, in addition to those of the State against which the measures are applied; (5) they are measures which have amounted to a dispensation for implementing States from the performance of obligations under other international agreements, and, in some circumstances, following on express derogations have resulted in the suspension of customary international law. Do these measures constitute a special regime of responsibility or should they continue to be seen as mutations of a collective security system? This is a question of semantics; whatever they are called, these measures touch on issues of State responsibility and in the absence of Charter regulation of some of the issues arising under Security Council decisions, answers can only be sought within the framework of customary law.

References (p. 134) (iv) Limits to the competence of the Security Council and the general rules of State responsibility Security Council activism since the beginning of the 1990s has raised the question of the Charter and general international law limits to its action and brought resulting challenges to its decisions. The cases of Iraq reparations and the Lockerbie case were classic illustrations of this. In establishing a claims resolution mechanism, the Council arguably went beyond its competence to impose economic and financial sanctions—temporary measures provided for under article 41 of Chapter VII. The ILC has distinguished carefully between the nature and function of two very distinct legal consequences of State responsibility, namely sanctions and reparations. The latter could only find the source of its rules in the general law on State responsibility and the Council could only act in a declaratory fashion; indeed it expressly affirmed the application of international law, inter alia, in resolution 687 (1991). Yet despite the fact that international law plainly had to constitute the standard, the Council, the Governing Council and the Commissioners of the UNCC, departed in many respects from these rules, particularly in the matter of attribution, diplomatic protection, and causation.78 Iraq also challenged this mechanism before the UNCC on both substantive and procedural grounds. In the case of Libya, the Security Council made the leap from individual to State responsibility for international terrorism, which it implicitly brought within the scope of article 2(4) of the Charter, by endorsing the findings of two of its permanent members that Libya bore responsibility for the acts of its agents and therefore was required to pay appropriate compensation, before the accused individuals had been brought to trial.79 Libya challenged this before the International Court in the case of Lockerbie, but the case never reached the merits. More recently, the legitimacy of the Security Council’s so-called ‘legislative’ resolutions have been put in question and the problems of validity of Council resolutions and the limits of judicial review have re-surfaced.80 However, the question of accountability of the Security Council as well as the concurrent responsibility of member States for its decisions, are beyond the scope of this

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contribution as stated earlier, so only the limits relevant to the responsibility of States for their own acts and obligations are addressed here. The Charter does not refer to such limiting conditions, which are said to govern unilateral countermeasures. There is, for example, no condition for prior exhaustion of the peaceful settlement mechanisms of Chapter VI, nor an express requirement for a graduated or proportionate response.81 In this case, can the rules of State responsibility supplement or assist in the interpretation of decisions of the Security Council? There seems to be no

References (p. 135) reason why the action of States in adopting and implementing its decisions should not continue to be guided by the relevant customary law rules on State responsibility, so long as these do not ‘prejudice the Charter’. Hence the relevance of the conditions and limitations on the taking of countermeasures in Chapter Two, Part II of the Articles to the adoption and implementation of sanctions, ie collective measures within an institutionalized context, bearing in mind that some of these are matters of progressive development. Far from prejudicing the Charter, such limitations would be in conformity with its Purposes and Principles which the Security Council under article 24(2) is bound to observe in adopting its decisions and which include not only the primary goal of peace maintenance, but also reflect the human rights, humanitarian, economic, and social concerns of the Organization. These are evolutionary, reflecting the changes in the international legal order—the human rights component, for example, includes recently emphasized economic, social and cultural rights, such as the right to food, to health, and to a decent standard of living. This evolution of international law, which has included developments in human rights law and the emergence of a hierarchy of norms, influenced the debate in the ILC regarding the limits which should be placed on unilateral countermeasures82 and is reflected in articles 49–51. While the powers of the Council in the discharge of its functions lie outside the mandate of the ILC, the UN as a whole cannot remain completely unaffected by this debate, for ignoring this with respect to the more far-reaching consequences of collective responses would permit States to evade the conditions on unilateral countermeasures by hiding behind the corporate veil. The recent practice of the Security Council, as well as the practice of Member States and other UN organs, supports the view that the Council does not have unfettered discretion in the types of measures it adopts, that these have limits found not only in the Charter but also in general international law, and that Member States in the process of both adoption and implementation of the coercive decisions of the Security Council must also respect these limits. It is surely not contrary to the purposes of the Charter to ensure that sanctions are strictly limited to the requirements of the situation and that there are adequate safeguards against abuse.83 By virtue of the very objective of Chapter VII—the restoration of international peace and security— sanctions decided on by the Security Council should not be punitive, but temporary and reversible in their effects.84 It would prove difficult to maintain today that a State could be sanctioned, ie divested of substantial rights, in the absence of a serious breach of a fundamental obligation. Also, while inevitably, the ‘vertical’ sanctions applied by the Security Council affect the position of non-sanctioned States, there have been serious attempts to redress that situation.85 While restrictions on the use of military force would obviously not apply to the ‘vertical’ measures decreed by the Security Council (article 50(1) of the Articles), some of the conditions cited in articles 50(1)(b)–(d), 50(2)(b) and 51 are very relevant to such measures.

References (p. 136) Numerous discussions both outside and within the Security Council regarding the limits

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brought to sanctions by obligations for the protection of fundamental human rights and humanitarian law have been held.86 This is a recognition that such measures should ‘have minimal effects on private parties in order to avoid collective punishment’.87 The humanitarian exceptions in Security Council resolutions (going back to the Rhodesian case) reflect this to some extent. Particular concern over the effects of the decade-long sanctions on Iraq on the civilian population88 accelerated the trend towards so-called ‘smart’ or targeted sanctions. It is now increasingly unlikely that the Security Council will resort in the future to such drastic comprehensive trade sanctions. Other UN organs and treaty bodies, such as the Office of the High Commissioner for Human Rights, and the Economic, Social and Cultural Rights Committee, have been vocal in their view that member States continue to bear responsibility for their human rights obligations even when acting within the aegis of Chapter VII.89 Similar views have been expressed by UNICEF, WHO, and FAO, as well as the International Committee of the Red Cross.90 Recent reform proposals have emphasized the links between collective security and respect for human rights as well as underlined that the term security referred to in article 1(1) can no longer be confined to the security of States, but must ultimately be destined to the protection of individuals; thus the various reports and declarations on UN reform are replete with references to ‘human security’ alongside state security. The 2005 World Summit Outcome Document of 20 September 2005 has also underscored the resolve ‘to ensure that sanctions are carefully targeted in support of clear objectives’ and that they are ‘implemented in ways that balance effectiveness to achieve the desired results against the possible adverse consequences, including socio-economic and humanitarian consequences, for populations and third States’.91 The International Court of Justice in its Namibia Opinion, interpreting paragraph 2 of Resolution 276 (1970), has also held that the obligation on States not to enter into treaty relations with South Africa could not be applied to certain general conventions such as those of a humanitarian character, nor should the duty of non-recognition deprive the people of Namibia of any advantage derived from international cooperation.92 In 2008, the European Court of Justice overruled the judgment of the Court of First Instance, by striking down an EC Regulation freezing the funds of an individual placed on a Security Council sanctions committee terrorist list on the grounds that it failed to respect certain

References (p. 137) fundamental rights of the European Community—the right to be heard, the right to property, and the right to an effective legal remedy—despite the fact that it was intended to give effect to a Security Council Resolution that all EU member States were obliged to implement.93 As to the limits in the field of diplomatic or consular relations set by article 50(2)(b) of the Articles, it is interesting to note that some States in implementing Security Council sanctions in their domestic law, have introduced exemptions for diplomatic missions whether from third States or the target States, linked to their status in international law, despite the absence of an express exemption in Security Council resolutions.94 It is also evident that some degree of proportionality must apply to Security Council sanctions, although it is difficult to assess the meaning of proportionality in this context, which may go beyond ‘the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question’ (article 51 ARSIWA), since they are measures necessary for the restoration of international peace and security. Several States speaking in the Security Council have affirmed the application of the principle of proportionality to sanctions.95 In its Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons, the ICJ affirmed that the customary law dual conditions of necessity and proportionality applied to article 51 of the UN Charter.96 Finally, it is by now generally accepted (and affirmed in the case-law) that Security Council measures cannot infringe peremptory norms of general international law.97 In short, the rules of State responsibility, unless specifically derogated from, or overridden by virtue From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

of the Charter’s hierarchical nature, are not displaced as such by the Charter. After all, it has been recognized that customary law rules can be used to ‘fill in possible lacunae of the Treaty, to ascertain the meaning of undefined terms in its text or more generally, to aid interpretation and implementation of its provision’.98 More specifically, the Court has stated in the Nicaragua case in the context of the relationship between Charter rules and customary law on use of force, that the latter retains a separate or parallel existence as between the parties—and not only vis-à-vis third States—even if they are similar to the treaty provisions.99 A recent study by the ICRC on the customary law status of humanitarian law has also demonstrated that customary law rules operate in the interstices of conventional humanitarian law—eg in relation to armed conflicts under UN auspices.100

References

(p. 138) Conclusions The interplay between the Articles on State Responsibility and the Charter of the United Nations is alluded to by article 59 without being at all clarified. While it is clear that the Articles are residual and, consistently with article 103 of the Charter, that Charter obligations must take priority, the Charter is evidently not a self-contained regime excluding the law of State responsibility in relation to matters on which the Security Council takes action—any more than for other matters. Prima facie a breach of a Charter obligation amounts to an internationally wrongful act for the purposes of the Articles on State Responsibility. Although the Articles stipulate certain consequences of an internationally wrongful act in Part Two, the Commentary anticipates that serious breaches are likely to be addressed by international organizations including the Security Council and the General Assembly, and particularly by the Security Council in the case of aggression. Although some ILC members objected to treating the UN’s collective security mechanisms as a form of implementation of State responsibility, the Security Council in numerous cases has taken action by way of a collective response to violations of fundamental norms of international law and its resolutions have contained many legal elements which can only be understood as part of a regime of State responsibility. This extensive practice raises the question whether member States in pursuing in the Security Council the adoption of sanctions in consequence of internationally wrongful acts or in implementing such measures, ought not to continue to be subjected to certain of the limitations and requirements for such consequences in the ILC Articles. The customary law rules of State responsibility, far from being displaced, would in this way serve to supplement and mitigate the collective security system. Further reading G Arangio-Ruiz, ‘Article 39 of the ILC Draft Articles on State Responsibility’ (2000) 80 Rivista di diritto internazionale 747 G Arangio-Ruiz, ‘On the Security Council’s Law-making’ (2000) 80 Rivista di diritto internazionale 609 J Combacau, Le pouvoir de sanction de l’ONU (Paris, Pedone, 1974) J Crawford, ‘The Relationship between Sanctions and Countermeasures’, in V GowllandDebbas (ed) United Nations Sanctions and International Law (The Hague, Kluwer, 2001), 57 P-M Dupuy, ‘Après la guerre du golfe …’ (1992) 96 Revue générale de droit international public 621 M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’Etat (Paris, Pedone, 2006). G Gaja, ‘Réflexions sur le rôle du Conseil de sécurité dans le nouvel ordre mondial. A propos des rapports entre maintien de la paix et crimes internationaux des Etats’ (1994) 98 RGDIP

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306 V Gowlland-Debbas, ‘The Functions of the United Nations Security Council in the International Legal System’, in M Byers (ed), The Role of Law in International Politics (Oxford, OUP, 2000), 305 V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43 ICLQ 55 V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia (The Hague, Martinus Nijhoff, 1990) A Kolliopoulos, La Commission d’indemnisation des Nations Unies et le droit de la responsabilité internationale (Paris, LGDJ, 2001)

References

Footnotes: 1 On the nature of the ILC Articles as a lex generalis, see Report of the ILC, 25th Session, ILC Yearbook 1973, Vol II, 161, 170 (para 42). 2 Art 103 which reads: ‘[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’, is accepted now as covering the derivative obligations of the Organization, in particular the mandatory decisions of the Security Council. 3 Commentary to art 56, paras 1–2. 4 See Riphagen, Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II(1), 3,7; Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 1, 62. 5 For a critique of its provisions, see G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, paras 260–266; G Arangio-Ruiz, ‘Article 39 of the ILC Draft Articles on State Responsibility’ (2000) 80 Rivista di diritto internazionale 747. For the reaction of governments to art 39, see ‘Topical Summary’, XXXX A/CN.4/457, 15 February 1994, 82–85. 6 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1983, Vol II (1), 3, 48; Commentary to draft art 5, para 2, Report of the ILC, 35th Session, ILC Yearbook 1983, Vol II(2), 43; Commentary to draft art 39, fn 226, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58. 7 G Arangio-Ruiz, ‘Article 39 of the ILC Draft Articles on State Responsibility’ (2000) 80 Rivista di diritto internazionale 747, 749; and G Arangio-Ruiz, Eighth Report on State Responsibility, ILC Yearbook 1996, Vol II(1), 1, 7–8, para 46 (emphasis added). 8 See Commentary to draft art 19, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 96–122. 9 Commentary to draft art 19, para 55, ibid, 118. 10 Art 14(3) and (4): ILC Yearbook 1984, Vol II(1), 4. 11 See W Riphagen, Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II (1), 3, 40 (para 111). 12 W Riphagen, Fifth Report on State Responsibility, ILC Yearbook 1984, Vol II(1), 1, 4. 13 G Arangio-Ruiz, ‘Article 39 of the ILC Draft Articles on State Responsibility’ (2000) 80 Rivista di diritto internazionale 747, 758–9. 14 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, paras 70–119 and 140–146, respectively; G Arangio-Ruiz, Eighth Report on State Responsibility, ILC Yearbook 1996, Vol II(1), 1, paras 25–46.

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15 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 3, 8. See also the comments by governments to the 1996 draft that ‘universally condemned acts can now be expected to find their adequate legal and political response by the community of States’ acting through existing institutional means, in particular, chapter VII of the Charter, cited ibid, para 52. 16 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 3. See also International Law Commission, State Responsibility: Comments and observations received from Governments, Doc A/CN.4/488, 25 March 1998, art 39. 17 Commentary to art 59, para 2. 18 Introductory Commentary, para 4. 19 Commentary to art 54, para 2. 20 Commentary to art 40, para 9. 21 See, especially, the comments by James Crawford in relation to draft art 17 of the 1996 draft: J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 24. 22 See eg Comments and observations received from Governments, A/CN.4/515, 19 March 2001, article 59, Slovakia, 92; observations by members of the ILC reproduced in A/CN.4/SR.2651 (3 August 2001), para 14; A/CN.4/SR.2652 (4 August 2001), paras 7, 13, 17–18. 23 Commentary to art 59, para 1. 24 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 245 (para 41); see also, ibid, para 39, and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ Reports 1986, p 1, paras 175–179; also, PM Dupuy, ‘The Constitutional Dimension of the Charter Revisited’ (1999) 1 Max Planck Yearbook of United Nations Law 1. 25 See G Arangio-Ruiz, ‘Article 39 of the ILC Draft Articles on State Responsibility’ (2000) 80 Rivista di diritto internazionale 747, 761, on the phrase ‘without prejudice’ in the context of his former proposals. 26 Commentary to draft art 39, fn 226. 27 ARSIWA, Introductory Commentary, para 5, and Commentary to art 12, para 6. 28 See Commentary to art 12, paras 3–5; para 8. 29 Commentary to art 16, para 9: art 16, it is pointed out, has a different rationale to art 2(5) of the United Nations Charter. 30 See Commentary to art 21, para 1. 31 See Commentary to art 22, para 1; Introductory Commentary to Part III, Chapter Two, esp para 6. 32 The clearest examples are art 5: suspension of a Member of the United Nations against which preventive or enforcement action is taken by the Security Council from the exercise of the rights and privileges of membership; art 6: expulsion of a Member of the United Nations which has persistently violated the Principles contained in the Charter; art 19: suspension of a Member of the United Nations from voting in the General Assembly due to arrears in its contributions. 33 Commentary to art 41, para 3. 34 See Commentary to art 40, para 9. 35 See ‘Comments and observations received from Governments’, A/CN.4/515, 19 March 2001, art 59, comments by Austria and Spain, 91–92. 36 See G Arangio-Ruiz, ‘Article 39 of the ILC Draft Articles on State Responsibility’ (2000) 80 Rivista di diritto internazionale 747, 755–7. 37 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, 45, paras 91–92. See also W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 22, 57 and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

W Riphagen, Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II(1), 3, 12, referring to the United Nations as the representation of the international community. 38 See below, Chapter 80. 39 See R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, para 102ff; Report of the ILC, 28th Session, ILC Yearbook 1979, Vol II(2), para 22ff. On this practice, see also G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, paras 78–84. 40 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, paras 97–98. 41 Commentary to art 1, para 3; see also Commentary to draft art 1, paras 5 and 10, Report of the ILC, 25th Session, ILC Yearbook 1973, Vol II(1), 161, 174–175, 175–176. 42 See eg Commentary to draft art 30, para 22, Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 121, in it is stated that the terms ‘countermeasures’ and ‘measures’ referred also to ‘action by a State within the framework of sanctions ordered by a competent international organization on the basis of the rules by which it is governed’. For endorsement of this view of sanctions by the Special Rapporteurs: R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, paras 91–94; and G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, paras 15, 27. See also Commentary to art 22, para 3, referring to sanctions as: ‘measures taken in accordance with the constituent instrument of some international organization, in particular under Chapter VII of the United Nations Charter—despite the fact that the Charter uses the term “measures” not “sanctions” ’. 43 L Cavaré, ‘Les sanctions dans le cadre de l’ONU’ (1952) 80 Recueil des cours 191, 200–201. 44 See J Combacau, Le pouvoir de sanction de l’ONU (Paris, Pedone, 1974), 9–10. 45 See A Serup, L’Article 16 du Pacte et son interprétation dans le conflit Italo-Ethiopien (Paris, Rousseau, 1938), 13, 17–19, and 52. 46 But see the Dumbarton Oaks draft, Chapter VIII, B(2) and B(3), providing that enforcement action would be applied solely against a State which did not conform to a Security Council decision prescribing measures to be taken to restore international peace, and hence in breach of a conventional obligation (Doc.1, G/1, UNCIO IV/14). 47 H Kelsen, The Law of the United Nations (London, Stevens, 1950), 294 and H Kelsen, ‘Collective Security and Collective Self-Defence under the Charter of the United Nations’ (1998) 41 AJIL 783, 788. 48 H Kelsen, The Law of the United Nations (London, Stevens, 1950), 7. For other views on Chapter VII measures as legal sanctions, see C Leben, ‘Les contre-mesures inter-étatiques et les réactions a l’illicte dans la société internationale’ (1982) 28 AFDI 9, 22–24, 28; J Combacau, Le pouvoir de sanction de l’ONU (Paris, Pedone, 1974), 9–16, 104–106, 130–134. See also, generally, L Cavare, ‘L’idée de sanction et sa mise en oeuvre en droit international public’ (1937) 41 RGDIP 385. 49 For a useful survey of the literature, see A Kolliopoulos, La Commission d’indemnisation des Nations Unies et le droit de la responsabilité internationale (Paris, LGDJ, 2001), 54–64. 50 G Arangio-Ruiz, ‘On the Security Council’s Law-making’ (2000) 80 Rivista di diritto internazionale 609, 631. 51 Ibid, 694. 52 See eg the preamble of SC Res 665 (1990) on Iraq; and the by now common reference to the Sanctions Committees established under each sanctions regime. 53 For this practice and the analysis which follows, see V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia (The Hague, Martinus Nijhoff, 1990); V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43 ICLQ 55; V Gowlland-Debbas, ‘The Functions of the United From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Nations Security Council in the International Legal System’, in M Byers (ed) The Role of Law in International Politics (Oxford, OUP, 2000), 305. 54 See SC Res 215, 216 (1965), 232 (1966), 253 (1968), 423 (1978), 448 (1979)) on Southern Rhodesia and SC Res 418 (1977) and 569 (1985) on South Africa. 55 See SC Res 661, 664, 667, 670 (1990), and 687 (1991). 56 SC Res 713, 752, 757,770, 787 (1992), 819, 820 (1993), 836 (1993), 1160, and 1199 (1998). 57 See SC Res 794 (1992) and 837 (1992) on Somalia, 935 (1994) on Rwanda, and 1547 and 1556 (2004) on Darfur. 58 See eg SC Res 1304 (2000), 1493 (2003) on the DRC. 59 SC Res 748 (1992) in which the Council by referring to certain documents emanating from the governments of the US and UK implicitly attributes responsibility to Libya for the actions of its ‘officials’. See also SC Res 1054 (1996) following on Sudan’s refusal to extradite three terrorist suspects and general res olutions on terrorism such as SC Res 1566 (2004). 60 See eg SC Res 1373 (2001). 61 See eg SC Res 1718 (2006) on the Democratic Peoples’ Republic of Korea and SC Res. 1737 (2006) on Iran, both concerned with the alleged failure of these States to live up to their treaty commitments. 62 SC Res 1636 (2005) endorsing the report of the United Nations International Independent Investigation Commission prepared pursuant to resolution 1595 (2005): S/2005/662, 20 October 2005. 63 SC Res 1530 (2004) which condemned the bombings ‘perpetrated by the terrorist group ETA’ which the evidence later denied. It will also be noted that subsequent reports of the UN International Independent Investigation Commission were not so categorical about the attribution of the Hariri assassination to Syria. 64 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, ICJ Reports, 1971, p 50. 65 See eg for Southern Rhodesia: SC Res 216, 217 (1965), 277 (1970), and 423 (1978); Iraq: SC Res 662, 670 (1990), 706, and 712 (1991); former Yugoslavia: SC Res 777 (1992), 820, and 821 (1993). 66 See as illustrations: for Iraq/Kuwait: SC Res 661, 670 (1990) and 1137 (1997); former Yugoslavia: SC Res 713 (1991), 757, 787 (1992), 820, 942 (1993), 1160 (1998); Somalia: SC Res 733 (1992); Libya: SC Res 748 (1992) and 883 (1993); Liberia: SC Res 788 (1992); Haiti: SC Res 841 (1993); Rwanda: SC Res 918 (1994); Sudan: SC Res 1054 (1996); Sierra Leone: SC Res 1132 (1997); Afghanistan: SC Res 1267 (1999); Democratic Republic of the Congo: SC Res 1493 (2003); Korea: SC Res 1718 (2006) and 1874 (2009); Iran: SC Res 1737 (2006). 67 See reference to art 103 in SC Res 670 (1990). There is also a growing case law in this respect, eg: see Orders of 14 April 1992 (Provisional Measures), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) and (Libyan Arab Jamahiriya v United States of America), Provisional Measures, Orders of 14 April 1992, ICJ Reports 1992, p 3 and 114, 115, and 126 (paras 39 and 42), respectively; European Court of First Instance, Case T/306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, §§231, 234; European Court of First Instance, Case T 315/01, Yassin Abdullah Kadi v Council and Commission, §183–4 (although see now European Court of Justice (Grand Chamber), Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008. 68 See eg the statements by Lord Caradon (UK) and US Ambassador Goldberg during the debate

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preceding the adoption of Resolution 221 (1966) which authorized the search and seizure of ships on the high seas, in SCOR, 2lst yr, 1276th mtg, paras 21 and 68, and 69, respectively. 69 See Southern Rhodesia: SC Res 221 (1966); Iraq: SC Res 665 (1990), 678 (1991); former Yugoslavia: SC Res 770, 787 (1992), 816 and 836 (1993); Somalia: SC Res 794 (1992); Haiti: SC Res 875 (1993), 917, 940 (1994), 1031 (1995); Rwanda: SC Res 929 (1994)): Côte d’Ivoire: SC Res 1464 (2003); Democratic Republic of the Congo: SC Res 1484 (2003). 70 Commentary to draft art 30, para 14, Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 119. 71 See eg SC Res 487 (1981), 387 (1976), and 527 (1982). 72 P-M Dupuy, ‘Après la guerre du golfe …’ (1992) 96 RGDIP 621, 637. 73 SC Res 808 and 827 (1993), and 955 (1994), respectively): see ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Appeals Chamber, 2 October 1995, which upheld the view that the legality of its creation rested on art 41 of the UN Charter. 74 For similar views, see G Gaja, ‘Réflexions sur le rôle du Conseil de sécurité dans le nouvel ordre mondial. A propos des rapports entre maintien de la paix et crimes internationaux des Etats’ (1994) RGDIP 306; and P-M Dupuy, ‘Après la guerre du golfe …’ (1992) 96 RGDIP 621. 75 ‘In the language of the United Nations, as previously in that of the League of Nations, the use of the word “sanctions” does not mean exclusively actions which infringe what in other circumstances would constitute a genuine right …’: Commentary to draft art 30, para 13, Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 119. 76 See R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, para 79. 77 See G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, para 15. 78 For example, in holding Iraq responsible also for damages incurred by the Coalition forces, regardless of respect for the jus in bello; or for disregarding the conditions for invoking the responsibility of a State, namely, the requirement of nationality of claims and exhaustion of local remedies. See B Stern, ‘Une procédure mi-politique, mi-juridictionnelle: le règlement des réparations dues par l’Irak à la suite de la crise du Golfe’, in Y Daudet (ed), Actualités des Conflits internationaux (Paris, Pedone, 1993), 171, 178. 79 See SC Res 748 (1992). 80 S Talmon, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175; G Abi-Saab, ‘The Security Council as Legislator and as Executive in its Fight Against Terrorism and Against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy’, in R Wolfrum and V Röben (eds), Legitimacy in International Law (Berlin, Springer, 2008), 109. 81 See Commentary to draft art 30, para 22, Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 121. 82 See G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1; G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1; J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507. 83 See Introductory Commentary to Part Three, Chapter Two, paras 2, 6. 84 See in regard to unilateral measures, see Commentary to art 49, paras 1, 7; and art 53, ARSIWA. 85 See GA Res 49/58, 50/51, 50/58E, 51/208, etc, inviting an examination of the special economic problems confronting States in carrying out sanctions, under Charter art 50. 86 See for similar debate in the League of Nations, Reports and Resolutions on the Subject of Article 16 of the Covenant, 13 June 1927, 11ff, cited in G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, 17.

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87 See Commentary to art 50, para 22. 88 See eg Letter dated 13 April 1995 from the five permanent members of the Security Council (Doc S/1995/300); Boutros Boutros-Ghali, General Assembly, Report of the Secretary-General on the Work of the Organization, Supplement to an Agenda for Peace, 1995, para 70, and Report of the Secretary-General submitted pursuant to Council requests in resolutions 1284 (1999) and 1281 (1999) on the humanitarian needs in Iraq (Doc.S/2000/208). 89 See UNHCHR, Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights while Countering Terrorism, 2003, and Committee on Economic, Social and Cultural Rights, General Comment 8 (1997), UN Doc E/C.12/1997/8, 5 December 1997, para 1. 90 On the applicability of human rights and humanitarian law to UN sanctions, see V GowllandDebbas (ed), United Nations Sanctions and International Law (The Hague, Kluwer, 2001), Part II; M Reisman and D Stevick, ‘The Applicability of International Law Standards to United Nations Economic Sanctions Programme’ (1998) 9 EJIL 86; see also Commentary to art 50, paras 6 and 7. 91 World Summit Outcome Document A/RES/60/1, paras 106–108. 92 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 15, 55, and 56. 93 European Court of Justice (Grand Chamber), Joined Cases C-402/05 P and C-415/05, P Yassin Abdullah Kadi and Al Barakaat International Foundation, Judgment of 3 September 2008. 94 See V Gowlland-Debbas, National Implementation of United Nations Sanctions: A Comparative Study (The Hague, Martinus Nihjhoff, 2004), 52, 107 (Belgium), 246–247 (Germany), and 555 (Switzerland). 95 See eg SCOR, 4128th mtg, 17 April 2000; and GA Res 51/242 (1997), Annex II, 7, para 1; see also Statement by the President of the Security Council, S/PRST/2000/12 (7 April 2000), 4. 96 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, 245 (para 41). 97 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures) (Order of 13 September 1993), Provisional Measures, ICJ Reports 1993, 325, 440, separate opinion of Judge ad hoc Lauterpacht; European Court of First Instance, Case T/306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, paras 281–282; European Court of First Instance, Case T 315/01, Yassin Abdullah Kadi v Council and Commission, paras 226, 230; see also Commentary to art 50, para. 9. 98 Amoco International Finance Corporation v Iran (1987-II) 15 Iran-US CTR 222 (para 112). 99 Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States of America), Merits, Judgment, ICJ Reports 1986, 1, 93–96 (paras 175–179). 100 J-M Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge, CUP, 2005).

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Part II International Responsibility—Development and Relation with Other Laws, Ch.13 Leges Speciales and Self-Contained Regimes Bruno Simma, Dirk Pulkowski From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Circumstances precluding wrongfulness — Diplomatic protection — Lex specialis — Sovereignty — Customary international law — General principles of international law — European Court of Justice (ECJ) — Permanent Court of International Justice (PCIJ) — European Court of Human Rights (ECtHR) — Countermeasures — Vienna Convention on the Law of Treaties

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(p. 139) Chapter 13 Leges Speciales and Self-Contained Regimes 1 The lex specialis principle and so-called ‘self-contained regimes’ 140 (a) The lex specialis principle 140 (b) The problem of ‘specialty’ of norms 141 (c) Definitions of self-contained regimes 142 (i) The two major precedents before the world court 142 (ii) A proposal for a more uniform terminology 143 (iii) The position of the ILC in its work on State responsibility 144 (d) Self-contained regimes: a systematic critique 145 (i) The inconclusiveness of treaty interpretation 145 (ii) Leges speciales in a unified legal order 146 (iii) Self-contained regimes in a fragmented legal order 147 (iv) Fallback to the general law of State responsibility 148 2 Case studies: special regimes and the ‘fallback’ to State responsibility 150 (a) Diplomatic law 150 (b) The European Community legal system 152 (c) The WTO system 155 (d) Treaties for the protection of human rights 158 Further reading 162 Since 1945, international law has witnessed a process of intense functional specialization. So much so that the proliferation of new legal regimes has recently sparked a vivid debate on the alleged fragmentation of international law. As international law has extended to subject areas as diverse as environmental protection, human rights, and international trade, numerous international instruments contain tailor-made rules on the legal consequences of breach. The Articles on State Responsibility adopted by the International Law Commission in 2001 open the door to such special sets of rules in article 55, entitled lex specialis. These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law. While the wording of article 55 is short and straightforward, it is both one of the most important and debatable provisions of the ILC’s Articles. The ILC introduced the lex specialis principle as a tool for connecting the rules on State responsibility with other regimes of international law. However, the application of the principle is controversial with regard to

References (p. 140) subsystems that have attained a particularly high degree of autonomy. The more a system’s operation is ‘closed’ towards its international law environment, the less likely it is to fall back on the rules on State responsibility. We argue that the lex specialis principle is nonetheless a useful methodological tool for the international law practitioner, which helps to network ‘traditional’ From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

international law and ‘new’ subsystems of international law. Social differentiation does not preclude normative compatibility. Self-contained regimes in the area of State responsibility are, thus, neither conceivable nor desirable.

1 The lex specialis principle and so-called ‘self-contained regimes’ (a) The lex specialis principle The option of complementing international obligations with a specific set of secondary rules instead of adhering to a ‘one-size-fits-all’ approach on State responsibility is a prerogative inherent in the idea of sovereignty. Mostly, the sovereign will of States will be expressed in special treaty provisions. It is not excluded, however, that special secondary rules are established by particular (eg regional) custom.1 There is no systemic reason why derogation from the rules on State responsibility should only be permissible by way of ‘contractual instruments’, as Special Rapporteur Arangio-Ruiz had suggested.2 Either way, the raison d’être of special secondary norms remains the same. They are crafted with a view to enhancing the efficacy of the primary rules. An early expression of this rationale dates back to Emer de Vattel: De deux Loix, ou de deux Conventions, toutes choses d’ailleurs égales, on doit préférer celle qui est la moins générale, & qui approche le plus de l’affaire dont il s’agit. Parce que ce qui est spécial souffre moins d’exceptions que ce qui est général; il est ordonné plus précisément, & il paroît qu’on l’a voulu plus fortement.3 Efficacy, for de Vattel, is a consequence of fewer exceptions, more regulatory precision, and, most interestingly, the assumption that what has been laid down in a more specific manner carries a stronger expression of State will. The rule lex specialis derogat legi generali has been referred to as a well-recognized principle of international law.4 However, despite its general acceptance, the lex generalis-lex specialis distinction has only occasionally played a prominent role in international jurisprudence. The International Court of Justice has affirmed that a treaty concluded between Hungary and Czechoslovakia governed the relations between the parties as a lex specialis vis-à-vis the rules of State responsibility.5 Similarly, the Court ruled in the Nicaragua judgment that ‘[i]n general, treaty rules being lex specialis, it would not be appropriate that a State should bring a claim based on an a customary-law rule if it has by treaty already provided means for settlement of such a claim’.6 In its INA Corporation decision, the Iran-US Claims Tribunal

References (p. 141) decided that the standard of full compensation laid down in a Treaty of Amity prevailed over the more liberal standard of compensation for nationalization of property under general international law.7 Nonetheless, case law making express reference to the lex specialis principle is relatively scarce. One possible explanation would be that reference to a ‘special’ rule presupposes the perspective of general international law. Both the International Court of Justice and the Iran-US Claims Tribunal, in a first step, examined the content of the rule of general international law and considered, in a second step, whether States in the particular case had derogated from this standard by creating a more special set of rules. Tribunals established under a special legal subsystem—such as World Trade Organization (WTO) panels or the European Court of Justice (ECJ)—generally adhere to the reverse order of examination. They are primarily concerned with the content of ‘their’ special law. Only in a second step, if this special regime proves insufficient to resolve a case, is resort had to general international rules. While tribunals working on the basis of general international law resort

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to the lex specialis principle to justify the non-application of general international law, special tribunals are not required to provide a comparable justification for applying the special rules under which they were created.

(b) The problem of ‘specialty’ of norms What appears to be a relatively straightforward provision, however, has a major built-in problem. When exactly can it be said that one rule is more special than another, and how far does the specialty extend? First, as Sir Gerald Fitzmaurice has observed, ‘[t]he generalia rule can only apply where both the specific and general provision concerned deal with the same substantive matter’.8 In our context, however, whether a special norm relates to the same subject-matter as the State responsibility rules can be problematic. For instance, does a non-compliance procedure under a multilateral environmental agreement (MEA) concern the same subject-matter as the regime of State responsibility? The subject-matter of the rules of State responsibility is, in essence, the legal consequences of unlawful conduct. State responsibility, thus, deals with consequences of ‘breach’, the MEA’s regime with procedures for ‘non-compliance’. If non-compliance does not necessarily imply unlawfulness, which ‘breach’ does, it would be conceivable to apply the ‘hard’ State responsibility regime in parallel, because the two sets of norms do not purport to regulate the same subject-matter. Alternatively, it could be argued that both the regime of State responsibility and a MEA’s non-compliance procedure spell out consequences of a deviation from normative expectations. Then, the procedure under the MEA could be considered a lex specialis. Second, if it can be established that a special norm concerns the same subject matter as the articles on State responsibility, the question remains how far the specialty of that particular norm extends. In this context, to give some contentious examples, the question has been raised whether a State can claim retrospective compensation pursuant to the general rules of State responsibility for breaches of WTO law, although the WTO Agreements do not authorize (nor forbid) such compensation. Another question would be whether a violation of EC law can ultimately be addressed with unilateral countermeasures, although (p. 142) the EC Treaty contains a comprehensive dispute settlement machinery. If we try to imagine a sliding scale of specialty, one could conceive at the one end a legal provision that is only designed to replace a single provision of the State responsibility articles while leaving the application of this framework otherwise untouched. On the other end of the scale, a strong form of lex specialis could exclude the application of the general regime of State responsibility altogether, either by explicit provision or impliedly by virtue of a regime’s particular structure or its object and purpose.

(c) Definitions of self-contained regimes This latter concept of a strong lex specialis designed to exclude completely the general international law of State responsibility is what we denote as a ‘self-contained regime’. Article 55 is meant to cover all kinds of special rules, from weaker forms of specialty that only modify the general regime on a specific point to strong forms such as self-contained regimes that attempt to exclude the application of the general rules of state responsibility altogether.9 (i) The two major precedents before the world court As far as we can see, the phrase ‘self-contained regime’ was coined by the Permanent Court of International Justice in the SS Wimbledon case. The PCIJ was faced with the question whether the provisions in the Treaty of Versailles relating generally to German waterways also applied to the Kiel Canal. The Court pointed out that the drafters of the Treaty had devoted a special section to the Kiel Canal, which differed substantially from the rules relating to other watercourses. The Court concluded that: [t]he provisions relating to the Kiel Canal in the Treaty of Versailles are therefore self-

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contained; if they had to be supplemented and interpreted by the aid of those referring to the inland navigable waterways of Germany in the previous Sections of Part XII, they would lose their ‘raison d’être’ … The idea which underlies [the specific provisions regarding the Kiel Canal] is not to be sought by drawing an analogy from these provisions but rather by arguing a contrario, a method of argument which excludes them.10 In the Wimbledon case, the PCIJ applied the concept of self-containment to resolve a question of treaty interpretation concerning the relationship between two sets of primary international obligations. More recently, the International Court of Justice in its Tehran Hostages judgment transposed the concept of self-contained regimes to the level of secondary norms. The Court asserted that the regime of specific legal consequences contained in the Vienna Convention on Diplomatic Relations was self-contained vis-à-vis the customary international law of State responsibility. Consequently, in case of violations of the Vienna Convention, no resort may be had to any of the remedies provided by general international law, because ‘diplomatic law by itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions’.11 After exploring in detail the sanctions contemplated by the Vienna Convention (such as the option of declaring a diplomat persona non grata) the Court concluded:

References (p. 143) The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to the diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. These means are by their nature, entirely efficacious.12 (ii) A proposal for a more uniform terminology The concept of self-contained regimes attracted scholarly attention only after the Tehran Hostages ruling. Lack of uniform terminology has probably contributed a good deal to the controversial character of the discussion addressing the alleged self-containment of legal sub-systems. Various levels of autonomy have been associated with the term ‘selfcontained regimes’. First, the notion of ‘self-contained regimes’ has been misconceived as an argument in favour of entirely autonomous legal subsystems. Social systems cannot exist in splendid isolation from their environment. Similarly, legal subsystems coexisting in isolation from the rest of international law are inconceivable. There will always be some degree of interaction, at least on the level of interpretation. In the words of the ILC’s Study Group on ‘Fragmentation of International Law’: No rule, treaty, or custom, however special its subject-matter or limited the number of the States concerned by it, applies in a vacuum. Its normative environment includes … not only whatever general law there may be on that very topic, but also principles that determine the relevant legal subjects, their basic rights and duties, and the forms through which those rights and duties may be supplemented, modified or extinguished.13 Even the European Court of Justice has asserted that principles of general international law are applicable residually within the context of EC law, and has indicated its willingness to defer to the interpretation of an international agreement by a court established under such an agreement.14 In the case of the WTO, the Appellate Body has acknowledged that the GATT remains firmly imbedded in general international law, stating that the Agreement ‘is not to be read in clinical isolation from public international law’.15 Thus, to avoid confusion, the term ‘self-contained regime’ should not be used to circumscribe the unrealistic hypothesis of a fully autonomous legal subsystem.

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Nor should the term be used to describe leges speciales at the level of primary rules, although it is precisely in the context of primary rules that the PCIJ had originally introduced the concept. In its original meaning, the concept denoted a set of treaty provisions which cannot be complemented through the application of other rules by way of analogy. After Tehran Hostages, however, scholarly debate on self-contained regimes has narrowed down to the specific question of the ‘completeness’ of a subsystem’s secondary rules. Hence, we reserve the term ‘self-contained regimes’ to designate a particular category of sub systems, namely those that embrace a full, exhaustive and definitive, set of

References (p. 144) secondary rules. The principal characteristic of a self-contained regime is its intention to totally exclude the application of the general legal consequences of wrongful acts as codifi ed by the ILC, in particular the application of countermeasures by an injured State.16 (iii) The position of the ILC in its work on State responsibility The ILC’s stand with regard to the existence of so-called self-contained regimes concerning State responsibility varied with each Special Rapporteur taking up the subject of legal consequences of internationally wrongful acts. In a nutshell, the ILC first appeared to embrace the concept of selfcontained subsystems (Riphagen), then became highly critical of the systematic feasibility of such isolation from State responsibility (Arangio-Ruiz), and finally adopted the position of a pragmatic ‘maybe’ (Crawford). Special Rapporteur Riphagen’s approach was characterized by considerable ambiguity. On the one hand, Riphagen charted the international legal system as an order modeled on a variety of distinct subsystems, within each of which primary rules and secondary rules are closely interlinked.17 The regime of State responsibility was perceived as merely part of one such subsystem. Consequently, in the Rapporteur’s view, ‘[t]he idea that there is some kind of least common denominator in the regime of international responsibility must be discarded.’18 Riphagen even presented scenarios in which ‘the subsystem itself as a whole may fail, in which case a fallback on another subsystem may be unavoidable’.19 In the era of Special Rapporteur Arangio-Ruiz debate concentrated on one, particularly contentious, aspect of self-contained regimes, namely the question whether such a ‘socalled self contained regime affect[s], and if so in what way, the rights of the participating States to resort to the countermeasures provided for under general international law’.20 Focusing on the admissibility of countermeasures, Arangio-Ruiz concluded that none of the systems envisaged as selfcontained regimes excluded the application of the rules of State responsibility in concreto. The Rapporteur added that, in any event, the very concept of closed legal circuits of responsibility rules was dubious even in abstracto.21 Arangio-Ruiz suggested that the limitations built in the customary international law of State responsibility, most notably the proportionality principle, would suffice to take sufficient account of the peculiarities of subsystems. According to the Rapporteur, countermeasures ‘outside’ a special subsystem’s secondary rules would, in principle, be disproportionate. Consequently, only after all available means within the subsystem are exhausted, may a State resort to proportional countermeasures under general international law.22 Since Arangio-Ruiz perceived the conflict between special secondary rules and the general rules of State responsibility to be anchored in (and resolved by) the proportionality principle, he proposed the deletion of the lex specialis clause in the draft articles. Rather than resolving the conceptual clash between the ILC’s previous rapporteurs, Special Rapporteur Crawford decided to refer the issue of self-containment of subsystems to another topic which the Commission was going to take up, namely the fragmentation of international law. The Commentaries adopted in 2001 remain silent on whether a closed responsibility regime outside the customary law of State responsibility is conceptually (p. 145) feasible and, if yes, which

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subsystems may qualify as thus closed. The Commission avoided express recognition of selfcontained regimes by diplomatically speaking of ‘strong’ forms of lex specialis, including what are often referred to as self-contained regimes’.23 Despite such hesitation, the ILC’s final product can still be recognized as a conceptual approximation to Special Rapporteur Arangio-Ruiz’s position. Admittedly, the Commission preferred the more conventional legislative technique of an express conflict clause over Arangio-Ruiz’s approach of re-interpreting proportionality. In substance, however, the very inclusion of a lex specialis clause implies a certain concept of the ‘design’ of the international legal order. The ILC moved away from Riphagen’s idea of two competing regimes and towards Arangio-Ruiz’s concept of a canon of general law that is applicable automatically unless States have specifically contracted out by virtue of a special legal regime. In its deliberation on the topic ‘The fragmentation of international law’, the ILC appears to follow the course thus charted. In the Report elaborated in 2006 by the Study Group, special subsystems are described as firmly embedded within an omnipresent general law.24

(d) Self-contained regimes: a systematic critique (i) The inconclusiveness of treaty interpretation The principal characteristic of a self-contained regime is its intention to exclude the application of the general legal consequences of wrongful acts, in particular resort to countermeasures by an injured State. The question that immediately follows is how to find out whether such a complete exclusion of all secondary rules of general international law is in fact intended. This meets with considerable difficulties. In theory, the answer can be found in a simple two-step process: first, the rules of the special regime must be interpreted according to article 31 of the Vienna Convention on the Law of Treaties in order to establish whether the regime’s secondary rules are intended to be exhaustive and complete. Second, resort must be had to general international law to verify whether the latter permits such derogation. In practice, however, treaty interpretation does not allow such clear-cut conclusions as to whether the customary law of State responsibility is to be altogether excluded. No treaty regime that we will analyse—whether in the fields of human rights, trade, or environmental protection—contains a catalogue of secondary rules that would match ‘one-to-one’ the kinds of secondary rules provided under general international law. There are always questions on which a special regime remains silent. WTO law, for example, does not contain any specific prescription concerning monetary compensation; nor does the WTO regime expressly provide for an obligation to restore the status quo ante. In human rights treaties, the question remains whether the primary rules set out in these treaties are subject to enforcement through bilateral countermeasures. Even the highly developed remedy system of the European Union is not without lacunae. The wording of the Treaties does not seem to provide for an obligation of one member State to pay damages to another, injured member State (see Section 2 below for a detailed discussion of these case studies).

References (p. 146) In all these cases, the question arises whether such ‘lacunae’ should be interpreted as intentional deviations from the general regime of state responsibility or as gaps that need to be filled in by general international law. Special treaty regimes rarely answer this question in an unequivocal fashion (for example, through an express provision that ‘the rules of this treaty are conclusive, and a recourse to general international law is precluded’). In most cases, ‘the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (article 31(1) of the Vienna Convention on the Law of Treaties) allows for plausible arguments to be made for both positions. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Whether or not the general international law of State responsibility applies is not so much determined by the ordinary meaning of a treaty’s terms but by certain background assumptions concerning the structure of the international legal order.25 At the one extreme, international law is perceived as a unified and flawlessly integrated ‘ordre juridique’.26 At the other extreme, international law is described as the sum of fragmented regimes or as ‘the epi-phenomenon of the multidimensional fragmentation of the world society’.27 (ii) Leges speciales in a unified legal order According to scholars following a universalistic concept of international law, a presumption in favour of the application of general international law applies. Special Rapporteur Crawford has spoken of a ‘presumption against the creation of wholly self-contained regimes in the field of reparation’.28 Similarly, Pauwelyn’s study is expressly based on the premise that the law of State responsibility, as an overarching catalogue of leges generales, is applicable whenever the special regime contains no explicit derogation. ‘[I]t is for the party claiming that a treaty has ‘contracted out’ of general international law to prove it.’29 Since special responsibility regimes are simply considered an aggregate of leges speciales, which, nonetheless remain part of a unified legal order, a fallback on State responsibility is warranted to the extent that the special regime remains tacit. Similar statements can also be found in the case law of the International Court. In the ELSI case, the question arose whether a long-standing rule of general international law, the exhaustion of local remedies rule, applied in the context of a special treaty regime. At the outset, the Court emphasized the freedom of the parties to a treaty to deviate from the rules of customary international law: The Chamber has no doubt that the parties to a treaty can therein either agree that the local remedies rule shall not apply to claims based on alleged breaches of that treaty; or confirm that it shall apply.30 In casu, however, it was precisely the question whether the parties had agreed to deviate from customary international law that was contentious. In such a situation, the Court explained:

References (p. 147) the Chamber find itself unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so.31 The conclusion that the Court reached—namely, that the local remedies rule applies—was not a result of grammatical or systemic interpretation of the concrete treaty at hand; it was predetermined by the assumption that, in a unified legal order, general international law would apply unless the parties have not specifically contracted out of that regime. Other examples of cases in which a presumption in favour of general international was applied include the Nicaragua and Gabcíkovo judgments of the International Court of Justice and the INA award of the Iran-US Claims Tribunal. In all three cases, the judges first examined the content of the general—customary—rule of international law, before turning to special treaty rules that might be relevant.32 (iii) Self-contained regimes in a fragmented legal order By contrast, scholars who conceive the international legal order primarily as the sum total of interrelated subsystems will generally put forward the opposite presumption, namely a presumption in favour of complete and exhaustive regulation in the respective subsystem. Once such a presumption is established, it can easily be concluded in accordance with the maxim expressio

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unius est exclusio alterius that no remedies other than the ones specified may be resorted to. The paradigm of completeness of international regimes also underlies the rulings of the ECJ. Since the Community Treaty has ‘created its own legal system’,33 the ECJ considers that Member States may not invoke the responsibility of other Member States for violations of EC law outside the procedures of the Treaty. This is even true, according to the ECJ, when Member States allege the violation of a provision of a ‘mixed agreement’ (that is, an international treaty ratified by the Community and its Member States) that falls within the competence of the Community. In the MOX Plant case, the ECJ ruled that Ireland was precluded from invoking the rules of State responsibility under general international law to seek redress for a violation of certain provisions of the United Nations Convention on the Law of the Sea.34 The ECJ’s hesitation to use general international law has even extended to cases where no suitable remedies under Community Treaty exist. Instead of falling back on the rules on State responsibility, the Court has attempted to fill lacunae by analogies within the system or by recourse to general principles inherent in the Community legal order. The Francovich principles may be cited as one example for resolving shortcomings within the ‘regime’.35 Thus, according to the ECJ, the general international law of State responsibility is not a general fallback option that automatically fills up the lacunae of the special regime, but rather an aliud, resort to which requires special justification.

References (p. 148) While the regime of the European Community has clearly tended towards self-containment, the degree of integration of the WTO’s remedies regime into the general international law of State responsibility is less obvious. While many scholars have called for a full integration of international trade law into general international law, others have put forward considerable arguments for the conclusiveness and completeness of the WTO regime. According to the second group of scholars, WTO law must be presumed to be selfcontained, unless a party can demonstrate that the political bargain or ‘package deal’ that underlies the trading system extends to certain rules of general international law.36 (iv) Fallback to the general law of State responsibility The first—universalistic—position takes the perspective of general international law. Derogation from the general regime is accepted only to the extent that such an intention is clearly stated in the treaty. Consequently, proponents of this position tend to deny the existence of self-contained responsibility regimes. The second—particularistic—position proceeds from the point of view of a particular regime. Since the standard assumption is that the regime is complete, recourse to rules outside the regime is more of an emergency operation than a desirable practice. Consequently, regimes are likely to appear as selfcontained. Often, a scholar’s approach seems to depend on whether her intellectual home is the sphere of public international law or that of a specialized subsystem. As Special Rapporteur Arangio-Ruiz has observed with regard to the European Community: Generally, the specialists in Community law tended to consider that the system constituted a selfcontained regime, whereas scholars of public international law showed a tendency to argue that the treaties establishing the Community did not really differ from other treaties …37 Both positions have their merits, but neither of them should be taken to extremes. On the one hand, construing international law as a flawlessly integrated framework of rules, as proposed by strong universalists, may camouflage the functional differentiation of international law rather than resolving the problems arising from such differentiation. On the other hand, social differentiation does not necessarily entail separation at the normative level; strong particularists need to present additional arguments as to why the purposes of a ‘special’ system would not be served by general

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international law. This suggests that the way forward is to focus on the added value that general international law can bring to special regimes (rather than spending energy on arguing in general terms for or against presumptions in favour or against the applicability of general international law). What should be decisive is whether, with respect to the particular issue at hand, a fallback on general international law is expedient to serve the purposes of the special regime. Some benefits of opening special regimes to general international law are obvious (and relatively uncontroversial). The general international law on State responsibility provides (p. 149) solutions for problems of attribution (articles 4–11 of the ILC Articles), circumstances precluding wrongfulness (articles 20–27 of the ILC Articles), or the non-availability of a justification based on domestic law that will normally be as relevant in special systems as under general, customary international law (article 32 of the ILC Articles). A harder case, however, remains the question whether recourse to countermeasures should be permitted in the event of a continuous violation of a treaty obligation. General international law vests a State with certain capacities to ensure that its rights be respected, including a restricted right to unilateral enforcement action. Often, such countermeasures are not specifi cally provided under special systems. Can States fall back on general international law after they have exhausted the special rules and procedures of a special regime? The crucial question is whether primary rules contained in special subsystems ‘deserve’ the additional ‘bite’ that enforcement through countermeasures can deliver. To put it differently, are there reasons why obligations in special regimes should be considered ‘softer’ than other international law? If Vattel is right, the contrary is the case: ‘il est ordonné plus précisément, & il paroît qu’on l’a voulu plus fortement’.38 The fact that States decide to go through the cumbersome process of multilateral treaty making suggests that the rules elaborated in this process are of particular importance. Therefore, we should not presume too readily that a State was willing to give up ‘the rights or facultés of unilateral reaction it possessed under general international law’39 by subscribing to a regime that sets out other procedures for ensuring compliance. Instead, it seems reasonable to assume that States only intended to relinquish their facultés under general international law in favour of a special regime’s procedures to the extent that and as long as that subsystem’s procedures prove effective. As the ILC Study Group put it: if instead of enhancing the effectiveness of the relevant obligations the regime serves to dilute existing standards … then the need of a residual application, or a ‘fall-back’ onto the general law of State responsibility may seem called for.40 Under this premise, a fallback on countermeasures under the general international law of State responsibility is conceivable in at least three hypothetical scenarios: (1) in the case of a continuous violation of an obligation under a special system despite a decision on the contrary by the system’s competent dispute settlement body; (2) in the case of an injured State’s failure to obtain reparation despite a respective decision by the system’s competent dispute settlement body; and (3) if unilateral action is necessary as a defensive measure. In the application of countermeasures, due respect must obviously be paid to the characteristics of the special regime in question. It would be wrong, however, to assume from the outset that the delicate creatures of environmental law or human rights could not be adequately treated by the general international law practitioner with her State responsibility toolbox. The Articles take account of sensitivities of special regimes in various ways:

References (p. 150) (1) The differentiation between injured States and non-injured States entitled to a limited range of remedies ensures that States whose interests are not affected do not feel

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entitled to meddle in other States’ affairs. (2) The test of proportionality allows accommodating the needs of special fields of international law and the interest of States in the integrity of an institutional system. (3) Except where no other response can be envisaged, no remedy may be resorted to that would impair the continued performance of the obligation breached. This refers above all to countermeasures. Thus, the spectre of State responsibility loses some of its horror once a closer look is had on how the draft Articles operate in practice.

2 Case studies: special regimes and the ‘fallback’ to State responsibility (a) Diplomatic law The rules of international law most commonly associated with the notion of self-containment, the rules of diplomatic law, are at the same time the least convincing example of a closed system of secondary rules. In what may well be referred to as a jurisprudential overkill, that is, an unnecessarily broad statement, the Court in the Tehran Hostages judgment ruled that diplomatic law ‘specifies the means at the disposal of the receiving State to counter any such abuse’ of diplomatic privileges and that, therefore, diplomatic law constituted a self-contained regime.41 We do not contest that the possibility to declare a diplomat persona non grata is a special remedy of diplomatic law, recourse to which will usually be the appropriate reaction to an abuse of diplomatic privileges. However, the Court’s dictum goes too far: (1) The Court was only concerned with the question whether a receiving State is entitled to resort to countermeasures as a reaction to a breach of the Vienna Convention. However, if one perceives diplomatic law as a closed system, recourse to the rules of State responsibility would equally be excluded for the sending State. This is neither logical from a systematic point of view nor is it necessary for safeguarding diplomatic relations. There is no reason why the sending State should be precluded from initiating countermeasures (not affecting diplomatic personnel) if the receiving State fails to respect the immunities of the sending State’s diplomatic personnel. For instance, international law did not preclude the United States in that situation from resorting to countermeasures outside the Vienna Convention, including the suspension of a treaty of amity, in order to induce Iran to free its personnel. (2) Even assuming an abuse of diplomatic privileges similar to the conduct of which Iran accused the diplomats in Tehran Hostages, there may be a need to resort to remedies under general international law. The Vienna Convention does not contain a provision on reparation. If a diplomat, however, by abusing his privileges inflicts economic damage on the receiving State, there is no reason why the receiving State should be precluded from recovering that damage, in addition to declaring the perpetrator persona non grata. In Tehran Hostages, the Court itself affirmed Iran’s duty to make reparation to the United States. (3) Diplomatic law has always been the classic playground of reciprocity. At least at the time when the Vienna Convention was drafted, the ILC appears to have been of the

References (p. 151) view that the symmetry of obligations under diplomatic law would allow reciprocal reprisals. 42 Given the traditional acceptance of countermeasures as a ‘fact of life’, it is to be strongly doubted whether diplomatic law has since evolved into a non-reciprocal regime justifying the categorical exclusion of all forms of unilateral reaction. Paul Reuter’s comment in the ILC plenary of 1984 still merits consideration: ‘He was of the view that, in so far as more general obligations such as humanitarian obligations were not involved, the injured

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State could respond in kind to a manifest violation of the rules on privileges and immunities. For instance, in the event of the violation of the unanimously accepted rule concerning the diplomatic bag, the injured State should be entitled to act in the same way as the State responsible for the violation. In such circumstances, the regime of privileges and immunities did not seem to be particularly self-contained.’ 43 (4) Finally, resort to countermeasures may be necessary under the fallback scenarios outlined above. This may include cases in which the sending State fails to withdraw a diplomat who was declared persona non grata; or cases in which a temporary infringing upon diplomatic immunity is the only way to prevent a diplomat from committing a serious crime. To the same token, the ILC had stated in the commentary to its draft convention on diplomatic relations that diplomatic inviolability ‘does not exclude … either measures of selfdefence or, in exceptional circumstances, measures to prevent [a diplomat] from committing crimes or offences’. 44 Given the ‘permeability’ of diplomatic law, in fact its dependence on the remedies of the general rules of State responsibility, there is no ground for arguing that diplomatic law contains an exhaustive set of secondary rules. Rather, the exemption of diplomatic immunity from the scope of lawful ‘targets’ of countermeasures is a limitation within the general law of State responsibility, which follows from the purposes for which the diplomatic immunities are granted. Diplomatic channels may be useful—even, and a fortiori, in times of crisis.45 Moreover, diplomatic relations would be severely impeded if diplomatic personnel were potentially to ‘constitute resident hostages’.46 The definition of certain limitations to unilateral countermeasures is all that the Tehran Hostages ruling was about in substance. It is unfortunate that the Court’s unnecessarily broad dictum is suggestive of a closed-circuit system of legal consequences. In Dominicé’s words, ‘pour affirmer qu’une violation initiale du droit diplomatique ne peut en aucune manière autoriser l’Etat qui en est la victime à le transgresser à son tour, l’argument du régime se suffisant à lui-même n’est pas nécessaire’.47 The ILC’s draft articles on State responsibility impliedly confirm the theory that the exemption of diplomatic immunity from countermeasures is merely a question of the proper application of the general rules of State responsibility. The Commission’s earlier debate mirrors the confusion caused by the Court’s Tehran Hostages pronouncement. Special Rapporteur Riphagen, speaking, more in passing, of a ‘self-contained regime of

References (p. 152) diplomatic law’,48 seemed to be inclined to construe diplomatic law as a closed circuit containing its own conclusive secondary rules. Special Rapporteur Arangio-Ruiz questioned whether limitations on the use of countermeasures really flow from a self-contained nature of diplomatic law. Rather, he suggested, such limitations are a consequence of the application of the general rules and principles constituting the regime of countermeasures.49 Consequently, he introduced a provision in the regime of countermeasures that specifically prohibits measures affecting diplomatic inviolability (Article 14 of the 1995 draft). The commentary adopted in 1995, however, did not fully reflect Arangio-Ruiz’s criticism. In the commentary, the ILC suggested that the prohibition of reprisals is either derived from the self-containment of diplomatic law or from an alleged peremptory character of some of its essential norms.50 Special Rapporteur Crawford and, following him, the Commission discarded the latter hypothesis. Article 50 now makes an explicit distinction between jus cogens and other obligations the performance of which may be particularly useful in times of conflict, namely obligations flowing from diplomatic immunities and contractual dispute settlement obligations. While such an exemption of diplomatic immunity from countermeasures on functional grounds was generally endorsed, the Commission avoided grounding it in any view of the self-contained character of diplomatic law. Systematically, the most convincing solution is to perceive the limitations to countermeasures in

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article 50(2) of the ILC project simply as an expression of the proportionality principle laid down in its article 51. Countermeasures affecting diplomatic inviolability or the suspension of dispute settlement obligations are, in principle, deemed disproportionate. If article 50(2) is understood as a presumption of disproportionality, however, this presumption can be refuted in an individual case if a State demonstrates that overriding interests are at stake. The Court has had occasion to confirm that insistence on dispute settlement duties may be ‘wholly artificial’ and ‘excessively formalistic’— in short: disproportionate in individual cases.51 Similarly, in the cases sketched above, insistence on the inviolability of diplomatic personnel may be a disproportional limitation to a State’s right to unilateral reaction. The threshold for infringing the physical freedom of diplomats, however, would obviously have to be very high.

(b) The European Community legal system While diplomatic law is a rather unlikely candidate for self-containment (if it were not for an unfortunate dictum of the Court), the legal system set up by the ‘Treaty establishing the European Community’ bears very strong characteristics of self-containment. The point of view of the European Court of Justice is as well-known as it is unequivocal: the Community Treaty has ‘created its own legal system’52 which ‘constitutes a new legal order of international law’.53 Therefore, ‘the basic concept of the Treaty requires that member States shall not fail to carry out their obligations and shall not take the law into their own

References (p. 153) hands’ following reciprocity considerations.54 ‘A member State cannot under any circumstances unilaterally adopt, on its own authority, corrective measures or measures to protect trade designed to prevent any failure on the part of another member State to comply with the rules laid down by the Treaty.’55 The continuous assertion of the Community’s sui generis character, however, does not by itself create an ‘own legal order’. From a public international law perspective, the EC legal system remains a subsystem of international law.56 Since any amendment of the constituting treaties still depends on the consent of the Union’s sovereign member States, ‘the Community legal order is still dominated by the spirit of international law’.57 From a purely systematic point of view, the rules on State responsibility are, hence, residually applicable. But is there still a need for such residual application? Our proposition was that States only intend to relinquish their facultés under general international law in favour of a special regime’s procedures to the extent that and as long as a subsystem’s procedures prove efficacious. Consequently, a fallback on the general rules of State responsibility presupposes that the mechanisms under the EC Treaty fail to give effect to the obligations members have assumed under the Treaty. The indemnity regime under the EC Treaty is comprehensive and mostly effective. As Conway has correctly pointed out, most of the gaps of the indemnity regime still existing 20 years ago have now been filled.58 The Francovich and Brasserie du Pêcheur principles have vested individuals with a remedy to recover damage resulting from breaches of EC law by member States.59 Article 228 EC Treaty has been introduced to give the declaratory judgments of the Court rendered according to articles 226 and 227 the ‘bite’ of a pecuniary sanction, if a member State disregards them; and article 7 of the EU Treaty provides for an institutionalized procedure for the suspension of membership in case of a grave and continuous violation of Community law. As far as we can see, only two hypothetical scenarios can be identified in which lacunae in Community law may prompt a fallback on State responsibility. (1) The first scenario would involve a continuous violation of Community law by an EC member State. Obviously, the lex specialis principle would require another member State (or the Commission) to exhaust the more ‘special’ mechanisms under the EC Treaty. A starting point would be for an affected State to bring the matter before the Commission and, if the Commission does not take up the case itself, to the European Court of Justice pursuant to

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article 227 EC. If the violating State chooses not to change its conduct despite a judgment of the Court, the Commission has the authority to seize the Court once more with an application for a pecuniary penalty pursuant to article 228(2) EC. If the violation persists, the member State may attempt to have the membership of the violating State suspended pursuant to article 7 EU. The latter remedy, which operates on the political rather than the legal plane, will not prove to

References (p. 154) be successful, however, unless the ‘injured’ State can obtain a declaration of a grave and continuous breach by unanimous vote of the Council. Arguably, in this extreme scenario, the only option to induce compliance that remains for the ‘injured’ State is a fallback on unilateral countermeasures. (2) The second scenario revolves around the issue of State-to-State reparation for breaches of EC law. Claims for compensation of damages suffered by nationals, ie cases of diplomatic protection, do not fall under this category; following Brasserie du Pêcheur and Francovich, individuals are vested with a cause of action of their own. Cases where economic losses may be incurred by a member State’s domestic economy as such, rather than by certain individuals, may resemble the so-called ‘guerre de moutons’. In this instance, the United Kingdom indicated that the damage caused by French non-compliance with a Court judgment resulted in economic losses of £20 million. 60 Yet, the EC Treaty makes no explicit provision for a mechanism that would allow inter-State claims of reparation. The literature has proposed several dogmatic bridges to fill up this lacuna and accommodate inter-State claims for reparation within the EC system. The first is to resort to an extensive interpretation of articles 227 and 228, according to which a declaration of breach by the European Court entails the duty ‘to re-establish the status quo ante (restitutio in integrum) and, where necessary, pay compensation for any injury suffered.’ 61 Some authors, however, doubt that the Commission’s involvement under article 228 is suitable for indemnity cases and consequently suggest grounding claims for reparation directly on article 220, which emphasizes the Court’s role as a guardian of the law.62 A third dogmatic foundation of interState claims would be an application mutatis mutandis of the Francovich principles.63 Resort to the rules on State responsibility will not be necessary if the European Court of Justice accepts one of these dogmatic bridges to accommodate inter-State claims for damages within the European legal system. Nonetheless, a fall-back on countermeasures would still be conceivable to enforce a member State’s claim of reparation. Member States may well have to resort to the mechanisms of State responsibility if the mechanisms within the EC do not prove effective. Thus, systematically, a fallback on countermeasures remains conceivable, albeit only in two narrow ‘emergency’ scenarios. Some authors claim, however, that the specific teleology of the Community order precludes such unilateral action. One argument points to the exclusive jurisdiction of the European Court of Justice in adjudicating disputes on Community law (article 292 EC Treaty). However, the fallback scenarios envisaged take due account of the Court’s central role, since unilateral action is reserved for cases of noncompliance with the Court’s decision. A more weighty argument relates to the alleged lack of reciprocity in the legal relations among the member States. The European Court has asserted that the new legal order created by the EC Treaty leaves no room for reciprocity

References (p. 155) considerations. Reciprocity, however, is not something States can choose to ‘abolish’; it is an inherent structural characteristic of obligations that operate on a do ut des basis. Many of the substantive provisions of the Treaty, such as the fundamental freedoms, are structurally reciprocal

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guarantees. Whether member States have renounced their rights to enforce these guarantees by reciprocal measures is quite a different question. They certainly have done so to a great extent. But here we return to our basic proposition: member States only intended to relinquish their reciprocal facultés under general international law to the extent that the EC’s special procedures prove effective. Consequently, the non-reciprocity argument does not preclude countermeasures in the two ‘emergency’ scenarios outlined above, in which the procedures inherent in the EC system fail. As a third argument against unilateral action, Weiler has pointed to the adverse effects of reprisals on individuals. ‘[T]he recourse to counter-measures would inevitably affect individuals removed from the dispute, militating against the very notion of a “new legal order of international law … the subjects of which comprise not only Member States but also their nationals”’.64 It is true that countermeasures will usually impair certain individual benefits. Weiler seems to disregard, however, that this is equally true for the continuous violation of EC law that provokes unilateral reaction. A grave and enduring breach of Community law constitutes not only a measure of disrespect for the other member States’ rights but at the same time inevitably affects the benefits of ‘individuals removed from the dispute’ in those member States. To sum up: it is reasonable to conclude that EC law operates as a closed system of secondary rules for most practical purposes. Conceptually, however, it is not a self-contained regime since there remain scenarios where a fallback on State responsibility remains feasible and necessary, and since such a fallback is not precluded by peculiar characteristics of the Community order. Only after the European Union has attained such a degree of integration that recourse to general international law is not conceivable without putting into question the whole raison d’être of the treaty framework, the conclusion of self-containment might be justified. But this, it is submitted, is not (yet) the state of European integration.

(c) The WTO system Kuyper has contrasted the GATT, ‘which was a self-contained regime of international law only in aspiration but not in reality’ with the (then) newly created WTO, which ‘has moved decisively in the direction of such a self-contained regime’.65 In the GATT era, there was a clear need for unilateral enforcement, since a single Contracting Party, including the defeated respondent, was able to block the adoption of a panel report (or the establishment of a panel in the first place). The Marrakesh Agreement with its Dispute Settlement Understanding (DSU) has eliminated this loophole by establishing a negative consensus procedure. Moreover, Article 23 DSU obliges members to submit (all of) their disputes to the WTO’s dispute settlement machinery: ‘When Members seek the redress of a violation … they shall have recourse to, and abide by, the rules and procedures of this Understanding.’ The ILC in its commentaries on State responsibility interprets this provision as an explicit derogation from the rules of State responsibility. ‘In some cases it will be clear from the language of a treaty or other text that only the consequences specified are to flow

References (p. 156) … . An example … is the World Trade Organization Dispute Settlement Understanding as it relates to certain remedies.’66 Other authors have affirmed the contrary, namely that ‘[n]othing in Article 23 of the DSU, according to which WTO Member States shall have recourse to the DSU and abide by its rules, amounts to an express derogation from the right to adopt countermeasures when a losing party fails to implement a decision of the dispute settlement organs and the remedies provided for in the treaty have been exhausted without any positive result.’67 It is true that the wording of article 23 establishes the primacy of WTO dispute settlement. On the other hand, the wording neither specifically permits nor prohibits recourse to additional remedies under general international law beyond those provided by WTO law. However, are there remedies under State

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responsibility that WTO law would not contain in a more tailor-made form? It is clear that the DSU contains a lex specialis on cessation of the breach and on continued performance of the obligation. Pursuant to article 19.1 DSU, panels are empowered to order a Member to ‘bring the measures into conformity’ with WTO law. It is far from clear whether the WTO system contains remedies akin to reparation and countermeasures. Article 22 DSU addresses ‘compensation’ and the ‘suspension of concessions’ (also known as ‘sanctions’ or ‘retaliation’). From a systematic point of view, however, both remedies can be regarded as a special variant of the inadimplenti non est adimplendum principle of the law of treaties. In case of a breach, the general rules of the law of treaties permit the temporary suspension of a treaty to restore the symmetry of obligations. The compensation provision of article 22.1 introduces an element of flexibility. It allows a State to temporarily uphold a violation in exchange for concessions in other areas, provided that the injured State agrees. Similarly, suspension of concessions pursuant to article 22.4 constitutes merely a partial non-performance of the treaty, subject to prior authorization from and subsequent monitoring by the Dispute Settlement Body. Since ‘compensation’ and ‘retaliation’ are designed to restore the (economic) reciprocity balance within one and the same Agreement (with the potential exception of cross-retaliation), they systematically ‘deal with the same substantive matter’ as article 60 of the Vienna Convention; being essentially ‘remedies’ under the law of treaties, they would not necessarily derogate as leges speciales the rules of State responsibility. Systematic arguments aside and seen from a functional perspective, sanctions pursuant to article 22 DSU operate in a way that is very similar to countermeasures. As Pauwelyn has pointed out, concessions are suspended primarily with a view to inducing compliance. Once the principal objective is compliance (and not the restoration of contractual equity), however, the WTO sanctions ‘have shifted into the area of State responsibility’.68 The US—Foreign Sales Corporations and US—Steel disputes between the EC and the US confirm the finding that States employ suspensions of concession similarly to countermeasures under general international law. In the Steel case, the mere threat of sanctions worth more than $2 billion persuaded the US administration to cut back domestic steel

References (p. 157) subsidies after the Appellate Body had confirmed their illegality.69 Consequently, there are strong grounds for regarding the WTO rules on retaliation as leges speciales vis-à-vis counter measures under general international law. Recourse to reprisals parallel to or in lieu of WTOauthorized sanctions is thus precluded. Similarly, the panel in US—Section 301 concluded that ‘WTO members [are prevented] from unilaterally resolving their disputes in respect of WTO rights and obligations’.70 Most contentious, however, is the question whether a fallback on reprisals under State responsibility remains an option once the suspension of concessions proves ineffective. The ILC commentaries are critical of such a fallback from the WTO type of countermeasures to the Stateresponsibility type. Having discussed WTO sanctions, the ILC adds that ‘[t]o the extent that derogation clauses … are properly interpreted as indicating that the treaty provisions are “intransgressible”, they may entail the exclusion of countermeasures’.71 In our view, however, a conceptual distinction must be drawn between a far-reaching lex specialis, on the one hand, and the notion of ‘intransgressibility’, on the other hand. While the DSU clearly contains a lex specialis, the conclusion of intransgressibility is not warranted. When it comes to inducing compliance with WTO law, the special mechanisms of WTO law preclude recourse to the regime of countermeasures under general international law for most practical purposes. Yet, conceptually, countermeasures under general international law remain the ultima ratio in case of continuous non-compliance and provided that there is a prospect that unilateral action will effectively induce compliance. To the large trading powers, reprisals will hardly be an option. WTO-

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authorized trade sanctions will generally be the most effective means of instigating compliance. If trade sanctions worth $4 billion annually cannot persuade the United States to amend its Foreign Sales Corporations subsidies legislation, it would be surprising if the suspension of a bilateral treaty could. Recourse to countermeasures under general international law would, thus, be precluded. For smaller and developing countries, however, countermeasures outside the WTO system may be a necessary last resort. If a large trading nation fails to comply with a WTO ruling, the temporary non-performance of a non-WTO treaty may well strengthen the position of a smaller injured State. The WTO Agreements contain no functional equivalent of retrospective reparation. Can States, consequently, fall back on the rules of State responsibility and demand restitutio in integrum and monetary compensation either in panel proceedings or outside the dispute settlement machinery? Member States have argued partly in favour of, partly against an obligation to make reparation for injury.72 Textual arguments for both positions are relatively weak. The question whether reparation is a helpful tool in the context of trade law is essentially one of Rechtspolitik. Panels have shown an inclination to recognize an obligation to grant restitutio in integrum, where restitution was feasible. This was particularly the case with respect to illegal subsidies (which the beneficiary could pay back) and unlawfully imposed antidumping duties (which the collecting State could reimburse to the unjustly (p. 158) targeted company).73 For the bulk of trade-restricting measures, however, restitution is not a feasible option. Monetary compensation, by contrast, raises a number of problems. Which damages would States claim? Claiming losses of nationals would introduce an element of diplomatic protection, which may be alien to the ‘objective’ trade regime. Moreover, total damages would easily amount to billions if the breach extends over several years. Had the negotiating States during the Uruguay round envisaged an obligation to make such retrospective compensation, they would have defined the terms of operation of such a massive indemnity regime (calculation of damages, statutory limitation, etc). Given the current state of WTO law, it seems reasonable to infer that compensation beyond a balancing of trade losses through the treaty-law mechanisms of article 22 DSU is precluded. With the introduction of ‘suspensions of concessions’ as a countermeasures equivalent, the WTO system has indeed ‘moved decisively in the direction of … a self-contained regime’. The object and purpose of the DSU do not permit a State to have parallel recourse to indemnity claims or countermeasures under State responsibility. As an ultima ratio in cases of continuous noncompliance, however, countermeasures outside the WTO framework remain an option. Thus, conceptually, not even the WTO is completely decoupled from the secondary rules of general international law.

(d) Treaties for the protection of human rights The internationalization of human rights has turned the State ‘inside out’. To the extent that treatment of individuals has been elevated to a matter of concern under inter national law, an important area of State regulation has been carved out of the traditional domaine reservé. The movement to internationalize the protection of human rights has lead to the adoption of various international conventions such as, on a regional level, the European and American Conventions on Human Rights (ECHR, ACHR) and the Banjul Charter; the two ‘global’ Covenants on Civil and Political Rights (CCPR) and on Economic, Social and Cultural Rights (ESCR); and sectoral human rights regimes such as the Convention on the Elimination of all Forms of Racial Discrimination (CERD). All these treaties spell out particular enforcement mechanisms. However, given the centrality of human rights in 21st century international relations, it is not surprising that the spirit of human rights has transcended these specific instruments, entering the formerly Stateoriented area of ‘general’ international law. For instance, the rules on State responsibility codified in 2001 contain a specific regime on responsibility for breaches of obligations in the collective interest. The crucial question in the present context is: to what extent do these rules on State responsibility apply to breaches of obligations under a human rights treaty? The International Court’s Nicaragua judgment, on its face, appears to suggest that remedies under human rights treaties should be considered exclusive. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

[W]here human rights are protected by international conventions, that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves.74

References (p. 159) However, a closer look qualifies any quick conclusion of exclusiveness. Remedies under human rights treaties, according to the Court, are not exclusive per se. Rather, the Court found that the special treaty mechanisms excluded unilateral enforcement mechanisms under general international law because ‘the mechanisms provided for have functioned’. Bearing this qualifier in mind, however, the Court stated precisely what is being advocated here: treaty mechanisms exclude the rules on State responsibility as long as they function effectively. Where this is no longer the case, States may have recourse to the remedies provided for under the general law of State responsibility. Once the exclusiveness theory has been thus discarded, we can turn to two familiar questions: Which of the mechanisms under human rights treaties are leges speciales to the rules on State responsibility in the first place? How far does their specialty extend? Human rights treaties have created innovative procedures for monitoring and enforcing compliance with the obligations under the convention. Such procedures include periodic reporting, which forces parties to justify their human-rights record before treaty bodies, individual complaint procedures as well as political and judicial inter-State proceedings. To what extent are these procedures leges speciales to the rules on State responsibility? Conceptually, the responsibility of States arises irrespective of who has the right to invoke it in which fashion. The various procedures have no bearing on the question whether a State is responsible for a breach. Instead, they operate on the level of invocation of responsibility, dealing with the question of who may present a claim against the responsible State and request which remedies. Thus, they compete with articles 42 and 48 of the ILC’s codification. In our view, most of these procedures do not constitute leges speciales to articles 42/48. Individual claims procedures are not ‘concerned with the same substantive matter’ as the rules of State responsibility—to pick up on Fitzmaurice’s definition of special rules. The scope of the ILC Articles is limited to the right of States to invoke the responsibility of other States. They have no bearing on the question whether, and under which conditions, individuals are entitled to present claims or to request remedies. Vice versa, the mere existence of an individual claims procedure cannot warrant the conclusion that inter-State invocation is consequently precluded. Rather, the invocation of State responsibility then rests on two pillars. Moreover, reporting procedures cannot be deemed leges speciales vis-à-vis the rules on State responsibility. The Articles on State Responsibility are concerned with the legal consequences of concrete breaches. Reporting procedures before treaty bodies are not. Their function is to provide a comprehensive monitoring and critique of the human rights situation in a particular member State. They are designed to help improve the overall human rights record of States by using an innovative mix of judicial assessment akin to a tribunal, political pressure and legal assistance. It is true that both reporting procedures and inter-State invocation of responsibility for breaches of human rights serve the overarching goal of improving compliance with human rights standards. However, they involve different actors and operate with different techniques of persuasion. Crucially, reporting procedures do not result in the treaty body ordering any specific remedies. Thus, such procedures complement the right to invoke State responsibility rather than replacing it. The fact that reporting procedures do not involve ‘the same substantive matter’ as inter-State complaints is reaffirmed by the Conventions themselves. Where inter-States complaint procedures are available, such procedures exist alongside a periodic reporting system.

References

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(p. 160) To reach a first conclusion: only State-to-State procedures of a judicial character that address concrete violations of the treaty are leges speciales to the rules on invocation of State responsibility. To the extent that a human rights treaty contains such procedures for inter-State claims, States are barred from invoking the responsibility of another State through other channels. The decision-making power of the respectively competent treaty body must not be bypassed by unilateral auto-interpretation. Where no such procedures are provided, States are free to invoke the responsibility of a violator State pursuant to the provision of article 48 of the ILC Articles as a ‘State other than an injured State’. Such a State can claim only a limited range of remedies including cessation, and guarantees of non-repetition. Moreover, it may request reparation in the interest of the persons whose rights were violated. So far so good. But what if a State fails to cease an ongoing violation of human rights or denies the victims of a human rights violation adequate reparation? The question of enforceability of human rights has remained most controversial—so much so that it almost jeopardized the adoption of the final draft Articles by the ILC during its 2001 session. Human rights treaties do not contain special provisions regarding the right of States to enforce obligations under these treaties. In accordance with the proposition outlined above, it could be easily concluded that States have a right to ensure that international law be respected, including a restricted right to unilateral enforcement action (countermeasures). However, it has been suggested that human rights are different and, therefore, de-coupled from the general regime of legal consequences of internationally wrongful acts. The arguments advanced in support of such a contention fall within two principal strands. The first argument is a teleological one: unilateral enforcement of human rights may create ‘disorder’ in international relations, especially in light of the fact that such enforcement rights are prone to political abuse.75 The second argument is a doctrinal one. Given the structural nonreciprocity of human rights obligations, it is being argued, bilateral inter-State enforcement through countermeasures would be systematically flawed.76 Human rights obligations have thus been characterized as ‘objective regimes’.77 As the European Court of Human Rights stated in the Northern Ireland case: Unlike international treaties of the classical kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘collective enforcement’.78 In our view the Court’s statement should not be interpreted as suggesting that human rights are of a non-reciprocal character. While human rights have an objective, public-lawlike, perhaps even constitutional character,79 technically, they nonetheless formally remain ‘reciprocal engagements between contracting States’. It is crucial to distinguish between

References (p. 161) reciprocity as a formal characteristic of a norm on the one hand, and reciprocity as a substantive do-ut-des relationship on the other hand. Human rights treaties do not involve such a substantive exchange, since their ultimate beneficiaries are the individuals under the jurisdiction of the State undertaking the obligation. However, since human rights remain ‘mutual, bilateral undertakings’ owed to the other States parties to the respective convention, there is no compelling systematic reason why States should be precluded from bilateral enforcement of human rights (provided, of course, that the human rights treaty’s rules on invocation of responsibility have been exhausted). In Virally’s words: ‘Chaque Etat partie à un tel traité a le droit d’exiger des autres parties qu’elles respectent ces engagements, pris envers lui-même’.80 As to the second strand of argument, are countermeasures prone to creating particular disorder if they are employed with the purpose of inducing compliance with human rights obligations? From a

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developed-countries perspective, Frowein expressed the concern that unilateral enforcement would create considerable legal uncertainty. Koskenniemi added (with a surprising touch of Morgenthau-style realism) that elevating the enforcement of human rights from politics to the level of law ‘would vest diplomacy with pressures and expectations it cannot carry’.81 Authors from developing countries, by contrast, stress the danger of political coercion of developing countries by rich and powerful States.82 While it is true that countermeasures for the enforcement of human rights have so far remained a domain of ‘Western’ industrialized States, Tomuschat has argued that the regime of countermeasures ‘does not place new States in a position of inferiority’, pointing out as an example that developing countries could freeze foreign assets to induce compliance.83 The ILC Drafting Committee of 2000 had proposed a provision pursuant to which ‘any State may take countermeasures, in accordance with the present Chapter in the interest of the beneficiaries of the obligation breached’.84 At the same time, however, the draft contained various safeguards to accommodate the concerns of developing countries and prevent political abuse. Article 41 of the draft articles provisionally adopted in 2000 restricted countermeasures to cases of wrongful acts ‘that constitute a serious breach’, meaning a ‘gross and systematic failure by the responsible State to fulfil its obligation, risking substantial harm to the fundamental interests protected thereby’. However, the proposal was received critically by a majority of States in the Sixth Committee of the 2000 General Assembly. Thus, in its 2001 session, the ILC was seeking a compromise that would eliminate the risk that the Assembly would not ‘pass’ the draft Articles. The present article 54, a general saving clause, is an attempt to leave the question open without

References (p. 162) prejudicing the evolution of a future opinio iuris regarding the permissibility of countermeasures in the collective interest. In our view, the ILC draft of 2000 may still provide valuable guidance as to what the evolving law on countermeasures in the collective interest could look like. There is no return to an international law that puts on an indifferent face to human rights. Human rights cannot be fenced in an exclusive domaine reservé anymore; once their genie is out of the bottle, human rights necessarily transcend to the realm of general international law. Against this backdrop, it is only consequential not to deny States the means to induce compliance with obligations under human rights treaties, once the collective enforcement mechanisms of the treaty have failed.85 The concerns raised by some authors (and States) neglect the realities of human rights protection: So far, States have hardly shown the excessive human rights ‘vigilantism’ dreaded by some.86 For instance, in the history of the European Convention, States have generally lodged inter-State complaints almost exclusively in situations where their interests were specially affected. The two exceptions were the application against Greece in 1967,87 and the application against Turkey in 1982.88 Far from obsessively policing human rights violations across the world, the attitude of States towards human rights violations is all too often characterized by a remarkable lack of vigour to counter such treaty breaches. Further reading LA Barnhoorn, ‘Diplomatic Law and Unilateral Remedies’ (1994) 25 Netherlands YIL 39 G Conway, ‘Breaches of EC Law and the International Responsibility of Member States’ (2002) 13 EJIL 679 B De Witte, ‘Rules of Change in International Law: How Special is the European Community?’ (1994) 25 Netherlands YIL 299 Ch Dominicé, ‘Représailles et droit diplomatique’, in JP Müller (ed), Recht als Prozeß und Gefüge. Festschrift für Hans Huber zum 80. Geburtstag (Bern, Stampfli, 1981), 541 JL Dunoff, ‘The WTO in Transition: Of Constituents, Competence and Coherence’ (2001) 33 Geo Wash Int’l L Rev 979

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P-M Dupuy, ‘L’unité de l’ordre juridique international’ (2002) 297 Recueil des cours 9 M Garcia-Rubio, ‘Unilateral Measures as a Means of Forcible Execution of WTO Recommendations and Decisions’, in L Picchio Forlati & L-A Siciliano (eds), Les sanctions économiques en droit international / Economic Sanctions in International Law (Leiden, Hague Academy of International Law, 2004), 445 M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) 72 BYIL 337 M Koskenniemi & P Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 LJIL 553 PJ Kuyper, ‘The Law of GATT as a Special Field of International Law’ (1994) 25 Netherlands YIL 227 (p. 163) A Marschik, ‘Too Much Order? The Impact of Special Secondary Norms on the Unity and Efficacy of the International Legal System’ (1998) 9 EJIL 212 A Marschik, Subsysteme im Völkerrecht (Berlin, Duncker & Humblot, 1997) P Mavroidis, ‘Remedies in the WTO Legal System: Between a Rock and a Hard Place’ (2000) 11 EJIL 763 DM McRae, ‘The WTO in International Law: Tradition Continued or New Frontier?’ (2000) JIEL 27 J Neumann, Die Koordination des WTO-Rechts mit anderen völkerrechtlichen Ordnungen: Konflikte des materiellen Rechts und Konkurrenzen der Streitbeilegung (Berlin, Duncker & Humblot, 2002) J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge, CUP, 2003) D Pulkowski, ‘Rechtsvermutungen und Kompetenzallokation im Völkerrecht’, in G Nolte, P Hilpold (eds), Auslandsinvestitionen—Entwicklung großer Kodifikationen — Fragmentierung des Völkerrechts—Status des Kosovo (Frankfurt, Peter Lang, 2008), 141 L-A Sicilianos, ‘The Relationship between Reprisals and Denunciation or Suspension of a Treaty’ (1993) 4 EJIL 341 L-A Sicilianos, Les réactions décentralisées à l’illicité: des contre-mesures à la légitime défense (Paris, LGDJ, 1990) B Simma, ‘Staatenverantwortlichkeit und Menschenrechte im ILC-Entwurf 2001’, in JA Frowein, K Scharioth, I Winkelmann, & R Wolfrum (eds), Verhandeln für den Frieden—Negotiating for Peace, Liber Amicorum Tono Eitel (Berlin, Springer, 2003), 423 B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Receuil des cours 217 B Simma, ‘Self-Contained Regimes’ (1985) 16 Netherlands YIL 111 B Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (Berlin, Duncker & Humblot, 1972) B Simma & D Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’ (2006) 17 EJIL 483 G Teubner & A Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Mich J Int’l L 999 Ch Tomuschat, ‘Völkerrechtliche Schadensersatzansprüche vor dem EuGH’, in JF Baur, P-Ch Müller-Graff, & M Zuleeg, Europarecht—Energierecht—Wirtschaftsrecht: Festschrift für Bodo Börner zum 70. Geburtstag (Köln, Berlin, Carl Heymanns, 1992), 441 M Virally, ‘Le principe de réciprocité dans le droit international contemporain’ (1967-I) 122 Recueil des cours 1 JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge, CUP, 1999) JHH Weiler, A Cassese, & M Spinedi (eds), International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin, de Gruyter, 1989) K Zemanek, ‘The Unilateral Enforcement of International Obligations’ (1987) 47 ZaöRV 32(p. 164)

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Footnotes: 1 Cf Right of Passage over Indian Territory, Merits, ICJ Reports 1960, p 6. 2 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 42. 3 E de Vattel, Les droit des gens ou principes de la loi naturelle, Reproduction of the original edition of 1758 (Washington: Carnegie Institution, 1916), Liv VII, Ch XVII, §316: (‘Of two laws or two conventions, we ought (all other circumstances being equal) to prefer the one which is less general, and which approaches nearer to the point in question: because special matter admits of fewer exceptions than that which is general; it is enjoined with greater precision, and appears to have been more pointedly intended.’ (Trans J Chitty, 1883, available at ). 4 Ambatielos, Jurisdiction, ICJ Reports 1952, p 28, dissenting opinion of Judge Hsu, 87. 5 Gabcíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997, p 7, 76 (para 132). 6 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 137–138 (para 274). 7 INA Corporation v Iran, Iran-US Claims Tribunal, 12 August 1985, 75 ILR 595, 601 (para 378). 8 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 203, 237. 9 Commentary to art 55, para 5. 10 SS Wimbledon, PCIJ, Series A, No 1 (1923), p 15, 24. 11 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 3, 38. 12 Ibid, 40. 13 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006, 64 (para 120). 14 Opinion 1/91, EEA I, 14 December 1991, EC Reports 1991, I-6079 at paras 39 and 40. 15 US-Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, 29 April 1996, WTO Doc WT/DS2/AB/R, 17. 16 Cf B Simma, ‘Self-Contained Regimes’ (1985) XVI Netherlands Ybk 111, 117. 17 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 24 (para 16). 18 ILC Yearbook 1982, Vol I, 201 (para 8). 19 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 22, 30 (para 54). 20 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 35. 21 Ibid, 40. 22 Ibid, 41 (para 116). 23 ARSIWA, Commentary to art 55, para 5. 24 ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006, 64 (paras 119ff). 25 See D Pulkowski, ‘Rechtsvermutungen und Kompetenzallokation im Völkerrecht’, in G Nolte & P Hilpold (eds), Auslandsinvestitionen—Entwicklung großer Kodifikationen—Fragmentierung des Völkerrechts—Status des Kosovo (Frankfurt, P Lang, 2008), 141. 26 See eg P-M Dupuy, ‘L’unité de l’ordre juridique international’ (2002) 297 Recueil des cours 1. 27 G Teubner, A Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the

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Fragmentation of Global Law’ (2004) 25 Mich J Int’l L 999, 1004. 28 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 147. 29 J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge, CUP, 2003), 213. 30 Elettronica Sicula Spa (ELSI), ICJ Reports 1989, p 15, 42 (para 50). 31 Ibid. 32 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 137–138 (para 274); Gabcíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997, p 7, 76 (para 132); INA Corporation v Iran, Iran-US Claims Tribunal, Award No 184-161-1 of 12 August 1985, 75 ILR 595, 601 (para 378). 33 Case 6/64, Costa v ENEL [1964] ECR 585, 593. 34 Case C-459/03, Commission v Ireland, ECR 2006, I-4635. 35 Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy, ECR 1991, I-5357. 36 See, for a universalistic view, J Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 AJIL 535; L Bartels, ‘Applicable Law in WTO Dispute Settlement Proceedings’ (2001) 35 JWT 499; P Mavroidis, ‘Remedies in the WTO Legal System: Between a Rock and a Hard Place’ (2000) 11 EJIL 763; and for a particularistic view, DM McRae, ‘The WTO in International Law: Tradition Continued or New Frontier?’ (2000) JIEL 27; JL Dunoff, ‘The WTO in Transition: Of Constituents, Competence and Coherence’ (2001) 33 Geo Wash Int’l L Rev 979, 1009; J Trachtman, ‘Review’ (2004) 98 AJIL 855. 37 ILC Yearbook 1992, Vol I, 76. 38 E de Vattel, Les droit des gens ou principes de la loi naturelle, Reproduction of the original edition of 1758 (Washington: Carnegie Institution, 1916), Liv VII, Ch XVII, §316. 39 ILC Yearbook 1992, Vol I, 76. 40 ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006, para 137. 41 United States Diplomatic and Consular Staffin Tehran, ICJ Reports 1980, p 3, 40. 42 Commentary to the ILC draft art 44 (now art 47 of the Vienna Convention), ILC Yearbook 1958, Vol II, 105. 43 ILC Yearbook 1984, Vol I, 264 (P Reuter). 44 ILC Yearbook 1958, Vol II, 97. 45 LA Barnhoorn, ‘Diplomatic Law and Unilateral Remedies’ (1994) 25 NILR 39, 63. 46 Commentary to art 50, para 15. 47 Ch Dominicé, ‘Représailles et droit diplomatique’, in JP Müller (ed), Recht als Prozeß und Gefüge. Festschrift für Hans Huber zum 80. Geburtstag (Bern, Stampfli, 1981) 551 (‘It is not necessary to have recourse to the notion of a self-contained regime in order to affirm that an initial violation of diplomatic law cannot in any way authorize the wronged State to transgress that law in turn.’). 48 W Riphagen, Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II (1), 3, 18 (para 97). 49 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 39 (para 110). 50 International Law Commission, Text of arts 13 and 14 of Part Two and of arts 1 to 7 of Part Three and the annex thereto, with Commentaries, provisionally adopted by the Commission at its

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forty-seventh session, ILC Yearbook 1995, Vol II(2), 64–74, with further references. 51 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 137–138 (para 274). 52 Case 6/64, Costa v ENEL, ECR 1964, p 585, 593. 53 Case 26/62, Van Gend en Loos, ECR 1963, p 1, 12. 54 Joined Cases 90/63 and 91/63, Commission v Luxemburg and Belgium, ECR 1964, 625. 55 Case 232/78, Mutton and Lamb, ECR 1979, 2729. 56 Cf. A Pellet, ‘Les fondements juridiques internationaux du droit communautaire’ (1994) V Collected Courses of the Academy of European Law 249. 57 B De Witte, ‘Rules of Change in International Law: How Special is the European Community?’ (1994) XXV Netherlands Ybk 299, 331. 58 G Conway, ‘Breaches of EC Law and the International Responsibility of Member States’ (2002) 13 EJIL 679, 688. 59 Joined cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy, ECR 1991, I-5357; Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur v Germany and Factortame v UK, ECR 1996, I1029. 60 Cf Schwarze, ‘Das allgemeine Völkerrecht in den innergemeinschaftlichen Beziehungen’ (1983) 18 Europarecht 24. The UK government initially requested that the Commission order France to pay £20 million in damages. The request, however, was withdrawn for political reasons. 61 AG Toth, Legal Protection of Individuals in the European Communities, Vol II (Amsterdam, North Holland, 1978), 181. 62 Ch Tomuschat, ‘Völkerrechtliche Schadensersatzansprüche vor dem EuGH’, in JF Baur, P Müller-Graff, M Zuleeg (eds), Europarecht—Energierecht—Wirtschaftsrecht: Festschrift für Bodo Börner zum 70. Geburtstag (Köln, Berlin, Carl Heymanns Verlag, 1992), 458. 63 A Marschik, Subsysteme im Völkerrecht (Berlin, Duncker & Humblot, 1997), 233. 64 JHH Weiler, The Constitution of Europe: The Transformation of Europe (Cambridge, CUP, 1999), 29. 65 PJ Kuyper, ‘The Law of GATT as a Special Field of International Law’ (1994) 25 NYIL 227, 252. 66 Commentary to art 55, para 3. 67 Cf M Garcia-Rubio, ‘Unilateral Measures as a Means of Forcible Execution of WTO Recommendations and Decisions’, in L Picchio Forlati & L-A Sicilianos (eds), Les sanctions économiques en droit international/Economic Sanctions in International Law (Leiden, Hague Academy of International Law, 2004), 445–475. Cf also P Mavroidis, ‘Remedies in the WTO Legal System: Between a Rock and a Hard Place’ (2000) 11 EJIL 763. 68 J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to other Rules of International Law (Cambridge, CUP, 2003), 230. 69 United States-Definitive Safeguard Measures on Imports of Certain Steel Products, Report of the Appellate Body, 10 November 2003, WTO Doc WT/DS248/AB/R. 70 United States—Sections 301–310 of the Trade Act of 1974, Report of the Panel, 22 December 1999, WTO Doc. WT/DS152/R, 7.46. 71 ARSIWA, Commentary to art 50, para 10. 72 In favour of reparation, eg Ecuador, WTO Doc WT/DSB/M/89, para. 8; against reparation Australia, the EC, the US and Canada, WTO Doc WT/DSB/M/75, 5ff. 73 Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, Panel Report, 21 January 2000, WTO Doc WT/DS126/RW, 6.48; Guatemala—Cement II, Panel Report, 17

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November 2000, WTO Doc WT/DS156. 74 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 134 (para 267). 75 JA Frowein, ‘Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung’, in R Bernhardt et al (eds), Festschrift für Hermann Mosler (Berlin, Springer, 1983), 242, 255; M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) 72 BYIL 337, 347. 76 Cf the references cited in B Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (Berlin, Duncker & Humblot, 1972), 176ff. 77 W Riphagen, Fourth Report on State Responsibility, ILC Yearbook 1983, Vol. II(1), 3, 17 (para 89). 78 Ireland v UK, ECHR Series A No 25 (1978), para 239. 79 (1991) 34 Ybk European Commission on Human Rights 35, 52. 80 M Virally, ‘Le principe de réciprocité dans le droit international contemporain’ (1967-III) 122 Recueil des cours 1, 26: ‘Every State Party to such a treaty has the right to require the other parties to respect these commitments, which have been made to the State itself.’ 81 M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) 72 BYIL 337, 347. 82 Cf the discussion in J Crawford, Third Report on State Responsibility, 2001, A/CN.4/507/Add.4, 16, 18, who concedes that there is ‘a due process issue’ from the perspective of the targeted State if a few powerful States decide to act as a kind of human rights police for the world, based on their auto-interpretation of human rights law. 83 Ch Tomuschat, ‘Are Counter-measures Subject to Prior Recourse to Dispute Settlement Procedures?’ (1994) 5 EJIL 77, 78. 84 Article 54 of the draft articles provisionally adopted by the Drafting Committee on second reading, A/CN.4/L.600. 85 Cf B Simma, ‘Staatenverantwortlichkeit und Menschenrechte im ILC-Entwurf 2001’, in JA Frowein, K Scharioth, I Winkelmann, & R Wolfrum (eds), Verhandeln für den Frieden—Negotiating for Peace, Liber Amicorum Tono Eitel (Berlin, Springer, 2003), 423; concurring, LA Sicilianos, Les réactions décentralisées à l’illicité (Paris, LGDJ, 1990), 167. 86 S McCaffrey, ‘Lex Lata or the Continuum of State Responsibility’, in JHH Weiler, A Cassese, & M Spinedi (eds), International Crimes of State (Berlin, de Gruyter, 1989), 244. 87 11 Ybk European Commission on Human Rights (1968) 691; 12 (II) Ybk European Commission on Human Rights (1969). 88 ECHR, Applications Nos 9940-9940/82.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.14 The Concept of ‘Soft Responsibility’? Jean-Marc Sorel From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Reparations — Soft law — International Monetary Fund (IMF) — United Nations (UN)

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(p. 165) Chapter 14 The Concept of ‘Soft Responsibility’? 1 Responsibility versus liability? 165 2 ‘Soft law’ and ‘soft responsibility’ 167 3 Soft responsibility vis-à-vis international responsibility 170 Further reading 171 The question of ‘soft responsibility’ remains largely a doctrinal subject which can only be approached through inferences from scattered and informal practice. The starting postulate is clear: the universe of ‘soft law’ does not have an appropriate form of responsibility—itself ‘soft’—as a matter of positive law. This hypothesis is confirmed by the ILC’s silence: nothing in the ILC Articles supports directly or even indirectly the concept of soft responsibility. Articles 1 and 2 define internationally wrongful acts as actions or omissions attributable to a State and constituting a breach of an international obligation. These provisions are part of a framework of hard law, traditional law, in which it is the breach of an obligation combined with a wrongful act that engages responsibility. Thus it is necessary to examine ‘soft responsibility’ with extreme caution. First, it is useful to reconsider the semantic aspect, since the terms used (in English, French, and other languages) seem to create confusion between concepts often not clearly formalized. Once the concept of ‘soft responsibility’ has been clarified, it is essential to consider it in its context, the only one in which it makes sense: that of ‘soft law’. Nevertheless, the nebula of soft law having been omitted from the ILC’s draft, we have to note that the monolithic character of international responsibility leaves aside many nuances in situations of responsibility, particularly in the sphere of certain international organizations.

1 Responsibility versus liability? It appears that the French language is incapable of sufficiently translating all the nuances of the term ‘responsibility’. At least this is what Zemanek notes when he distinguishes between the words ‘responsibility’ and ‘liability’: In some languages, like in French, one term (responsabilité) is used for all sources of the duty to repair damage, whatever the cause. In others, like in German, one term (Verantwortlichkeit) designates the consequences of an offence while another (Haftung) describes the duty to compensate. In English the duality of terms exists, too. International law adopted ‘responsibility’ to denote the

References (p. 166) consequences arising from the violation of an international obligation. The term ‘liability’ has only recently become part of international law, perhaps with the 1972 Convention on International Liability for Damages Caused by Space Objects, meaning the duty to compensate the damage in the absence of a violation of international law.1 The author pushes the analysis further by reference to such concepts as liability for fault, liability for result, objective liability, strict liability etc.2 But overall he suggests that responsibility is the consequence attached to the breach of an international obligation, whereas liability only correspond to the duty of reparation or of compensation in the absence of a breach of obligation (liability for acts not prohibited by international law). It is true that in the dictionary the term ‘liability’ is defined to include obligation, commitment, responsibility; as international lawyers we would have to prefer ‘commitment’ to avoid confusion both with ‘responsibility’ as we understand it and ‘obligation’ (since the breach of an obligation is 3

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not required).3 The ordinary meanings of the term ‘responsibility’ cause even more confusion. If we take the moral meaning of ‘responsibility’ as being ‘to hold somebody responsible’, the legal meaning of responsibility would be ‘liability’ to which we must add ‘accountability’ for financial responsibility. Above all, responsibility and liability seem to correspond to different legal fields: civil including contractual liability; penal or criminal responsibility).4 This leads to a dual wrongfulness which the ILC did not contemplate. One can infer from these semantic subtleties that the term responsibility corresponds to that used in the ILC Articles, whereas the term liability would be closer to the vast category of objective responsibility. But it is still necessary to agree on the sense of the latter. Indeed, objective responsibility and other types of responsibility (no fault, responsibility for risk or causal responsibility, etc) are often amalgamated but the meanings are very diverse. Objective responsibility might correspond to responsibility for a wrongful act where ‘fault’ is not a component element. But it is also understood as a responsibility in which only the wrongful act has to be considered independently of its harmful effects.5 Absolute responsibility (or liability), in which the damage is almost the only foundation of responsibility, is sometimes regarded as a synonym of objective responsibility. Causal responsibility could be a form of objective responsibility in which the obligation to compensate arises only from the causal link between the action and the damage.6 Finally, responsibility for risk is a kind of responsibility in tort in which compensation is due solely because of the occurrence of damage, even in the absence of any wrongful act.7 This last meaning brings us closer to ‘liability’ because it may concern activities not prohibited by international law but involving a risk of causing damage, implying an obligation of due diligence and an obligation to compensate. This is the sense of the ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, in which article 1 provides that it

References (p. 167) applies to ‘activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences’.8 The goal was to generalize the regime of numerous activities which had only been subject to individual conventional treatment (pollution of the sea, spacecraft, peaceful use of nuclear energy).9 Nevertheless, responsibility for risk is difficult to establish as the long gestation of the ILC’s Draft Articles demonstrates. The text seems to insist more on the principle of due diligence than the utility of a new regime. Responsibility for infringing rights as distinct from mere interests remains the rule. In summary, we may note that, if responsibility corresponds to our responsibility in hard law, liability is also part of this universe when it corresponds to conventional agreements, to the recognition of a customary rule or to the recognition of a rule of progressive development of international law through codification in the context of responsibility for risk. Thus it is unnecessary to distinguish these two concepts in terms of soft or hard law. Both can concern legal obligations likely to engage responsibility. The distinction lies primarily in whether or not a breach of an obligation exists. In the case of responsibility, a breach of an obligation is considered a wrongful act; whereas in the case of liability, nonobservance of an obligation (of reparation or of due diligence) is not assimilated with a prior wrongful act. It is the adjective ‘soft’ which makes the difference in both cases. Thus we need to re-engage in this sphere to understand how a ‘soft responsibility’ or ‘soft liability’ could respond to ‘soft law’.

2 ‘Soft law’ and ‘soft responsibility’ The scope of ‘soft law’ is vast and vague at the same time. This uncertainty is perfectly characterized by the remark of Seidl-Hohenveldern: ‘Soft law is something more than “law without any obligation”.’10 In fact, it refers to two phenomena: the loosely binding character of a legal norm deprived of an obligation in its classical meaning, and the pre-legal value of some of the norms. Thus ‘soft law’ refers to ‘non-law’ and ‘pre-law’ at the same time. According to the very critical view 11

12

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of Weil, this would not be sufficient to create ‘law’.11 Due to a ‘simplifying rigour’,12 he excludes the phenomenon of ‘soft law’ from the field of law, recognizing as points of reference only voluntarism, ideological neutrality, and positivism. 13 This view has been somewhat overridden by writers who reject the combination of voluntarism and positivism on the ground that its realism is paradoxical and its claim to purity illusory.14 But Weil’s view has also, and especially, been rejected in the practice; an impressive number of measures can be considered part of soft law. Among these, the so-called ‘gentlemen’s agreement’ is characterized as an ‘agreement of honour that does not entail any legal obligation for the parties while binding them morally’.15 In the mode of informal political agreements, suppletive or normative, these have some legal value though (p. 168) not legally binding in themselves. The work of the Institute of International Law on this subject fails to capture this idea: 16 a text may have some normative character without being peremptory or even binding. This enables us to distinguish rules and principles, breach of which is constitutive of a wrongful act (action or omission attributable to a legal person and constituting a breach of an international obligation legally sanctioned), from texts with legal effect although not comprising sanctioned obligations; it is the latter which forms the category of soft law. In summary, soft law is characterized by an absence of sanctioned obligations, but not by an absence of law. The true question is: can a legal person be found responsible for not respecting a legal text that does not include sanctioned obligations? It is undeniable that soft law is defined by its form, and even more by the intention than the form. In this sense, the Stand-By Arrangements of the IMF are a good illustration of the subtleties of soft law: they may be taken as examples here.17 The question of the responsibility of the State towards the Fund, but also and more especially of the Fund towards the State, in the process for obtaining IMF financial aid (see eg, the Argentine crisis), had often been evoked; but no-one has managed to define strictly the nature of the support given (Stand-By Arrangements) or the content of the obligation incurred (whether of result or conduct). Thus we definitely have to turn toward the intention of the parties to seek a possible form of implicit responsibility without a contractual relationship—an absence which lies more in the intention or discourse of the Fund than in the form adopted. Clearly, there is no right undermined but, as with sanctions within the IMF, there is a form of soft and graduated liability. The process of a ‘letter of intent’ (a unilateral decision of the State wishing to have recourse to the IMF) and the decision of the Fund (which constitutes what is improperly described as a Stand-By Arrangement) are not legally linked, and there is no right recognized as such. Moreover, the IMF’s refusal of responsibility is extended to third parties who might seek to rely on this Arrangement, for example to grant credits through private bank loans. Thus a relationship exists between the IMF and the State (without legal obligation) which creates a kind of commitment of mutual interest.18 This phenomenon recalls article 9(2) of the ILC’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities where it is specified that the States, via a notification proceeding, shall seek solutions based on an ‘equitable balance of interests’ (an expression specified in article 10). As can be seen from this example, situations of soft law are not likely immediately to form the basis of the responsibility of a subject of international law, even for risk (since there is obviously no obligation of due diligence or of reparation). In the case of the IMF, it would be necessary for the State (in the most plausible case) to challenge the responsibility of the organization (the decision is made by a restricted body, the Executive Board) and not by the member States. This must be difficult to do in practice. Moreover it would be especially difficult to establish a direct causal relation between the normative activity of the organization and any damage inflicted on the State. Nevertheless, just as soft law is not generally synonymous with the absence of law, so the absence of any ‘immediate’

References (p. 169) responsibility is not synonymous with the complete lack of any kind of responsibility. Responsibility will simply have to be sought outside the traditional framework, in related but not

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assimilated principles which range from good faith to estoppel, while respecting the permissive value of the texts and the principle of non-contradiction. Good faith is the first principle to consider. Concerning the Stand-By Arrangements of the IMF, for example, it is essential to go beyond the presentation ‘proposal-answer’ which appears prima facie to suggest a reciprocity of commitments (‘promise-guarantee’). By doing so, one can see that the operational content is not devoid of consequences even if the State seems to make a promise to itself which places it face-to-face with its own responsibility. Indeed, the ‘promise’ is supported by the guarantee of the IMF; the actors are not isolated. Moreover, good faith implies that any breach involves consequences, even if the situation is simply that of two parallel unilateral acts. The responsibility targeted here is the one pertaining to conduct which is not described as mandatory but which is supported by a presumption of good faith. This good faith implies a moral commitment based on the recognition of a ‘defect’ (and not a fault or an illicit act) and driven by the principle of reciprocity. Of course, in an implicit way, there is the idea of risk related to the expected effect that might emerge from a certain commitment (what the Anglo-Saxons describe as justifying effects). Indeed, although not constraining, the commitments of soft law give rise to expectations whose consequences must be appreciated in this particular sphere in which the permissive value of the norm and the principle of non-contradiction belong. Alternatively, it may be that estoppel could be invoked to reflect these expectations. If this form of responsibility cannot be immediately included within the framework of soft law, the concerted nonconventional act might have created expectations which can allow the partners to invoke the estoppel principle as a form of ‘muffled’ responsibility. It is a notion inspired by the Anglo-Saxon law of evidence which expresses the principle of compatibility. This last principle is so defined by Martin.19 Thus estoppel corresponds to a non-conventional situation having effects on third parties and enables us to override the requirements—which seemed insuperable—of the fixed relationship between a legal obligation, its breach and its sanction. It is not a coincidence if the IMF is protecting itself against the private loan agreements in the tripartite relationship between itself, the State, and private banks. Indeed, if the private lender turned out to be unsatisfied with his commitment, the State concerned could turn against the program suggested by the Fund thereby leading to a chain of causation perhaps rising to the level of estoppel, ie a form of ‘soft responsibility’. Nevertheless, this concept remains badly defined and hardly useable, as is demonstrated by the hesitations of the International Court in this regard.20 Notwithstanding some particular cases, the recognition of the inclusion of a ‘soft responsibility’ is not founded because the general regime of responsibility envisaged by the ILC for States is characterized by two elements: it is interstate and it understands hard law in a univocal way.

References

(p. 170) 3 Soft responsibility vis-à-vis international responsibility It would be wrong to say that the ILC ignored soft law—it simply did not consider it as part of the form to be given to the Articles, while recognizing that their adoption in the form of a declaration would oblige States opposed to it to demonstrate that they are not bound by it, and while affirming that soft law can have a decisive impact in international relations and in State practice.21 But these positions have no repercussions in terms of the content of the text itself: international responsibility. The result is that responsibility in international law does not contain the nuances and subtleties which exist in domestic law because of the boundaries of sovereignty. This can be seen in the commentary to article 1 which notes that the term ‘délit’ was set aside in favour of the ‘fait internationalement illicite’ to avoid confusion with its particular meaning in domestic law.22 Thus we observe an orthodox legal framework faced with the heterodoxy of real situations. Responsibility is not flexible and adjustable according to varying behaviours. ‘Soft responsibility’ is thus overridden by the rigidity of the wrongful character of the act as the foundation of the

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international responsibility of the State. The idea of risk is avoided (except in particular conventions and in related projects—limited as these are—of the ILC). Some critics hold that this is a good thing since it is for States to face up to their own responsibilities in the matter of risk-taking.23 This is so even though the same author seems to think, a few years later, that responsibility is refined according to the character of the obligations violated—even where this is an obligation to compensate—while preserving its unity due to the requirement of breach of obligation even when the underlying activities are not prohibited by international law. By suspicion or mistrust, we nevertheless compel ourselves to a simplification of responsibility: no distinction between civil, penal, contractual, tortious responsibility, or between obligations of conduct or of result with respect to the breach of an obligation.24 The construct of international responsibility (it is indeed a construct, something new based on materials provided) is a fine one. What remains unknown is what its practical use is going to be; if the real regime of responsibility will not be left by the wayside, as it already has been in the sphere of private agents (particularly within the framework of oil pollution). The Montreal Protocol of 1987 or the Vienna Convention on the Protection of the Ozone Layer had already set up a form of ‘soft’ responsibility which does not speak its name, in the form of a non-compliance procedure. The Kyoto Protocol reproduces the idea, also under the name of a non-compliance procedure.25 We note its softened definition of the wrongful act which in consequence assists more the offender than would sanctions. Thus conventional practice seems to soften what appears to be forbidden by the general framework. Another obstacle is added to this monolithic framework: the avoidance of the question of international organizations. The IMF example (among many others) shows that soft law lies largely within the field of international organizations which, as we know, can be

References (p. 171) held as responsible, if some legal framework for implementation can be located. Article 57 leaves aside all questions concerning the responsibility of an organization and of a State for the behaviour of an organization. Of course, the ILC recognized that the Articles could have included those cases where a State is responsible because of its implication in the organization’s behaviour or because of its status as a member. But the controversy seemed too difficult to solve and the ILC left this subject aside, even if this rejection applies only to ‘derived’ or ‘secondary’ obligations and does not exclude the State responsibility for its own conduct.26 Paradoxically, this leads the organizations to adopt a kind of ‘soft responsibility’ by means of an empirical practice. This is notably the case regarding the UN in its peacekeeping operations. Lacking an adequate framework, the UN has constructed, in a pragmatic way, a self-assessment of harms caused in an original and uncategorized system.27 Nevertheless, in other institutions, like the IMF, the organization continues to disregard its responsibility, preferring the self-control and self-responsibility of the State, which makes promises only to itself and thus is responsible for its own damage. For the IMF to shoulder the risks it places on the State, these programmes would undoubtedly need to reach a postulate of infallibility in economic matters, which is far from being the case. The IMF shows a remarkable propensity to protect itself against its own responsibility. Thus the recognition of ‘soft responsibility’ remains a timely subject, particularly regarding the legal framework that needs to be created for the implementation of the responsibility of international organizations. This situation is regrettable given that the judge and the sanction are not the best guarantees for the execution of an obligation in international law. On the other hand, they are the best guarantees when a balance of interests is reached. But an ‘interest’ is not an ‘obligation’ and international law is only aware of the latter in the field of responsibility. What remains is for the process to evolve towards the crystallization of norms which will perhaps be recognized in the future and therefore will become projects of progressive development of international law. In the meantime let us hope that the soft will not change into the hard but will remain what it is intrinsically. If not, we would be back at the starting point. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Further reading L Condorelli, ‘L’imputation à l’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984-VI) 189 Recueil des cours 9 P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des Etats’ (1984-V) 188 Recueil des cours 9 P-M Eisemann, ‘Le Gentlemen’s agreement comme source du droit international’ (1979) 2 Journal du Droit International 326 U Fastenrath, ‘Relative Normativity in International Law’ (1993) 4 EJIL 305 B Graefrath, ‘Responsibility and Damages Caused: Relationship between Responsibility and Damages’ (1984-II) 185 Recueil des cours 9 C Nègre, La responsabilité internationale pour les atteintes massives à l’environnement (Thèse, Paris X-Nanterre, 2003) J-M Sorel, ‘Sur quelques aspects juridiques de la conditionnalité du F.M.I. et leurs conséquences’ (1996) 7 EJIL 42 P Weil, ‘Vers une normativité relative en droit international?’ (1982) 88 RGDIP 5 K Zemanek, ‘Causes and Forms of International Liability’, in G Schwarzenberger, B Cheng, & ED Brown (eds) Contemporary problems of International Law: Essays in honour of Georg Schwarzenberger (London, Stevens and Sons, 1988), 319(p. 172)

Footnotes: 1 K Zemanek, ‘Causes and Forms of International Liability’, in Contemporary Problems of International Law: Essays in honour of Georg Schwarzenberger (London, Stevens and Sons, 1988), 319. 2 Ibid, 327. 3 Commerce, Finance, Law Dictionary—English, German, French (Lausanne, Robert & Herbst, 1955). 4 Robert & Collins French Dictionary (5th edn, Paris, Dictionnaires Le Robert, 2000). 5 A Pellet, ‘Remarques sur une révolution inachevée, le projet d’articles de la C.D.I. sur la responsabilité des Etats’ (1996) 42 AFDI 12. 6 See J Barboza, ‘La responsabilité “causale” à la Commission du Droit international’ (1998) 44 AFDI 513–522. 7 Concerning these distinctions, see J Salmon et al, Dictionnaire de Droit international public (Brussels, Bruylant, 2001), 994–1000. 8 ILC Yearbook 2001, Vol II(2), 144. 9 See C-A Kiss, ‘La réparation pour atteinte à l’environnement’, in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 225. 10 I Seidl-Hohenveldern, ‘International Economic Soft Law’ (1979-II) 163 Recueil des cours 194. 11 P Weil, ‘Vers une normativité relative en droit international?’ (1982) 88 RGDIP 5. 12 Ibid, 44. 13 Ibid, 19. 14 See U Fastenrath, ‘Relative Normativity in International Law’ (1993) 4 EJIL 305. 15 P-M Eisemann, ‘Le Gentlemen’s agreement comme source du droit international’ (1979) 2 Journal du Droit International 326, 327. 16 See the study ‘Distinction entre textes internationaux de portée juridique et textes dépourvus de portée juridique’, Annuaire de l’Institut (Paris, Pedone, 1983), Vol 60-I, 166; Vol 60-II, 117, 284. 17 See J-M Sorel, ‘Sur quelques aspects juridiques de la conditionnalité et leurs conséquences’ (1997) 7 EJIL 42.

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18 On the distinction between the breach of obligation and infringement of interests, see B Graefrath, ‘Responsibility and Damage Caused: Relationship Between Responsibility and Damages’ (1984-II) 185 Recueil des cours 9, esp 47ff. 19 A Martin, L’estoppel en droit international public (Paris, Pedone, 1979), 260. 20 The concept was recognized by the ICJ in North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, p 3, 26 (para 30), where it was distinguished from acquiescence due to the existence of detriment suffered by the party relying upon it. It was also relied upon in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), Judgment, ICJ Reports 1984, p 246, 305 (para 130), where it was assimilated to the idea of preclusion, and in Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgment, ICJ Reports 1989, p 15, 44 (para 54), where it was said to be a possible consequence of silence. 21 Report of the ILC, 53rd Session, 2001, A/56/10, 24 (para 64). 22 The word ‘fait’ was also preferred to ‘acte’ which does not include omissions in the French language, which is not the case of ‘act’ in English, ibid, 70 (para 8). 23 P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des Etats’ (1984-V) 188 Recueil des cours 9, 108. 24 See also art 12, ARSIWA which makes clear that there is a breach of an obligation ‘regardless of its … character’; see also Commentary to art 12, para 11, ILC Yearbook 2001, Vol II, 54. 25 C Nègre, La responsabilité internationale pour les atteintes massives à l’environnement (Thèse, Paris X-Nanterre, 2003), 394. 26 Commentary to art 57, esp para 5. 27 Ibid.

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Part II International Responsibility—Development and Relation with Other Laws, Ch.15 Relations between the International Law of Responsibility and Responsibility in Municipal Law Pierre-Marie Dupuy From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Customary international law — UN Charter — Vienna Convention on the Law of Treaties — Act of state — European Court of Human Rights (ECtHR) — Permanent Court of International Justice (PCIJ)

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(p. 173) Chapter 15 Relations between the International Law of Responsibility and Responsibility in Municipal Law 1 Introduction 173 2 The principle and its implications 175 (a) Statement of the principle 175 (b) First implication: responsibility of the State for acts of its organs in excess of their authority 175 (c) Second implication: impossibility to invoke domestic law to limit implementation of the reparation owed by the responsible State 176 3 A well-established practice 177 (a) Historical sanctioning of the principle in case law 177 (b) Contemporary formulation of the principle 178 4 Mitigation of the principle: domestic law at the service of implementation of the international law of State responsibility 179 (a) Determination of the character of State organ 180 (b) Determination of an entity as ‘exercising elements of governmental authority’ 181 (c) Determination of the character of an organ placed at the disposal of a State by another State 182 5 Conclusion 183 Further reading 183

1 Introduction After stating the first condition entailing a State’s international responsibility, ie an internationally wrongful act,1 and after defining the elements constituting that act—characterized by its subjective dimension (the attribution of the act to a subject of international law) as well as by its objective dimension (the violation of an international obligation)2 —the Articles on Responsibility of States for Internationally Wrongful Acts deal with the question how to ‘characteriz[e] an act of a State as internationally wrongful’.3 They draw on one of the most solidly-anchored rules of customary international law, according to which such qualification falls within the sole province of international law and not domestic law.

References (p. 174) In other words, international law is one thing and domestic law is another. A particular act may be allowed by the latter but that will not make it lawful under the former. Let us provide an example: domestic law maintains to this day a number of statutory or social distinctions between men and women; that does not mean that they would be lawful from the point of view of international rights of the human person derived from the United Nations Charter itself (article 1(3)) and later consolidated in treaties4 as well as customary international law. An initial codification of this principle is to be found in the Vienna Convention on the Law of Treaties. Its article 27 prohibits any party from ‘invok[ing] the provisions of its internal law as justification for its failure to perform a treaty’.5 Article 46 of the same Convention attenuates the irrelevance of domestic law as a justification for disregarding an international obligation; it provides,

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in a very restrictive fashion, that only a ‘manifest’ violation of a law ‘of fundamental importance’ may allow a party to invoke the nullification of a treaty concluded by an organ that was incompetent to do so (under domestic constitutional law). This fundamental disconnect between the legal orders illustrates the fact that each of them conceives of itself as an autonomous and irreducible whole, if not as superior to other legal orders. This is most often observed in relationships between domestic and international law. A careful analysis of domestic judicial practice often shows that even in monist countries, such as France, domestic judges often only admit an international rule through the lens of its own domestic law.6 By contrast, international law remains in principle indifferent to the domestic law qualifications of acts that it takes into consideration pursuant to its own premises. On this issue, the dualist school, since Triepel and Anzilotti, or that derived from monism, with Kelsen or George Scelle, in practice reach the same conclusions: whether it is entirely independent from domestic law or superior to it, international law is not amenable to legal determinations made by domestic law regarding situations, conduct or acts. Such determinations are mere facts from the viewpoint of international law and the latter alone ensures their legal management. Put simply, domestic and international legal orders look at each other like Gog and Magog, which one author expressed in a more scholarly language by stating that: international rules regarding municipal law follow the principle of cognitive indetermination of municipal law by international law and of international law by municipal law: the one does not determine the legal products of the other and vice versa.7 This rule, called the ‘reciprocal indetermination of legal orders’ by the above author, will first be examined in its principal statement and its implications according to the ILC’s

References (p. 175) text (Section 2). The rule has been established for a long time in international law; we shall then discuss its precedents in practice, mostly in the case law (Section 3). Nevertheless the rule allows for certain mitigations inspired by empirical necessities of reciprocal relations between legal orders, which will be examined at the end (Section 4).

2 The principle and its implications (a) Statement of the principle The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.8 As the Commission rightly indicates in its Commentary on article 3: there are two elements to this. First, an act of a State cannot be characterized as internationally wrongful unless it constitutes a breach of an international obligation … Secondly, and most importantly, a State cannot, by pleading that its conduct conforms to the provisions of its internal law, escape the characterization of that conduct as unlawful by international law.9 The first element constitutes a reiteration rather than a continuation of the objective element of an internationally wrongful act as stipulated in article 2. The wrongful act owes its international character to the fact that the obligation it disregards is itself international. It is therefore mainly the second element that brings some novelty to the provision; it consists in the affirmation of the exclusive power of the international legal order to characterize the obligation and hence to

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designate its breach. Given the age-old history of the rule of reciprocal indetermination of legal orders we observe empirically that it has become increasingly important today that domestic law is not apposite in the determination of the unlawful character of an act attributable to the State. Indeed, given the current multiplication in domestic law of obligations falling upon the State which have a counterpart in international law (whether or not these obligations have their source in international law), it is particularly important to remember that only the definitions and the regime of the obligations as they are defined under international law matter. Hence, in domains which are substantially connected, such as the international law of human rights and the domestic law of civil liberties, the State’s obligations to respect freedom of thought, religion, association, or marriage are those established by international legal instruments to which the State in question is a party. Such is the case, for example, regarding the International Covenant on Civil and Political Rights10 which creates the obligations, and not the corresponding domestic regime. Similarly, rules of adoption, transposition or implementation in domestic law of obligations in the international legal order may not serve as protection or amendment of the content or implications of a given norm as far as international law is concerned.

(b) First implication: responsibility of the State for acts of its organs in excess of their authority The second rule deriving from the international law of responsibility’s indifference to the characterization of an act by domestic law is to be found in article 7 ARSIWA. It affects

References (p. 176) the standard case of unlawful acts of State organs acting in excess of their authority. Article 7 states: The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. In other words, what matters is the character of the function exercised by the organ, not the authority vested in it by the domestic law of the State for which it is acting. Therefore excess of authority is no excuse. The decisive element is the fact that the organ’s act violates an obligation owed by the State of which the organ forms a part, rather than domestic law prescriptions regarding the organ’s authority or lack of it. Hence, the rule in article 7 is only a specific application of the general principle stated in article 3. Aside from the fact that any other solution would have contradicted a well-established practice, it also would have inserted a major incoherence in the text. Nonetheless, in practice it would be excessive (as will be further discussed in Section 4) to state that this rule, which introduces a sort of guarantee that the respective States will make reparation for their organs’ unlawful acts, allows any reference to domestic law to be completely dismissed. Domestic law is required to trigger the rule, as the organ must have acted as a State organ. However the determination in practice often is made through an examination of not only the particular situation in which the act took place, but also through consultation of domestic law, to ascertain whether the entity was a public ‘organ’. Therefore, although it is set aside at the stage of the examination of the organ’s authority, domestic law often constitutes a system of reference to determine whether the act or omission was committed by an entity that such domestic law characterizes as a State organ. As indicated by the case law examined below, it also may be that the unlawful act imputed to the

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organ is of a character which disqualifies its author, which then loses its status as an organ of the State.

(c) Second implication: impossibility to invoke domestic law to limit implementation of the reparation owed by the responsible State Article 32 ARSIWA provides for another consequence deriving from international law’s independence vis-à-vis domestic law. Despite being entitled ‘Irrelevance of internal law’ it does not constitute a mere repetition of the general principle stated in article 3. Rather, it constitutes a specific application of the principle intrinsic to the regime of implementation of international responsibility. Indeed, it concerns the impossibility for States to invoke domestic law in attempting to elude implementation of the obligations set forth in Part Two of the Articles, which addresses the ‘content of the international responsibility of a State’. Part Two sets out various obligations, including the obligation of cessation of the unlawful act and, as the case may be, the obligation to provide guarantees of non-repetition.11 Most importantly, article 31 posits that ‘the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’. It is precisely with respect to such obligations that article 32 recalls the ‘irrelevance of internal law’ to avoid their implementation. In other words, whereas article 3 states the

References (p. 177) general rule of the irrelevance of domestic law for the qualification of an act of State as unlawful due to, in most cases, the violation of a primary obligation (to do or refrain from doing), article 32 refers to that rule as it applies to the duty of a responsible State to abide by secondary obligations arising out of the breach of a primary obligation. We note that such secondary obligations of reparation may in some cases entail a need for the responsible State to take certain measures in its internal order in order to erase the consequences of its internationally unlawful act. An illustration was given by the International Court of Justice in the Arrest Warrant case.12 After noting that the arrest warrant was unlawful, the Court found that the only way to provide restitutio in integrum in that case (ie, returning to the state of affairs prior to the commission of the act) was for Belgium to ‘cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated’.13 Understood as a clause prohibiting the invocation of domestic law to elude obligations intrinsic to the implementation of international responsibility, article 32 may rightly be compared to the rule contained in article 27 of the 1969 Vienna Convention on the Law of Treaties.14 No safe harbour from fulfilling one’s international obligations, conventional or otherwise and whether primary or secondary, may be found in domestic law. This effectively summarizes the combined substance of articles 3 and 32 of ARSIWA and article 27 of the 1969 Vienna Convention.

3 A well-established practice The rule of the reciprocal indifference of legal orders has been long-established in international law with respect to domestic law and is based in State practice, as well as being frequently reiterated in international jurisprudence. There is no room for doubt that it is one of the customary principles which finds a particular application in the international law of State responsibility. We must generally subscribe to Carlo Santulli’s observation according to which ‘international practice shows that the lack of relevance of domestic law must be understood pursuant to the so-called dualist interpretation’.15 This emerges in particular from judicial practice, which has been exceptionally consistent with respect to the rule codified in article 3 ARSIWA.

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(a) Historical sanctioning of the principle in case law The rule according to which domestic law does not constitute an excuse to the failure to perform an international obligation may be traced back to case law dated from 1872 when an arbitration tribunal handed down an award in the famous Alabama arbitration.16 In that case, the United Kingdom had attempted to justify its disregard of the ‘obligation to exercise due diligence over its territory to prevent any damage to other States’ by claiming that it had insufficient legal means under domestic law. The tribunal replied by stating that ‘the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the insufficiency of the legal means

References (p. 178) of action which it possessed’.17 The Permanent Court of International Justice’s decision in the case of SS ‘Wimbledon’ may also be cited. The Court applied the principle in response to Germany’s attempt to justify its administrative decision to deny to the SS Wimbledon the right to sail the Kiel Canal contrary to the prescription of the Versailles Treaty, since ‘a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace’.18 A solid line of arbitral jurisprudence had illustrated the same rule of international law’s indifference to domestic law characterizations; for example it has reiterated that the constitutional allocation of central, regional and local authority, particularly in federal states, has no effect on the imputability to the State of a failure to respect its international obligations on the ground that their central authorities could not interfere with the local administrations’ authority.19 The rule is codified in article 7 ARSIWA. It is noteworthy that the rule of autonomy in international law vis-à-vis domestic law has been stated so adamantly since the early days of international adjudication, which indicates its fundamental—if not foundational—character. It affirms the existence and independence of international law as a legal order, owing its identity solely to the collective will of its proponents, States, independently of the manner in which any State defines its obligations in its domestic law. Moreover, domestic law prescriptions cannot justify the State’s disregard of obligations to abstain from doing something at the international level any more than it fails to serve as a shield to implementation of obligations to act. The Permanent Court of International Justice provides an illustration in the case of the Free Zones of Upper Savoy and the District of Gex.20

(b) Contemporary formulation of the principle The age-old rule, which has never been refuted, has been endlessly repeated by judges and arbitrators in recent times, as the award of an ICSID tribunal in American Manufacturing & Trading Inc v Republic of Zaire bears witness. The award repeats almost word for word the award in the Alabama arbitration, cited above: The obligation incumbent upon Zaire is an obligation of vigilance, in the sense that Zaire as the receiving State of investments made by AMT … shall take all measures necessary to ensure the full enjoyment of protection and security of its investment and should not be permitted to invoke its own legislation to detract from any such obligation.21 Similarly in its advisory opinion of 1999 in Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, the International Court of Justice recalled that ‘[a]ccording to a well-established rule of international law, the conduct of any organ of a State must be regarded as an act of that State. This rule … is of

References (p. 179) a customary character’.22 In the LaGrand case between Germany and the United States,

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neither in its order for provisional measures of 1999, nor in its judgment of 27 June 2001 did the Court take into account prescriptions of US federal or local domestic law in establishing the responsibility of the United States for its disregard of international obligations arising out of both customary law and article 36 of the 1963 Vienna Convention on Consular Relations; 23 this was despite the United States’ invocation of the federal character of their constitution and the rule of ‘procedural default’.24 The rule of indifference of the international law of responsibility towards characterizations and prescriptions made by domestic law is not the sole privilege of the ICJ or of inter-State arbitral tribunals. It is to be found also at the regional level, particularly often at the European Court of Justice. The latter has recourse to the rule in particular in litigation regarding the ‘infringement’ by member States of their obligations pursuant to Community treaties as well as their obligations ‘derived’ from the treaties.25 The same observation may be drawn from the jurisprudence of the European Court of Human Rights, which never deems it necessary to determine what domestic entity has committed the act prohibited by the European Convention on Human Rights so long as the act was performed by an organ of the public authorities. Moreover, the International Criminal Tribunal for the former Yugoslavia, a specialized tribunal, has used the rule on several occasions, as for instance in the Tadić case.26 We could multiply the examples at every level, universal, and regional, of an abundant judicial practice which mirrors an extremely rich, constant and coherent State practice. As such, even if they insist on their reciprocal independence, legal orders are led in practice not only to co-exist, but also to co-operate. The international legal order is no exception, and in some cases, it refers to domestic law to ensure the application of its own rules. In such cases, however, domestic law is not an obstacle to the prescription of international rules regarding State responsibility but to the contrary, its invocation serves the implementation of these rules.

4 Mitigation of the principle: domestic law at the service of implementation of the international law of State responsibility International law alone qualifies an act as unlawful. It is autonomous in determining the conditions for attribution of an unlawful act to a State treated as a subject of the international legal order, provided that the act was taken by an entity, or legal or physical person, which is an organ of that State. Whether the entity is an organ of the State is often self-evident: a Head of State, Minister of foreign affairs, judge, or regiment of the armed forces are instantly recognizable as ‘State organs’. However there are some cases where the

References (p. 180) qualification is likely to raise questions. Although it does not make detailed referral to domestic law, international law nonetheless refers to the determination of domestic law as to whether an entity may be characterized as State ‘organ’. It does so not as an admission of its dependence with respect to one or the other domestic law, but to ensure implementation of its own legal mechanism: the international responsibility of the State. Three determinations made by domestic law are taken into account by international law. The first addresses the character as ‘State organ’ attributed to an entity regardless of its level (national, regional, or local), as we have seen.27 The second addresses the designation of a ‘person or entity’ as ‘empowered by that State to exercise elements of the governmental authority’.28 The third is also tied to the character as a State organ, since it relates to ‘conduct of an organ placed at the disposal of a State by another State’.29

(a) Determination of the character of State organ One may say that article 4(1) of the Articles does not include any positive statement attributing to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

the State the ability to determine which entities it considers as ‘organs’ of governmental authority. Indeed most of its content relates to the indifference of international law to the character and the level of action of the organ, whether it ‘exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State’.30 It remains the case, however, that the initial designation of this character by the State itself is, depending on the circumstances, either presumed (when it is self-evident, as mentioned above), or established from an examination—even if summary—of domestic law, when it is not so obvious. This is what derives very explicitly from article 4(2), which provides that: ‘An organ includes any person or entity which has that status in accordance with the internal laws of the State’. Nonetheless, in line with the long-held practice, the Commentary to article 4 insists upon the imperfect character, or at least the insufficient character, of the designation of ‘organ’ given by domestic law to given entities. It states: Where the law of a State characterizes an entity as an organ, no difficulty will arise. On the other hand, it is not sufficient to refer to internal law for the status of State organs. In some systems the status and function of various entities are determined not only by law, but also by practice, and reference exclusively to internal law would be misleading.31 Beyond the initial indication given by domestic law, international law ultimately remains the master of the final characterization as a ‘State organ’. This means, for example, that it is international law that may maintain the characterization with respect to a given entity, depending on the practice and the criteria it draws from it, when domestic law disputes that an entity belonging to the State apparatus should be understood as such. Thus it is international law, rather than domestic law, which determines the international law conception of State unity. To follow up on an example given in the Commentary referred to above, whether or the not police have a special status in domestic law, their actions will always bind the State as regards its international law obligations. Hence, in practice it would not be sufficient for the State to designate certain elements of the army

References (p. 181) as ‘special forces’ or ‘self-defence militia’ to avoid international responsibility of the State for actions of these forces such as violations of human rights. Therefore, it may be said that a certain co-operation or complementarity arises between international law and domestic law regarding characterization of an entity as a State organ, with international law remaining the master of the conclusion to be reached. In the interest of completeness it may be added that such co-ordination may also come into play to decide not only whether an entity possesses the character of an organ, but also to decide whether the organ acted in its capacity as an organ of the State when it committed a particular internationally wrongful act, or to the contrary, whether the organ acted strictly in a private capacity.32

(b) Determination of an entity as ‘exercising elements of governmental authority’ The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. Article 5 ARSIWA, as adopted by the ILC, is justified in the Commentary on the basis of ‘the increasingly common phenomenon of para-statal entities, which exercise elements of governmental authority in place of State organs’.33 In fact we encounter with increasing frequency

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entities with diverse status, to which the State entrusts tasks that could be considered a priori as falling within the realm of State authority. Such entities share with State organs duties discharged in the general public interest and benefit from exorbitant privileges, as for instance, under French administrative law. The comments made above as to the rule contained in article 4 ARSIWA may be reiterated, mutatis mutandis, regarding this provision. However, one may ask whether international law is more dependent, in this case, on characterizations and criteria set by domestic law than it is concerning the qualification of an entity as part of the State apparatus so as to make it a State ‘organ’. In the latter case, the theory of appearance plays a non-negligible role, as we have seen. By contrast, when the object is to determine whether a subject of domestic law, which is apparently devoid of any quality of ‘organ’, but which nonetheless acts as if it possessed such a quality, we must go beyond appearances to reveal the reality of the legal situation specific to the entity in question. This secondary analysis often presupposes a more minute analysis of the domestic law elements applied in the case. An interesting illustration is provided in a case adjudicated by the Iran-US Claims Tribunal. The case concerned an autonomous foundation created by a State, which owned goods for a charitable purpose, but in fact was closely controlled by the Iranian State.34 The decisive criterion for whether an act of an entity in violation of international law entails State responsibility resides in one element: the exercise by this entity of ‘elements of the governmental authority’. It is these elements of the governmental authority that allow

References (p. 182) a distinction to be drawn between activities undertaken by the entity which are effectively governmental, and those that are private. As stated by the Commission: [f]or the purposes of article 5, an entity is covered even if its exercise of authority involves an independent discretion or power to act; there is no need to show that the conduct was in fact carried out under the power of the State.35 It is certainly here that the international law of responsibility, although it ultimately controls the determination, is de facto most dependent on elements embodying the content and practice of domestic law.

(c) Determination of the character of an organ placed at the disposal of a State by another State The present situation concerns the qualification of organs possibly placed at the disposal of a State by another State. Like the provisions previously discussed (articles 4 and 5), article 6 ARSIWA sets out rules relative to the conditions for attribution of a given unlawful act to one State or another. It reads: The conduct of an organ placed at the disposition of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed. This rule is in direct conformity with the previous ones, albeit that it deals with circumstances which are much less frequent in practice. Indeed, on the one hand the organ in question loaned, so to speak, by one State to another State in a specific situation must have the status of an organ in the State to which it answers. This relates the present case to the one regulated by article 4. On the other hand, the organ must have engaged in some conduct grounded in the exercise of elements of governmental authority. This places it in the perspective clarified by article 5.

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Nevertheless, the determinative criterion remains the establishment of a functional link between the organ in question and the structure or the authority of the host State.36 Indeed, the organ is placed under the authority of the receiving State at the service of which it is placed. Although such situations are reserved to rather exceptional cases, they have proliferated in recent years: for instance, sanitary, civil, or military services dispatched by a country to another in the aftermath of disasters, natural or otherwise, to assist stricken populations. However, such practices are quite old and an illustration of the customary character of the rule stated in article 6 may be found in old case law, as exemplified by Chevreau, dating back to 1931, where a British consul in Persia temporarily attached to the French consulate lost important documents entrusted to him.37 Further, the recent jurisprudence of the European Court of Human Rights testifies to the fact that the rule stated in article 6 ARSIWA continues to reflect customary international law.38 These instances illustrate that when it lends the assistance of its organ to another State which then controls that organ, the assisting State does not bear responsibility for the acts

References (p. 183) of the entity it placed at the disposal of the other State. This could be called a principle of continuity of attribution of responsibility for which the intervention of not only one, but two domestic legal systems (that of the State of nationality of the organ, and that of the State benefiting from the assistance of the organ) will be decisive for the implementation of the responsibility of the former State.

5 Conclusion To conclude, we can say that the affirmation of the international law of State responsibility’s autonomy vis-à-vis the law of that State illustrates better than anything else the reciprocal independence of legal orders. The statement of the rule, age-old but constantly reiterated to this day, signals the literally fundamental character of a rule which is not only a warrant of the autonomy but also of the identity of the international legal order compared to domestic law. That being said, and regardless of a certain monist jurisprudence’s wishes (whether posit ivist, such as through Kelsen’s normativism, or objectivist, such as with Georges Scelle or Maurice Bourquin), the reality of positive law demonstrates that international law is inspired by a fundamentally dualist conception regarding its relations with domestic orders. International law affirms itself as independent from domestic law because it is separate, not because international case law or State practice would make it superior. This does not prevent collaboration between legal orders. International law, in fact, depends in a number of cases and for a certain number of elements upon facts provided to it by domestic law. It remains free in its treatment of such facts but it owns up to the relative dependence in which domestic law keeps it. This reality is paradoxical in name only and we can consider that the Articles developed by the ILC, for the most part, since the first reports by Professor Roberto Ago, represent an accurate reflection of the spirit and practice of a very solidly established customary rule. Further reading C Santulli, Le statut international de l’ordre juridique étatique (Pedone, Paris, 2001) H Triepel, Völkerrecht und Landesrecht (Verlag VCL Hirschfeld, 1899) H Kelsen, ‘Les rapports de système entre le droit interne et le droit international public’ (1926-IV) 14 RCADI G Sperduti, ‘Dualism and Monism: a Confrontation to Overcome’ (1977) BYBIL 31 L Ferrari-Bravo, ‘International Law and Municipal Law: The Complementarity of Legal Systems’, in R St MacDonald and D Johnson (eds), The Structure and Process of International Law (Dordrecht, Martinus Nijhoff, 1983)

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E Denza, ‘The Relationship between International and National Law’, in M Evans (ed) International Law (2nd edn, Oxford University Press: Oxford, 2006), 435 B Conforti, ‘Reflections on State Responsibility for the Breach of Positive Obligations: The Case-Law of the European Court of Human Rights’ (2003) 13 Italian Yearbook of International Law 3 A Nollkaemper, ‘Internationally Wrongful Acts in Domestic Courts’ (2007) 101 AJIL 760(p. 184)

Footnotes: 1 Art 1 ARSIWA. 2 Art 2 ARSIWA. 3 Art 3 ARSIWA. 4 Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 D ecember 1979, 1249 UNTS 13. 5 23 May 1969, 1155 UNTS 331. 6 See in particular PM Dupuy (ed), Droit international et droit interne dans la jurisprudence comparée du Conseil constitutionnel et du Conseil d’Etat (Paris, Editions Panthéon-Assas, 2001), particularly the contribution by D Alland, ‘Le juge français et le droit d’origine internationale’, ibid, 47–60, and the conclusions by J Combacau, ibid, 85–93. See also: L Henkin, ‘International Law as Law in the United States’ (1984) 82 Michigan Law Review 1555; L Ferrari-Bravo, ‘International Law and Municipal Law: The Complementarity of Legal Systems’, in R St MacDonald and D Johnson (eds), The Structure and Process of International Law (Dordrecht, Martinus Nijhoff, 1983); A Cassese, International Law (Oxford, OUP, 2005), 216; E Denza, ‘The Relationship between International and National Law’, in M Evans (ed) International Law (Oxford, OUP, 20 06), 435. 7 C Santulli, Le statut international de l’ordre juridique étatique (Pedone, Paris, 2001), 31. 8 Art 3, ARSIWA. 9 Commentary to art 3, para 1. 10 16 December 1966, 999 UNTS 171. 11 Art 30, ARSIWA. 12 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment, ICJ Reports 2002, p 3. 13 Ibid, 32–33 (paras 77, 78.3). 14 23 May 1969, 1155 UNTS 331. 15 C Santulli, Le statut international de l’ordre juridique étatique (Pedone, Paris, 2001), 425. 16 JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), Vol I, 653. 17 AG de la Pradelle, and NS Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), Vol II, 891; The Case of the United States to be laid before the Tribunal of Arbitration to be convened at Geneva, London, 1872 & Case presented on the part of Her Britannic Majesty to the Tribunal of Arbitration, London, 1872, both reproduced in JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), Vol I, 496. 18 The SS Wimbledon, 1923, PCIJ, Series A, No 1, p 15, 29. 19 For one of the oldest examples, see the arbitral award Montijo: JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), Vol II, 1440–41.

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20 Order made on 6 December 1930, PCIJ, Series A, No 25, p 4. 21 American Manufacturing and Trading, Inc v Republic of Zaire (ICSID Case No. ARB/93/1), Award of 21 February 1997, 5 ICSID Reports 11, 29 (para 6.05). 22 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Right, Advisory Opinion, ICJ Reports 1999, p 62 at 87 (para 62). 23 LaGrand (Germany v USA), Provisional Measures, ICJ Reports 1999, p 9; LaGrand (Germany v USA), Merits, ICJ Reports 2001, p 466. 24 LaGrand (Germany v USA), Merits, ICJ Reports 2001, p 466, 495 (para 81); in its order in relation to provisional measures issued by the Court in the same case it had already noted that ‘the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be’: see LaGrand (Germany v USA), Provisional Measures, ICJ Reports 1999, p 9, 87 (para 28). See also Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, ICJ Reports 2004, p 12, 56 (para 112). 25 See eg Case 199/85, Commission of the European Communities v Italian Republic [1987] ECR 1055–1060; Case C-297/95, Commission of the European Communities v Federal Republic of Germany (1996) ECR-I, 6741–45. 26 Trial Chamber I, Judgment of 8 November 1994, 101 ILR 8 (para 20). 27 Art 4, ARSIWA. 28 Art 5, ARSIWA. 29 Art 6, ARSIWA. 30 Art 4(1) ARSIWA. 31 Commentary to art 4, para 11. 32 See in particular the Caire adjudicated by the French-Mexican Claims Commission in 1927: Estate of John Baptiste Caire (France) v United Mexican States, 7 June 1929, 5 RIAA 175. 33 Commentary to art 5, para 1. 34 Hyatt International Corporation v Government of the Islamic Republic of Iran (1985) 9 Iran-US CTR 72, 88–94. 35 Commentary to art 5, para 7. 36 Commentary to art 6, para 4. 37 Affaire Chevreau (France contre Royaume-Uni), 9 June 1931, 2 RIAA 1113. 38 See for instance Drozd and Janousek v France and Spain (App No 12747/87), ECHR, Series A, No 240, paras 96, 110.

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Part III The Sources of International Responsibility, Ch.16 Overview of Part One of the Articles on State Responsibility Gilbert Guillaume From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations

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(p. 187) Chapter 16 Overview of Part One of the Articles on State Responsibility This section concerns the ‘Origin of International Responsibility’. In other words, the question is in which circumstances the responsibility of States and other international actors will be engaged under international law. Traditionally and under the influence of domestic law, the international responsibility of States rests on three pillars: a wrongful act, an injury and a causal link between act and injury. Charles de Visscher pointed out in his course at the Hague Academy in 1935 that responsibility relates back to the obligation of the State to make reparation for the consequences of a wrongful act that can be imputed to that State.1 But from this time on, Roberto Ago, in his teaching on the ‘international delict’ at the Academy in 1939, regretted that responsibility should be defined as a civil responsibility. In his view, mere reparation was not sufficient for certain ‘international crimes’. In such a case, a sanction of ‘corporal or repressive character’ would be necessary.2 Ago had an opportunity to orient the thinking of the ILC in this direction since it had been charged by the General Assembly, in 1956, to study the question of international responsibility of States. Ago was nominated Special Rapporteur in 1963 and tried to overturn the existing law in eight reports between 1969 and 1980, under the pretext of codifying it. In order to achieve this he first of all widened the area of study and included ‘all the forms of new legal relationship which may be established in international law by a State’s wrongful act’.3 This had two consequences: first, it led to a distinction between the law relating to the content and duration of the substantive obligations of States, the primary norms, and the law governing the potential consequences of the violation of these obligations, the secondary rules. But this distinction is irrelevant in the case where the responsibility of States could be invoked in the absence of any wrongful act. Ago thus excluded this type of responsibility from his study. Once Ago had limited the area of reflection in this way he searched for means to dissociate the law on international responsibility and that on civil responsibility. To achieve this he proposed that the wrongful act of the State should engage responsibility, even if it does not cause any injury. This bold theory was accepted by the ILC, which inferred that the responsibility of a State could be invoked by States other than the injured State. Another consequence was that the State that had acted wrongfully could not only be forced to cease (p. 188) the wrongful conduct and make reparation for the damage caused, but it could also be the subject of sanctions that were called ‘countermeasures’. This way the methods of enforcement were integrated into the law on responsibility. Eventually, a special regime would have to be established for ‘international crimes’. It was Ago’s tenacity and intelligence that achieved the endorsement of these revolutionary theories by the ILC.4 They received approval from many academic commentators whose influence was important at the Commission. However, they provoked more reserved or even hostile reactions from several States, especially in the examination of the ILC’s reports by the Sixth Committee of the General Assembly. The ILC had therefore ended up in a deadlock. It managed to escape from this unfortunate position thanks to the skill of its last Special Rapporteur, Crawford. The text prepared by him nevertheless continued to highlight problems, such that it would have been inept to submit the draft to a diplomatic conference with a view to concluding a treaty. Accordingly the General Assembly confined itself, in accordance with the view expressed by the ILC, to taking note of the Articles on Responsibility of States for Internationally Wrongful Acts, and merely recommended it to the attention of States. These articles thus became a piece of soft law, cherished by the supporters of the progressive development of international law. The analysis of the positive law on responsibility has for this reason become extremely difficult, as the various studies presented here show. Quite rightly, these studies refer largely to the work

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conducted over nearly fifty years by the ILC. But a distinction should be made in these works between the codification of the existing customary law, the development of this law that is based on custom, and the innovations (lege ferenda) that have a more uncertain future. This is not an easy task. The starting point for any reflection on the subject is the first article of the ILC text which states that ‘every internationally wrongful act of State entails the international responsibility of that State’. This text raises three issues of great importance: what is understood by ‘internationally wrongful act’? What is the State? Is its responsibility engaged by virtue of any wrongful act, even in absence of any damage? The first question is examined by Latty on ‘act or omission’ (Chapter 24), by Nishimura on the ‘source of obligation’ (Chapter 25), by Salmon on ‘the duration of responsibility’ (Chapter 27), and by Tavernier on the intertemporal law (Chapter 28). It emerges that there is no room in international law to distinguish between contractual responsibility and delictual or quasi-delictual responsibility. It has become clear that wrongful acts can consist of acts or omissions. It is also clear that, in order to appreciate the lawfulness of State behaviour, it is necessary to situate it in time by carefully distinguishing instantaneous from continuing acts. The second question—what is the State for the purposes of responsibility?—is more complex, as Condorelli and Kreß (Chapter 18) observe. But the analyses of the ILC on this point have clarified many aspects. As Anzilotti highlighted in 1929, ‘the act of the State is nothing but the activity of individuals that the law imputes to the State’.5 It will be noted that this imputation is made in law, and that the validity of the ILC’s proposals is questionable considering that it tends towards substituting the term ‘attributed’ to (p. 189) ‘imputed’. From this perspective, as Momtaz (Chapter 19.1) points out, the behaviour of all State organs must be considered as an act of that State, regardless of whether it is a legislative, executive or judicial organ. The same is true for the behaviour of territorial communities or federal States. The same solution also goes for certain persons or entities that exercise elements of governmental authority. The application of these principles nevertheless poses delicate problems as analysed by de Frouville (Chapter 19.3): the distinction between personal fault and faults of service; the limits between purely private acts and ultra vires acts; the extent of control that the State has to exercise over an organ de facto in order for its conduct to be imputed to the State; the situation of de facto officers; the adoption a posteriori by the State of the conduct of private persons. From this perspective, certain unlawful acts committed by insurrectional movements that have come to power can moreover be imputed to the State. Nevertheless, many questions remain to be answered in this area, as Cahin shows (Chapter 19.2). Furthermore, several States can be implicated in the same situation, as co-authors of an internationally wrongful act or if one of them has aided or assisted the responsible State, has encouraged the act or has compelled it to act, all situations that Dominicé (Chapter 20) considers. In the same way the succession of States to responsibility, a subject the ILC did not deal with, is examined by Mikulka who highlights the existing link between primary obligations and secondary norms in that field (Chapter 21). Once the wrongful act of the State is defined, it must still be determined whether, as a matter of positive law, the act automatically engages the international responsibility of this State under the scheme proposed by the ILC, or whether the responsibility does not furthermore imply that the wrongful act has caused some material or moral injury to another State. The solution of the ILC seems to raise a confusion that seems to occur in Anglo Saxon law, namely between ‘legality’ and ‘responsibility’ (licéité and responsabilité), or, to employ the language of French administrative law, between ‘excess of power’ (excès de pouvoir) and ‘full merits review’ (plein contentieux).6 In other words, the unlawful conduct of a State calls for the condemnation by a judge at the request of any State or States that may have an interest in acting, independently of any injury caused. But this conduct only engages State responsibility with regard to another State if it has caused it injury. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Ago and later the ILC thought they had to discard these traditional rules with a view to progressively developing international law; in other words, in order to open up more claims against States that have acted wrongfully. But as Stern points out, it is possible that a similar result could have been achieved by simply broadening the definition of material and moral injury as well as the definition of ‘injured State’ by distinguishing clearly between ‘standing’ and ‘disregard of rights’ (intérêt à agir and droits méconnus), as the ICJ has done (Chapter 17). In fact the Court seems to have stayed true to the concepts that existed before the revolution advocated by Ago. Thus, in 1950, the Court stated that ‘the refusal to fulfil a treaty obligation involves international responsibility’.7 It confirmed, in a more cautious

References (p. 190) manner that ‘when a State has committed an internationally wrongful act, its inter national responsibility is likely to be involved whatever the nature of the obligation it has failed to respect’.8 Thus for the Court, the wrongful act can engage State responsibility, but does not necessarily do so. This admittedly does not mean that it needs to be verified whether, considering the circumstances of every case, the wrongful act involves actual fault. There seems to be a current consensus to rule out such a requirement. In most cases, responsibility for wrongful acts becomes an objective responsibility. But an injured State, ie one which has suffered some injury, is still necessary for that responsibility to be implemented. The ILC has also considered the question whether certain circumstances preclude wrongfulness. The consent of the concerned State, self-defence, countermeasures in respect of an internationally wrongful act, force majeure, distress, the state of necessity, and respect for peremptory norms of general international law have been considered in this regard (see Chapters 29–31). Some of these exceptions have traditionally been recognized in customary law, others, such as jus cogens, are more controversial and only the future will bring certainty as to their fate. The state of necessity is also a concept which has been long discussed, and the ILC had to carefully limit the scope of the concept so that the International Court would recognize its existence only in exceptional cases.9 The State is no longer the only actor in international life and the question arises under which rules the responsibility of these other actors should be engaged. Klein discusses this with regard to international organizations and advocates the transposition of the rules that apply for the responsibility of States (Chapter 22). This solution commends itself because of the solid arguments with regard to the responsibility of organizations themselves, but the position is more doubtful as concerns the responsibility of member States for the acts of organizations. The international responsibility of private individuals, armed groups, and criminal organizations as well as the responsibility of non-governmental organizations is studied by Tomuschat (Chapter 23.1), Cahin (Chapter 23.2), and Lindbolm (Chapter 23.3). These different entities are not usually subjects of international law and it emerges from these studies that the law in this area is embryonic, if not non-existent. Two delicate questions remain: the criminal responsibility of States and the responsibility of States in the absence of an internationally wrongful act. On the first issue, the ILC long remained true to Ago’s distinction between international crime and delict. But facing strong opposition by States, it had to give up the idea of classifying the more serious wrongful behaviour of States as international crimes or of inflicting punitive damages.10 This grand distinction—which in Ago’s view was the starting point for all the changes advocated by him —had to be abandoned. In the ILC text one article concerning serious breaches of an obligation that arises from a peremptory norm of general international law remains, an article analysed by Crawford (Chapter 29) and Cassese (Chapter 30). According to the ILC, such a breach is not serious unless it involves

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a ‘gross or systematic failure by the responsible State to fulfil the

References (p. 191) obligation’. Only the future will tell what will happen to such an article, just like the concept of jus cogens to which it refers. Moreover it can be noted that the ILC’s text would impose on States faced with serious breaches of such a norm only limited obligations of non-recognition and of cooperation. Any idea of criminal responsibility of the State seems to have been abandoned. Penal measures are left to national and international criminal courts having jurisdiction to try persons accused of certain crimes. The illusion of a world not at risk in which every infraction will be punished and every damage repaired has raised the question not only of international crimes of State but also of responsibility in the absence of any wrongful act. This latter question is examined here by Montjoie (Chapter 34) and Hafner and Buffard (Chapter 36). It can be seen from their work that, as Montjoie specifies, in this domain no general text has been able to be concluded which responds to the preoccupations both of States and their nationals. This explains why the only practical way forward for the positive law is the adoption of conventions based on the will of States and directed at resolving specific problems. But even this way seems to have been followed only once, by the Convention of 1972 on International Liability for Damage caused by Space Objects.11 Once more, only the future will show if progress can be made in this matter, notably in the context of liability for hazardous industrial activities and for transboundary harm. To summarize, the law of international responsibility has become in the course of recent decades a law founded most often on objectively-established illegality. Furthermore the ILC, driven by Roberto Ago, has sought to dissociate responsibility and damage with a view to sanctioning international crimes of States and of legitimating counter-measures. But given the resistance of States, it was not able to achieve these aims, and indeed one may well question the continued relevance of the audacious intellectual construction initiated by Ago. It seems to me that it is necessary to retain the more secure conceptions of the International Court which has for its part never ceased to distinguish carefully between: • unlawful conduct which every State with a legal interest may call on a judge to determine as such; • responsibility itself, which is only engaged in the event of moral or material damage caused to a State injured in its rights. These solutions, which no one could regard as retrograde, seem to me to be matters of simple good sense.(p. 192)

Footnotes: 1 (1935/II) 52 Recueil des cours 421. 2 (1939/II) 68 Recueil des cours 525. 3 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 211 (para 43); see also ibid, 210 (para 40). 4 A Pellet, ‘Les rapports de Roberto Ago à la C.D.I. sur la responsabilité des Etats’ (2002) 4 Forum de droit international 222. 5 D Anzilotti, Cours de droit international (1929, republished Paris, Editions Panthéon-Assas, 1999), 469. 6 The French term ‘plein contentieux’, and its equivalents in other European systems, has no exact equivalent in English. Perhaps the nearest approximation is the idea of an appeal by way of rehearing.

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7 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, ICJ Reports 1950, p 221, 228. 8 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 38–39 (para 47). 9 Ibid, 39 (para 49). 10 Thus the ICTY has affirmed that ‘in terms of existing international law, it is evident that States, by definition, cannot be subject to penal sanctions like those provides for under internal systems of penal law’: ICTY, Prosecutor v Blaskic, Case IT-95-14-AR 108bis, Decision on the Objection to the Issue of Subpoenae Duces Tecum, Appeals Chamber, 29 October 1997, 110 ILR 688, 697–698 (para 25). 11 Convention on the International Liability for Damage caused by Space Objects, London/Moscow/Washington, 29 March 1972, 961 UNTS 187.

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Part III The Sources of International Responsibility, Ch.17 The Elements of An Internationally Wrongful Act Brigitte Stern From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Wrongful acts — Reparations — Damages — Responsibility of states — Ultra Vires conduct, necessity, emergency — Customary international law — State practice — Sovereignty — Lex specialis — Countermeasures

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(p. 193) Chapter 17 The Elements of An Internationally Wrongful Act 1 The internationally wrongful act of a subject of international law: the sole constituent element of international responsibility 193 (a) The traditional conception 194 (b) The current conception 194 2 The constituent elements of an internationally wrongful act committed by a subject of international law 200 (a) The necessary conjunction of two elements 201 (b) The order of the two elements 201 3 The question of attribution 202 (a) Organs of the State and persons or entities exercising elements of governmental authority 203 (b) Persons and entities acting on behalf of the State 206 (c) Attributable acts: actions and omissions 208 4 The breach of an international obligation 209 (a) The abandonment of the idea of fault 209 (b) The existence of a breach of an international obligation 210 (c) The extension in time of a breach of an international obligation 214 (d) Circumstances precluding wrongfulness 217 Further reading 218 The present Chapter concentrates on the elements of an internationally wrongful act, which will be examined comprehensively: first, the role played by the notion of the internationally wrongful act in the theory of international responsibility will be considered (Section 1), before examining the relationship between its constitutive elements (Section 2). Finally, its two constitutive elements— attribution to a State (Section 3) and breach of an international obligation (Section 4)—will be addressed in detail.

1 The internationally wrongful act of a subject of international law: the sole constituent element of international responsibility It is well known that traditionally international responsibility was considered as resting on three pillars: an internationally wrongful act; damage; and a causal link between the two. On closer examination, that conception in fact consisted of just two pillars, the link between (p. 194) them constituting the lynchpin of the whole structure. However, new developments have completely overturned the traditional approach to international responsibility.

(a) The traditional conception The traditional conception of international responsibility is evidenced in the Dictionnaire Basdevant, which defines international responsibility as being: the obligation, under international law, of the State to which an act or an omission contrary

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to its international obligations is imputable, to make reparation to the State which was the victim, either itself or through the person or property of its nationals.1 The obligation to make reparation therefore goes hand in hand with international responsibility. Charles de Visscher expressed this concept very clearly in these terms: ‘International responsibility is a fundamental notion reducible to the obligation of a State to make reparation for the consequences for a wrongful act that is imputable to it.’2 If it is considered, as is the case today, that there exist some aspects of international responsibility other than the obligation to make reparation, it is advisable to expand the definition of what is included in the notion of responsibility, rather than to characterize those other aspects as the ‘legal consequences’ of responsibility. Here reference may be made to Decencière-Ferrandière who, well before the innovations introduced by Ago, wrote that ‘responsibility may be defined as the entirety of the obligations that arise for a subject as the result of an act, action or omission which is imputable to it’.3 The obligation to make reparation (and nowadays the other consequences of an internationally wrongful act) is not the ‘consequence’ of international responsibility. International responsibility is the obligation to make reparation (and also now the other consequences of an internationally wrongful act identified by the ILC).

(b) The current conception In contrast to the traditional concept of international responsibility, reference may be made to article 1, which was not modified from the draft provision adopted on first reading.4 It provides: ‘Every internationally wrongful act of a State entails the international responsibility of that State.’ As is apparent, no mention is made of either damage nor of the necessary causal link. All but one of the three—or two—pillars have disappeared from the Articles, which obviously casts a very different light on things. Without doubt, there was a desire that responsibility should arise as soon as an international obligation was breached, or in other words, to introduce a certain objective review of legality into the institution of international responsibility. However, the ILC did not take this logic to its natural conclusion—even if Arangio-Ruiz tried—because it did not accept the (very simple) idea that legal injury arises without more as the result of the simple breach of an obligation; that step, if achieved, would have meant that this normative advance did not remain half-achieved, or at least, in the realm of the unsaid. In reality, the ILC changed its position considerably in respect of the introduction of an objective control of legality into the theory of international responsibility. Although starting with the idea, contained in the first reading draft, that States could be injured in (p. 195) different ways—as the result of material or moral damage or, in certain cases, by the fact of the simple breach of an obligation—under the guidance of the final Special Rapporteur, it abandoned this approach and rather introduced a dichotomy between the notions of the injured State and ‘the State other than the injured State’.5 Draft article 40 of the 1996 draft, although far from perfect, nevertheless went further than the final text in taking account of what one may refer to as ‘legal injury’. Due to its complexity, draft article 40 bears citation in full:

Article 40 Meaning of injured State 1 . For the purposes of the present Articles, ‘injured State’ means any State a right of which is infringed by the act of another State, if that act constitutes, in accordance with Part One, an internationally wrongful act of that State. 2 . In particular, ‘injured State’ means: (a) if the right infringed by the act of a State arises from a bilateral treaty, the other State

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party to the treaty; (b) if the right infringed by the act of a State arises from a judgement or other binding dispute settlement decision of an international court or tribunal, the other State or States parties to the dispute and entitled to the benefit of that right; (c) if the right infringed by the act of a State arises from a binding decision of an international organ other than an international court or tribunal, the State or States which, in accordance with the constituent instrument of the international organization concerned, are entitled to the benefit of that right; (d) if the right infringed by the act of a State arises from a treaty provision for a third State, that third State; (e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other State party to the multilateral treaty or bound by the relevant rule of customary international law, if it is established that: (i) the right has been created or is established in its favour; (ii) the infringement of the right by the act of a State necessarily affects the enjoyment of the rights or the performance of the obligations of the other States parties to the multilateral treaty or bound by the rule of customary international law; or (iii) the right has been created or is established for the protection of human rights and funda mental freedoms; (f) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto. 3 . In addition, ‘injured State’ means, if the internationally wrongful act constitutes an international crime, all other States. The first paragraph recalled the well-established rule according to which only the violation of a right gives rise to a right to reparation. The second paragraph made explicit that generic formulation, setting out different types of relations between States in the framework of which a breach of a right may occur. It is, however, clear that the enumeration of situations contained in the provision was not truly systematic. There were dealt with in turn rights arising under bilateral treaties, judgments or international arbitral awards,

References (p. 196) binding decisions of international organs, provisions of treaties in favour of third States, multilateral treaties, rules of customary international law, as well as, finally, the situation where an international crime had been committed. The text mixed a formal analysis based on the types of relations between States capable of giving rise to a breach, with a material analysis which had regard to the content of the norms in question. There is no need to dwell in any detail upon the first four situations envisaged: it is not contested that, in the case of a breach, a State party to a bilateral treaty (paragraph 2(a)), the beneficiary of a judicial decision or an international arbitral award (paragraph 2(b)), the beneficiary of a right conferred by the binding decision of an international organ (paragraph 2(c)), or the beneficiary of a provision in a treaty provision between other states and stipulated in its favour (paragraph 2(d)) may claim reparation as the result of the violation of the right breached. As regards the other situations, relating to rights under a rule of customary international law or a treaty, there were two possibilities: either the case fell into the general category, in which case a State could only invoke the responsibility of the State which was the author of the violation if it could show that it was directly injured, either because the right breached was created or established in its favour (paragraph 2(e)(i)) or because the violation

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‘affected’ either its rights or the obligations deriving from the customary or treaty rule violated (paragraph 2(e)(ii)). Or the case fell within the specific situations in which an actio popularis was to be recognized, although draft article 40 carefully avoided using that term. That situation arose in three hypotheses: first, where the breach infringed a customary or treaty rule protecting human rights and fundamental freedoms (paragraph 2(e)(iiii)); second, where the breach infringed an obligation arising under a multilateral treaty providing for the protection of the collective interests of the States parties (paragraph 2(f)); or, finally, where the violation constituted an international crime (paragraph 3). Despite its complexity, the 1996 draft appears to be far more coherent than the approach finally followed in 2001: the 1996 draft proceeded on the basis that a State could be injured if it suffered material or moral damage, but equally that it could be injured solely in its legal interests, for example, when an international crime had been committed which, by definition, infringes the legal interests of all States making up the international community. Draft article 40 thus introduced an innominate concept of legal injury. However, it was necessary to go much further. But, in the final Articles as adopted in 2001, the contrary occurred, as the notion of injured State was considerably narrowed and as a result, for instance, all States are no longer considered injured when a serious violation of obligations arising under peremptory norms of general international law is committed. In fact, in the final Articles of 2001 the category of ‘injured State’ has been fragmented and it is therefore necessary to distinguish injured States from ‘States other than injured States’. Accordingly, article 42 is devoted to ‘Invocation of responsibility by an injured State’ while article 48 concerns ‘Invocation of responsibility by a State other than an injured State’. It is at the least curious that some States may invoke the responsibility of another State even if they are not injured. If a State is the beneficiary of an obligation which is violated, it is difficult to see why it should not be considered to be an injured State. It is well established— and the ICJ has clearly affirmed—that, in the case of an international obligation towards the international community as a whole, all States have a legal interest in ensuring that there is compliance.6 In other words, it seems that all States able to invoke international responsibility should be considered to be injured States; if that is not the case, what is the justification

References (p. 197) for the fact that they may have a cause of action against the author of the internationally wrongful act? The illogical nature of the approach finally adopted by the ILC results clearly from a passage from a work by Alexandros Kolliopoulos, according to whom: States other than a State affected by the wrongful act can invoke the international responsibility of the author State if the norm violated breaches their legal interests, either due to its importance for the international community or because it constitutes an essential norm for all parties under a multilateral treaty.7 There could not be clearer proof that, in reality, ‘States other than injured States’ are merely States which are injured differently; if their legal interests were not injured they would have no basis upon which they could invoke the responsibility of the responsible State. Certain commentators see a step forward as the result of this new conception; thus Alain Pellet considers that it is part of: a ‘re-conceptionalisation’ of the very notion of international responsibility, which, by the elimination of injury as a condition for its existence, finds itself ‘objectivised’, in the sense that, from a purely inter-state approach we have passed to a more ‘communitarian’ or ‘societal’ vision: responsibility exists in and of itself, independently of its effects.8 However, that progress would have been just as significant, if not even more so, at the symbolic level, if the ILC had considered that every breach of an international obligation constitutes a legal

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injury for which reparation was to be made by the re-establishment of the legal order which had been violated. Eventually, the ILC arrived at this result, albeit by a somewhat round-about path. That approach required it, on the one hand, to introduce, in addition to the obligation to make reparation, other obligations deriving from the existence of an internationally wrongful act, and on the other hand, to give rights to States ‘other than the injured State’, despite the fact that it is difficult to see on what basis they can act, if not on the basis of the declaration contained in article 48, the legal value of which is not at all clear. Undoubtedly, in the Articles, there is an affirmation of the existence of responsibility as soon as there is a wrongful act; however the affirmation takes the limited form of the (perfectly logical) right to request cessation of the wrongful act. What is less logical is that the right to invoke responsibility is not founded on the existence of what could be considered legal injury, recognized as such, and that cessation of the wrongful act is not analysed as constituting reparation for that legal injury. Would it not have been better to recognize clearly that, in the absence of any legal personification of the international community, as a result of which it is impossible to implement the responsibility of a State which violates a norm owed to that community, all members thereof are injured by the simple breach of such a norm? That would have constituted recognition of a strong form of solidarity, of the fusion of all States in the concept of international community; an affirmation that an attack against the whole is an attack against each party and that each party is accountable to each of the others as regards compliance with the fundamental norms of international law. This is the idea expressed (p. 198) by Alexandros Kolliopoulos, when he analyses the case of breach of an erga omnes norm. In his view: One might … consider that the interest of all States in relation to obligations erga omnes consists not only of an interest for the purposes of bringing a claim for the sole benefit of the international community in the case of a breach, but also as associated with a real right based in primary legality: a right to demand that all States respect those obligations.9 Far from being oriented towards the simple protection of subjective interests and State sovereignty, to the extent that ‘States have a legal interest in seeing such or such international rules respected, responsibility will play the role of a guarantor of the international legal order’.10 In other words, the recognition of legal injury would have been an even more significant advance towards a communitarian vision than the approach which was eventually adopted: a recognition that States have not only a right to act in the name of the international community, but also that, due to their close participation in the international community, they act in their own capacity, as fundamentally affected in their legal interests by any violation of norms which are fundamental for that community. The concept of legal injury, if it thus translates the concern of all States for the respect of certain fundamental international legal rules, in fact permits a reunification of the concept of responsibility which at present seems to be separated into disparate elements which its is difficult to regroup together. Under the scheme of the Articles, in some cases, if there is an injured State, responsibility consists of cessation of the breach (and possibly the provision of guarantees of non-repetition) together with the obligation to make reparation. In other cases, if there is no injured State, States other than the injured State may request the cessation of the wrongful act (and possibly guarantees of non-repetition), but nothing else. Finally, in certain cases in which there is an injured State, States other than the injured State may request cessation of the wrongful act (and possibly guarantees of non-repetition), and, perhaps, implementation of the obligation to make reparation to the injured State or the individuals who are the beneficiaries of the obligation. From this description of articles 42 and 48 as finally adopted, it is obvious that the content of international responsibility is not uniform. The notion of legal injury permits the reunification of the concept of responsibility from two points of view. On the one hand, there would be only one single concept, that of the injured State, which can be injured in different ways, material, moral or legal; on the other, there would be only a single

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aspect of responsibility (or a single consequence of the internationally wrongful act), the obligation to make reparation. In the first place, the recognition of legal injury removes the laborious distinction introduced by the ILC between injured States and ‘States other than the injured State’, which are not even ‘States having a legal interest’. If one considers, as seems obvious, that all breaches of international law create a legal injury suffered by those to whom the obligation breached is owed (whether a single State, a group of States or the international community as a whole), then responsibility can always be invoked by an injured State. Using the notion of legal injury, there would never be a situation in which there would be both

References (p. 199) an injured State as well as ‘States other than the injured State’. There would always be one (or more) injured State(s) which have suffered legal injury—whether alone, or accompanied by material or moral injury. There would thus always be one (or more) State(s) which could demand by way of reparation (whether in their own name, or that of a group of States or of the international community as a whole) the re-establishment of the legal order which has been violated, whether or not accompanied by a claim for reparation in relation to material or moral injury. In the second place, using the concept of legal injury allows the consequences of the internationally wrongful act to be characterized as one obligation—the obligation to make reparation. To the extent that all wrongful acts which cause material or moral damage also imply the existence of a legal injury inherent in the violation of the right, it is logical that responsibility entails reparation of not only the material or moral damage, but also equally of the legal injury. In this regard, it may be argued that cessation of the internationally wrongful act (article 30) has been unduly isolated as being a consequence different from the obligation to make reparation, although it can be seen as simply the obligation of restitution of the legal order violated, that is, reparation for the legal injury. Further, as concerns assurances and guarantees of non-repetition (likewise contained in article 30),11 if it is necessary at all costs to integrate such measures into the concept of the obligation to make reparation, such measures may be regarded as contributing to the goal of reestablishment of the legal order violated, although for the future rather than for the past. It is also worth recalling that this is consistent (in part) with the view taken by the ILC in the 1996 draft, where assurances and guarantees of non-repetition were included as part of the full reparation to which the injured State was entitled under draft article 42. Responsibility would accordingly no longer be a series of disparate obligations, as is presently the case; rather those obligations could in sum be defined simply as the obligation to make reparation for the injury suffered by an injured State. This is so whether the injury suffered was solely legal (the situation envisaged by article 48), in which case the obligation to make reparation merges with the right to require the restoration of the legal order, or if the injury suffered was material or moral, necessarily accompanied by a legal injury, in which case, logically, at the same time there is both a right to claim the restoration of the legal order (article 30) and a right of reparation for the material and/or moral injury suffered (article 31). Accordingly, reparation would have inevitably included an obligation to re-establish the legal order, as reparation for the legal injury, in all instances. On the analysis presented here, where there is a wrongful act which causes material or moral damage there exists an obligation to make reparation for the legal injury (cessation of the wrongful act, article 30) and an obligation to make reparation for the material or moral damage (article 31) to which the different modalities would apply: restitution (article 35), compensation (article 36), or satisfaction (article 37). When there is a wrongful act which has caused only legal injury, the obligation to make reparations translates into restitutio (article 48(2)(a)), ie cessation of the wrongful act, if the wrongful act persists, or in reparation in kind, ie an explicit declaration of the wrongful character, where the internationally wrongful act has terminated. That latter

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References (p. 200) consequence is, of course, always implicit where reparation for material or moral injury resulting from an internationally wrongful act is required. What the ILC calls an ‘injured State’, that is to say a State which is individually or specially affected, suffers both legal injury and material and/or moral injury, and could therefore ask for full reparation, in conformity with articles 30 and 31. Such reparation would include restitution of the violation of the legal order as reflected in cessation of the wrongful act as well as assurances and guarantees of non-repetition, which form part of the same logic aimed at ensuring international legality and restitution, compensation or satisfaction for the material or moral damage caused. What the ILC calls a ‘State other than an injured State’ suffers solely a legal injury, which permits it to demand precisely what the Articles grant it the right to invoke under article 48, although on an unknown legal basis, namely the re-establishment of the legal order by cessation of the wrongful act and possibly the provision of assurances and guarantees of non-repetition. In reality, it appears that the distinction between injured States and ‘others’ was adopted by the ILC in order to avoid the unforeseeable and potentially damaging consequences of the decision to integrate countermeasures into the theory of international responsibility. It may be noted in passing that this decision is equally open to criticism, given that the attempt to subject countermeasures to a dispute settlement procedure in the draft adopted on first reading,12 abandoned in the Articles as finally adopted, was the only acceptable justification for the indirect legitimation of countermeasures. Moreover, that problem could have been avoided either by entirely eliminating countermeasures from the theory of international responsibility altogether (which would have been by far the most preferable solution), or by indicating that countermeasures are not available to States which suffer only legal injury as the result of an internationally wrongful act.

2 The constituent elements of an internationally wrongful act committed by a subject of international law Given that it is an institution of the international legal system, international responsibility may only be invoked by and against a subject of international law. Only subjects of international law are subjected to the international legal order and therefore only they are capable of invoking a breach of its norms13 or of violating them.14 Article 2, which sets out the ‘Elements of an internationally wrongful act of a State’, explains the conditions under which a State incurs responsibility: There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.

References

(p. 201) (a) The necessary conjunction of two elements Article 2 sets out the legal conditions necessary for it to be established that a State has committed an internationally wrongful act. Those conditions are two: behaviour which is attributable to the State (to which Chapter II of Part One, comprising articles 4 to 11, is devoted); and the breach of an international obligation by a State as the result of such behaviour (to which Chapter III, comprising articles 12 to 15, is devoted). In other words, on the one hand, there must be conduct which is attributable to a State, and on the other hand, that conduct must be wrongful. These two conditions are naturally determined by the international legal order, and by the international legal

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order alone. When reference is made to international responsibility, most often what is being referred to is the responsibility of States, as the first and primary subjects of international law. However international organizations, as derivative subjects of international law, may also incur responsibility,15 just as they can invoke the responsibility of other subjects of international law.16 Article 57 expressly reserves the question of the responsibility of international organizations, and the ILC has recently adopted on first reading draft Articles on the Responsibility of International Organizations.17 The necessity for these two elements of international responsibility has been frequently recalled by the Permanent Court of International Justice and the International Court of Justice. In the Phosphates in Morocco case, the PCIJ indicated that international responsibility arose from an ‘act being attributable to a State and described as contrary to the treaty right of another State’.18 Even if the restriction to violations of treaties is clearly no longer an accurate reflection of the law, the assertion that the two elements of attribution and international wrongfulness are required to give rise to international responsibility is still valid.

(b) The order of the two elements In the Tehran Hostages case, the International Court indicated the necessity of the presence of these two elements, making it clear that there were two necessary steps in the process of determining the existence of international responsibility: First it must determine how far, legally, the acts in question, may be regarded as imputable to the Iranian State. Second, it must determine the compatibility or incompatibility with the obligations of Iran under treaties in force or any other rules of international law that may be applicable.19 It may be noted that, although there is a reference to all international norms, and not only treaty obligations, there is no change in relation to the basic elements from which international responsibility arises. This sequence is logical since an act on its own cannot be assessed against the rules of public international law; it is first necessary to ensure that an act is attributable to the State before examining whether that act is in conformity with what is required from that State under international law.

References (p. 202) Certain authors consider, however, that the two elements contained in article 2 are ‘paradoxically inverted’. Pierre-Marie Dupuy considers that it is possible to determine first whether international law has been breached and, only thereafter, examine the question of whether this breach is attributable to a subject of international law. The example he gives is that it is possible to objectively determine an infringement of international law, committed, for example, by armed groups committing acts in violation of international humanitarian law, without it being possible thereafter to attribute those acts to a subject of international law which is capable of incurring international responsibility.20 In this regard, it is to be noted that the ICJ in Bosnian Genocide followed this order; that approach is to be welcomed, insofar as it constitutes a means of recording for history all the atrocities committed during the ethnic cleansing in Bosnia, even if those atrocities were thereafter held either not to constitute genocide, or not attributable to the Federal Republic of Yugoslavia (FRY). The two elements have sometimes been characterized as objective (the breach of an obligation) and subjective (attribution); however, this terminology is not really pertinent (for example, there are subjective elements in the breach of the law prohibiting genocide) and it was for good reason that it was not retained by the ILC. The ascertainment of the existence of an internationally wrongful act of a State therefore requires

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two cumulative steps: ‘[a]s a normative operation, attribution must be clearly distinguished from the characterization of conduct as internationally wrongful.’21 This is implied in article 2. The implications of these two normative operations will be examined in the following sections.

3 The question of attribution Traditionally, the term ‘imputation’ was more often used than ‘attribution’. The ILC justified its substitution of the term ‘attribution’ as follows: ‘the term “attribution” avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the conduct in question is “really” that of someone else’.22 It is necessary to be conscious, however, of the fact that even when using the term ‘attribution’, the legal fiction does not become any less necessary, given that the process of attribution consists of attributing the acts of a physical person to the State, a legal person. Attribution deals with a classic problem, that of imputing acts which are necessarily committed by physical persons to the legal person constituted by the State. In this area, the ILC has only codified well-established customary rules which are hardly in dispute, or at least so it appears from the debates. States, as abstract entities, do not act directly. States cannot act other than through the intermediary of physical persons—whether acting in isolation or in a group—who have a certain relationship with the State. The PCIJ had already recognized this obvious fact at the beginning of the last century: ‘States can act only by and through their agents and representatives’.23 Even if the idea of representatives is interpreted broadly, a sovereign State will only be considered responsible for acts which are sufficiently linked to it, to its sovereignty, such that it must account for their

References (p. 203) consequences. The extent of the attributability of certain acts to a State therefore traces the limits of its sovereignty.

(a) Organs of the State and persons or entities exercising elements of governmental authority It is, according to the ICJ, a ‘well-established rule, one of the cornerstones of the law of State responsibility, that the conduct of any State organ is to be considered an act of the State under international law’.24 No problems are posed by the attribution to the State of the acts of its agents and organs (article 4) —whether they exercise constitutional, executive, legislative or judicial power, or are agents and organs of territorial units or subdivisions; 25 or are public or private entities exercising elements of governmental authority (article 5).26 Article 5, entitled ‘Conduct of persons or entities exercising elements of governmental authority’, states that: The conduct of a person or entity which is not an organ of the State under Article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. To the extent that ‘what is regarded as governmental depends on the particular society, its history and traditions’,27 article 5 does not provide a precise definition of its field of application. The decisive test here is whether the organ exercises elements of governmental authority. As foreseen by article 7, these rules of attribution apply even if these entities act ultra vires, so long as they act in that capacity; 28 the only acts excluded are purely private acts, having no

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connection with official functions, committed by an agent or civil servant of the State, or a person or entity exercising governmental authority. A single exception to this rule exists in time of war, a situation which is itself exceptional. In such a situation, the responsibility of the State is reinforced and all the wrongful acts of the military, whatever they may be, engage its responsibility.29 Although the point is not mentioned in the Articles, it can be considered that this rule applies as lex specialis, the application of which is permitted by article 55. Similarly, because of a strong link with the structure of the State, the acts of persons or entities who de facto exercise elements of governmental authority; 30 or the acts of

References (p. 204) victorious revolutionaries who have installed themselves in power31 likewise does not pose any difficulty. Special mention should also be made in relation to the attribution to a State of acts of an organ placed at its disposal by another State.32 The ICJ referred to the rules in this regard in Bosnian Genocide; although it concluded that the ‘Scorpions’, a paramilitary group which had strong links with the Ministry of Defence of the FRY, could not be considered an organ of the FRY, whether de jure or de facto, the Court noted that ‘in any event the act of an organ placed by a State at the disposal of another public authority shall not be considered an act of that State if the organ was acting on behalf of the public authority at whose disposal it had been placed’.33 The rule of attribution of the acts of organs follows from the principle of the unity of a State under international law and is simply the expression of a well-established principle of customary international law, as recalled by the ICJ in its advisory opinion on Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights: ‘According to a well-established rule of international law, the conduct of any organ of a State must be regarded as an act of that State. This rule … is of a customary character.’34 The Court also affirmed the customary character of the principle in its 2005 decision in Armed Activities on the Territory of the Congo,35 and applying it to the facts of the case concluded that the Uganda Peoples’ Defence Forces, part of the army of Uganda, was a State organ and accordingly its conduct was attributable to the State.36 The question whether a person or entity is an organ of the State depends in principle on its characterization as such by the structure of the municipal law of the State; however, international law permits one to consider that any institution which fulfils one of the traditional functions of the State, even if such functions have been privatized, should be considered as an organ of the State from the point of view of international law and for the purposes of the law of responsibility, The idea is that, once again, ‘international law does not permit a State to escape its international responsibilities by a mere process of internal subdivision’.37 Thus the mere fact that a State confers management of its prisons or control of immigration in its airports, or even certain police functions, to private entities, does not mean that the State can absolve itself from all international responsibility when those entities commit acts contrary to the State’s international obligations. In LaGrand, the ICJ recognized the general principle of attribution of the acts of its organs to a State, whether the organs are those of its central government or territorial entities of a unitary State, or even the constituent entities making up a federal State: Whereas the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be; whereas the United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings; whereas, according to the information available to the Court, implementation of the measures indicated in the present Order falls within the jurisdiction of the Governor of Arizona;

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References (p. 205) whereas the Government of the United States is consequently under the obligation to transmit the present Order to the said Governor; whereas the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States.38 In Bosnian Genocide, the ICJ also discussed the possible participation of organs of the FRY in the genocide; as is well-known, only the acts committed in Srebrenica in July 1995 were found to constitute genocide. Thus, the question of attribution of those acts was raised. The Court explained the steps of its reasoning as follows: This question has in fact two aspects, which the Court must consider separately. First, it should be ascertained whether the acts committed at Srebrenica were perpetrated by organs of the Respondent, i.e., by persons or entities whose conduct is necessarily attributable to it, because they are in fact the instruments of its action. Next, if the preceding question is answered in the negative, it should be ascertained whether the acts in question were committed by persons who, while not organs of the Respondent, did nevertheless act on the instructions of, or under the direction or control of, the Respondent.39 After examining all the elements, the ICJ considered that none of Republica Srpska itself, the officers of the VRS (the army of the Republica Srpska), nor the paramilitary groups such as the ‘Scorpions’ could be considered to constitute organs de jure of the FRY. However, the ICJ did not stop its reasoning there, given the pleadings of the Parties, which it summarized in the following manner: The argument of the Applicant however goes beyond mere contemplation of the status, under the Respondent’s internal law, of the persons who committed the acts of genocide; it argues that Republika Srpska and the VRS, as well as the paramilitary militias known as the ‘Scorpions’, the ‘Red Berets’, the ‘Tigers’ and the ‘White Eagles’ must be deemed, notwithstanding their apparent status, to have been ‘de facto organs’ of the FRY, in particular at the time in question, so that all of their acts, and specifically the massacres at Srebrenica, must be considered attributable to the FRY, just as if they had been organs of that State under its internal law; reality must prevail over appearances. The Respondent rejects this contention, and maintains that these were not de facto organs of the FRY. The ICJ, therefore examined first the theoretical question of ‘ … whether it is possible in principle to attribute to a State conduct of persons or groups of persons who, while they do not have the legal status of State organs, in fact act under such strict control by the State that they must be treated as its organs for purposes of the necessary attribution leading to the State’s responsibility for an internationally wrongful act’.40 The answer was positive. According to the Court, persons, groups of persons or entities not forming part of the structure of the State may exceptionally be assimilated to de facto organs, such that their acts are attributable to the State; such assimilation is possible where they ‘act in “complete dependence” on the State, of which they are ultimately merely the instrument’, although such assimilation is exceptional. The Court observed: … persons, groups of persons or entities may, for purposes of international responsibility, be equated with State organs even if that status does not follow from internal law, provided that in

References

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(p. 206) fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument. In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious. However, so to equate persons or entities with State organs when they do not have that status under internal law must be exceptional, for it requires proof of a particularly great degree of State control over them, a relationship which the Court’s judgment quoted above expressly described as ‘complete dependence’.41 The ICJ seems thus to have created a new category of organs de facto, under article 4, defined as persons or entities acting in ‘complete dependence’ upon the State. However, that category is somewhat difficult to distinguish from the persons and entities on which the State exercises effective control under article 8, and therefore appears to constitute a redundant category. Applying that test to the facts of the case, the Court did not consider that any of the involved entities could be considered to constitute de facto organs.

(b) Persons and entities acting on behalf of the State However, the State may also be considered responsible for the actions of certain private persons or groups formally outside the structure of the State and who are not authorized to exercise elements of governmental authority, if in one way or another such persons or groups can be considered as acting on its behalf. Different hypothetical situations can be considered in which these private individuals are to be considered as acting for the State. The acts of persons or groups of persons may be attributable to the State, if, by explicitly or implicitly adopting or acknowledging those acts, the State makes them its own by approving the actions of certain persons or groups after the event.42 Further, if the State entirely controls these persons or groups of people and can therefore be considered as having authorized their acts before the event, whether these persons or groups have acted ‘on the instructions of, or under the direction or control of, that State’, as stated in article 8, their acts will be attributable.43 As the Commentary explains, ‘[i]n the text of Article 8, the three terms instructions, direction and control are disjunctive; it is sufficient to establish any one of them’.44 The test of control has given rise to debates in the jurisprudence. The question of control was at the heart of important cases: Military and Paramilitary Activities in and against Nicaragua45 before the ICJ and the case of Tadić before the International Tribunal for the Former Yugoslavia (ICTY).46 The position taken by the ICJ in Bosnian Genocide of course followed the position previously taken by the ICJ. The decision of the ICJ in Military and Paramilitary Activities in and against Nicaragua illustrates perfectly the difficulties raised by the determination of the extent of control

References (p. 207) justifying the attribution of responsibility. If the acts of the UCLA (Unilaterally Controlled Latino Assets), isolated individuals receiving their instructions and remuneration from the United States, were attributed without difficulty, the same did not apply to the acts of the contras despite their very strong reliance on the support of the United States: ‘[t]he Court holds it established that the United States authorities largely financed, trained, equipped, armed and organized’ the contras.47 Nevertheless, their acts were held not to be attributable to the United States; according to the Court, in order for the acts of private persons to be attributed to a State, there has to be on the one hand, general control by the State over the group and on the other hand a precise order or

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injunction to commit the acts in question. This has come to be known as the ‘effective control’ test: The Court has taken the view … that United States participation, even if preponderant or decisive, 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, on the basis of the evidence in the possession of the Court, 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. Such acts could well be committed by members of the contras without the control of the United States. 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. The use of such strict criteria gave rise to intense debates in the Tadić case before the ICTY, both before the Trial Chamber and the Appeals Chamber.48 To demonstrate that the army of the Republika Srpska was not controlled by the Yugoslavian army, or rather the FRY, the majority judges in the Trial Chamber (with the President giving a dissenting opinion) rigorously applied the test set out by the ICJ in Military and Paramilitary Activities and considered that the forces of the Bosnian-Serbs were not in a situation of dependence on Belgrade, such that all their acts could be imputed to the FRY. The Appeals Chamber reversed this decision, concluding that the Bosnian-Serb army should be considered as controlled by the Yugoslavian army and therefore by the FRY. The Appeals Chamber criticized the decision of the ICJ in Military and Paramilitary Activities, considering that this position was not consonant with the logic of State responsibility: ‘A first ground on which the Nicaragua test as such may be held unconvincing is based on the very logic of the entire system of international law on State responsibility’.49 That logic renders the State responsible for everything that it controls in fact or in law; if, in relation to isolated individuals or informal groups of individuals, it may be necessary to establish control for each of the acts of the entity which is de facto controlled, the situation is different as regards the control of a hierarchically organized military or para-military group. According to the Appeals Chamber, overall control suffices without it being necessary to prove that specific

References (p. 208) orders have been given in relation to each action (here the acts of violence by the Bosnian-Serb army committed in the Prijedor region) undertaken by the group. According to the Appeals Chamber: In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.50 Applying that test to the facts of the case, the Appeals Chamber concluded that the army of the Republika Srpska was to be considered as being controlled by the FRY. In Bosnian Genocide the question was again squarely before the Court and it explicitly preferred the formulation previously adopted in Military and Paramilitary Activities.51 The Court, indeed,

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strongly criticized the approach of the Appeals Chamber of the ICTY in Tadić, qualified as ‘the doctrine laid down in the Tadić case’, while it reiterated its ‘settled jurisprudence’, concerning the effective control test.52 A final point which may be addressed quickly—although it is not mentioned in the ILC’s text—is that of the consequences for international responsibility of the control exercised by a State over a company through a shareholding. That question is hardly controversial: it is accepted that the distinct personality of the company creates a corporate veil, which excludes acts of the company from being attributed to the State. This is true for companies having activities jure gestionis, but does not apply to entities which are engaged in activities jure imperii for the purposes of which they exercise elements of governmental authority, in which case their acts can be attributed to the State, not by virtue of article 8, but by virtue of article 5. Finally, it is hardly controversial—even if, again, it is not mentioned in the ILC’s text, because it derives from primary rules—that the State has to account for the consequences of acts of private persons where it is obliged to prevent or punish those acts. But here the question is less one of attributing to the State the acts of private individuals but rather of making the State responsible for its own breach of an obligation of ‘due diligence’, the classic example being the obligation to protect foreign embassies. In a sense, it could be said that when the obligation of due diligence is violated, there is an attribution to the State not of the acts but of the consequences of the acts of the private persons.

(c) Attributable acts: actions and omissions Conduct of whatever character may be attributable to the State, if it falls within one or other of the rules of attribution sketched above, and examined in more detail in the other contributions in this Part. Put more precisely, conduct may consist of either acts or omissions, depending upon whether the State violates an obligation prohibiting particular conduct, or requiring the adoption of particular measures. Acts of omission play a particular role, to the extent that such acts are always in play when a State is made responsible as the

References (p. 209) result of the acts of private individuals due to the fact that it has failed to comply with its obligations of due diligence, ie its obligations to prevent or punish certain acts which damage the person or property of foreign nationals. But where there is an omission to act in violation of an obligation of due diligence, it is not a question of attribution of the act of a private party, but rather a failure of the State itself to comply with its primary obligations. This aspect is clearly highlighted by Jean Combacau who observed that: In relation to what appears on the face of it to be an ‘activity’ of an individual, international law only has regard to the ‘passivity’ of the State. What the State is responsible for is therefore not the act of another, which by definition may not to be attributed to it, but its own act, in the form of an omission. Here, responsibility enforces the obligation of diligence which international law imposes on the State.53

4 The breach of an international obligation There is an internationally wrongful act when behaviour attributable to a State or other subject of international law constitutes a failure to comply with an international obligation of that State or that subject of international law. Any breach has to be analysed in terms of the primary rule violated, although consideration of the primary rules which may give rise to international responsibility was explicitly excluded from the work of the ILC on State responsibility. The Articles set out only the secondary rules which define the contours of the concept of breach of an international obligation.

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(a) The abandonment of the idea of fault According to article 12, ‘[t]here is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation’. According to the Commentary: The essence of an internationally wrongful act lies in the non-conformity of the State’s actual conduct with the conduct it ought to have adopted in order to comply with a particular international obligation.54 We are dealing here with an objective idea of non-conformity: whatever may have been the subjective intention of the perpetrator of the internationally wrongful act is irrelevant. In other words, the idea of fault is not a necessary element in the commission of an internationally wrongful act in international law. The abandonment of the notion of fault in the law of international responsibility is not recent; it occurred under the influence of the positivist voluntarist doctrine, of which one of the best known theoreticians was Anzilotti, according to whom: the notion of a wrongful act implies the existence of two elements: an act, that is to say, a material fact, external and identifiable, and the rule of law with which it finds itself in contradiction … An internationally wrongful act is an act contrary to positive international law.55

References (p. 210) It is therefore clear that it is the objective contradiction between the action of a State and its international obligations which gives rise to its international responsibility, independently of any concept of fault or wrongful intention. Sovereign States are in fact sovereign legal persons and accordingly the notion of fault (culpa) does not seem appropriate to qualify their acts. The ILC Articles make no reference to intention or fault, preferring an objective approach, eliminating any subjective analysis in terms of whether or not a violation is intentional. Despite this approach, it cannot be ignored that international law does not completely eliminate an analysis of the intentions of a State as being relevant to the determination of a breach of international law in all domains. First, it may be noted that intention may sometimes be a constituent element of a breach of international law. Thus, massive and systematic attacks against a civilian population only constitute genocide if they are accompanied by the intention to destroy in whole or in part a national, ethnic, racial, or religious group, as such. Similarly, some unilateral economic sanctions that are lawful in themselves, may become unlawful if the intention of the State which adopts them is to override the sovereign will of another State and to intervene in its domestic affairs.56 Likewise, any fault or negligence by the State victim of a wrongful act may be taken into consideration in the determination of the quantum of the reparation which the responsible State must make.57

(b) The existence of a breach of an international obligation In the classic international law of State responsibility, the breach of international law was a necessary condition for international responsibility, even if it was not in and of itself sufficient. The decision in Dickson Car Wheel Company, rendered in 1931 by the United States-Mexico Claims Commission may be cited: Under international law, apart from any convention, in order that a State may incur responsibility it is necessary that an unlawful international act be imputed to it, that is, that there exists a violation of a duty imposed by an international juridical standard.58

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Although articles 2 and 12 speak of a breach of an international obligation and not a breach of a rule or norm of international law, the test of international responsibility is whether the act is contrary to international law. This is what article 3, entitled ‘Characterization of an act of a State as internationally wrongful’, makes clear: The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. This article recalls that there is a distinction between the international legal order and the various domestic legal orders. An act may be contrary to a rule of international law even if it is perfectly consistent with the domestic law of the State to which it is attributable, or even if it is required by that domestic law. The corollary of this affirmation is of course

References (p. 211) that a State may never invoke its domestic law to override its international obligations, whether primary or secondary (as is emphasized by article 32). Conversely, an act may be in conformity with international law, even if it is in breach of the domestic legal order. These two aspects of the same principle—the disjunction between the international and domestic legal orders—have been affirmed frequently in international jurisprudence. That an act in conformity with domestic law can be a breach of international law was affirmed by the PCIJ in the Advisory Opinion in Treatment of Polish Nationals: a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent on it under international law or treaties in force … The application of the Danzig Constitution may … result in the violation of an international obligation incumbent on Danzig towards Poland, whether under treaty stipulations or under general international law … However, in cases of such a nature, it is not the Constitution and other laws, as such, but the international obligation that gives rise to the responsibility of the Free City.59 That an act which breaches domestic law may be perfectly consistent with international law was stated by the ICJ in the ELSI case: Yet it must be borne in mind that the fact that an act of a public authority may have been unlawful in municipal law does not necessarily mean that that act was unlawful in international law, as a breach of treaty or otherwise.60 In order to determine whether the behaviour of a State is contrary to its international obligations, it is necessary to look to the content of the primary rule. As the Commentary indicates: in the final analysis, whether and when there has been a breach of an obligation depends on the precise terms of the obligation, its interpretation and application, taking into account its object and purpose and the facts of the case.61 Finally, if the wrongful character of an act may arise from an act which is objectively contrary to an international obligation, it can also result from the abusive exercise of a right which is recognized by international law.62 International responsibility can arise whatever the international obligation breached, that is to say, whatever the origin, character, or content of the international obligation. The unitary character of international responsibility is thus clearly affirmed. International responsibility may arise from all breaches of an obligation, regardless of the origin of the obligation.63 As the Commentary states: ‘[t]he formula ‘regardless of its origin’ refers to all 64

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possible sources of international obligations’.64 Article 12 takes a clear position as regards ‘formal sources’ of international obligations; as the Commentary notes, alluding to the never-ending debate between international lawyers on the distinction between the ‘formal sources’ and the ‘material sources’ of international law, the term

References (p. 212) ‘origin’ rather than ‘source’ is used to avoid ‘the doubts and doctrinal debates the term source has provoked’.65 This generally accepted principle was expressed in particularly clear terms in the arbitral decision in the case of the Rainbow Warrior, where the Arbitral Tribunal declared that ‘any violation by a State of any obligation, of whatever origin, gives rise to State responsibility, and consequently entails the duty to make reparation’.66 It matters little whether the obligation breached has its origin in customary or treaty law. In other words, there is no differentiation in international law between the responsibility which arises from a failure to execute a treaty or an international agreement and the responsibility which results from the breach of customary rules of international law. Equally, it matters little whether the obligation results from another source, such as a general principle of law recognized by civilized nations, a unilateral act through which a State assumes an obligation, a binding decision of an international organization, an international judicial decision, or an award in an international arbitration. Further, there is no differentiation resulting from the nature of the norm breached.67 Certainly, the introduction of the notion of an ‘international crime’ in the first reading draft, and in particular draft article 19 (which was abandoned in favour of the wording ‘serious violation of essential obligations towards the international community’ in the 2000 draft and then ‘serious breaches of obligations under peremptory norms of general international law’ in the Articles finally adopted in 2001), might have been taken to indicate that there exists a distinction between ‘civil’ and ‘criminal’ responsibility, even if it has often been reaffirmed by States during the course of the debates in the ILC that the notion of a crime does not imply the introduction of criminal responsibility. However, this —it seems—was the initial idea of Roberto Ago, in whose view: Up to the present … in international law responsibility meant, essentially, civil responsibility. But it should now be decided whether internationally wrongful acts as a whole did not include a category of acts, the nature and consequences of which could be different—acts for which, in particular, it was unthinkable that reparation could be made by mere indemnification. That applied, for example, to some international crimes such as the violation of certain obligations essential to the maintenance of peace—in particular, aggression or genocide.68 For him, the mere obligation to make reparation was insufficient for the most serious attacks on the values of international society: the obligation to make reparation … envisages restoring the situation that would have existed if the wrong had not been committed. It thus involves a simple function of reintegration or compensation … Punishment has a totally different nature … To the contrary, its nature is afflictive or repressive.69 In his work in the ILC, from the outset, Ago seems to have proceeded with the concept of a criminal responsibility of States in the background. But when his proposal for draft article 19 was discussed and adopted in 1996 (unanimously, it should be recalled), the focus was only on a ‘aggravated’ responsibility for crimes—compared to that arising in relation to other international wrongs— without qualifying it as criminal. The difference

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References (p. 213) was that in the case of a crime, it was the international community as a whole which was concerned, and thus there could be envisaged either a collective reaction to the crime or a reaction from all States (including the adoption of countermeasures), in addition to the obligation to make reparation which arises in the case of all internationally wrongful acts. The idea of a criminal, or even simply a ‘different’ responsibility was, however, little by little abandoned in the face of the reticence of States in relation to the possibility of being subjected to an international sanction— individual or collective—for crimes. As early as 1996, in the context of the debates as to the consequences of crimes, the additional measures envisaged did not involve a responsibility different in nature from the responsibility for any other internationally wrongful act, but rather a responsibility of the same nature, but very slightly aggravated. This called into question considerably the utility of the proposed distinction. In the face of the opposition of a number of States, the final Special Rapporteur proposed in the draft of August 2000 to delete the notion of international crimes and to speak rather of ‘grave violations of essential obligations towards the international community’. But the August 2000 draft was hardly more satisfying from the point of view of the consequences to be drawn from these grave violations of essential obligations towards the international community as a whole. Besides the vague obligations under former draft article 53, what the ILC had envisaged in the case of a grave breach of obligations owed to the international community was the idea of payment of ‘compensation corresponding to the gravity of the breach’, that is to say, punitive damages, an approach which appeared both inappropriate and derisory; after so many years, the only consequence of an international crime was that the responsible State would have to provide an ‘indemnity’. The inappropriateness of the solution retained resulted in a new formulation: international crimes became ‘serious breaches of obligations under peremptory norms of general international law’, in other words, what had been an international crime became a breach of jus cogens. But the so-called ‘particular consequences’ foreseen in article 41 in its final version are not in fact particular. The idea of punitive damages has, fortunately, not been kept in the final text and the only explicit supplementary consequences are that ‘States should cooperate to put an end to grave breaches’ of norms of jus cogens and should not recognize the situation that arises from these breaches. Both the idea of an additional criminal responsibility of States and the idea of a ‘aggravated’ responsibility for certain violations were therefore abandoned in the course of the ILC’s work. No one would deny that there are more and less serious breaches of international law. It is indisputable that there are acts which are more or less damaging to the values of the international society. As has been suggested elsewhere: No one would dispute that not all wrongful acts are of the same seriousness. Who would not feel that there is little in common (apart from the formal legal characterisation still used today as a matter of positive law) between on the one hand, a minor [or even major] violation of a commercial treaty and on the other, a genocide?70 But sovereign States, too wary of the idea that they could face ‘punishment’, although accepting in the first instance the distinction between crimes and ‘delicts’71 and in the final version the concept of ‘serious breaches of obligations under peremptory norms of general (p. 214) international law’, would not accept the drawing of any decisive consequences from those distinctions. The interest of the distinction between different categories of breaches introduced by the ILC appears in effect extremely limited when seen in the light of the differentiation of the consequences which result for the responsibility incurred. However, some differentiation— new and not based on existing customary international law—was already present in the August 2000 text, as already indicated, in the forms which reparation could take: a serious breach of essential obligations owed to the international community as a whole could entail an obligation to pay punitive damages

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corresponding to the seriousness of the breach, even though in principle the compensation payable is a function of the gravity of the injury. This proposition, with its distinctly punitive flavour, was, however, abandoned in the Articles as finally adopted. The absence of development of a criminal responsibility for States was explicitly confirmed by the decision of the International Criminal Tribunal for the Former Yugoslavia: Under present international law it is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.72 Finally, there is no differentiation even deriving from the content of the norm breached, whether relating to the type of norm or its subject matter. For example, there is no difference from the point of view of international responsibility whether the State is bound by an obligation of means (‘obligation de moyens’) or an obligation of result (‘obligation de résultat’): this distinction might be only relevant in determining the moment when international responsibility, and thus the obligation to make reparation, arises. Moreover, obligations may concern whatever subject matter, and a breach may result from whatever type of act. In this regard, the Commentary states that: the breach by the State of an international obligation constitutes an internationally wrongful act, whatever the subject matter or content of the obligation breached, and whatever description may be given to the non-conforming conduct.73 The example given in support of this position is that of an obligation in the domain of economic relations which may be violated not only by the adoption of specific contrary economic measures, but also by the use of force.74

(c) The extension in time of a breach of an international obligation Numerous questions are posed by the temporal character of a wrongful act, including both problems relating to the duration of an international obligation and problems relating to the time of commission of an internationally wrongful act. Those issues are dealt with in articles 13 to 15. On the problem of the application of inter-temporal law, the well-established customary principles can be recalled, which all derive from the basic principle set out by Arbitrator Huber in the Island of Palmas case: ‘A juridical fact must be appreciated in the light

References (p. 215) of the law contemporary with it and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.’75 It is evident first of all that for conduct of a State to be considered wrongful, it must be in conflict with an international obligation in force. This means that behaviour cannot violate an international obligation either before it has entered into force, or after it has expired. In this regard, article 13 affirms that: ‘[a]n act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs’. This is a simple affirmation of common sense. The fact that the Genocide Convention would not have entered into force at the time it was allegedly violated was invoked by the Federal Republic of Yugoslavia (Serbia and Montenegro) before the International Court of Justice in Bosnian Genocide, in order to argue that BosniaHerzegovina could not invoke its responsibility. According to the FRY, the Court could not base its jurisdiction on article IX of the Genocide Convention, which, under the rules of State succession to treaties, as they were interpreted by the FRY, had not been in force for Bosnia-Herzegovina at the relevant time. At the preliminary objections stage, the Court rejected that argument, considering that the Genocide Convention had been in force.76 However, in 2004, the Court dismissed the separate claims filed in 1999 by Serbia and Montenegro

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against eight NATO member States (Belgium, Canada, France, Germany, Italy, The Netherlands, Portugal, and the United Kingdom) on the basis that the applicant State ‘was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute present proceedings before the Court on 29 April 1999’.77 The key factor in the Court’s decision was that the Former Republic of Yugoslavia (as it then was) had formally applied anew for membership of the UN, thus clarifying that it had not succeeded to the SFRY’s UN membership.78 In 2007, in dealing with the merits of the dispute in Bosnian Genocide, the Court concluded that its 1996 Judgment constituted res judicata both in relation to the contention that the respondent was not a State with capacity to appear before the Court under the terms of its Statute and the question whether the respondent was, at the time of institution of proceedings, a party to the Genocide Convention.79 Further, in 2008, when addressing its jurisdiction in the application brought by Croatia against Serbia, the Court rejected Serbia’s argument that it did not have capacity to appear before the Court at the time when Croatia’s application was filed on 2 July 1999. In reaching its conclusion, the Court relied on the principle that where a procedural defect can be cured by subsequent action, considerations of judicial economy may justify its assessment at a later date. If the Court

References (p. 216) had found that it did not have jurisdiction on the ground that Serbia was not a member of the UN on 2 July 1999, Croatia would have been obliged to re-submit its application; in the circumstances, the sound administration of justice would not be served by dismissing the application.80 The principle that an obligation must be in force at the time of the alleged violation is also important in the context of contemporary problems raised by the slave trade and the requests for compensation sometimes advanced in this context. In the 19th century, arbitrators drew a distinction between periods where the trade was not forbidden by international law and periods when it had become a prohibited activity: for example, when Great Britain liberated slaves seized from American boats, that act engaged the responsibility of Great Britain for having violated the principle of respect for foreign property during the former period, but did not engage its responsibility in the later period, when the slave trade had become ‘contrary to the law of nations’.81 The rule according to which responsibility is appreciated according to the law in force at the moment of the commission of the act in question is applicable even when a norm of jus cogens has emerged. A norm of jus cogens is no more retroactive than any other international norm. When an international obligation is extinguished, responsibility for a continuing violation also disappears from the moment of the disappearance of the obligation, but the responsibility already incurred for the period when the obligation was in force is not erased. There is a kind of vested right to reparation, which cannot be suppressed, even if the wrongful act would not necessarily give rise to a right to reparation if it were committed at a later time. This does not mean that a norm must always be interpreted in the light of the prevailing law at the moment it is elaborated; however this is not contrary to the rule enunciated in article 13. Rather, at the moment at which it is necessary to ascertain whether any given conduct is in conformity with an international obligation, an evolutionary interpretation may be applied, in light of the development of international law at the moment of the application of the rule in the particular case.82 To the extent that international responsibility arises only when an act attributable to a State is contrary to international law, it is necessary to know at what point a violation takes place and for how long it lasts. Issues of the moment at which an internationally wrongful act occurs and its extension in time are dealt with in articles 14 and 15. Article 14 distinguishes between breaches From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

which are produced in an instantaneous way and do not extend in time (even if their consequences are lasting), such as the assassination of an ambassador, from continuing violations, for instance, the adoption of legislation contrary to the international obligations of the State. That characterization may result in some important consequences from the point of view of the jurisdiction of a tribunal or in relation to prescription. Notably, in the case of the proceedings in relation to crimes committed by the Chilean regime under Pinochet’s rule, torture followed by forced disappearance has been considered to constitute a continuing act which lasts as long as the person is not found, so that any statute of limitations which might prevent proceedings is not applicable. The

References (p. 217) moment at which a composite act takes place—that is to say an act composed of a series of actions or omissions, the accumulation or the combination of which create a wrongful act (genocide or apartheid notably come to mind)—is determined by article 15. The more precise distinctions which were included in the 1996 draft between violation of obligations requiring particular behaviour and obligations requiring a particular result, or between compound and complex internationally wrongful acts, were abandoned in the adoption of the final text. In that regard, it should be mentioned that one of the new aspects introduced by the final Special Rapporteur, James Crawford, may be characterized as a step away from the ‘Latin’ approach in favour of a more ‘Anglo-Saxon’ approach, or rather from a relatively abstract and Cartesian approach in favour of a more concrete and pragmatic one. A whole series of elaborate concepts, including those to which reference has already been made, which had been forged, little by little, over the years, were consigned to the waste heap of history, denounced as being too complex. Thus in relation to the distinction between obligations of means (or behaviour), obligations of result and obligations of prevention, James Crawford wrote that ‘they appear to be circular’.83 The position which he thus adopted responded to the concerns of certain States. The United Kingdom, for example, stated (in a comment which should be read in the light of the characteristic British phlegm) that it was concerned that ‘the fineness of the distinctions drawn … between different categories of breach may exceed that which is necessary, or even helpful’.84 Japan was not far behind in considering that certain aspects of the draft were supported by ‘excessively abstract concepts … laid down in unclear language’.85 Germany agreed wholeheartedly, similarly highlighting that there is a certain danger in establishing provisions that are too abstract in nature, since it is difficult to anticipate their scope and application … They may also seem impractical to States less rooted in the continental European legal tradition, because such abstract rules do not easily lend themselves to the pragmatic approach normally prevailing in international law.86 Nevertheless, certain of the abandoned distinctions were perfectly usable, and useful. Whether one is dealing with an instantaneous act or a continuing act, it is necessary to clearly identify the moment when behaviour becomes wrongful. The ICJ recalled this necessary distinction between the before and after of wrongfulness in its judgment in Gabčíkovo-Nagymaros Project, observing that: ‘A wrongful act or offence is frequently preceded by preparatory actions which are not to be confused with the act or offence itself.’87

(d) Circumstances precluding wrongfulness The Articles provide for various ‘circumstances precluding wrongfulness’ in Chapter V: consent; 88 self-defence; 89 countermeasures; 90 force majeure; 91 distress; 92 and necessity.93 Article 26 clearly indicates that none of these circumstances can be invoked in case of a conflict of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

behaviour with a peremptory norm of general international law.

References (p. 218) Nevertheless, the view may be expressed that it would have been better to speak of circumstances excluding responsibility: that is, excluding essentially the obligation to make reparation, which seems to conform to the formulation adopted by the ICJ in Gabčíkovo-Nagymaros Project. While Hungary maintained that the wrongfulness of its behaviour was excluded by a state of necessity, the Court declared that: The state of necessity claimed by Hungary—supposing it to have been established— … could not permit of the conclusion that … it had acted in accordance with its obligations under the 1977 Treaty or that those obligations had ceased to be binding upon it. It would only permit the affirmation that, under the circumstances, Hungary would not incur international responsibility by acting as it did.94 The Court, although clearly affirming that the existence of certain circumstances may excuse the conduct of a State but does not result in the extinction of its existing obligations (although it is not clear why this should be the case), also declared clearly that Hungary had not acted in conformity with its obligations, even if this might not have engaged its responsibility. Would it not be better to state that what is at issue are not circumstances precluding wrongfulness, but circumstances precluding responsibility, in spite of wrongfulness? The ICJ had in any case stated this clearly a few lines previously, stating that ‘a state of necessity … may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty’.95 However, the exact consequences of ‘circumstances precluding wrongfulness’ remain uncertain at the level of the obligation to make reparation, to the extent that Article 27 provides that: The invocation of a circumstance precluding wrongfulness… is without prejudice to: … (b) The question of compensation for any material loss caused by the act in question … The Commentary highlights the fact that ‘material loss’ is a more restrictive notion than that of ‘damage’, and that ‘[a]lthough the Article uses the term “compensation”, it is not concerned with compensation within the framework of reparations provided for in Article 34.’96 However, it is difficult to see that any ‘compensation’ payable constitutes anything other than compensation for the damage suffered by the fact of a wrongful act, and this even though the wrongfulness of that act was precluded. Further reading G Arangio-Ruiz, ‘State Fault and the Forms and Degrees of International Responsibility: Questions of Attribution and Relevance’, in Le droit international au service de la paix, de la justice et du développement—Mélanges Michel Virally (Paris, Pedone 1991), 25 D Bindschedler-Robert. ‘De la rétroactivité en droit international public’ (Genève, Faculté de droit, Institut universitaire de hautes études internationales, 1968) B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973) DD Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’, in R Lillich & D Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Irvington-on-Hudson, Transnational Publishers, 1998), 109

References

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(p. 219) A Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 EJIL 649 J Combacau, ‘L’illicite et le fautif’ (1987) 5 Droits 3 J Combacau, ‘Aspects nouveaux de la responsabilité internationale: deux approches contradictoires’ (1986) 38 Rev int’l de droit comparé 187 J Combacau, ‘Obligations de résultat et obligations de comportement: quelques questions et pas de réponse’, in Le droit international: unité et diversité, Mélanges Reuter (Paris, Pedone, 1981), 181 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite’ (1984) 189 Recueil des cours 9 J Crawford & S Olleson ‘The Nature and Forms of State Responsibility’, in M Evans (ed), International Law (2nd edn, Oxford, OUP, 2006), 452 Ch De Visscher, ‘Le déni de justice en droit international’ (1935-II) 52 Recueil des cours 365 H Dipla, La responsabilité de l’État pour violation des droits de l’homme—problèmes d’imputation (Paris, Pedone, 1994) P-M Dupuy, ‘Responsabilité et légalité’, in SFDI, La responsabilité internationale, Colloque du Mans (Paris, Pedone, 1991), 263 P-M Dupuy, ‘Faute de l’État et “fait internationalement illicite”’ (1987) V Droits 51 P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des États’ (1984) 188 Recueil des cours 9 TO Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74 AJIL 285 C Eustathiades, La responsabilité internationale des États pour les actes des organes judiciaires et le problème du déni de justice en droit international (Paris, Pédone, 1936) A Freeman, ‘Responsibility of States for Unlawful Acts of Their Armed Forces’ (1955) 88 Recueil des cours 261 A Freeman, The International Responsibility of States for Denial of Justice (London, Longmans, 1939) A Gattini, ‘La notion de faute à la lumière du projet de convention de la Commission du droit international sur la responsabilité internationale’ (1992) 2 EJIL 253 R Higgins, ‘Time and the Law’ (1997) 46 ICLQ 501 DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151 K Kawasaki, ‘The ‘Injured State’ in the International Law of State Responsibility’ (2000) 28 Hitoshubashi Journal of Law and Politics 17 D McGibbon, ‘The Scope of Acquiescence in International Law’ (1954) 31 BYIL 143 T Méron, ‘International Responsibility of States for Unauthorized Acts of their Officials’ (1957) 33 BYIL 85 G Perrin, ‘La détermination de l’État lésé. Les régimes dissociables et indissociables’, in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century. Essays in Honor of Krystof Skubisweski (The Hague, Kluwer, 1996) 243 J-P Queneudec, La responsabilité internationale des États pour les fautes personnelles de ses agents (Paris, LGDJ, 1966) R Reuter, ‘Le dommage comme condition de la responsabilité internationale’, Mélanges Miaja de la Muela (Madrid, Editorial Tecnos, 1979), Volume II, 837 K Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the Injured State and its Legal Status’ (1988) 35 Netherlands International Law Review 273 J Salmon, ‘Les circonstances excluant l’illicéité’, in La responsabilité internationale (Paris, Pedone, 1987), 89 B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y Dinstein (ed), International Law in a Time of Perplexity: Essays in Honour of Shabtai Rosenne (London, Nijhoff, 1989), 821 B Stern, ‘A Plea for “Reconstruction” of International Responsibility Based on the Notion of Legal Injury’, in M Ragazzi (ed), International Responsibility Today (The Hague, Brill, 2005) 93

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(p. 220) B Stern, ‘Et si on utilisait le concept de préjudice juridique ? Retour sur une notion délaissée à l’occasion de la fin des travaux de la CDI sur la responsabilité des Etats’ (2001) 47 AFDI 3 B Stern, ‘Conclusions générales’, in La responsabilité internationale, Colloque du Mans, (Paris, Pedone, 1991), 319 M Sørensen, ‘Le problème intertemporel dans l’application de la Convention européenne des droits de l’homme’, in Mélanges offerts à Polys Modinos (Paris, Pedone, 1968) 304 JG Starke, ‘Imputability of International Delinquencies’ (1938) 19 BYIL 104. A Tanzi, ‘Is Damage a Distinct Condition for the Existence of an Internationally Wrongful Act?’, in M Spinedi & B Simma (eds), United Nations Codification of State Responsibility (New York, Oceana, 1987), 1 P Tavernier, Recherche sur l’application dans le temps des actes et des règles en droit international public (Paris, LGDJ, 1970) J-Cl Venezia, ‘La notion de représailles en droit international’ (1960) 64 RGDIP 465 E Wyler, L’illicite et la condition des personnes privées (Paris, Pedone, 1995) E Wyler, ‘Quelques réflexions sur la réalisation dans le temps du fait internationalement illicite’ (1991) 95 RGDIP 881

Footnotes: 1 Dictionnaire de la terminologie du droit international (Paris, Sirey, 1960), 541. 2 C de Visscher, ‘Le déni de justice en droit international’ (1935) 52 Recueil des cours 421. 3 A Decencière-Ferrandière, La responsabilité internationale des États à raison des dommages subis par des étrangers (Paris, Rousseau, 1925), 11. 4 ILC Yearbook 1996, Vol II(2), 57. 5 ARSIWA, art 48. 6 Barcelona Traction Light and Power Company Ltd (Second phase), ICJ Reports 1970, p 3, 32 (para 33). 7 A Kolliopoulos, La Commission d’indemnisation des Nations Unies et le droit de la responsabilité internationale (Paris, LGDJ, 2001), 287 (emphasis added). 8 A Pellet, ‘Remarques sur une révolution inachevée. Le projet d’Articles de la CDI sur la responsabilité des États’ (1996) 42 AFDI 4. 9 A Kolliopoulos, La Commission d’indemnisation des Nations Unies et le droit de la responsabilité internationale (Paris, LGDJ, 2001), 333. 10 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 20 (emphasis in original). 11 For these purposes, laying to one side whatever doubts may exist both as to the extent to which these obligations reflect positive international law, as well as to the extent to which guarantees of non-repetition constitute a legal ‘consequence’ of an internationally wrongful act (given that they constitute merely measures to prevent a potential, different internationally wrongful act in the future). 12 See Part Three of the 1996 draft, relating to the settlement of disputes: ILC Yearbook 1996, Vol II(2), 31. 13 With the exception of the violations of human rights obligations under regional conventions, or violations of the rights of foreign investors under bilateral or multilateral treaties for the protection of foreign investments. 14 With the exception resulting from the contemporary development of the international criminal responsibility of individuals. 15 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 88 (para 66). 16 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174. 17 Report of the ILC, 61st Session, 2009, A/64/10, ch. IV. 18 Phosphates in Morocco, Preliminary Objections, 1936, PCIJ, Series A/B, No 74, p 28. 19 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 29, emphasis added. 20 P-M Dupuy, ‘Infraction (Droit international public)’ (1998) Répertoire de droit international paras 19, 25. 21 Introductory Commentary to Part One, Chapter II, para 4. 22 Commentary to art 2, para 12. 23 Questions relating to German Settlers in Poland, 1923, PCIJ, Series B, No 6, p 4, 22. 24 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, para 385. 25 ARSIWA, art 4. 26 ARSIWA, art 5. 27 Commentary to art 5, para 6. 28 See eg Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 251 (para 243); ADF Group Inc v United States of America (ICSID Additional Facility Case No ARB(AF)/00/1), Award of 9 January 2003, para 190 & fn 184; Jan de Nul NV and Dredging International NV v Arab Republic of Egypt (ICSID Case No. ARB/04/13), Decision on Jurisdiction of 16 June 2006, para 89; Ilasçu and others v Russia and Moldova (App No 48787/99), ECHR Reports 2004-VII, para 319. 29 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 28. 30 ARSIWA, art 9. 31 ARSIWA, art 10. 32 ARSIWA, art 6. 33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, para 389. 34 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 87 (para 62). 35 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 242 (para 213). 36 Ibid, 242 (para 214). 37 Commentary to Part One, Chapter II, para 7. 38 LaGrand (Germany v USA), Provisional Measures, ICJ Reports 1999, p 9, 16 (para 28). 39 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 384. 40 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 391. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

41 Ibid, paras 392 and 393; the language of ‘complete dependence’ is taken from Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 62 –63 (paras 109–110). 42 ARSIWA, art 11. 43 ARSIWA, art 8. 44 Commentary to art 8, para 7. 45 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14. 46 ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Appeals Chamber, 15 July 1999, 124 ILR 61. 47 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 62 (para 108). 48 ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Trial Chamber, 7 May 1997, 112 ILR 1; ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Appeals Chamber, 15 July 1999, 124 ILR 61. 49 Ibid, 108 (para 116). 50 Ibid, 116 (para 131). 51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 398. 52 Ibid, paras 404 & 407, respectively (emphasis added). 53 J Combacau, Droit international public (5th edn, Paris, Montchrestien, 2001), 540. 54 Commentary to art 12, para 3. 55 D Anzilotti, ‘La responsabilité internationale des États à raison des dommages soufferts par des étrangers’ (1906) 10 RGDIP 5. 56 On this point see B Stern, ‘Droit international public et sanctions unilatérales’ in H. Gherari et S. Szurek (eds), Sanctions unilatérales, mondialisation du commerce et ordre juridique international (Paris, Monchrestien, 1998), 185. 57 ARSIWA, art 39. 58 Dickson Car Wheel Co (USA) v United Mexican States, July 1931, 4 RIAA 669, 678. 59 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, 1932, PCIJ, Series A/B, No 44, p 4, 24–25. 60 Elettronica Sicula SpA (ELSI) (United States of America v Italy), ICJ Reports 1989, p 12, 74 (para 124). 61 Commentary to art 12, para 1. 62 For a jurisdictional application of the principle according to which the powers of a State must be exercised in a reasonable way and in good faith, see Rights of Nationals of the United States of America in Mo rocco (France v United States), ICJ Reports 1952, p 212. 63 ARSIWA, art 12. 64 Commentary to art 12, para 3. 65 Ibid. 66 Rainbow Warrior (New Zealand v France), 30 April 1990, 20 RIAA 215, 251–252 (para 75). 67 ARSIWA, art 12. 68 ILC Yearbook 1973, Vol I, 5, para 9 (1202nd meeting). 69 R Ago, ‘Le délit international’ (1939) 68 Recueil des cours 525. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

70 B Stern, ‘Conclusions générales’, in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 326. 71 The famous art 19 in the 1996 draft: ILC Yearbook 1996, Vol II(2), 60. See Chapter 29. 72 ICTY, Prosecutor v Blaskic, Case No IT-95-14-AR 108 bis, Appeals Chamber, 29 October 1997, 110 ILR 607, 625–626 (para 27). 73 Commentary to art 12, para 10. 74 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, ICJ Reports 1996, p 803, 811–812 (para 21). 75 Island of Palmas Case (Netherlands/USA), 4 April 1928, 2 RIAA 829, 845. 76 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, ICJ Reports 1996, p 595. 77 See eg Legality of Use of Force (Serbia and Montenegro v Belgium), Preliminary Objections, Judgment, ICJ Reports 2004, p 279, 311 (para 79). 78 The Court had held in 2003 that the admission of the FRY to the UN in 2000 was not a ‘new fact within the meaning of art 61 of the Court’s Statute which justified revision of its decision on jurisdiction’: Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections (Yugoslavia v Bosnia and Herzegovina), ICJ Reports 2003, p 7. 79 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 140. 80 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, 18 November 2008, para 118. 81 The ‘Entreprise’, The ‘Hermosa’ and The ‘Créole’, in AG de Lapradelle and NS Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), vol IV, 4373, 4374, 4375. 82 On the idea of ‘evolutionary interpretation’ see B Bollecker, ‘L’avis consultatif du 21 juin 1971 dans l’affaire de la Namibie (Sud-Ouest africain)’ (1971) 17 AFDI 290. 83 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 90; in the French translation, the expression is rendered in a somewhat more colourful fashion: ‘elles semblent se mordre la queue’. 84 Ibid, para 4 (citing A/CN.4/488, p 46). 85 Ibid. 86 Ibid, para 56 (citing A/CN.4/488, p 67). 87 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 54 (para 79). 88 ARSIWA, art 20. 89 ARSIWA, art 21. 90 ARSIWA, art 22. 91 ARSIWA, art 23. 92 ARSIWA, art 24. 93 ARSIWA, art 25. 94 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 39 (para 48). 95 Ibid, 63 (para 101). 96 Commentary to art 27, para 4.

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Part III The Sources of International Responsibility, Ch.18 The Rules of Attribution: General Considerations Luigi Condorelli, Claus Kress From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Responsibility of international organizations — Circumstances precluding wrongfulness — Attribution — Armed conflict, international — Individual criminal responsibility — War crimes

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(p. 221) Chapter 18 The Rules of Attribution: General Considerations 1 Introduction 221 2 Attribution and State responsibility for internationally wrongful acts 224 (a) The significance of attribution in the theory and practice of international responsibility 224 (b) The rules of attribution as secondary rules of international responsibility 224 (c) The normative approach to attribution and its implications 225 (d) The different bases of attribution of conduct to a State under international law and the role of the domestic law of the State 228 (e) Attribution or imputation? Some remarks on terminology 233 3 Attribution of conduct to the State as a preliminary question in the context of the criminal responsibility of individuals and the distinction between international and non-international armed conflicts 233 Further reading 235

1 Introduction By all accounts, none of the subjects of international law belonging to the genus of collective entities (States, international organizations, etc) is able to carry out its activities, whatever they may be, other than through individuals. ‘Attribution’ (or ‘imputation’) is the term used to denote the legal operation having as its function to establish whether given conduct of a physical person, whether consisting of a positive action or an omission, is to be characterized, from the point of view of international law, as an ‘act of the State’ (or the act of any other entity possessing international legal personality). In other words, by the term ‘attribution’, reference is made to the body of criteria of connection and the conditions which have to be fulfilled, according to the relevant principles of international law, in order to conclude that it is a State (or other subject of international law) which has acted in the particular case. In that case (and only for that purpose), the actual author of the act, ie the individual, is, as it were, forgotten, and is perceived as being the means by which the entity acts, a tool of the State (or other subject of international law) in question. From this point onwards, repetition of the formula ‘State or other subject of inter national law’ will be avoided, and reference will be made only to ‘the State’, it being understood that the points discussed are generally equally applicable to the case of attribution of acts to an (p. 222) international organization. However, it is necessary to clarify at the outset that this is so only in principle, as has been emphasized by the Special Rapporteur of the International Law Commission on the Responsibility of International Organizations, G Gaja,1 and as results from the text of the draft Articles proposed in relation to the question of attribution of conduct to international organizations.2 Some adaptations appear necessary to the extent that, on the one hand, international organizations, even if they possess their own international legal personality, nevertheless remain instruments of cooperation between States, and on the other, that States play an essential role within each international organization, for example by sitting as members within their most important decision-making organs. Inevitably, that situation gives rise to extremely delicate problems in relation to the identification of the subject(s) of international law responsible for any given conduct, but also may give rise to the possibility of cumulative responsibility (of both the organization and its member States), in particular due to the phenomenon of ‘double attribution’. Although it is not possible here to discuss the various solutions which have been proposed, some reservations may be expressed as to the idea that the organization may, in an appropriate case, see its own responsibility engaged by reason of conduct which is not attributable to it, but is only From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

attributable to its member State(s), and which violates an obligation which is binding on both the organization and the member States. Rather, it would seem appropriate that the responsibility of the organization should be seen as being based not directly on the conduct of the State in question, but rather upon the organization’s own conduct: that of not having used all the means at its disposition to ensure that its member States act in accordance with the obligations binding upon them. Such an analysis is based, mutatis mutandis, on the principle of the ‘catalyst’ for responsibility discussed below. Traditionally, the notion of attribution has been discussed solely in the context of international responsibility for wrongful acts. It is of course true that it is in that area that the question of attribution has been of the greatest practical importance, in particular due to the frequency of international disputes raising the question of whether a particular injury suffered by a State gives rise to the responsibility of another State (therefore bringing into play the obligation to make reparation); where the injury has been caused by the actions of individuals, the attribution of conduct to the putatively responsible State is often the cause of substantial dispute. Of course, in a work dedicated to the topic of international responsibility, it is to be expected that the subject of attribution should be discussed solely insofar as it relates to that topic under discussion, as indeed is the case in the following sections. However, it bears emphasizing that the significance (at least analytically) of the process of attribution and its relevance extends far beyond the particular field of international responsibility; in principle, the question of attribution can be raised in relation to any conduct of the State in relation to which a norm of international law attaches any legal significance, and not only those producing the characteristic effects attaching to an ‘internationally wrongful act’.3 Therefore, for example, the relevant State practice for the purposes of the identification of customary norms can only consist of acts and conduct which is attributable to the State; the same is true for all unilateral acts, such as recognition,

References (p. 223) renunciation, protest, etc, and also for acts in the context of the law of treaties. Accordingly, for this simple reason alone, it may be stated that the topic of attribution is one of fundamental importance for the international legal system as a whole. It should be emphasized in this regard that the categories of conduct the evaluation of which requires a process of attribution are no less numerous than the various categories of international legal effects: conduct giving rise to international responsibility entails legal consequences which in no way correspond to the aims of the State to which the conduct is attributable, while conduct which manifests the consent of a State to be bound on the international plane produces, at least in principle, precisely this effect. Of course, in the two situations, attribution is normally but one constitutive element among others required in order to produce the legal effect in question.4 In relation to the legal effects resulting from responsibility, the question will be dealt with in Section 2 of this Chapter. As concerns acts manifesting the consent of a State to be bound on the international plane, it suffices to observe that attribution is not sufficient on its own in order to produce the legal consequence desired: in addition, it is necessary that the act should be internationally valid according to the relevant rules of the law of treaties.5 In relation to the category of ‘defects in consent’ which might result in invalidity of this type, reference may be made to the invalidity that may result from the violation of the internal constitutional rules as to the treatymaking power; 6 if such a defect is validly invoked in a given case, what is affected is the international validity of the act in question, which however remains nevertheless an ‘act of the State’, even if incapable of producing the effect of binding the State to the treaty. Therefore, for example, in its decision in Land and Maritime Boundary between Cameroon and Nigeria,7 the International Court of Justice made clear that in addition to the attribution to the Parties of the act of signing the Maroua Decaration of 1975 by their respective Heads of State, it was necessary in order for those signatures to be capable of producing the effect of binding the two States that they were in conformity with the international principles relative to the competence of an organ to bind

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the State on behalf of which it acted. The fact that fundamental norms of domestic constitutional law had been violated did not invalidate the agreement, given that the violation in question could not be qualified as ‘manifest’ for the other Party in accordance with the rule embodied in article 46 of the Vienna Convention. As it had been the Head of State of Nigeria who had signed the Declaration, his representative character (as recognized by article 7(2) of the Vienna Convention) as a matter of principle precluded the invalidity on the international plane of the agreement entered into by him, even if ultra vires from the point of view of domestic constitutional law.8 However, it should go without saying that if the objection had been upheld, the invalidity of the signature caused by the lack of capacity of the organ would in no way have contradicted the attribution to the State of that same act: the signature would have remained an ‘act of the State’, even if incapable of producing the effect of the conclusion of an international agreement.

References

(p. 224) 2 Attribution and State responsibility for internationally wrongful acts (a) The significance of attribution in the theory and practice of international responsibility In the Articles on State Responsibility, the ILC has developed an extremely clear and simple analytic model as to the origin of State responsibility for internationally wrongful acts. It is useful to briefly describe that model in order to make clear the place of attribution within this international legal régime. According to article 1, every internationally wrongful act of a State entails its international responsibility. However, it results from article 2, read in conjunction with Chapter V of Part One, that an internationally wrongful act is the product not of two conditions or constitutive elements, as article 2 would seem to suggest, but of three such elements: attribution, breach (ie that the conduct attributable to the State in question is contrary to its international obligations), and the absence of any circumstance precluding wrongfulness. The ILC’s basic conception is a faithful reflection of international practice; at least since the judgment in United States Diplomatic and Consular Staff in Tehran,9 the ‘tripartite model’ for the origin of State responsibility for internationally wrongful acts has been the explicit basis underlying the approach of the International Court of Justice. Attribution accordingly has acquired a pre-eminent place in the process of establishing the international responsibility of a State for an internationally wrongful act. The importance of attribution (sometimes referred to as the ‘subjective’ element of international responsibility), reflects universal support in academic writing ‘from Grotius to Ago’10 for the basic idea that a State’s responsibility may not be engaged except as a result of its own acts. However, attribution is not only an analytical category; it also plays an extremely important substantive role. As noted by J Crawford, ‘the rules of attribution play a key role in distinguishing the “State sector” from the “non-State sector” for the purposes of responsibility’.11 Of course, that statement does not necessarily imply that the distinction between the State and non-State sectors depends exclusively on the rules of attribution. Rather, in order to be able to say whether (or to what degree), the process of attribution exercise a real substantive influence on the definition of the ‘State sector’ for the purposes of responsibility, first it is necessary to ascertain whether (or to what degree), the process of attribution goes beyond a simple reference to the public institutions or organs of the State concerned. That fundamental question will be discussed in some detail below.

(b) The rules of attribution as secondary rules of international responsibility The ILC approached the formulation of the rules of attribution on the basis that those rules form part From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

of a body of secondary rules on responsibility, with the consequence that

References (p. 225) the process of attribution takes place, in principle, in a single and uniform manner in relation to all substantive, primary rules of international law. However, among the academic criticisms of the work of the ILC in relation to State responsibility, a large number of writers take issue with precisely the distinction between primary and secondary rules, a distinction that was the inevitable consequence of the decision taken by the ILC to codify the law of responsibility, the whole of the law of responsibility, and nothing but the law of responsibility.12 Some writers went so far as to characterize the rules of attribution as entirely deprived of practical utility: a striking proof, so it was said, of the abstract or even totally artificial character of the distinction between primary and secondary rules. Essentially, the criticism in question is based on the idea that it is not possible to formulate general rules of attribution, applicable in an identical manner, independent of the applicable primary rule; instead, the process of attribution is seen to be inextricably linked to the substantive primary rule in question and that attribution may take widely varying forms, depending upon the primary rule to be applied.13 These criticisms merit a nuanced response; there undoubtedly exists a close link, in some cases extremely close, between the applicable primary rule and the rules of attribution. This is particularly the case in relation to conduct consisting of an omission, given that inaction cannot be identified except by identifying precisely what active conduct is required by the primary obligation.14 It is also true, as will be seen in more detail below, that a primary rule may, in certain cases, be accompanied by a special rule of attribution, ie a secondary rule specially conceived in order to permit the operation of the primary rule in question. In such circumstances, the distinction between the primary rule and the special rule of attribution ratione materiae becomes extremely subtle, and, to a large extent, theoretical.15 However, even admitting that this is the case, it in no way precludes adoption of the view that it is not only entirely correct, but also useful to recognize the existence of general rules of attribution. Such an approach is correct since, even in the case of conduct consisting of an omission, the distinction between the operation of attribution and the question of violation of the obligation to act remains analytically possible. It is useful because the existence of a special rule of attribution ratione materiae constitutes very much the exception, such that normally it is necessary to rely on the general (secondary) rules of attribution.

(c) The normative approach to attribution and its implications Article 2(a) of the ILC’s Articles refers to conduct attributable to the State ‘under international law’. That formulation clearly reflects a ‘normative’ approach to questions of attribution. In essence, such an approach recognizes that the operation of attribution is a legal operation consisting of the application of rules forming part of international law. However, that approach (which is in complete harmony with the international case law)16 is not unanimously accepted by academic writers: in fact, it has been the object of

References (p. 226) a radical critique based on a ‘factual’ approach.17 According to that critique, attribution is not a legal operation, but a simple empirical statement by the interpreter in question of a factual situation. The underlying idea is that the State—in its quality as the principal subject of international law—precedes the international legal order, which, being based on sovereign States, therefore presupposes them. Accordingly the structure of the State cannot be determined by rules forming part of the international legal order. Although the limited space available in these brief general considerations in relation to attribution precludes a detailed discussion of this theory, it may be noted that even if one shares the

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approach according to which the State precedes the international legal order, it remains perfectly possible (and may even be said to be a logical necessity) that international law identifies what is the State, not in order to define or structure it, but so as to allow the rules of international law to regulate effectively the relations between States.18 It should be added that even according to the ‘normative’ approach, the organization of the State results from a multitude of ‘facts’. However, acceptance of the factual character of the structures of the State from the viewpoint of international law does not prevent recognition of the possibility, or even of the necessity, that international legal criteria must take account of the factual elements which form part of those structures and which play a role for the purposes of the application of international rules. The ‘normative’ approach implies a series of important consequences. Most importantly, if the operation of attribution is not the empirical statement of a simple fact, but a legal operation involving the application of rules of international law, the evolution of the relevant rules, resulting in a modification of the criteria for attribution, cannot be excluded. However, given that the international principles relating to attribution contribute to the delimitation of the public domain for the purposes of international responsibility, in distinguishing it from what is essentially the private sphere, it is hardly suprising that the question of whether particular rules of attribution should be modified is the subject of divergent views which are based on different conceptions of general legal policy. Accordingly, some participants in the debate adopt a position which is essentially hostile to any extension of the public sphere, on the basis that such an expansion would involve a growth of State control over the activities in question and would thereby endanger individual freedoms, since State interference into the (formerly) private domain would be required by international law so as to avoid State responsibility.19 Others emphasize to the contrary that more effective control over acts of individuals should be imposed upon States in order to ensure better protection of human rights.20 A separate question is whether the rules of attribution have in fact been the subject of any modification in recent times. A comprehensive response to that question clearly is beyond (p. 227) the scope of these general introductory considerations. However, reference may be made in this regard to the position of Crawford according to which the rules of attribution have not been substantially modified in the recent past.21 There is no reason to contradict that conclusion, although it is appropriate to draw attention to an interesting recent development (albeit extremely nuanced, and probably not yet stabilized) in the direction of facilitating the attribution of conduct ‘controlled by a State’, as dealt with by article 8.22 In fact, international practice evidences a tendency to move beyond a rigorously restrictive conception, according to which the attribution to the State of the conduct of an individual not forming part of its organic apparatus was not possible unless it was established that the particular conduct had been ordered or directed by the State in question. On the other hand, it is also true that this question now has to be considered in the light of the decision of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide that has, essentially, confirmed a restrictive approach.23 A second consequence of the ‘normative’ approach is the possibility of the existence of special rules of attribution, a possibility which is expressly recognized by article 55. In this regard, it is necessary to distinguish between two categories of special rules. On the one hand, a specific group of States may adopt by way of treaty special rules of attribution regulating their relations with each other; on this hypothesis, the special nature of the rules is ratione personae.24 On the other hand, it is possible that a special rule of attri bution may co-exist with a particular primary rule or a collection of specific primary rules; in such a situation, one may talk of a special rule of attribution ratione materiae.25 The possibility of the existence of a special rule of attribution ratione materiae is more than a theoretical possibility, as recognized by the Appeals Chamber of the ICTY in the appeal on the merits in Tadić.26 For instance, the law relating to outer space has been identified as providing a particularly clear example, given the existence of the principle that renders the State responsible for all national activities in space in all circumstances, whether carried out by private or governmental entities.27 On the other hand, international humanitarian law has long recognized

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a special criterion for attribution, according to which violations of the applicable rules perpetrated in the context of an armed conflict by members of the armed forces of a State are in all circumstances attributable to, and engage the international responsibility of, that State. This is the case even if the soldiers in question are not, or are no

References (p. 228) longer, acting under the control and as organs of the State, including situations in which the soldiers have become lost.28 In its judgment in Armed Activities on the Territory of the Congo, the Inter national Court of Justice has recently clearly reaffirmed this particular feature of international humanitarian law, holding that ‘by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda’.29 The Court went on to emphasize the ‘well-established rule of a customary nature’30 in this regard, without pausing to dwell on the question of whether or not that rule constitutes lex specialis. Recently it also has been suggested that it is possible to interpret State practice in relation to international terrorism as disclosing the formation of a special principle, according to which it is possible to attribute terrorist actions to States which support terrorist groups to a substantial degree by harbouring them or providing them shelter on their territory.31 The possibility of the attribution of conduct to several States (or to a State and to another subject of international law) may be seen as being a third consequence of the normative approach. That possibility is only raised in passing here, given that it is the subject of a separate chapter in this work.32 Finally, the normative approach suggests that a certain degree of caution is necessary as to the question of the extent to which it is possible to derive legal consequences directly from the rules of attribution in areas of international law other than that of responsibility for internationally wrongful acts. In reality, although the content of the rules of attribution is to a certain extent influenced by the specific aims of international responsibility, it is equally the case that the specific goals of the law of international immunities may militate in favour of a different, autonomous approach. Put briefly, the attribution to a State of particular conduct does not necessarily imply, as a matter of course, either immunity from jurisdiction of the State itself before the courts of another State in relation to that conduct, or the immunity of the individual/organ which actually carried out the conduct in question. However, on the other hand, it remains the case that, if a State invokes immunity from jurisdiction in relation to a particular act, in principle it acknowledges that the conduct in question is attributable to it.33

(d) The different bases of attribution of conduct to a State under international law and the role of the domestic law of the State The different bases of attribution under contemporary international law, as enumerated in Chapter II of Part One of the ILC’s Articles on State Responsibilty may be divided into

References (p. 229) four categories. The first category covers the situations foreseen by articles 4, 5, and 6, that is to say, the conduct of de jure organs, conduct of persons or entities exercising elements of governmental authority and conduct of organs placed at the disposal of a State by another State. The second category principally includes the conduct of persons acting under the direction, control, or on the instructions of an organ of the State and the conduct of persons or entities acting in the absence or default of the official authorities (sometimes referred to as ‘agents of necessity’), as regulated by articles 8 and 9, respectively. Finally, the attribution of conduct of insurrectional or other movements under article 10 and attribution of conduct recognized and adopted by a State as its own pursuant to article 11, form two separate and distinct categories. The four categories are

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distinguishable in particular according to the degree of ‘intervention’ of international law in the process of attribution and according to the relative importance of the domestic law of the State. The first category of bases of attribution is undoubtedly the most important from a practical point of view; the different hypotheses covered reflect what may be said to constitute the ‘normal’ basis for attribution. In that regard, the role of international law in relation to the operation of attribution is relatively passive; it is the domestic law of the State which plays the decisive role. This is particularly evident in relation to the attribution of the conduct of de jure organs of a State. Given the right of States to determine their own internal organization,34 it is each State which determines the identity and status of its own organs. As a general rule, international law does no more than to take account of the decisions taken in this regard internally and to extrapolate the consequences in that regard on the international plane of inter-State relations. Article 4(2) adopts this logic, stating that the notion of (de jure) ‘organ’, ‘includes any person or entity which has that status in accordance with the internal law of the State’. The process of attribution operates in essentially the same manner in relation to persons and entities authorized by domestic law to exercise elements of governmental authority: in that regard, the relevant connection to the State is not the status of organ under domestic law, but the authorization to exercise elements of governmental authority; in this regard also, the connection is essentially determined by domestic law. Similarly, in the case of an organ of another State placed at the disposition of a State by that other State, the State in question decides under its internal law to authorize the organ placed at its disposal to exercise elements of governmental authority. Accordingly, in relation to the first category of bases of attribution, the general observation made by Crawford may be adopted, according to which: Without a fixed prescription for State authority, international law has to accept, by and large, the actual systems adopted by States, and the notion of attribution thus consists primarily of a renvoi to the public institutions or organs in place in the different States.35 However, even in relation to this first category, in certain circumstances international law may play a much more active role. A first example is in relation to those organs the status of which (including the question of which persons in fact qualify as organs) is regulated by international law itself; in this regard, diplomats are a clear and classic example.36 In addition, the rule relating to the attribution to the State of conduct de jure organs

References (p. 230) acting ultra vires, as referred to in article 7, can only be considered to be the imposition by international law of an autonomous standard. In its judgment on the merits in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice has enunciated a particularly interesting clarification in relation to the notion of State organs. The Court stated—for the first time in an unequivocal fashion—that, in exceptional circumstances, the status as an organ of a State may be recognized even where the person or entity does not have that status under the domestic law of the State. A person, group or entity may be assimilated to a de jure organ (with the consequence that all of its acts performed in that capacity are attributable to the State, even if ultra vires), ‘ … even if that status does not follow from internal law, provided that in fact the persons, groups or entities act in ‘complete dependence’ on the State, of which they are ultimately merely the instrument.’37 The Court emphasized that, in this regard, it is necessary to look beyond the formal legal status in order to grasp the reality of the relationship so as to avoid the possibility that States may escape international responsibility through subterfuge or a fiction, as would be the case if a person, group or entity who in fact played a role identical to that of an organ was not legally categorized as such according to the State’s domestic law. It is not possible here to analyse in depth this important development; however, it may be noted that it is entirely consistent with, and

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may be seen as forming a part of, what may be called the ‘expansionist’ tendency, discussed above. Further, it may be noted that the expansion of the bases of attribution has been carried out by the International Court of Justice through interpretation of the principle consecrated in article 4 of the ILC’s Articles. By contrast, the Appeals Chamber of the ICTY in Tadić had resorted to an expansive interpretation of the rule contained in article 8 (relying upon a criteria of ‘overall control’, rather than of ‘effective control’); as a result, it was strongly criticized by the International Court of Justice.38 The position changes considerably when one comes to examine the second group of bases of attribution. Neither persons acting under the direction or control, or upon the instructions of organs of the State,39 nor ‘agents of necessity’, are incorporated, whether formally, or on on a practical level, into the apparatus of the State. As a consequence, domestic law is much less important for the process of attribution; instead, it is international law which directs the process and provides the applicable standards. This is particularly the case in relation to so-called ‘agents of necessity’, who act in the absence or default of the official authorities. However, it is also true for the case, which is much more important in practice, where persons de facto act on behalf of the State ‘in respect of each operation in which the alleged violations occurred’.40 This is so given that the relevant control over an individual or a group of individuals, who form the longa manus of the State without being integrated into its organic structure, is independent of any formal basis in the domestic law of the State in question. It has been suggested that as regards ‘agents of necessity’, and individuals acting on behalf of the State under its direction or control, or upon its instructions, the connection of the conduct to be attributed is so different compared to that which exists in relation to de

References (p. 231) jure organs that the justification for the legal qualification of that conduct as ‘State action’ is plainly lacking.41 Such criticism, however, goes too far. The conceptual differences between the two categories of attribution in no way negates the close relationship between them on a deeper level; ultimately, they both result from the freedom of the State to determine its own internal organization. The principle underlying the second category is that of the ‘effective’ organization of State activity, rather than the formal organization of the State which forms the essential point of reference for the first category. It should also be noted that the situation foreseen by article 17, ie the situation in which a State directs and controls another State, can be conceived of as another form of an ‘effective’ organization of the activity of the directing and controlling State. As for the attribution of the conduct of an insurrectional or other movement, as provided for in article 10, the situation is relatively complex. In contrast to the first two categories discussed above, attribution in such situations is ex post facto; this is the case both in relation to attribution of conduct of a movement which has subsequently become the new government of a State which previously existed (article 10(1)) as well as in relation to a movement which has succeeded in establishing a new State (article 10(2)). Quite apart from that difference, the question of the extent to which the considerations underlying the first two categories of bases of attribution are likewise relevant, mutatis mutandis, to attribution of conduct to such movements in the end depends upon the structure of the movement in question. If at the time of the conduct in question, the movement has already established State-like institutions, it may be appropriate to recognize the ‘de jure organs’of the movement as the result of a renvoi to the ‘internal law of the movement’. In a situation in which there is a movement which is State-like, it may even be possible to consider that there exist de facto organs.42 However, the drawing of a distinction between the ‘formal’ structures of a movement and its ‘effective’ organization is not possible in relation to a movement which is only loosely organized. The situation of conduct which is acknowledged and adopted by the State as its own, as dealt with in article 11, constitutes a second example of ex post facto attribution. This basis of attribution constitutes something of a novelty when seen against the long history of the ILC’s codification of the law of responsibility, its introduction having been promoted by Crawford only in 1998.43 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Attribution on the basis of the acknowledgment and adoption by the State of particular conduct as its own may be considered as the most extreme consequence of the normative approach to attribution, given that it permits attribution on the sole basis of a declaration made by the State in question, without the any other connection with the conduct in question being required. Although there are no objections of principle against that rule, it is very doubtful whether it has a sufficiently solid basis in international practice; 44 in particular, it is somewhat surprising that, in support of the rule contained in article 11, the ILC relied primarily on the judgment of the International Court of Justice in United States

References (p. 232) Diplomatic and Consular Staff in Tehran which in fact says exactly the opposite!45 In United States Diplomatic and Consular Staff in Tehran, the Court emphasized that the subsequent approval by the highest organs of a State of conduct, carried out by private individuals not having acted on behalf of the State, was not capable of modifying a postierori the initially independent and unofficial character of the conduct in question.46 Arguably, the ex post facto approval referred to by the Court in United States Diplomatic and Consular Staff in Tehran may be seen as a sort of admission by Iran of its implication in the facts from the outset. From this viewpoint, ex post facto recognition is to be reconceptualized not as a legal basis for attribution, but as furnishing sufficient and conclusive proof of the fact that, at the moment at which the conduct in question took place, a legal basis for attribution was in fact present. The ILC could have avoided its confusion between the means of proof and the subjectmatter of the proof, if it had duly considered the pertinent observations of the International Court of Justice in Military and Paramilitary Activities in and against Nicaragua.47 There the Court, in discussing the relevance of official declarations made by State authorities after the fact, observed that such declarations may constitute ‘evidence of specific facts and of their imputability to the States in question’.48 In other words, such declarations may ‘certainly [be] a recognition as to the imputability of some of the activities complained of’.49 The final reworking of the Articles in 2001 resulted in the expurgation of article 11 of the 1996 draft; in the end, the provision was was considered to be superfluous and thus deleted. Article 11 of the 1996 draft concerned acts of private individuals which were not attributable to the State on any of the other criteria for attribution; although emphasizing that such conduct was not attributable to the State, article 11(2) made clear that this was without prejudice to the possibility (nor to the need to verify) that such acts might operate, to use the evocative terminology of the Special Rapporteur at the time, Roberto Ago, as ‘catalysts’ for the international responsibility of the State.50 It is possible that the acts of private individuals may reveal, for example, that the organs of a State are responsible in respect of omissions with respect to the conduct of the individuals concerned on the basis that State organs could have prevented that conduct from occuring and failed to do so despite the fact the State concerned was obliged to take steps to prevent such conduct. For instance, the fact that gunshots are fired by an individual at a foreign Head of State on an official visit is not conduct which is attributable to the host State; however, it may reveal that the State in question failed to take all the necessary protective measures required by international law in order to avoid such events. While it is not suggested that any mourning is required for the passing of the provision in question, its excision may still be regretted since the recognition of the possibility of ‘catalysing’ acts had a clear didactic value: it could have served as a reminder not to close investigation of possible State responsibility too early after having concluded that certain action was not attributable to the State, but rather to consider whether there was some other, closely related basis on which the State might nevertheless be held responsible. This additional step in legal reasoning is of parti cular relevance whereever international obligations of ‘due diligence’ are at stake.

References

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(p. 233) (e) Attribution or imputation? Some remarks on terminology Finally, a number of remarks as to terminology are apposite. At the outset of the work of the ILC on State responsibility, the preferred term was ‘imputation’, rather than ‘attribution’.51 Whilst the former term formerly enjoyed and continues to have some currency in international practice,52 as well as in academic writing, the ILC in the end preferred the term ‘attribution’ in order to avoid any suggestion that the legal operation of connecting conduct to the State involved a kind of fiction.53 In the present chapter, the term ‘attribution’ adopted by the ILC has been used in most cases, although without thereby wishing to endorse the ILC’s preference. In any case, it should be underlined that the choice of terms has no substantive implications whatsoever. Roberto Ago was correct to state ‘no matter whether the term adopted was “attribution” or “imputation”, or even “attachment”, the idea it was intended to express was still the same’.54 In the opinion of various members of the ILC, the term ‘attribution’, while avoiding any connotation of a genuine legal fiction, also better expresses the normative character of the process of attribution.55 The well-foundedness of that position may be doubted; in fact, both terms equally expess the normative character of attribution. Also, the two terms evoke, in a very similar manner, the idea of the ‘active’ role of public international law in the process of attribution. As noted above, that idea is not entirely correct; in the majority of cases covered by articles 4, 5 and 6 of the Articles, international law does not play the central role in an operation which consists of ‘attributing’ or ‘imputing’ particular acts to one or another State. In such circumstances, to the contrary, the role of international law is ‘passive’, since it consists simply of taking note of situations which are not regulated by international law but only recognized by it, in order to derive the appropriate consequences on the inter-State plane. It is principally in the context of the situations dealt with by articles 8, 9 and 11 that international law adopts a more ‘interventionist’ role. It is thus in those specific cases that the use of the terms ‘attribution’ and ‘imputation’ is truly appropriate.

3 Attribution of conduct to the State as a preliminary question in the context of the criminal responsibility of individuals and the distinction between international and non-international armed conflicts The jurisprudence of the ad hoc criminal tribunals has highlighted the fact that the question of the attribution of acts of individuals to the State may play a very important role in the context of individual criminal responsibility, in particular in the context of war crimes. At the present time, differences remain in the law on war crimes relating to international

References (p. 234) armed conflicts and the respective law applicable in non-international armed conflicts. It follows that in war crimes proceedings there will often be a preliminary issue as to whether the conduct in question took place in an international or non-international armed conflict. Apart from the special case of wars of national liberation, applying the definition contained in common article 2 of the 1949 Geneva Conventions, in order to establish whether an armed conflict is international or non-international, it will be necessary to ascertain whether the hostilites are between two or more States, that is to say, whether the acts of violence carried out by the individuals fighting on each side are ‘State acts’. The question is whether the principles of attribution as codified in the Articles should be applied to decide that preliminary question. The better view would appear to be yes.56 The contrary view adopted by the ILC57 shared by certain authors,58 and recently endorsed somewhat hastily59 by the International Court of Justice in its judgment on the merits in Application of the Convention on the Prevention and Punishment of the Crime of Genocide,60 is seriously flawed. Of course, caution is necessary, because, in a war

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crimes trial, the ultimate purpose of the delimitation between international and non-international armed conflict is to identify legal consequences in an area other than that of the responsibility of States for internationally wrongful acts. For international criminal responsibility of individuals is one thing, while State responsibility is clearly another, as the ILC stressed with some insistance.61 However, all this is of very little relevance as the preliminary question to be resolved is not one of individual criminal responsibility, but remains the interpretation of the notion of international armed conflict. That notion turns, as a matter of contemporary international law, on the very existence of an armed conflict between two or more States, which cannot mean anything other than that the armed forces involved form part of the ‘formal’ or ‘effective’ organization of the States which are party to the conflict. In other words, the normal criteria for attribution are perfectly applicable in that context. In 1986, in Military and Paramilitary Activities, the International Court of Justice adopted precisely this line of reasoning.62 Of course, it is true that, as emphasized by the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ‘logic does not require the same test to be adopted in resolving the two issues [sc. that of attribution and that of the nature of the armed conflict], which are very different in nature’.63 In other words, it is entirely conceivable that the characterization of an armed conflict as international is to be assessed using criteria different from those governing the attribution to States of the activities of their armed forces. However, such reasoning

References (p. 235) would appear to be entirely hypothetical and incapable of changing the law as it currently exists. Put shortly, for so long as the instruments in force relative to international criminal law do not adopt autonomous definitions of the concepts of international and noninternational armed conflict based on criteria other than those of the attribution to the State of the acts of its armed forces, the catalogue of war crimes which are relevant for each of the two types of armed conflict have to be applied on the basis of the existing definitions of those concepts.64 Further reading CF Amerasinghe, ‘Imputability in the Law of State Responsibility for Injuries to Aliens’ (1966) 22 Revue égyptienne de droit international 91 G Arangio-Ruiz, ‘State Fault and the Forms and Degrees of International Responsibility: Questions of Attribution and Relevance’, Le droit international au service de la paix, de la justice et du développement; Mélanges Michel Virally (Pedone, Paris 1991) 25 T Becker, Terrorism and the State. Rethinking the Rules of State Responsibility (Hart Publishing, Oxford and Portland, 2006) DD Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’, in R Lillich & D Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Transnational, Irvington-on-Hudson, 1998) 109 A Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 EJIL 649 GA Christenson, ‘The Doctrine of Attribution in State Responsibility’, in RB Lillich, International Law of State Responsibility for Injuries to Aliens (University Press of Virginia, Charlottesville, 1983) 321 C Chinkin, ‘A Critique of the Public/Private Dimension’ (1999) 10 EJIL 387 L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, Faculté de droit de l’Université Catholique de Louvain, La réparation des dommages catastrophiques. Les risques technologiques majeurs en droit international et en droit communautaire (Brussels, Bruylant, 1990) 263 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984-VI) 189 Recueil des cours 9 L Condorelli & H Dipla, ‘Solutions traditionnelles et nouvelles tendances en matière

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d’attribution à l’État d’un fait internationalement illicite dans la Convention de 1982 sur le droit de la mer’, Le droit international à l’heure de sa codification. Etudes à l’honneur de Roberto Ago (Milan, Giuffrè, 1987), vol 3, 65 N Croquet, ‘La responsabilité internationale de l’État du fait des particuliers et la notion d’organe de fait à la lumière de l’affaire Celebici: Innovation ou continuité?’ (2002) 41 Revue de droit militaire et de droit de la guerre 43 AJJ de Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadić Case and Attribution of Facts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’ (2001) 72 BYIL 255 H Dipla, La responsabilité de l’État pour violation des droits de l’homme (Paris, Pedone, 1994) A Epiney, Die völkerrechtliche Verantwortlichkeit von Staaten für rechtswidriges Verhalten im Zusammenhang mit Aktionen Privater (Nomos Verlagsgesellschaft, Baden-Baden, 1992) (p. 236) J Griebel, Die Zurechnungskategorie der de facto-Organe im Recht der Staatenverantwortlichkeit (Münster, Lit, 2004) J Griebel & M Plücken, ‘New Developments Regarding the Rules of Attribution? The International Court of Justice’s Decision in Bosnia v. Serbia’ (2008) 21 Leiden Journal of International Law 601 C Kress, ‘L’organe de facto en droit international public. Réflexions sur l’imputation à l’État de l’acte d’un particulier à la lumière des développement récents’ (2001) 105 RGDIP 93 M Milanovic, ‘State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken’ (2009) 22 Leiden Journal of International Law 307 P Palchetti, L’organo di fatto dello stato nell’illecito internazionale (Milan, Giuffrè, 2007) J Wolf, Die Haftung der Staaten für Privatpersonen nach Völkerrecht (Berlin, Duncker & Humblot, 1992)

Footnotes: 1 G Gaja, Second Report on the Responsibility of International Organizations, 2004, A/CN.4/541. 2 See now the Draft Articles on the Responsibility of International Organizations, as adopted on first reading in 2009, Report of the ILC, 61st Session, 2009, A/64/10, 19ff. 3 See also the comments of the last Special Rapporteur: J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33 (para 147). 4 For a more detailed analysis, see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 39ff. 5 This distinction appears not to have been drawn by Crawford in the passage referred to above in which he discussed this issue: J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33 (para 147 and note 182). 6 See arts 7 & 46 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 7 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), ICJ Reports 2002, p 303. 8 Ibid, 430 (para 265). 9 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 4, 28ff (para 56ff). 10 GA Christenson, ‘The Doctrine of Attribution in State Responsibility’, in RB Lillich (ed), International Law of State Responsibility for Injuries to Aliens (Charlottesville, University Press of Virginia, 1983), 321, 327. 11 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33–34, (para 154). 12 For an overview of the criticisms, see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

cours 9, 22ff. 13 See eg I Brownlie, Principles of Public International Law (7th edn, Oxford, OUP, 2008), 419. 14 In this regard, see the particularly relevant observations by J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33–34 (para 154). 15 C Kress, ‘L’organe de facto en droit international public. Réflexions sur l’imputation à l’État de l’acte d’un particulier à la lumière des développement récents’ (2001) 105 RGDIP 93, 124, fn 128. 16 See the general remarks in this regard, ibid, 122. 17 See in particular, G Arangio-Ruiz, ‘State Fault and the Forms and Degrees of International Responsibility: Questions of Attribution and Relevance’, in Le droit international au service de la paix, de la justice et du développement, Mélanges Michel Virally (Pedone, Paris 1991), 25; G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 48–53 (paras 165–180); see also CF Amerasinghe, ‘Imputability in the Law of State Responsibility for Injuries to Aliens’ (1966) 22 Revue égyptienne de droit international 91, 92, who characterizes attribution as an ‘intellectual exercise’. 18 See in this regard, the observations of H Kelsen, The Pure Theory of Law (Berkeley, University of California Press, 1970), 320ff. 19 See eg DD Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’, in R Lillich and D Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Irvington-on-Hudson, Transnational, 1998) 109, 127. 20 C Chinkin, ‘A Critique of the Public/Private Dimension’ (1999) 10 EJIL 387. 21 J Crawford, ‘Revising the Draft Articles on State Responsibility’ (1999) 10 EJIL 435, 439; for similar views, see H Dipla, La responsabilité de l’État pour violation des droits de l’homme (Paris, Pedone, 1994), 100ff; J Griebel, Die Zurechnungskategorie der de facto-Organe im Recht der Staatenverantwortlichkeit (Münster, Lit, 2004), 178ff and 253ff. 22 For a detailed analysis, see C Kress, ‘L’organe de facto en droit international public. Réflexions sur l’imputation à l’État de l’acte d’un particulier à la lumière des développement récents’ (2001) 105 RGDIP 93; see also J Griebel, Die Zurechnungskategorie der de facto-Organe im Recht der Staatenverantwortlichkeit (Münster, Lit, 2004), 179ff, who favours such a development de lege ferenda. 23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007. 24 See eg J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33–34 (para 154). 25 For a more detailed discussion, see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 117ff. 26 ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, para 90. 27 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 121ff; L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, in Faculté de droit de l’Université Catholique de Louvain, La réparation des dommages catastrophiques. Les risques technologiques majeurs en droit international et en droit communautaire (Brussels, Bruylant, 1990), 263. 28 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 145ff. 29 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 242 (para 213).

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30 Ibid, 242 (para 214). 31 C Kress, Gewaltverbot und Selbstverteidigungsrecht nach der Satzung der Vereinten Nationen in Fällen staatlicher Verwicklung in Gewaltakte Privater (Berlin 1995), 314ff; L Condorelli, ‘Conclusion générale’, in R Mehdi (ed), Les Nations Unies et l’Afghanistan (Paris, Pedone, 2003), 205ff; T Becker, Terrorism and the State. Rethinking the Rules of State Responsibility (Hart, Oxford and Portland, 2006), 359ff; J Griebel, Die Zurechnungskategorie der de facto-Organe im Recht der Staatenverantwortlichkeit (Münster, Lit, 2004), 216ff favours such a development de lege ferenda. 32 See below, Chapter 20. 33 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 4 June 2008, para 196; for a more detailed analysis, see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 76; J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33 (para 147 and note 182); for a specific example, see C Kress, ‘L’organe de facto en droit international public. Réflexions sur l’imputation à l’État de l’acte d’un particulier à la lumière des développement récents’ (2001) 105 RGDIP 93, 132, fn 155. 34 As to which, see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 26ff. 35 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 34 (para 154). 36 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Receuil des cours 9, 33ff. 37 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, 140 (para 392). 38 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, 144– 145 (paras 403–406). 39 Traditionally denominated de facto organs, although this terminology will no doubt have to be revised in the light of the judgment of the Court in Bosnia Genocide: ibid. 40 Ibid, 143 (para 400). 41 J Wolf, Die Haftung der Staaten für Privatpersonen nach Völkerrecht (Berlin, Duncker & Humblot, 1992), 148. 42 For an interesting example drawn from international arbitral practice, see DD Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’, in R Lillich and D Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Irvington-on-Hudson, Transnational, 1998), 109, 146ff. 43 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 54–55 (paras 278–282). 44 See the criticisms by C Kress, ‘L’organe de facto en droit international public. Réflexions sur l’imputation à l’État de l’acte d’un particulier à la lumière des développement récents’ (2001) 105 RGDIP 93, 121; J Griebel, Die Zurechnungskategorie der de facto-Organe im Recht der Staatenverantwortlichkeit (Münster, Lit, 2004), 222ff. 45 Commentary to art 11, para (4) (referring to United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 3, 35 (para 74)). 46 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 3, 29–30 (para 59). 47 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 43–45 (paras 71–74).

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48 Ibid, 43 (para 71). 49 Ibid, 45 (para 74). 50 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 97 (para 65). 51 See eg the remarks of R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 177, 187–189; and see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984) 189 Recueil des cours 9, 41. 52 See eg ICTY, Prosecutor v Blaskic, Case No IT-95-14-T, Trial Chamber, Judgment, 3 March 2000, 122 ILR 1, 50 (para 100). 53 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 33 (para 146). 54 ILC Yearbook 1973, Vol I, 49 (para 8) (1212th meeting). 55 See eg the comments of B Simma (Chairman of the Drafting Committee), ILC Yearbook 1998, Vol I, 288 (para 74) (2562nd meeting) (quoted by C Chinkin, ‘A Critique of the Public/Private Dimension’ (1999) 10 EJIL 387, fn 4). 56 See in this regard, ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, para 103ff. 57 See Commentary to art 8, para 5. 58 See eg T Meron, ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout’ (1998) 92 AJIL 236; see also the doubts expressed by AJJ de Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadić Case and Attribution of Facts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’ (2001) 72 BYIL 255, 289. 59 A Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 EJIL 651. 60 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, 144 (paras 404–405). 61 Commentary to art 8, para 5. 62 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Reports 1986, p 14, 112–113; 114 (paras 216, 219). 63 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, 144 (para 405). 64 See in this regard, C Kress, ‘War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’ (2000) 30 Israel Yearbook on Human Rights 115; N Croquet, ‘La responsabilité internationale de l’État du fait des particuliers et la notion d’organe de fait à la lumière de l’affaire Celebici: Innovation ou continuité?’ (2002) 41 Revue de droit militaire et de droit de la guerre 43.

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Part III The Sources of International Responsibility, Ch.19.1 Attribution of Conduct to the State: State Organs and Entities Empowered to Exercise Elements of Governmental Authority Djamchid Momtaz From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Ultra Vires conduct, state organs/state-owned enterprise — Wrongful acts — Exhaustion of local remedies — Responsibility of states — Codification — Sovereignty — Prerogative — National liberation movements — Geneva Conventions 1949

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(p. 237) Chapter 19.1 Attribution of Conduct to the State: State Organs and Entities Empowered to Exercise Elements of Governmental Authority 1 State organs 239 (a) Organs that pertain to the structure of the State 239 (b) Organs of territorial communities that are subordinate to the State 241 (c) ‘De facto’ organs 243 2 Entities empowered to exercise elements of governmental authority 244 (a) The identification of entities exercising prerogatives of public power 244 (b) The attribution of acts by entities exercising powers of the public prerogative to the State in international case law 245 Further reading 246 In order for an act contrary to international law to be classified as internationally wrongful with the consequence of engaging State responsibility, the act must be attributable to the State. But the State, as an abstract entity, can only act with the aid of one or more persons that are classed, either generally or for the particular purpose, as State agents. For the purposes of attribution, the agents of the State used to be treated as identical with it. In the Moses case, a decision of the Mexico-United States Mixed Claims Commission, the arbitrator relied on this idea in order to confirm that ‘a functionary or a person vested with authority represents pro tanto his government which, from an international point of view is the ensemble of all the functionaries and of all persons vested with authority’.1 The PCIJ also referred to this idea in its decision in German Settlers in Poland. According to the Court, ‘States can only act by and through their agents and representatives’.2 This approach was maintained by academic commentators; for example, Dionisio Anzilotti affirmed that ‘the activity of a State is nothing but the activity of individuals that the law imputes to the State’.3

References (p. 238) The term ‘organ’ in this context seems to have appeared for the first time in the work of the Hague Conference on the codification of international law (1930). It was recognized that ‘[i]nternational responsibility is incurred by a State if there is any failure on the part of its organs’.4 Special Rapporteur Ago used this expression: in his view, an organ is nothing but a human being or collection of human beings.5 In conformity with draft article 5, presented on first reading, which is titled ‘[a]ttribution to the State, subject of international law, of the acts of its organs’,6 ‘[t]he conduct of a person or group of persons who, according to the internal legal order of a State, possess the status of organs of that State and are acting in that capacity in the case in question, is considered as an act of the State from the standpoint of international law’. Some members of the ILC were concerned about the consequences that this simultaneous reference to the terms ‘persons’ and ‘organs’ could have. It could indeed cause confusion between the behaviour of an organ and that of persons who make up this organ.7 It was argued that, so far as the exercise of public power of the State is concerned, it is the organs of the State, and not the individuals who constitute such organs, that act in its name.8 Taking into account these criticisms Special Rapporteur Ago deleted all references to the behaviour of persons or groups of persons from draft article 5, attributing the behaviour of organs purely to the State.9 This modification was justified by the necessity in order to ‘avoid entering into theoretical problems concerning the definition of the notion of an organ itself ’.10 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

During the second reading of the draft articles, the term ‘State organ’ was considered by some too restrictive, ‘any State organ or agent’ was preferred.11 The new Special Rapporteur, Crawford, was inclined to agree, while preferring the term ‘person’ over ‘agent’, which was used by Ago. Thus, article 4 adopted on second reading, entitled ‘Conduct of organs of a State’, specifies in paragraph 2 that ‘an organ includes any person or entity which has that status in accordance with the internal law of the State’. The expression ‘person or entity’ is also taken up in article 5, which concerns the conduct of a person or entity, not within article 4, but empowered by the law of the State to exercise elements of the governmental authority. According to the Commentary to article 4, the term ‘entity’ is employed in a similar sense to the one in the Draft Articles on Jurisdictional Immunities of States and their Property adopted by the ILC in 1991.12 According to article 10 of the 1991 Draft Articles, an ‘entity’ is a separate legal person emanating from the State.13 In this way, not only State organs properly so-called but also entities empowered to exercise elements of the governmental authority can engage the responsibility of the State.

References

(p. 239) 1 State organs All State organs can commit internationally wrongful acts. There is no exception to this rule; it is the corollary to the principle of the unity of the State from the view point of international law. By virtue of its sovereignty the State is free to organize itself in any way and determine what its organs are. The downside of this liberty is that international law attributes the behaviour of its organs to the State. Article 4 simply translates this reality when it states that ‘[t]he conduct of any State organ shall be considered an act of that State under international law … ’ The term ‘State organ’ is therefore to be understood in its widest meaning and encompasses organs that pertain directly to the structure of the State as well as territorial communities that have been accorded a distinct but subordinate personality under domestic law. Further, in addition to these ‘de jure’ organs, in certain exceptional circumstances, persons or entities which do not form a part of the State in any sense are nevertheless to be regarded as ‘de facto’ organs, such that all of their conduct is attributable.

(a) Organs that pertain to the structure of the State Acts and omissions by organs that are part of the State apparatus are considered acts of the State. Whether the functions of these organs are international or internal, and whether the position they hold in the framework of the State is superior or subordinate, has no relevance as concerns the attribution of these acts to the State. Historically, it was sometimes considered that only reprehensible behaviour of State organs that were in charge of external relations could constitute wrongful acts of the State, engaging its responsibility on the international level. According to Ago, this theory should be considered out of date and erroneous.14 It is inadmissible where organs that exercise purely internal functions can equally be called on to apply rules of international law, potentially breaching the international obligations of the State.15 This way, even though the State may be internationally represented by specialized organs, it remains nevertheless the case that its responsibility on the delictual level can be engaged by all its organs, whichever function they may assume at the national level. The Franco-Italian Conciliation Commission came to a similar conclusion in Verdol.16 Thus acts that relate to legislative, judicial, and executive powers can engage the responsibility for the State. This was the position adopted by States in response to a request for information formulated by the Preparatory Committee for the Hague Conference and was taken up in the Conference itself.17 In fact, the separation of powers is a principle of internal political organization of the State; it cannot be relied on vis-à-vis other States on the international level. Anzilotti already confirmed that it is ‘undoubtedly a mistake to deny that a State can be held responsible for judgments of its courts by reason of the independence of the judiciary, which does not permit that 18

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the executive interferes with the administration of justice’.18 At the Hague Conference several delegations insisted that

References (p. 240) the principle of judicial independence was not relevant to international law and refused to accord it any significance in the attribution of conduct of organs to the State. Basis of Discussion No 5, prepared in 1929 by the Preparatory Committee for the Hague Conference, insisted on the fact that State responsibility will be engaged if the injury suffered results from a definitive judicial decision that is incompatible with the international obligations of the State.19 In Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights20 the International Court had to deal with the question whether decisions taken by the Malaysian courts, in violation of international obligations of the State, would engage Malaysia’s responsibility. In its Advisory Opinion the Court concluded that ‘[a]ccording to a well-established rule of international law, the conduct of any organ of a State must be regarded as an act of that State’.21 According to the Court, this rule was expressed in article 6 of the draft articles on State responsibility adopted on first reading and has taken on a customary character. In the same manner, the position of legislative organs is no different to that of other State organs when attributing an act to the State. In its decision in Certain German Interests in Polish Upper Silesia the Permanent Court specified that ‘[f ]rom the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures’.22 A law will not be given effect at the international level if it is contrary to the international legal order. Indeed in such a case it may give rise in itself to State responsibility.23 In the same way, if the legislative power refuses to adopt legislation the enactment of which is required by a treaty to which the State is a party, such an omission may be considered an internationally wrongful act that engages State responsibility. Thus, it was not maintained by the ILC that the sovereign character of parliament as well as the independence of the judiciary can prevent attribution of their behaviour to the State. Article 4(1) of the ILC Articles in fact specifies that: The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State. In the same manner, whatever the position of the organ in the framework of the State organization may be, this is of no consequence in attributing a wrongful act to the State. According to a school of thought favoured by American States in the 19th century, it was only the conduct of superior organs that was attributable to the State in international law. The State would therefore not be accountable for the act of a subordinate organ unless its behaviour was explicitly or implicitly endorsed by superior organs.24 According to Ago, this theory was largely based on a confusion with the rule of exhaustion of local remedies. According to this rule there would be no violation of an international obligation as long as there is an organ on the local level that is capable of correcting the defect. If it is true

References (p. 241) that an internationally wrongful act cannot be classified as such before local remedies have been exhausted, it is nevertheless the case that the act may be classified as an act of the State as soon as it has been committed.25 Thus, in terms of attribution, the act or omission of a subsidiary organ is an act of the State.26 This

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was the dominant opinion of States at the Hague Conference in 1930. Taking into account the answers of governments to a questionnaire, the Preparatory Committee, while elaborating Basis of Discussion No 12, rejected any difference in treatment between the behaviour of superior and subsidiary organs. In many cases claims commissions did not hesitate to indemnify the victims of acts by inferior State organs. In the decision of the United States-Mexico General Claims Commission in the Massey case, the arbitrator referred to a ‘sound general principle’ according to which the misconduct of an individual engages State responsibility, whatever that person’s individual status or rank may be.27 The mixed commissions that were formed after the Second World War often dealt with the behaviour of subsidiary organs and have expressed similar opinions. In United States Diplomatic and Consular Staff in Tehran, the International Court did not make any distinction based on some hierarchical order between the different organs of Iran that were involved in the commission of the wrongful acts.28 State responsibility is thus engaged for the behaviour of all organs of the State, regardless of their administrative level.29 Any such distinction would introduce a serious element of uncertainty in international relations.

(b) Organs of territorial communities that are subordinate to the State Article 7(1) of the Draft Articles adopted on first reading, which deal with the case of a ‘territorial governmental entity within a State’ under the rubric of ‘other entities empowered to exercise elements of the governmental authority to the State’. By contrast the final version of the ILC Articles included territorial communities in the general list of State organs: under article 4, the conduct of an organ of a ‘territorial unit of the State’ is equally an act of the State under international law. It has been suggested that ‘the principle of the responsibility of the State for the acts of its territorial units, far from being weakened is in fact reaffirmed and even reinforced by this global approach’.30 Such an approach has the advantage of clearly distinguishing organs of communities that are part of the State’s own structure (eg component units of federal States), from separate entities created by domestic and empowered to exercise governmental authority in particular cases: these belong to a different category. The principle according to which the State is answerable for acts and omissions of organs of public territorial communities as well as communes, provinces and regions has long

References (p. 242) been established and has furthermore been confirmed several times in the case law. The authority normally cited is the 1951 decision by the Franco-Italian Conciliation Commission in the case concerning the Heirs of the Duc de Guise. According to the Commission, the autonomy granted to the Sicilian region by the public law of the Italian Republic could not disengage Italy’s responsibility for the conduct of the region.31 This decision conforms to the opinions expressed by States during the preparations for the Hague Conference. The responses to the request of information presented by the Preparatory Committee confirmed in clear language that State responsibility is engaged for acts or omissions of the communities as well as communes or provinces that exercise public legislative or administrative functions.32 This principle has also been unanimously endorsed in the doctrine.33 Article 4 does not expressly mention the case of the federal State. Nevertheless, since federalism is only the most developed manifestation of decentralization, the attribution of the conduct of organs to the federation should work in the same way as it does where communities and regions are concerned. This was clearly the approach adopted by the States answering the questionnaire of the Preparatory Committee to the Hague Conference. The fact that the federal State enjoys full autonomy by virtue of domestic law does not in itself exclude its responsibility for the acts of the member States of the federation.34 Based on these responses, the Special Rapporteur of the Committee, Guerrero, came to the conclusion that ‘[a]ll that has been said in regard to centralized From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

States applies equally to federal States’. For a federal State ‘international responsibility which may be incurred by one of the member States of a federation devolves upon the federal Government, which represents the federation from the international point of view; the federal Government may not plead that, under the constitution, the member States are independent or autonomous’.35 The principle of federal State responsibility for the conduct of its constituent units has long been established in international case law. In its decision of 7 June 1927 in Galvan the United StatesMexico Mixed Claims Commission established the responsibility of the United States for a denial of justice committed by courts of the State of Texas.36 A few years later, the same Commission confirmed this principle in the famous Pellat decision, specifying that ‘[t]his indirect responsibility cannot be denied, even where the federal Constitution deprives the central government of the right of control over individual States or the right to enforce their compliance with international law’.37 This case law has been followed consistently and was confirmed by the Court in LaGrand.38 The doctrine is also unanimous. Article 2 of the Resolution of the Institut de Droit International, adopted in 1927, is wholly in line with the case law of the United States-Mexico Claims Commission at that time: ‘the State is responsible for the acts of communities that exercise

References (p. 243) public functions on its territory’.39 The same is true for the 1929 Harvard Research.40 The responsibility of the federal State for the behaviour of the constituent state undeniably represents a principle of general international law.41 The only way a derogation from this principle can be achieved is by the insertion of a clause, known as a federal clause, in treaties entered into by the federal State. This expressly disengages responsibility for the federal State’s incapacity to make the component units comply with the treaty. But it does so by qualifying the extent of the primary obligation.

(c) ‘De facto’ organs Article 4(2) states that ‘An organ includes any person or entity which has that status in accordance with the internal law of the State’. Accordingly, the domestic law of the State is the starting point for the consideration of whether a person or entity constitutes an organ the conduct of which is attributable; however, domestic law is not the end of the matter. As the Commentary makes clear, in some legal systems the status and function of particular bodies may be determined not only by law but also by practice; further, the internal law of a State may not classify, whether exhaustively or at all, which bodies are to be regarded as organs as a matter of internal law. As a consequence, a State cannot avoid responsibility of a body which in fact constitutes an organ ‘merely by denying it that status under its own law’.42 In addition, the International Court of Justice in the Bosnian Genocide case has recently made clear that, quite apart from such issues and even if a person or entity can in no way to be classified as having the status of an organ under the internal law of the State in question, a person, group or entity may in exceptional circumstances be equated to an organ of a State, due to the particularly close relationship which exists with the State. The Court formulated the threshold in this regard as being that ‘the persons, groups or entities act in “complete dependence” on the State, of which they are ultimately merely the instrument’.43 As the Court went on to explain: In such a case, it is appropriate to look beyond legal status alone, in order to grasp the reality of the relationship between the person taking action, and the State to which he is so closely attached as to appear to be nothing more than its agent: any other solution would allow States to escape their international responsibility by choosing to act through persons or entities whose supposed independence would be purely fictitious.44 However, the Court emphasized that attribution on this basis ‘must be exceptional, for it requires proof of a particularly great degree of State control’.45 However, once a sufficiently close 46

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relationship exists, all acts of the ‘de facto’ organ are attributable to the State.46

References

(p. 244) 2 Entities empowered to exercise elements of governmental authority To respond to the need of decentralization, not ratione loci as in the case of the creation of public territorial communities, but ratione materiae, States more and more frequently authorize private institutions to exercise sovereign authority. The origin of this recent and widespread phenomenon is to be found in the aftermath of the First World War. For instance, the boycott of Japan between 1931 and 1932 was entrusted to the Kuomintang, a single political party that was not within the structure of the Chinese State, although still closely linked to it.47 Apart from the single political parties of totalitarian regimes that in reality act in the name of the State and monopolize political power, it is often the case today that private institutions are called upon to exercise elements of governmental authority. One example is that of airline companies which exercise functions of immigration control, another is private companies managing prisons. A further example are central banks that have their own legal status in many countries, distinct from the State and in no way tied to its economic policies. In response to the request for information by the Preparatory Committee of the Hague Conference some States likened the case of these entities to public territorial units, observing that acts resulting from these entities should be capable of attribution to the State.48 Thus, the Committee was led to discuss the question within the context of the Basis for Discussion No 16. According to it, the acts or omissions of autonomous institutions that exercise public functions of a legislative or administrative character engage responsibility if they are contrary to the State’s international obligations. The ILC was heavily influenced by this document when it adopted draft article 7 on first reading. The two paragraphs classify in turn the conduct of public territorial units and of separate entities as acts of the State. It was only on the second reading that the idea arose that an article of the draft should be specifically dedicated to entities empowered to exercise elements of the governmental authority. Where these entities are not integrated into the structure of the State, unlike public territorial units, this new approach seems more logical. Thus, in conformity with Article 5 of the Articles as adopted on second reading, the conduct of a person or entity that is not an organ of the State but is empowered by domestic law to exercise elements of the governmental authority is considered as an act of State in international law.

(a) The identification of entities exercising prerogatives of public power The proliferation of entities empowered to exercise elements of governmental authority in so-called market economy countries makes it all the more difficult to choose a criterion to identify them. Their activities take place in a wide range of areas and the legal regimes governing them are very different. If it is true that the common characteristic of these entities is that they enjoy a legal personality separate from that of the State, this does not mean that their other characteristics are not highly diverse. The participation of the State in their capital can be more or less significant. The same is true for the control that the (p. 245) State exercises over their activities. These factors could be considered as reliable indicators for the attribution of their behaviour to the State, but are not in themselves decisive. This is the conclusion to which the ILC came. For the ILC, ‘the most appropriate solution is to refer to the real common feature which these entities have: namely that they are empowered, if only exceptionally and to a limited extent, to exercise specified functions which are akin to those normally exercised by organs of the State’.49 It goes without saying that the State needs to have had a link to a part of the activities with which

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the entity has been charged in exercising governmental authority in order for the behaviour of the entity to be attributed to the State. The solution that has been maintained is compatible with the position taken in the doctrine as well as in the international case law.50

(b) The attribution of acts by entities exercising powers of the public prerogative to the State in international case law After the Second World War, the Franco-Italian Conciliation Commission was in charge of looking at the question of attributing behaviour of entities that are not truly State organs to the State. In its decision in Dame Mossé,51 the Commission was concerned with the question whether the confiscation of goods belonging to a French national by members of the Fascist entity that was restored in the Republic of Saló could be imputed to the Italian State, and whether the entity effectively exercised public prerogative powers or not. For the Commission, internal organization is in the eyes of international law what really exists within the State. International law does not consider the order specified by internal rules as such: its concern is with the situation that effectively and positively exists. Further, attribution extends to whoever possesses true public authority inside the State.52 On the basis of this argument the Commission attributed the internationally wrongful acts committed by the Fascist entity. The Iran-United States Claims Tribunal came to an identical conclusion in Hyatt International Corporation v Government of the Islamic Republic of Iran.53 The question was whether the seizure of goods belonging to foreigners by a charitable foundation could be attributed to the State of Iran. The Tribunal decided in the affirmative, arguing that the Iranian authorities had empowered the entity in question to exercise true governmental authority and to identify and confiscate wealth that had been illegally accumulated during the pre-revolutionary period.54 In Military and Paramilitary Activities in and against Nicaragua,55 it was the International Court that was concerned with entities empowered to exercise elements of the governmental authority. The case dealt with so-called ‘Unilaterally Controlled Latino Assets’ in the language of the CIA, persons paid by the United States and acting under the direct instructions of military personnel or intelligence services of the United States. The Court took into account the fact that this State participated in the preparation, command,

References (p. 246) and support of attacks carried out by these persons and concluded that their behaviour could be attributed to the United States.56 Judge Ago sought to justify the decision of the Court in his separate opinion by reference to the work of the ILC concerned with State responsibility. According to him ‘[t]he Court was also right to consider as acts of the United States of America the conduct of persons or groups that, without strictly being agents or organs of that State, belong nevertheless to public entities empowered within its domestic legal order to exercise certain elements of the government authority’.57 Indeed the decision of the Court conforms with article 7 adopted on first reading and taken up in article 5 adopted on second reading. Thus, as a general rule, the behaviour of all State organs and of all entities empowered to exercise elements of the governmental authority by domestic law is attributable to the State. Domestic law does not constitute in itself the decisive criterion for attribution. According such a position to domestic law in this subject area would be equivalent to giving the State the possibility of determining the extent of its responsibility itself on the international level; domestic law would provide States with a way out of responsibility. The domestic arrangement of powers and the fact that one or more persons may not have any official quality under domestic law do not mean that their behaviour cannot be attributed to the State. What is crucial in attribution to the State is the degree of control that the State exercises over

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the person at the time when the internationally wrongful act was committed. In addition to the exceptional category of ‘de facto’ organs identified by the International Court of Justice in the Bosnian Genocide case, attribution of the acts of which requires a particularly high degree of control, the ILC has also clarified the criteria under international law that permit attribution of behaviour to a State in articles 8 and 9 which concern other persons who lack any kind of formal nomination but supposedly act in the State’s name. Further reading L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite’ (1984-V) 188 Recueil des cours 9 J-P Quéneudec, La responsabilité internationale de l’État pour les fautes personnelles de ses agents (Paris, LGDJ, 1966) SFDI, Les collectivités territoriales non-étatique dans le système juridique international (Paris, Pedone, 2002)

References

Footnotes: 1 JB Moore, International Arbitrations (Washington, Government Printing Press, 1871), vol III, 3127. 2 1923, PCIJ, Series B, No 6, 22. 3 D Anzilotti, Cours de droit international (1929) (Paris, Panthéon Assas, 1999), 469. 4 Article 1 was adopted on first reading by the Third Commission of the Conference; reproduced in ILC Yearbook 1956, Vol II, Annex 3, 225. 5 ILC Yearbook 1973, Vol I, 56 (para 30) (1213th meeting). 6 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 238. 7 ILC Yearbook 1973, Vol I, 53–54 (paras 58–60) (1212th meeting) (Vallat); cf Ago’s response, ibid, 57 (para 32) (1213th meeting). 8 Ibid, 49 (para 4) (1212th meeting) (Ushakov). 9 Report of the ILC, 25th Session, ILC Yearbook 1973, Vol II, 191 (draft art 5). 10 Commentary to draft art 5, para 12; ibid, 193. 11 Suggestion of France, A/CN.4/488, 36. 12 Commentary to art 4, para 12, citing ILC Yearbook 1991, Vol II(2), 14–18. 13 Cf United Nations Convention on Jurisdictional Immunities of States and their Property, annexed to GA Res 59/38, 2 December 2004. 14 ILC Yearbook 1973, Vol I, 57 (para 42) (1213th meeting). 15 E Jiménez de Aréchaga, ‘International Responsibility’, in M Sørensen (ed), Manual of Public International Law (London, Macmillan, 1978), 544. 16 Cf Différend Société Verdol—Décisions Nos 20 et 34, 15 April and 16 November 1949, 13 RIAA 94. 17 Answers to points III, IV and V of the request for information, ILC Yearbook 1973, Vol II, 195 (para 6). 18 D Anzilotti, Cours de droit international (1929) (Paris, Panthéon Assas, 1999), 479. 19 The bases of discussion are reproduced in ILC Yearbook 1956, Vol II, Annex 2, 223. 20 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1999, p 62.

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21 Ibid, 87–88 (para 62). 22 Certain German Interests in Polish Upper Silesia, 1926, PCIJ, Series A, No 7, p 4, 19. 23 Cf G Scelle, Manuel de droit international (Paris, Domat Montchrestien, 1948), 921. 24 Note of US Secretary of State Bayard to the British Ambassador in Washington, 1 June 1885, JB Moore, A Digest of International Law (Washington, Government Printing Office, 1906), Vol VI, 742. 25 ILC Yearbook 1973, Vol I, 58 (para 45) (1213th meeting) (Ago). 26 ILC Yearbook 1973, Vol I, 58 (para 46) (1213th meeting) (Ago). 27 Gertrude Parker Massey (USA) v United Mexican States, 15 April 1927, 4 RIAA 155, 159. 28 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, and see C Coustère ‘L’arrêt de la Cour sur le personnel diplomatique et consulaire américain à Téhéran’ (1980) 26 AFDI 215. 29 J-P Quéneudec, La responsabilité internationale de l’État pour les fautes personnelles de ses agents (Paris, LGDJ, 1966), 55. 30 J Crawford & M Mauguin, ‘Les collectivités territoriales non-étatiques et le droit international de la responsabilité’, in SFDI, Les collectivités territoriales non-étatiques dans le système juridique international (Paris, Pedone, 2002), 158. 31 Héritiers de SAR Mgr le Duc de Guise, 3 April, 18 December 1950, 15 September 1951 & 20 November 1953, 13 RIAA 150. 32 Responses of States to the list of points. Supplement to Volume III. Bases of discussion established by the Preparatory Committee for the Work of the Conférence, LN doc C.75.M.69. 1929 V, 90. 33 See eg H Accioly, ‘Principes généraux de la responsabilité internationale d’après la doctrine et la jurisprudence’ (1959) 96 Receuil des cours 388. 34 Commentary on draft art 7 adopted on first reading, paras 5–10, ILC Yearbook 1974, Vol II(1), 279–280. 35 The conclusions are reproduced in ILC Yearbook 1956, Vol II, Annex 1, 222. 36 Salam Lerma Vda de Galvan (United Mexican States) v United States of America, 21 July 1927, 4 RIAA 273. 37 Estate of Hyacinthe Pellat (France) v United Mexican States, 7 July 1929, 5 RIAA 534, 536. 38 LaGrand (Germany v United States of America), Merits, ICJ Reports 2001, p 466, 495 (para 81). 39 Institut de Droit International, Resolution on Responsabilité internationale des Etats à raison des dommages causés sur leur territoire à la personne et aux biens des étrangers (Lausanne, 1 September 1927), art 2, available at . 40 Draft reproduced in ILC Yearbook 1956, Vol II, Annex 9. 41 M Sørensen ‘Federal States and the International Protection of Human Rights’ (1952) 46 AJIL 195, 210. 42 Commentary to art 4, para 11. 43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, para 392; the language of ‘complete dependence’ is taken from Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 62–63 (paras 109–110). 44 Ibid. 45 Ibid, para 393.

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46 See the discussion, ibid, para 397, distinguishing attribution on this basis from that where a person or entity has acted on the instructions, direction and control of a State. 47 C de Visscher, Théories et réalités en droit international (Paris, Pedone, 1960), 356. 48 Cf especially the response of Germany, reproduced in part in Commentary to draft art 7, para 15, Report of the ILC, 26th Session, ILC Yearbook 1974, Vol II(1), 281. 49 Commentary to draft art 7, para 18: Report of the ILC, 26th Session, ILC Yearbook 1974, Vol II(1), 282. 50 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite’ (1984) 188 Receuil des Cours 63. 51 Dame Mossé, 7 January & 6 October 1953, 13 RIAA 486, 493. 52 Ibid, 493. 53 Hyatt International Corporation v Government of the Islamic Republic of Iran (1985) 9 Iran-US CTR 72. 54 Ibid, 93. 55 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14. 56 Ibid, 50–51 (para 86). 57 Separate Opinion of Judge Ago, ibid, 187–188 (para 15).

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Part III The Sources of International Responsibility, Ch.19.2 Attribution of Conduct to the State: Insurrectional Movements Gérard Cahin From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 247) Chapter 19.2 Attribution of Conduct to the State: Insurrectional Movements 1 Success of the insurrectional movement 248 (a) Attribution to the State of the conduct of the movement 249 (b) Irrelevance of the international personality of the movement 251 2 Defeat of the insurrectional movement 252 (a) Non-attribution of the movement’s conduct to the State 252 (b) The exceptional responsibility of the insurrectional movement 253 Further reading 255 Under the title ‘Conduct of an insurrectional or other movement’, article 10 of the Articles on State Responsibility provides: 1 . The conduct of an insurrectional movement which becomes the new Government of a State shall be considered an act of that State under international law. 2 . The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law. 3 . This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9. This provision reflects the specific treatment the ILC gave to this issue from the beginning, in the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

light of abundant international practice and case law. At the same time, it highlights both the substantial relevance of the situations created by insurrectional movements in the occurrence of internationally wrongful acts and the specific questions which these situations raise in the context of attribution of conduct to the State. Roberto Ago, as Special Rapporteur for State responsibility, immediately outlined the particularity of these situations. For Ago, an insurrectional movement, which by definition has no organic relation with the official structure of the State it fights, cannot be considered its de facto organ, ie as a group of people acting on behalf of or, according to the formulation in article 8, ‘on the instructions of, or under the direction or control of, [the] State’. Similarly, a ‘qualitative difference’ distinguishes insurrectional movements from persons or groups participating in mass demonstrations, riots or other internal disturbances, for when the insurrectional movement establishes its authority over part of the State’s own or dependent territory,

References (p. 248) the movement establishes itself as a ‘separate subject of international law … perfectly capable of committing internationally wrongful acts’.1 But the movement is only a temporary entity, for its disappearance will occur in due course: either because of its defeat or because of its victory and consequent transformation into the government either of the pre-existing State or of a new State. This temporal indeterminacy distinguishes the insurrectional movement from a State or international organization acting in the territory of another State, justifying the necessity of to dedicate to it a separate provision. The position of the State injured by the wrongful act of an insurrectional movement, whether itself or through injury to its nationals or property, also depends on this temporal indeterminacy: if the injured State decides to turn to the State engaged in the fight with the insurrectional movement during the course of the conflict, it must wait until the outcome of the conflict before bringing a claim for responsibility. If the movement is defeated, the injured State has no choice but to bring a claim against the State engaged in the fight against the movement. On the other hand, if the insurrectional movement succeeds, the injured State must bring the claim against the new government formed by the movement or the government of the new State created by the movement. The result of its claim will thus be completely different in the two situations, as a result of which traditionally two opposing solutions are applied. The Draft Articles adopted on first reading dealt with these situations in two separate articles. Draft article 15 established a rule pursuant to which the wrongful acts of the successful insurrectional movement are attributable to the newly established government as an exception to the general rule contained in article 14, according to which the acts of insurrectional movements are not attributable to the State. Article 10 of the text adopted by the ILC contains no reference to these two hypotheses: considering that the attribution of conduct to a State is a necessary condition to determine its responsibility, the ILC, acting on the advice of the Special Rapporteur, finally deleted all the negative rules on attribution, disregarding the security they could grant to governments.2 It is therefore important to restore the specificity of the problems raised by the attribution to the State of the conduct of insurrectional movements, by considering successively the hypothesis of success and that of the defeat of the insurrectional movement.

1 Success of the insurrectional movement The conduct of an insurrectional movement is attributed to the State of which it becomes the new government or which it succeeds in creating in the pre-existing State’s territory or on territory under its administration. Nevertheless, article 10, which codifies this general rule, leaves open the question of the moment at which an opposition group may be characterized as an insurrectional movement. This characterization is independent of the recognition of the international personality of the insurrectional movement.

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References

(p. 249) (a) Attribution to the State of the conduct of the movement The result of significant condensation and successive pruning, the wording of Article 10 was not the object of principled opposition from governments.3 The wording of the article can be considered as a concise and distinct expression of international customary law: it reflects the fundamental idea according to which the scope of attribution matches the ‘limits of state sovereignty’.4 A significant arbitral case law, articulated by the mixed commissions instituted between several States and Venezuela (1902–1903) and Mexico (1910–1930), consecrated the ‘well-established rule of international law’ pursuant to which the State is responsible ‘in the case of a successful revolutionary government, as in the case of any other de facto government’.5 Diplomatic practice is in accordance with this case law: it found consolidation before the 1930 Hague Conference, as evidenced by the replies of several States to the requests for information posed by the Conference’s Preparatory Committee. Almost a century later, customary law has not changed on this point. The Iran-US Claims Tribunal has on many occasions applied this ‘accepted principle of international law’.6 The commitment of the Russian Government to honour the debt contracted by the Bolshevik government with French bondholders that it had dispossessed confirmed the authority recognized to the rule establishing the attribution to the State of conduct of revolutionary movements.7 Arbitrators and authors have advanced different justifications for this rule, assimilating the successful insurrectional movement to a de facto government or seeing the movement as the ab initio incarnation of a genuine national will. But the attribution of the movement’s conduct to the State is in practice independent from the former’s effective authority over a portion of the territory, and the outcome of the conflict is an inadequate means to retrospectively designate the authentic representative of the national will. The only pertinent explanation can be found in the principle of the continuity of the State, since from the moment of victory the movement maintains a close organic link with the State’s structures.8 In the first hypothesis, that of seizure of power within a State, the insurrectional movement integrates itself into the pre-existing State structures, so that the pre-existing State continues to be responsible even for the conduct of its organs which were engaged in the conflict against the movement before being replaced by the movement itself.9 Attenuating an initial position supported by very old precedents, the ILC considered that a State

References (p. 250) should not automatically assume responsibility for the conduct of a violent opposition movement linked to the authorities of a national reconciliation government established through a peace agreement.10 To the extent that this formulation is often accompanied by a general amnesty for crimes against humanity, as was the case in El Salvador, Guatemala, and Sierra Leone, impunity and irresponsibility will go hand in hand. True, the Statute of the Special Court for Sierra Leone denies any effect to the amnesty clause contained in the Lomé Peace Agreement,11 as has been confirmed by the Court itself.12 In any event, even in the case of full victory of the insurrectional movement, the continuity of the State may be jeopardized by new authorities equally keen to repress the exactions of their predecessors as to absolve those committed by the movement before attaining power.13 In the second hypothesis, the only acts attributable to the State created by secession or decolonization are those of the insurrectional movement at its origin, while the State from which the new State broke away without affecting its identity continues to assume responsibility for the conduct of its organs engaged in the fight against the insurrectional movement. An example is the

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1962 agreement between France and Algeria. Pursuant to the Declaration of Principles on Financial and Economic Cooperation, included in the Evian Accords of 19 March 1962, the Algerian State expressly assumed the obligations deriving from the internationally wrongful acts which occurred before the date of the transfer of rights and obligations contracted by France on behalf of Algeria. Even if Algeria did not fully respect its undertaking, the principle has been constantly applied by French jurisdictions: as affirmed by the Conseil d’Etat, if the general rule of the transfer does not have the effect of placing on the Algerian State the obligation of reparation of injuries caused by measures specially and directly taken by French authorities in order to defeat the insurrectional movements, the compensation of the damages attributable to the insurrectional element concerns the Algerian State.14 Both of the hypotheses distinguished by article 10 seem to have been confused by the High Court of Namibia, which held Namibia responsible for the crimes perpetrated by the South African armed forces before its independence.15 Nevertheless, according to the ILC, this distinction does not impede the possibility of taking into account exceptional cases, where the change in government in reality corresponds to a change in the identity of the State following a revolution or in a situation similar to the replacement of a racist regime like that of Ian Smith in Rhodesia by the national liberation movement which proclaimed the State of Zimbabwe.16 In this case, the exclusion of responsibility of the new government for the acts of its predecessor constituted a better guarantee, eliminating the possibility of ‘parallel attribution’ of the conduct of the predecessor government also to

References (p. 251) the new State constituted in all or part of ‘the territory formerly under the sovereignty of the pre-existing State’.17 But in both these hypotheses, the attribution to the State of the conduct of the movement since the beginning of the insurrection requires a more precise characterization of the movement.

(b) Irrelevance of the international personality of the movement The ILC carefully abstained from defining the term ‘insurrectional movement’, owing to the different forms that these movements may have in practice and the different situations in which they may arise, ranging from limited armed oppositions to civil wars, revolutionary or counter-revolutionary processes, or a national liberation war. The notion of insurrectional movement is not easily reduced to any of these situations. In fact, the definition cannot depend on the movement’s location, which could be either the territory of the State that it is fighting or the territory of a third State, or on the objectives it seeks, which could be the overthrow of the established government or the creation of a new State. Contrary to Ago’s draft article 12(2), the ILC refused to limit the application of the articles to a movement endowed with ‘a separate international personality’, thereby avoiding taking any position on the very delicate question of the requirements for international personality.18 In the past, the international personality of the movement depended on the success it had achieved: the movement was considered an evolving governmental apparatus to which the principle that ‘physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States’.19 The insurrectional movements and situations examined by the ILC were, in reality, far from the level which would have allowed them to attain international personality as belligerents. In addition, the classic institutions invoked in support of this personality, like the recognition of insurgency or belligerency, seem to have now fallen into desuetude.20 Instead, the international personality of the insurrectional movement is more likely to be the result of the international obligations contracted through a peace agreement with the government and internationalized by the participation of the United Nations or a regional organization.21

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The situation is similar for national liberation movements involved in decolonization efforts. The recognition of their international personality has been encouraged and accelerated by international organizations, on the basis of legitimacy criteria. The ILC refused, precisely for reasons of legitimacy, to give national liberation movements a status of their own, only implicitly referring to them through the indeterminate wording of ‘insurrectional or other movement’.22 This position was strongly criticized.23 The argument according to which these movements have the right to resort to armed force and apply the relevant rules of the law of armed conflicts contained in Additional Protocol

References (p. 252) I to the Geneva Conventions24 is without doubt pertinent for the purposes of determining the existence of violations of international law, but not for the purposes of determining the attributability of this conduct. The fact that the movement’s conduct is regulated by the ius in bello entails that its responsibility for breaches of this body of law must be subjected to the same regime that applies to violations by the armed forces of a belligerent State, to which they are equated.25 In reality, the determination of the moment in which an opposition group may be characterized as an insurrectional movement for the purposes of attribution of conduct depends less on a categorical determination than on a case-by-case pragmatic approach. In this respect, the application of the law of non-international armed conflict contained in Additional Protocol II to the Geneva Conventions26 may be a useful starting point.27 According to article 1, Additional Protocol II applies to ‘armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’, to the exclusion of ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’. Only a movement satisfying the conditions laid down in article 1 of Additional Protocol II may trigger the application of the rules contained therein. For example, the International Criminal Tribunal for Rwanda considered that the Rwandese Patriotic Front (RPF) met these conditions,28 and the competent organs of the UN and the OAS considered that the Sudanese People’s Liberation Movement, the FMLN in Salvador, and the armed opposition groups in Colombia also did so.29 According to the ILC, this definition reflects the essential idea of insurrectional movements, based on objective elements which could be used both within the framework of Additional Protocol II and independently from it. Such strict conditions, however, would seem to limit the envisaged situations to those of a largescale civil war.

2 Defeat of the insurrectional movement In case of defeat, the rule applicable is the opposite of the rule applicable in cases of victory: just like during the hostilities, the defeat of the movement precludes any attribution of its conduct to the State. This solution does not exclude the theoretical possibility of the movement’s international responsibility, although in practice no injured State has ever brought claims against insurrectional movements.

(a) Non-attribution of the movement’s conduct to the State The ‘well-established principle of international law’ that a government cannot be held responsible for damages caused to foreigners by an insurrectional movement engaged in a struggle

References (p. 253) against it, either during the fighting or a fortiori after the movement has been defeated, is 30

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based on a long and widely established practice and case law.30 Developed during the 19th century, on the basis of such different situations as the American Civil War, the Commune of Paris, the revolt of Abi Pasha in Egypt, the Carlista movement in Spain, the insurrections for the independence of Cuba and against numerous Latin American governments, this rule was also applied by the arbitral case law mentioned earlier in relation to the victory of insurrectional movements and was also confirmed by States at the 1930 Hague Conference.31 After World War II and during the 1960s, the Indonesian rebellion at Celebes and the civil war in the Congo provided new precedents for the rule of non-responsibility of the State. Although criticized for sacrificing the interests of foreign victims of the conflict, leaving them to wish for the victory of the insurrection, this solution is justified by the impossibility of attributing to the State the unlawful conduct of an entity which is by definition structurally and functionally independent from it. The State’s victory over the insurgents does not however exonerate it from responsibility for the acts of its organs engaged in the fighting, as clearly held by Huber in the British Claims in Spanish Morocco case.32 The failure to take the necessary measures to protect diplomatic missions or the grant of a general amnesty to rebels constitute, in this respect, characteristic breaches of the due diligence obligation of States requiring them to prevent, during the insurrection, and punish, especially after the insurrection, the unlawful acts of the movement. Although this possibility is envisaged in article 10(3), the attribution of such a failure to the State is much more exceptional than in cases where the State is dealing with riots or mass demonstrations, for in the former case the attribution may be limited by various factors, such as the incapacity of the State to control the activities of a movement which has acquired and maintained control over a portion of its territory.33 The refusal to resort to force in the metropolitan territory was considered by certain arbitral awards of the beginning of the 20th century as negligence in the repression of the rebellion, but the same strict standard was not applied when rebellions erupted in remote colonial territories, like in the of Southern Rhodesia when a racist colonial minority proclaimed its independence in 1965.34 To the contrary, in cases of national liberation movements engaged in self-determination struggles, colonial States have an obligation to abstain from any coercion and third States have an obligation not to lend support to the colonial State. Together with the non-responsibility of the State for the conduct of insurrectional movements, these objective limits to the State’s responsibility for the acts of its organs further justify the still exceptional international responsibility of the insurrectional movement.

(b) The exceptional responsibility of the insurrectional movement As recognized by the ILC, the ‘organs of an insurrectional movement … may engage in conduct liable to bring an international responsibility upon the insurrectional movement itself’.35 This statement is supported by claims addressed during the course of the hostilities

References (p. 254) to insurrectional movements by several States for damages caused to their nationals. Thus the United Kingdom which presented claims to the Confederate Government during the American Civil War and to the nationalist government during the Spanish Civil War.36 But outside these claims for responsibility in the strict sense, today the possibility of attaching responsibility to insurrectional movements is more easily obtained through other means. Individual criminal responsibility is one such means. It is not limited to organs or public agents of the State, but rather extends to all political leaders and those executing their orders. The International Criminal Tribunal for the Former Yugoslavia has thus declared that crimes against humanity ‘can be committed on behalf of entities exercising de facto control over a particular territory but without international recognition or formal status of a de jure state, or by a terrorist group or organization’.37 The same is applicable to the crime of torture committed by non-State entities in either international or non-international armed conflicts.38 Individual criminal responsibility has in

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fact a privileged area of application in the law of armed conflicts, which is not binding solely on the State but also on all the other actors and victims of the conflict.39 According to a now wellestablished practice, the Security Council equally reminds States and non-State entities involved in armed conflicts to respect their obligations under international humanitarian law and affirms that those who violate those obligations ‘are responsible and accountable individually’: the Special Court for Sierra Leone thus had as its principal objective the prosecution of the head of the Revolutionary United Front (RUF), Foday Sankoh, and his principal lieutenants.40 But the individual criminal responsibility of its leaders is not an obstacle to the international responsibility of the insurrectional movement, as an entity distinct from its members, and this is confirmed by the practice of the Security Council. Thus the Council, having invited in 1948 the Jewish Agency for Palestine and the Arab Higher Committee to arrange a truce ending the confrontation between ‘Arab and Jewish armed groups’, emphasized the ‘heavy responsibility which would fall upon any party failing to observe such a truce’.41 In the conflict in the Democratic Republic of the Congo, the Security Council more explicitly considered that the ‘Rassemblement Congolais pour la Démocratie-Goma, as the de facto authority, responsible to bring to an end all extrajudicial executions, human rights violations and arbitrary harassment of civilians in Kisangani, and all other areas under RCD-Goma’s control’.42 But violation of international humanitarian law is not the only source for the emerging international responsibility of insurrectional movements. Indeed, for the Security Council the movement’s failure to comply with obligations contracted through an internationalized peace agreement constitutes an autonomous reason for the adoption of coercive measures to procure respect for the agreement, such as the measures adopted in the case of UNITA in Angola.43 However, as evidenced by the rare and very old precedents cited by the ILC, the injured State will only exceptionally assert the responsibility of the insurrectional movement.

References (p. 255) Indeed, the injured State will not be very inclined, during an insurrection, to address to the movement a claim that is likely not to be accepted and that will be interpreted as a grant of an unwanted recognition to the movement. This consideration adds a practical justification to the decision of the ILC to eliminate any reference to the international responsibility of insurrectional movements or of any other non-State entities. Article 14(3) of the 1996 draft permitted the attribution of conduct to the movement ‘in any case in which such attribution may be made under international law’. In the absence of any other requirement, this hypothesis invites the application by analogy of the case of attribution of conduct to the State. When dealing with the conduct of a ‘person or group of persons acting … as organs of an insurrectional movement’44 and of an ‘organ of an insurrectional movement’,45 the previous drafts of what became article 10 required, as a condition of attributability, that the movement have a certain degree of organization, as required for attribution of conduct to other corporate bodies. To the extent that the governmental purpose of the insurrectional movement often leads it to adopt a State-like structure, the principle announced in article 4, according to which the acts of its organs are attributable to the State, is perfectly transposable to a highly structured movement or to a movement which has attained the authority of a de facto government, as in the case of the Taliban regime in Afghanistan. The same is not true of more modest armed opposition groups which have only a rudimentary organization. Since these groups do not exercise effective control over territory and do not have complete authority over their members, it is more difficult to determine if violations of humanitarian law are the manifestation of a coordinated policy of the group or the result of localized and individual initiatives which have gone unpunished.46 In a different context, the Iran-US Claims Tribunal was faced with the delicate task of establishing whether the conduct in question was attributable to the movement, and in consequence, to the State whose authorities it replaced: it was

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easy for the Tribunal to attribute to the new government of the Islamic Republic of Iran the declarations and acts of the Ayatollah Khomeini, of the ‘revolutionary guards’ and of the ‘revolutionary committees’. Several judgments, however, refused to attribute to the new Iranian Government the unlawful conduct of simple partisans and other agents of the revolutionary Government, due to the absence of sufficient evidence of a link between these persons and the government.47 In these conditions, it does not seem very realistic to attribute to a group, by analogy to the rule in article 7, the conduct of an organ or a person or entity exceeding its authority or contravening instructions. Further reading M Akehurst, ‘State Responsibility for the Wrongful Acts of Rebels—An Aspect of the Southern Rhodesian Problem’ (1968–1969) 57 BYBIL 49 H Atlam, ‘National Liberation Movements and International Responsibility’, in M Spinedi & B Simma (eds), United Nations Codification of State Responsibility (New York, Oceana Publications, 1987), 35

References (p. 256) FW Dahmane, ‘Les mesures prises par le Conseil de sécurité contre les entités nonétatiques’ (1999) 1 RADIC 227 P Daillier, A Moutier-Lopet, A Robert, & D Müller, ‘Tribunal irano-américain de reclamations’ (2002) 48 AFDI 407 E David, Principes de droit des conflits armés (Bruxelles, Bruylant, 2002) P Dumberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’ (2006) 17 EJIL 605 L-C Green, ‘Le statut des forces rebelles en droit international’ (1962) 66 RGDIP 5 T Kamenov, ‘The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conflicts’, in F Kalshoven & Y Sandoz (eds), Mise en oeuvre du droit international humanitaire (Dordrecht, Nijhoff, 1989), 169 P-H Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’, in K Wellens (ed), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague, Nijhoff, 1998), 333 R-A Prieto Sanjuan, Contribution à l’étude de la responsabilité internationale des entités non-étatiques participant à un conflit armé non international (Paris, Atelier National de Reproduction des Thèses, 2002) L-A Sicilianos, ‘La responsabilité de l’Etat pour absence de prévention et de répression des crimes internationaux’, in H Ascencio, E Decaux, & A Pellet (eds), Droit international pénal (Paris, Pedone, 2000), 115 S Szurek, ‘Epilogue d’un contentieux historique—L’accord du 27 mai 1997 entre le gouvernement de la République française et le gouvernement de la Fédération de Russie relatif au règlement définitif des créances réciproques entre la France et la Russie antérieures au 9 mai 1945’ (1998) 44 AFDI 144 L Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability (Cambridge, CUP, 2002)

Footnotes: 1 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 129 (para 153). 2 See J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 48–49. The document is the summary of recommendations for Chapter II where the Rapporteur recommends the deletion of draft arts 11–14, dealing with the negative rules on attribution. The reasons supporting his recommendation are contained in: ibid, 48–49 (paras 244–248) in relation to draft art

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11; 49–50 (paras 249–252) in relation to draft art 12; 50–51 (paras 253–259) in relation to draft art 13; and 53–54 (paras 276–277) in relation to art 14. 3 See ‘State Responsibility, Comments and Observations received from Governments’, A/CN.4/515, 19 March 2001, 25. See also, ILC Yearbook 1980, Vol II(1), 87–106. 4 B Stern, ‘Responsabilité internationale’, in Encyclopédie Dalloz, Répertoire de Droit International (2nd edn, Paris, Dalloz, 1998), §20. 5 Dix US-Venezuela Mixed Claims Commission, 1903–1905, 9 RIAA 119, 120. Cf Bolívar Railway (Merits), Great Britain-Venezuela Mixed Claims Commission, 1903, 9 RIAA 445. 6 Jack Rankin v Islamic Republic of Iran (1987) 17 Iran-US CTR 135, 143. Cf Kenneth P Yeager v Islamic Republic of Iran (1987) 17 Iran-US CTR 92, 101. 7 S Szurek, ‘Epilogue d’un contentieux historique—L’accord du 27 Mai 1997 entre le gouvernement de la République Française et le Gouvernement de la Fédération de Russie relatif au réglement définitif des créances réciproques entre la France et la Russie antérieures au 9 Mai 1945’ (1998) 44 AFDI 144. 8 P Dunberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’ (2006) 17 EJIL 605, 611–612. 9 For a contrary solution, see the decision of the High Court of Uganda in relation to the nonexecution of a contract concluded by the rebels with a Canadian company: 44213 Ontario Ltd v Krispus Kiyonga (1992) 11 Kampala LR 14, 20; 103 ILR 259, 266. 10 Commentary to art 10, para 7. 11 UN Doc S/2000/915, 4 October 2000. 12 Special Court for Sierra Leone, Prosecutor v Morris Kallon and Brima Buzzy Kamara, Case Nos SCSL-04-15-AR-72(E) and SCSL-04-16-AR-72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, 13 March 2004. 13 L-A Sicilianos, ‘La responsabilité de l’état pour absence de prévention et de répression des crimes internationaux’, in H Ascencio, E Decaux, & A Pellet (eds), Droit international pénal (Paris, Pedone, 2000), 115, 127. 14 Conseil d’Etat, Perriquet, 15 March 1995, Recueil Lebon; Conseil d’Etat, Hespel, 5 December 1980, Recueil Lebon; Conseil d’Etat, Consorts Hovelaque, 13 January 1984; Conseil d’Etat, Grillo, 28 July 1999; see also J Charpentier, ‘Pratique française du droit international’ (1963) 8 AFDI 1014, 1015–1016, 1021–1023. 15 Minister of Defence, Namibia v Mwandinghi, 1992 (2) SA 355; 91 ILR 341, 361. 16 Commentary to draft art 14, para 7, Report of the ILC, 27th Session, ILC Yearbook 1975, Vol II, 47, 92. 17 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 151 (para 214) (draft art 13). 18 See, especially, the debates of the 1312th meeting of the Commission, 20 May 1975, ILC Yearbook 1975, Vol I, 41–46. 19 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 54 (para 118). 20 LC Green, ‘Le statut des forces rebelles en droit international’ (1962) 66 RGDIP 5–33. 21 PH Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’, in K Wellens, International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague, Nijhoff, 1998), 333–340. 22 Commentary to art 10, para 11.

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23 H Atlam, ‘National Liberation Movements and State Responsibility’, in M Spinedi & B Simma (eds), United Nations Codification of State Responsibility (New York, Oceana Publications, 1987), 35–36. 24 1125 UNTS 3. 25 T Kamenov, ‘The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conflicts’, in F Kalshoven and Y Sandoz (eds), Mise en ouvre du droit international humanitaire (Dordrecht, Nijhoff, 1989), 169–190. 26 1125 UNTS 609. 27 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 52 (para 270). 28 ICTR, Prosecutor v Akayesu, Case No 96-4-T, Judgment, Appeals Chamber, 2 September 1998, (para 267). 29 L Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability (Cambridge, CUP, 2002), 160–164. 30 See GL Solis (USA) v United Mexican States, US-Mexico Mixed Claims Commission, 3 October 1928, 4 RIAA 358, 361. Cf Sambiaggio, Italy-Venezuela Mixed Claims Commission, 1903, 10 RIAA 499. 31 ILC Yearbook 1975, Vol II, 100–106. 32 Cf Affaire des biens britanniques au Maroc espagnol (Espagne contre Royaume-Uni), 1 May 1925, 2 RIAA 615. 33 ILC Yearbook 1975, Vol II, 92 (para 4). 34 M Akehurst, ‘State Responsibility for the Wrongful Acts of Rebels—An Aspect of the Southern Rhodesian Problem’ (1968–1969) 57 BYIL 49–70. 35 Commentary to draft art 14, para 3, ILC Yearbook 1975, Vol II, 91–92. 36 Commentary to draft art 14, para 28, ibid, 98–99. 37 ICTY, Prosecutor v Tadić, Case No IT-94-1-T, Judgment, Trial Chamber, 7 May 1997, 112 ILR 1, 220–222 (paras 654–657). 38 ICTY, Prosecutor v Delalić (Čelebići Camp case), Case No IT-96-21-T, Judgment, Trial Chamber, 10 December 1998 (para 473). 39 E David, Principes de droit des conflits armés (Brussels, Bruylant, 2002), 642–645. 40 SC Res 1315, 14 August 2000. 41 SC Res 43 (1948), 1 April 1948, para 2. 42 SC Res 1417, 14 June 2002, para 4. 43 FW Dahmane, ‘Les mesures prises par le Conseil de Sécurité contre les entités non-étatiques’ (1999) 1 RADIC 227–244. 44 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 143 (draft art 12(2)). 45 See J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 51 (para 261) (draft art 14). 46 See the example of the Colombian armed groups, cited L Zegveld, Armed Opposition Groups in International Law: The Quest for Accountability (Cambridge, CUP, 2002), 170–174. 47 Alfred L W Short v Islamic Republic of Iran, 16 Iran-US CTR 76, 85; Arthur Young and Company v Islamic Republic of Iran, 17 Iran-US CTR 245, 257.

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Part III The Sources of International Responsibility, Ch.19.3 Attribution of Conduct to the State: Private Individuals Olivier de Frouville From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 257) Chapter 19.3 Attribution of Conduct to the State: Private Individuals 1 The rule of non-attribution of the conduct of private persons to the State 261 (a) The exposition of the rule 261 (b) The scope of the rule 263 2 The attribution to the State of conducts of private person linked to the activity of the State 264 (a) Control of the State: the de facto organ (ARSIWA, article 8) 265 (b) The use of public power in the absence or default of the State (ARSIWA, article 9) 271 (c) A posteriori endorsement of conduct by a State (ARSIWA, article 11) 273 3 ‘Catalysis’ of international State responsibility for conducts of private persons 275 (a) Rejection of the theory of complicity 275 (b) Responsibility of the State for its own act 277 Further reading 280 In international law, attribution fulfils a double function in the theory of responsibility. The first consists of designating a responsible person (legal or natural) who will bear the consequences of this responsibility, even though the person in question may not necessarily be the direct author of the act. The second function lies in the triggering of the application of a particular regime of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

responsibility: international responsibility of a State or an international organization, where the conduct at issue is attributable to one of these legal persons, or criminal responsibility of the individual where the conduct is attributable to a natural person. The application of the two regimes of responsibility can be simultaneous, as the two cases relating to the Application of the Convention on the Prevention and Punishment of the Crime of Genocide1 at the International Court and the trial of Slobodan Milosevic, former president of the Federal Republic of Yugoslavia before the International Criminal Tribunal for the former Yugoslavia, show. In this instance there is a parallelism which results in no confusion. The two regimes have their own rules and pursue different objectives. Here, we will only discuss the international responsibility of the State, that is to say the situations in which an internationally wrongful act can be attributed to the State.

References (p. 258) A reading of classical authors shows that, for the main part, the general principles of State responsibility for or in relation to the conduct of private individuals have hardly changed. But the theoretical assumptions which underpin these principles have been altered, so that the solutions maintained by the ILC Articles do not bear any resemblance to those proposed by Hugo Grotius. The essentials of the subject can nevertheless be found in The Rights of War and Peace.2 In this work Grotius approached the question of attribution from two perspectives. In search of causes for which wars are undertaken Grotius distinguished between two types of acts that give rise to reparation or punishment.3 The first type related to what would today be called civil responsibility, while the second was more concerned with criminal responsibility. One can be a priori surprised that academic authors refer only to the discussion relating to criminal law contained in Chapter XXI (Of the Communication of Punishments) of Book II and neglect Grotius’ reflections on reparation for injuries in Chapter XVII (Of the Damage done By an Injury, and of the Obligation Thence Athence rising); it seems evident that the latter are more easily transferrable to international law, where the system or responsibility has more the character of civil than criminal responsibility. But on the one hand, Grotius himself wrote that the rules on attri bution are fairly similar in the criminal and civil field: ‘For generally, by the same Means a Man may be Partaker of another’s Crime, as he is made liable to the Reparation of such Damages’.4 On the other hand, the specific topic of the responsibility of any kind of group for the act of an individual is not dealt with until Chapter XXI, which makes the formu lations that can be found there a priori more interesting for an internationalist in search of teachings on the issue of State responsibility for the acts of individuals. In reality, this specificity is only evident through the intermediary of the person of the sovereign, having its own will. It is in Chapter XXI that the key idea can be found, stating that where the act in question does not have any link with the State, it should not be imputed to it as a collectivity: No civil Society, or other publick Body, is accountable for the Faults of its particular Members, unless it has concurred with them, or has been negligent in attending to its Charge.5 Grotius, as always, relies on the practice and on the writings of classic thinkers. He notes in particular that: And the Rhodians beg of the Senate to distinguish betwixt the Fact of the Publick, and the Fault of particular Men; affirming that there is no State which has not sometimes wicked Subjects and always an ignorant Mob to deal with. So neither is a Father responsible for his Children’s Crimes, nor a Master for his Servants, nor any other Superior for the Faults of those under his Care; if there be nothing criminal in his conduct, with respect to the Faults of those, over whom he has Authority.6 The principle of irresponsibility is thus nuanced by the theory of active or passive complicity of the State, to which the idea of co-responsibility in Chapter XVII corresponds. Grotius distinguishes

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complicity/co-responsibility by action where a person contributes by his own act to the act from complicity/co-responsibility by omission where it shows negligence. (p. 259) Active co-responsibility is defined in Chapter XVII in the following manner: Besides the Person that doth the Injury himself, there are others also who may be responsible for it, either by doing what they ought not, or not doing what they ought to have done. By doing what they ought not to have done, Primarily, or Secondarily. Primarily, as he who commands it to be done, he who gives the necessary Consent for doing it, he who assists in the Action, he who protects him that committed it, or becomes in any other manner a Party in doing the Injury. Secondarily, He that advises the doing it, or commends and flatters him who does it.7 As for responsibility for negligence, it does not apply under the same conditions for acts that are subject to punishment and acts entailing reparation. The lack of action in relation to acts subject to punishment automatically engages responsibility in the form of passive complicity. According to Grotius, this negligence can occur in two forms: tolerance (patientia) and the offer of a retreat (receptus) or, in other words, the act of on the one side not having prevented the commission of a delict while having knowledge of the existence of this delict; and on the other hand the act of not having punished or handed over the criminal.8 On the other hand, negligence in relation to an act giving rise to reparation only engages responsibility in so far as the omission breaches an obligation of its author: By not doing what he ought, a Man is likewise bound to make Reparation, primarily, or secondarily. Primarily, when by his Station or Office he ought to hinder the doing it, by giving his Commands to the contrary, or to succour him that has the Wrong done him, and does it not … Secondarily, He that doth not dissuade when he ought, or conceals the Fact when he ought to have discovered it. In all which Cases the word ought, has Respect to that Right which is properly so called, and is the Object of expletive Justice whether it arise from the Law or from a certain Quality in the Person. For if it be due only by the Rules of Charity, the Omission of it is indeed a Fault, but not such an one as obliges one to make reparation; which, as I have already said, arises only from Right properly so called.9 In this theory, there is thus no co-responsibility in the sense of shared responsibility for the same act. The co-responsibility which is envisaged here is understood to be two responsibilities for two distinct acts, the first original and the second intervening in relation with the first. We find here the premises of the responsibility by catalysis later described by Roberto Ago. Grotius’ reflections on the question of attribution are, as we can see, rich and complex and the past and current presentations of the law in the area owe much to it. As for the past, the transposition of the Grotian doctrine to the modern framework of international law can be attributed to Emmerich de Vattel, whose work on the topic has enriched the doctrine and jurisprudence of the 19th and early 20th century. (p. 260) In his masterpiece10 Vattel follows, on the subject of attribution, a two-fold approach. The first consists in the confirmation of the irresponsibility of the State for the acts of individuals: However, as it is impossible for the best regulated state, or for the most vigilant and absolute sovereign, to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to the nation or the sovereign every fault committed by the citizens. We ought not then to say in general, that we have received an injury from a nation, because we have received it from one of its members.11

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More than Grotius who adhered above all to the description of the ‘practice’, Vattel underlines the substantive foundation of the rule: it rests on the requirement of retributive justice linked to a recognition of the free will of the State, in other words a subjective conception of responsibility. This is in fact only possible from the moment that, to paraphrase Dionisio Anzilotti,12 there exists a relationship between the material fact that is complained of and a determined subject. The transposition to international law naturally happens through the recognition of the State as a legal person, which constitutes the premise for the modern theory of international law, Vattel being the first to formulate it in a coherent manner.13 The second step in Vattel’s analysis resides in the listing of ‘exceptions’ to the rule of irresponsibility. Here he takes up again the theory of complicity/co-responsibility put forward by Grotius, nevertheless restricting it to situations where the State has not participated directly in the alleged acts. Responsibility can thus result from the action of the State: But if a nation or its chief approves and ratifies the act of the individual, it then becomes a public concern and the injured party is to consider the nation as the real author of the injury, of which the citizen was perhaps only the instrument.14 Or its omission: The sovereign who refuses to cause reparation to be made for the damage done by his subject, or to punish the offender, or finally, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it.15 Beyond their own complexity, these writings immediately allow us to discern the essence of the subject that we are concerned with, which has hardly changed since 1625. The basic rule appeared clearly in the writings of past and current authors: the State should not be held responsible for acts committed by private persons. Here, we can see that the regime of international responsibility was and remains a regime that is mainly articulated around a subjective conception of responsibility. Responsibility results from the imputation of an act to a subject of the international legal order, in other words a legal (p. 261) person endowed with sovereignty, this being nothing more than the equivalent for the State on the international level of the liberty of the individual on the domestic level.16 The process of ‘objectivization’ of this regime by erasing harm and fault under the influence of ILC Special Rapporteur Ago has certainly weakened this subjective character, but has not completely eliminated it.17 There are two ‘exceptions’ which are not really exceptions at all, in the sense that they do not really constitute special cases where the responsibility of the State is engaged by the act of individuals in derogation from the general rule, but rather situations where the responsibility of the State is engaged in an autonomous manner, following classical principles of imputation. The first situation is where the responsibility of the State is engaged by acts which are a priori attributable to individuals but which eventually turn out to be attributable to the State, because of the existence of a factual link between these acts and State activity. The second situation concerns the case where the responsibility of the State is catalysed by the act of a private person: the responsibility of the State is engaged not on the basis of this act, but on the basis of an act of the State by which it violates its own obligations in international law.

1 The rule of non-attribution of the conduct of private persons to the State First the statement of the rule must be examined, both from a theoretical and legal point of view, before determining its exact scope.

(a) The exposition of the rule

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In international law, the State as a person is only responsible for acts which are attributable to it. This autonomy of the State as a person makes it in theory impossible to attribute to the State acts of persons or things that it does not ‘watch over’. The rule thus ensues above all from a theoretical requirement: attribution can only occur in relation to an autonomous person and autonomy requires that only acts resulting from an exercise of free will can be attributed to it. Objectified, this condition implies that only acts that can be attached to a State objectively through a legal, functional, or factual link or through an organ can be attributed to that State. In addition to this theoretical foundation, the rule is based on an important practical consideration: it cannot be required of a State that it is in control of all the events which take place on its territory, short of obliging it to become a totalitarian State. As a result, as the International Court held in Corfu Channel,18 territorial sovereignty should not be considered as immediately entailing the responsibility of the State for all wrongful acts committed on its territory, or as implying a shift of the burden of proof of this responsibility.19 Such a systematic link between territorial sovereignty and responsibility can only result from a regime of objective responsibility ‘for risk’. But responsibility on this basis is no longer based on the atttribution of a wrongful act to the State. The rules which govern this

References (p. 262) type of responsibility do not have the character of ‘secondary’ rules, in other words rules the implementation of which is subordinate to the previous occurrence of a wrongful act, that is to say a breach of a ‘primary’ obligation. The rule which lays down the principle of objective responsibility is as such a new primary rule which prescribes reparation by the State for all harm caused on the territory, whoever the perpetrator of the harm may be.20 From then on, there is no ‘imputation’ to the State of wrongful acts by private persons who are potentially the source of the harm, since responsibility does not require a wrongful act or the imputation of the act to this person for it to be engaged. Within the ILC, the rule of non-attribution was drawn up by Special Rapporteur Ago in his Fourth Report in 1972.21 The Special Rapporteur proposed to state it in the first paragraph of the draft article headed ‘Conduct of private individuals’. The second paragraph had the purpose of specifying that this rule is without prejudice to the engagement of the responsibility of the State for the breach of its own obligations in relation to the acts of individuals: ‘[t]he conduct of a private individual or group of individuals, acting in that capacity, is not considered to be an act of the State in international law’.22 The discussions of draft article 11 took place in 1975.23 All the members agreed on the relevance of the principle stated in paragraph 1. Several members nevertheless highlighted the not very appropriate character of the term ‘individual’ and moved the Special Rapporteur and the Drafting Committe to replace it with the word ‘person’, which covers both legal and physical persons. More profoundly, Paul Reuter observed during the discussion that draft article 11, as a whole, did not contribute anything to the draft articles in the sense that ‘its only purpose was to explain the consequences of what had been stated in preceding articles and what would be stated in subsequent articles’. Therefore, ‘if it did not appear in the draft articles, the substance of international law would not be changed’.24 Despite this lucid observation, draft article 11 was provisionally maintained in the draft and adopted by the Commission as revised by the Drafting Committee: ‘[t]he conduct of a person or a group of persons not acting on behalf of the State shall not be considered as an act of the State under international law’.25 At the presentation of the text, the president of the Drafting Committee explained that ‘for the sake of precision, and in order to employ the language already used in [draft] article 8’ which dealt with the attribution to the State of the conduct of persons acting in fact on behalf of the State, the Committee preferred ‘to replace the phrase “acting in a purely private capacity” by the phrase “not acting on behalf of the State” ’.26

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In this form, draft article 11(1) in fact appeared to be the converse of article 8(a). This explains why, in 1980 Chile proposed in its comments on the draft articles to merge the provisions of draft article 11(1) with draft article 8(a),27 while in 1998, the United States proposed the simple deletion of draft article 11. This option was preferred by the new Special Rapporteur James Crawford, and subsequently also by the ILC itself. In his report, the Special Rapporteur notes the lack of autonomous content of draft article 11:

References (p. 263) On analysis, it says nothing more than that the conduct of private individuals or groups is not attributable to the State unless that conduct is attributable under other provisions of chapter II. This is both circular and potentially misleading.28 James Crawford thus proposed the deletion of article 11, while suggesting that the substance of the commentary to the article should be maintained and redeployed elsewhere. With the deletion of article 11(1), the draft articles have become undoubtedly less educational but more logical, in the sense that the subject of this part of the draft consists of the description of cases of attribution of conduct of private persons to the State. In fact, article 11(1) fulfilled no function because of its negative wording.

(b) The scope of the rule The rule of non-attribution covers all acts of all private persons who do not act on behalf of the State, including acts of persons who, although they have the status of State agents, when they act do so in their personal capacity.29 In essence, we can find here the old distinction of French administrative law between personal faults and faults in service (fautes de service).30 But the whole difficulty consists in drawing the line between purely private acts and ultra vires acts, or in other words the act committed by a person under the cover of his official function but in excess of his authority or in contradiction to instructions given to him. The stakes are not low: while purely private acts of a State agent should not be attributed to the State, ultra vires acts act will always be attributable by virtue of a well-established rule of international law, which is codified in article 7 of the ILC Articles, headed ‘Excess of authority or contravention of instructions’: The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.31 To resolve this problem, international law uses the ‘theory of appearance’. Thus in the Commentary by the ILC to the predecessor to article 7 adopted on first reading (then draft article 10) it was stated: In international law, the State must recognize that it acts whenever persons or groups of persons whom it has instructed to act in its name in a given area of activity appear to be acting effectively in its name.32 The ‘theory of appearance’ apparently fulfils a protective function for the person or the victim State following ‘an excusable error, that is to say done in good faith’, in relation to an act of a functionary which appeared to be an official act.33 It should thus not serve as a basis for the institution of a form of objective responsibility ‘for risk’. In fact, the theory

References

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(p. 264) of appearance does not exclude the wrongful act of the State: it constitutes it through a fiction the purpose of which it is to protect the interests of the person and the State injured by the act having the appearance of an official act. We now understand the necessity of defining ‘the excusable error’—to draw the limit between what can reasonably be considered as an act of the State following appearances, and what is manifestly not State activity. Three awards given by the US/Mexico General Claims Commission deal with this difficulty by distinguishing between a ‘simple fraud’ and situations where one can speak of an ‘excess of power’.34 Inspired by this jurisprudence and other precedents, Special Rapporteur Ago distinguished the case where ‘the individual organ obviously acts in an individual capacity and commits acts which have nothing to do with its place in the State machinery’ from that of ‘the individual organ’ which ‘is manifestly acting in the discharge of State functions and not in a purely personal capacity’ but whose acts are: although allegedly committed in the name of the State, are so completely and manifestly outside his competence, or fall within the scope of State functions so visibly different from those of the official in question, that no one could be mistaken on that score.35 We can see here a development in international law of a distinction which in French administrative law would correspond to ‘degrees’ of personal fault, ranging from pure personal fault to personal fault which is not without any link to the service. Ago translated this ‘exception’ to the rule of attribution of the ultra vires act into the text of his draft article 10(2), which is worded: However, such conduct is not considered to be an act of the State if, by its very nature, it was wholly foreign to the specific functions of the organ or if, even from other aspects, the organ’s lack of competence was manifest.36 Unfortunately, this important specification is not taken up in the version of the article adopted by the ILC on first reading, or in the current article 7, even though one can find a trace of it in the Commentary to article 737 and even though the words ‘if the organ, person or entity acts in that capacity’ can potentially be interpreted as excluding the case of manifest incompetence.38 The rule of non-attribution being so stated and specified in its scope, it is now necessary to see in what cases an act which is prima facie attributable to an individual can nevertheless engage the responsibility of the State. A first group of situations concerns the case where the act of the private person considered is linked in some way to the State activity.

2 The attribution to the State of conducts of private person linked to the activity of the State According to the ILC ‘attribution of conduct to the State as a subject of international law is based on criteria determined by international law and not on the mere recognition of a link of factual causality’.39 (p. 265) Here, Dionisio Anzilotti’s imprint can be seen: for him attribution can only be in any legal order ‘an effect of the norms that compose it’.40 Attribution thus constitutes a question of law before being a question of fact: it can only occur in the application of rules and fixed criteria of international law. Furthermore, these rules and criteria are defined in an autonomous manner by international law and take precedence over the rules of domestic law. That being the case, the domestic rules of attribution of competences should not determine the attribution of an act to the State, at least where international law does not designate them as relevant criteria. As we have seen, the fundamental rule is that the acts that relate to the decision of the State as an autonomous person must be attributed to the State. This power of decision is presumed where the author of the act is an organ of the State, even though this presumption can be rebutted by showing that the organ-individual has acted in its personal capacity (on the other hand, as we

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have seen above, the fact that the organ acts ultra vires does not suffice). This is the sense of article 4 ARSIWA ‘Conduct of organs of a State’. Outside this situation, the power of decision can be established in two different ways: either by showing that the State has made the reproached conduct a priori his own: this is the situation envisaged by ARSIWA, article 11 ‘Conduct acknowledged and adopted by a State as its own’; or by showing a link between the individual perpetrator of the act and the State (understood as the organ apparatus or as function): this link may be de jure or de facto. The first situation, the de jure link, is illustrated by ARSIWA article 5 ‘Conduct of persons or entities exercising elements of governmental authority’ as far as the person or entity concerned is, according to this article, ‘empowered by the law of that State to exercise elements of the governmental authority’. The second situation is illustrated by ARSIWA articles 6 ‘Conduct of organs placed at the disposal of a State by another State’, 8 ‘Conduct directed or controlled by a State’, and 9 ‘Conduct carried out in the absence or default of the official authorities’. Of these different situations, only three interest us in this study: on the one hand, the two cases of attribution based on a de facto link where the acts of private persons are taken into account (ARSIWA, articles 8 and 9); and on the other hand the a posteriori endorsement of conduct which is originally not attributable to the State (ARSIWA, article 11).

(a) Control of the State: the de facto organ (ARSIWA, article 8) The original version of article 8 presented by Ago in 1974, as well as that adopted by the ILC in 1974, included the different concepts of the fonctionnaire de fait (the person who exercises elements of governmental authority in the absence or default of the official authorities) and of the de facto organ. The dissociation only took place at a later stage, under the initiative of James Crawford, and the current text comprises article 8 on de facto organs and article 9 on the fonctionnaire de fait. It is nevertheless true that these two situations are based on similar logic: in both cases, international law bases the attribution of acts committed by private persons to the State on the existence of certain given facts, as opposed to an attribution based on an institutional or legal link. Ago’s first draft takes note of this similarity in approach, but also of the substantial difference which divides the two concepts:

References (p. 266) The conduct of a person or group of persons who, under the internal legal order, do not formally possess the character of organs of the State or of a public institution separate from the State, but in fact perform public functions or in fact act on behalf of the State, is also considered to be an act of the State in international law.41 In the first situation, it is the nature of the function which makes the act attributable to the State. In the second, it is the existence of a factual link between the private person and the State which allows one to deduce from it that the former acts on behalf of the latter. The whole complexity of the notion of de facto organ lies in the explication of this notion of action undertaken ‘on behalf ’ of the State, which can be found in the second version of the text, adopted by the Commission in 1974: The conduct of a person or group of persons shall also be considered as an act of the State under international law if (a) it is established that such person or group of persons was in fact acting on behalf of that State … 42 In the commentary adopted in relation to this article, the ILC explains that it intended to bring

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together two distinct phenomena: the first concerns cases where ‘the organs of the State supplement their own action and that of their subordinates by the action of private persons or groups who act as “auxiliaries” while remaining outside the official structure of the State’.43 The second regroups the cases where the State entrusts private persons with the execution of ‘duties and tasks’ which it does not want to carry out directly: in other words, as Paul Reuter explains (with fewer circumlocutions), ‘the lower work of the State: spying, provocation, sabotage, etc’.44 But the ILC provided only few elements to define the notion of an act completed on behalf of the State. It confined itself to drawing attention to the difficulty of showing proof for the de facto link: The Commission wishes nevertheless to make it quite clear that, in each specific case in which international responsibility of the State has to be established, it must be genuinely proved that the person or group of persons were actually appointed by organs of the State to discharge a particular function or to carry out a particular duty, that they performed a given task at the instigation of those organs.45 It was on exactly this point that the efforts of the new Special Rapporteur James Crawford would focus. In truth, he had more material to work with than Roberto Ago: between 1980 and 1998, several courts, quasi-courts, and tribunals had decided on the issue of imputation relating to a situation of fact. Thus, in his first report, Crawford cited several ‘precedents’: the judgment on the merits by the ICJ in Military and Paramilitary Activities in and against Nicaragua,46 the award of the Iran-US Claims Tribunal in Yeager; 47 the case of Loizidou where the European Court of Human Rights delivered two judgments on the preliminary objections48 and the

References (p. 267) merits; 49 and finally the Tadić case which gave rise to two decisions of the International Criminal Tribunal for the former Yugoslavia in which the issue of the de facto organ is dealt with: a judgment of the Trial Chamber on 7 May 1997 and a judgment of the Appeals Chamber of 15 July 1999 (Tadić II).50 To this list we can add the report of the European Commission of Human rights on the case of Stocké v Germany51 on the collusion between an informer and the German police with view to the arrest of a criminal, the judgments in A v France52 and MM v The Netherlands53 concerning phone tapping carried out by private persons upon the instigation and under the direction of the police, the judgments and decisions of the European Court of Human Rights that confirm the Loizidou case54 as well as the decision of the Working Group on Arbitrary Detention in relation to the ‘Handling of communications concerning detention at the Al-Khiam prison (southern Lebanon)’ that bases its conclusions on the reasoning of the ICTY Appeals Chamber in the Tadić II judgment.55 Here, ‘jurisdictionalization of international law’ is at work! And, in light of this jurisprudence, it is easier to understand why some are concerned about the risks of ‘fragmentation’ which this multiplication of international courts could create for the international legal order.56 In fact, the solutions devised for the same problem are very diverse and even sometimes contradictory. If we wanted to draw a rough sketch of the debate, we would say that there are the supporters of a strict conception of the de facto organ, based on the notion of ‘complete dependence’ or, at least, effective control of the State over the person or group of private persons on the one side, and the supporters of a supple conception based on the notion of global control on the other. The former position was defined by the Court in Nicaragua in 1986 in relation to the link that the United States had with the ‘Unilaterally Controlled Latino Assets’ (‘UCLAs’) on the one side, and the contras on the other.57 As for the former, the Court recognized that their acts were imputable to the United States in so far as they were ‘paid by, and acting on the direct instructions of, United States military or intelligence personnel’.58 But the Court refused on the other hand to recognize the latter

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as de facto organs, even though they were financed, aided and supported in various ways by the United States: on the one hand, the contras were not a pure creation of the United States and were not, as such, in a state of ‘complete dependence’ that would permit them to be assimilated with an organ of the State; on the other hand, the United States did not exercise ‘effective control’ over

References (p. 268) them in all their military or paramilitary operations. Nothing in fact proved that the United States had specifically ‘directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State’.59 In the absence of any effective control, the contras could have committed these acts outside of the control of the United States.60 This position was energetically supported by Roberto Ago who had become a judge of the Court, in his separate opinion. For Ago, the position of the Court agreed perfectly with the ILC draft articles on the subject. According to him, it was impossible to attribute prima facie the acts of the contras to the United States: Only in cases where certain members of those forces happened to have been specifically charged by United States authorities to commit a particular act, or carry out a particular task of some kind on behalf of the United States, would it be possible so to regard them.61 In this context, the determination of the quality as de facto organ depends on the fulfilment of two conditions: • the existence of a de facto link between the State and the person or group of private persons, in the form of, for example, ‘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’ 62 ; and • either a complete dependence of the person or group of private persons on the State; or the exercise by the State of an effective control over those persons or groups, that allows to deduce from it that the acts in question have been ordered or imposed on this person by the State. The existence of the second condition—which supplements the finding of a simple factual link—is in the end only the symptom or the consequence of a conception of responsibility that is still subjective, in which fault continues to play a roles as a generating fact. It is the idea that the act must come from the free will of the State which translates the condition of ‘effective control’, in other words, it must be wanted by the State-person. In a subjective conception of responsibility, this will is presumed where the author of the act is an organ of the State from a legal point of view or because of the organ structure. On the other hand, where the author is only linked to the State by an objective factual attachment that does not in itself suffice to determine attribution, this will must be demonstrated. This explains why, for Roberto Ago, the attribution of an ultra vires act may be possible in one case (where there is a State organ de jure), and impossible in the other case (where there is a de facto organ): 63 since the ultra vires act is by definition committed without the control of the State, by going beyond or breaching its orders or instructions. It is to be noted that this strict conception of attribution has been repeated by the Court in its more recent ruling of 26 February 2007 in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. However, the Court took a slightly different stand by distinguishing between the hypothesis of the ‘de facto organ’ and that of a private person acting under the ‘effective control’ or instructions by the State. The Court considered the former under the heading of article 4 of the ILC Articles and

References

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(p. 269) the latter under the heading of article 8. This approach does not convince us, as it mixes two distinct cases of attribution, the one being based on legal or institutional links, and the other on factual links. Contrary to what was suggested in Crawford’s First Report, the Loizidou judgments of the European Court of Human Rights are not on the same level as the Nicaragua judgment.64 In this case, the Greek Cypriot applicant complained of a breach of her right for the respect for her possessions as guaranteed under Article 1 of the Protocol 1 to the European Convention, following the occupation and persistent control of the Northern part of Cyprus by Turkish armed forces that had prevented several attempts to access her home. The Turkish government alleged that the acts raised by the applicant were not within its competence but in that of the ‘Turkish Republic of Northern Cyprus’ (TRNC), created in 1983 and recognized on an international level only by Turkey. The Court did not at any time consider the question of classifying the TRNC as a de facto organ of Turkey. It immediately classified it as ‘subordinate local administration’ which echoes article 4 ARSIWA, rather than article 8: Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.65 Even though it invokes the notion of ‘global control’, this is not the point: It is obvious from the large number of troops engaged in active duties in northern Cyprus […] that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’ […]. Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention (art. 1). Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus.66 The use of the notion ‘overall control’ really aims at determining the factual sway of Turkey outside its national frontiers, on a territory and a population that does not belong to it. Within the context of the Convention, this test fulfils a double function: at the stage of admissibility, it is about knowing whether the persons who are in the Northern part of Cyprus fall within the ‘jurisdiction’ of Turkey within the meaning of Article 1 of the Convention; at the merits stage, the existence of overall control allows one to establish that all acts committed by its organs de jure or de facto on this territory are attributable to Turkey. ‘Overall control’ thus expresses the extraterritorial dimension of the responsibility of State Parties to the Convention. But it has nothing to do with the definition of a de facto organ. On this point, the contribution of the International Criminal Tribunal for the former Yugoslavia is more useful, even though it may seem unlikely if one relates it to the internal logic and the mandate of the Tribunal. It may be questioned why a court which is responsible for establishing the responsibility of individuals in international criminal law has reflected on

References (p. 270) the criteria of attribution in the framework of international State responsibility. In fact, the Tribunal has resorted to these criteria as a complement in the interpretation of the notions of humanitarian law, ie the concept of the protected person and the distinction between international and internal armed conflicts. It has thus ruled that after the retreat of the Federal Republic of Yugoslavia from the territory of Bosnia-Herzegovina on 19 May 1992, the Bosnian conflict could not From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

be classified as international and the Muslim Bosnians subject to the power of the Serbs considered as protected persons under the Geneva Convention IVunless the acts of the Bosnian Serb Army (VRS) were in fact attributable to the FRY, in other words if the VRS was a de facto organ of the FRY. This means that the two regimes have been mixed up; in doing so the Tribunal ignored the specificity of the question of attribution, the criteria of which are only established for the purpose of establishing international responsibility of a State. The classification of a conflict as internal or international for the purposes of the application of international humanitarian law is a mere question of fact which calls for the evaluation of the degree of intervention of a State in an internal conflict. The forms of intervention can be very different, and, in any case, may have aspects other than ‘control’ exercised over one of the parties of the internal conflict.67 Even though it is possible to contest the opportunity of intrusion of the ICTY into the field of attribution, one cannot as such deny that its reasoning constitutes a useful approach to the question. The jurisprudence is set by the Appeals Chambers in its judgment in Tadić II.68 In that judgment, the Appeals Chamber overruled the judgment of the Chamber at first instance of 7 May 1997, insofar as it had resorted to the criterion of ‘effective control’ enunciated in the Nicaragua judgment to determine if the VRS could be considered as de facto organ of the FRY. The appeals chamber considered that this criterion could not be reconciled with either the ‘Logic of the Law on Responsibility’69 nor with ‘Judicial and State Practice’.70 In its place, it substituted a three-pronged criterion according to the type of situation that is encountered: ‘specific instructions’, approval or endorsement ex post facto for isolated persons or armed bands that are not structured; ‘overall control’, where we are dealing with a hierarchical group which is well organized, which means that the State has organized, coordinated, or planned the military action of the armed group, and has financed, trained, equipped, or supplied it with operational support; finally, the Chamber envisaged a last situation, drawn from precedents in criminal law: where a person who is not formally part of the administration of the State participates in its activities with all the appearances of the organ of the State.71 In essence, this is reserving the criterion of ‘effective control’ to acts committed by isolated individuals or non-hierarchical groups. It is questionable what justifies this distinction. One can without doubt explain it with an argument of opportunity—it is more difficult to prove that the act has been committed on behalf of the State within the framework of a nonhierarchical group—and by a logical argument—there is a presumption of intention within the framework of a hierarchical structure. But in the end, the Tribunal remained in the same conceptual area as the International Court: requiring proof of control, whether ‘effective’

References (p. 271) control or ‘overall’ control, relates to a subjective conception of State responsibility that does not really have a place any more, as from the moment where it was decided to objectivize responsibility by excluding fault and harm as conditions for responsibility. From this point of view, the formulation that was chosen in the end by the ILC is a good compromise, in the sense that it is sufficiently vague to allow different interpretations. James Crawford was in favour of a more subjective conception of attribution, in keeping with Roberto Ago. His draft was worded as follows: The conduct of a person or group of persons shall also be considered as an act of the State under international law if: (a) The person or group of persons was in fact acting on the instructions of, or under the direction and control of, that State in carrying out the conduct. 72 The solution chosen by the ILC in article 8 ARSIWA consisted of replacing the ‘and’ between ‘direction’ and ‘control’ with ‘or’:

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The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. The criterion of ‘control’ thus becomes an autonomous criterion, alternative in relation to two others.73 The ILC also abstained from qualifying the type of control that is required: that being the case, it can thus be understood either as a subjective condition of attribution— ‘effective’ or ‘overall’ control—or as an objective condition, a form of factual link, just like an ‘instruction’ given or ‘directives’. The attempt of the ILC to settle the question of the ultra vires act of the de facto organ is less convincing: In general a State, in giving lawful instructions to persons who are not its organs, does not assume the risk that the instructions will be carried out in an internationally unlawful way. On the other hand, where persons or groups have committed acts under the effective control of a State, the condition for attribution will still be met even if particular instructions may have been ignored. The conduct will have been committed under the control of the State and it will be attributable to the State in accordance with article 8.74 The theory of objective responsibility for a risk here erupts in an inopportune manner to distinguish two cases which are in the end not very different, if it is accepted that attribution is founded on the existence of a factual link between the State and the private person. The only notable difference is in fact temporal: in one case a factual link at a particular point, while in the other, ‘control’ constitutes a continuous factual link.

(b) The use of public power in the absence or default of the State (ARSIWA, article 9) Unlike the previous hypothesis, the use of public power hardly raises any difficulties. It has always been broadly agreed by the ILC, both in relation to its principle and the conditions of its application. Attribution rests mainly on the finding of the exercise of State functions

References (p. 272) by a private person in circumstances which make this exercise legitimate. This action is purely spontaneous: the individual acts from his own initiative. The criterion of State activity which can be found in several places in the draft articles lies in the exercise of prerogatives of public power. The problem of incompetence is covered by the absence or default of the official authorities and by the fact that public functions would, in one way or another, be called for ‘though not necessarily the conduct in question’. The ILC states in its Commentary to article 9: Such cases occur only rarely, such as during revolution, armed conflict or foreign occupation, where the regular authorities dissolve, are disintegrating, have been suppressed or are for the time being inoperative.75 In other words, public action is necessary as a principle considering the circumstances, which does not as such make the act of the individual who has intended to substitute himself for the failing public authorities lawful. This nuance was badly conveyed by the expression ‘in circumstances which justified the exercise of those elements of authority’ which was used in the version of the text adopted on first reading.76 This is why Crawford proposed to replace ‘which justified’ with ‘call for’ to better express the idea that the conduct itself could not be ‘justified’, that is to say rendered

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lawful because of the circumstances. In the final version of the text, the ILC adopted an expression which translates the same idea ‘in circumstances such as to call for the exercise of those elements of authority’. In this form, what the successive Special Rapporteurs themselves have assimilated to the theory of the fonctionnaire de fait is not so much grounded on the theory of appearance, but rather on a particular form of the state of necessity—not that which is recognized by the ILC text in article 25 ARSIWA, insofar as the effect of necessity is not, here, to exclude the wrongfulness of the act, but simply to proceed to the attribution to the State of a wrongful act committed under certain conditions. In fact, according to the text, it is not decisive that the private person is apparently competent to exercise public functions. Rather, the attribution results from the conjunction of the absence or insolvency of the authorities and from the necessity for the individual who is confronted with an exceptional situation, to act immediately by using the prerogatives that flow from public power. Under these conditions, it may be asked whether article 9 includes the classic situation of the act which is adopted by an incompetent authority which nevertheless has, in the eyes of others, the appearance of authority normally vested with the exercised competence, when such an act is adopted under perfectly normal circumstances.77 Roberto Ago had envisaged this case, but it seems that he lost sight of it afterwards. The same observation can be made concerning the theory of ‘gestion d’affaire’, where an individual finds himself in the position to make use of public finances and manages them. Even though the principle was familiar to all national legal traditions, the examples in international law, as they emerge from the ILC reports, are not uniform. The theory of the fonctionnaire de fait seems to have been received first in international humanitarian law,

References (p. 273) through the idea of the levée en masse, which is expressed in article 2 of the Regulations concerning the Laws and Customs of War on Land, annexed to Hague Convention II of 1899 and Hague Convention IV of 1907 respecting the Laws and Customs of War on Land, and in article 4(A) (6) of the Geneva Convention (III) relative to the Treatment of Prisoners of War.78 These two provisions extend the category of ‘belligerent’ to the population of a non-occupied territory which, on approach by the enemy, spontaneously takes to the arms to fight invading troops. The acts of this improvised army are attributed to the attacked State. The second ‘precedent’ cited by the ILC in its commentary to article 9 is the award given by the Iran-US Claims Tribunal in Yeager. But if the Tribunal had recourse to this hypothesis, then it was by reference to draft article 8 adopted in 1980. The hypothesis of the fonctionnaire de fait is not invoked exclusively, but is coupled with that of the de facto organ, the two paragraphs of draft article 8 thus constituting alternative foundations for the attribution to Iran of the acts of the ‘Komitehs’ or ‘Revolutionary Guards’ who had harmed the applicant.79

(c) A posteriori endorsement of conduct by a State (ARSIWA, article 11) The singularity of this last hypothesis was highlighted by Crawford in his first report to the ILC. Roberto Ago had not clearly distinguished it from the cases where a State does not show the diligence required to prevent or punish a wrong attributable to private persons, in accordance with its international obligations. The analysis of the award by the British-Colombian Mixed Commission in the Cotesworth and Powell case of 5 November 1875, presented in Ago’s Fourth Report, shows that he skimmed over the question, without reflecting on it as a separate issue. He cites the following thought-provoking passage from the award: One nation is not responsible to another for the acts of its individual citizens, except when it approves or ratifies them. It then becomes a public concern, and the injured party may

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consider the nation itself the real author of the injury. And this approval, it is apprehended, need not be in express terms; but may fairly be inferred from a refusal to provide means of reparation when such means are possible; or from its pardon of the offender when such pardon necessarily deprives the injured party of all redress.80 The barely modified passages from Droit des gens by Vattel can be recognized (it was cited in the introduction to this chapter). But where Vattel carefully distinguished the two situations of coresponsibility for action and for omission, the award confuses them. What is worse, it makes the latter a modality of the former! The passage only interested Roberto Ago because of this contradiction: he is keen to show that the award goes astray by attributing the act of the individual to the State, while it is responsible only because of its own act, for having been negligent to punish or for having given amnesties to guilty parties. But then, he sidesteps the first hypothesis of attribution which is evoked by Vattel, based on the approval or ratification of the act of the individual by the State. It is this hypothesis that Crawford resurrected and that the ILC integrated in article 11 as finally adopted.

References (p. 274) In the case of negligence as in the case of endorsement, the State does not directly participate in the commission of the act: it is committed by a third party entirely. But while responsibility is based in the former case on inaction in breach of international obligations of the State which is faced with the act of the private person, it results in the latter case from this act itself, that the State has made its own by approving it. The case of United States Diplomatic and Consular Staff in Tehran81 perfectly illustrates the passage from one hypothesis to the other. The International Court of Justice carefully distinguished two phases in the attack and occupation of the United States embassy in Tehran. In a first phase, it is evident that the militants who attacked the embassy did not have the status of agents of the State, whether de jure or de facto. Their acts are thus not imputable to Iran.82 As such, the Court specifies, this does not excuse Iran from its responsibility for its own conduct in relation to its acts, conduct which was incompatible with its international obligations under various provisions of the 1961 and 1963 Vienna Conventions on diplomatic and consular relations: Iran in fact took no measures to protect the premises, staff, and archives of the mission of the United States against the attack of the militants. It also did not do anything to prevent this attack or to stop it from succeeding. In a second phase, Iran not only did nothing to resolve the situation, but endorsed the acts of ‘students’ through the ministry of foreign affairs and through the Ayatollah Khomeini himself: 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.83 In its commentary to article 11, the ILC sought to prevent errors such as that in the Cotesworth and Powell award by affirming the contrast between approval-tolerance and approval-endorsement. The least that one can say is that there is a difference in degree that is not always easy to grasp: The phrase ‘acknowledges and adopts the conduct in question as its own’ is intended to distinguish cases of acknowledgement and adoption from cases of mere support or endorsement…. [A]s a general matter, conduct will not be attributable to the State under article 11 where a State merely acknowledges the factual existence of conduct or expresses its verbal approval of it. In international controversies States often take positions which amount to ‘approval’ or ‘endorsement’ of conduct in some general sense but do not

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involve any assumption of responsibility. The language of ‘adoption’, on the other hand, carries with it the idea that the conduct is acknowledged by the State as, in effect, its own conduct.84 But how should adoption and simple approval be distinguished in practice? The commentaries of the ILC lack concrete illustrations in this regard to enlighten the reader. The impression of confusion is even more accentuated by this proposal, the substance of which is taken from old commentaries:

References (p. 275) Acknowledgement and adoption of conduct by a State might be express (as for example in the Diplomatic and Consular Staff case), or it might be inferred from the conduct of the State in question.85 If oral ‘approval’ does not suffice, it is difficult to see how simple ‘conduct’, even an ostensible one, could be so as to manifest the intention of the State to adopt the reproached conduct. Here again there is a lack of examples. The originality of this case of attribution is due to the fact that it takes place a posteriori, after the commission of the act or during this commission, if it is a continuous act. In the latter case, the question of the temporal scope of the attribution may be raised: does the State assume it from the moment onwards when it makes it its own, or ab initio, in a retroactive fashion? For Crawford, ‘If the adoption is unequivocal and unqualified … there is good reason to give it retroactive effect.’86 The Special Rapporteur cites in this sense the Lighthouses arbitration where an arbitral tribunal declared Greece responsible for breaching a concession agreement concluded by Crete when it was an autonomous territory of the Ottoman Empire, partly because the breach was ‘endorsed by [Greece] as if it had been a regular transaction … and eventually continued by her, even after the acquisition of territorial sovereignty over the island’.87 Another question is the material scope of attribution. This may vary depending on the content of the act by which the State takes position on the act of the individual. The State may in fact intend to assume only a part of this act. This idea is precisely translated in article 11 by the words ‘if and to the extent that’. In all the situations that we have just considered, the act which is prima facie attributable to a private person is in fine imputed to the State, because the deeper study of the situation reveals a link between this act and the State. These situations must thus be carefully distinguished from those where the act that is imputable to the private person only has the function of a catalyst for State responsibility. Responsibility is then the result of an act that pertains to the latter.

3 ‘Catalysis’ of international State responsibility for conducts of private persons The use of the notion of ‘complicity’ by a certain number of authors of the 19th century allow the establishment of an additional case of attribution of acts by natural persons to the State. Its rejection by the volontarist doctrine at the beginning of the 20th century has the effect of excluding this issue from the framework of this chapter: in the future, it is clearly recognized that the act of the individual can at the very most catalyse the responsibility of the State which is engaged on the basis of a distinct foundation.

(a) Rejection of the theory of complicity The notion of complicity is employed by certain authors of the 19th century to establish State responsibility where it refuses to prosecute or where it grants amnesty to an act that causes harm

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to a foreigner: this acquiescence or tolerance is interpreted as a form of

References (p. 276) participation in the act, a contribution which engages State responsibility for this act.88 From then on, the amount of reparation owed by the State is calculated on the basis of the harm caused by the act itself and on the degree of participation of the State in the commission of the act. According to Paul Reuter89 the Anglo-Saxon doctrine has thus come to distinguish two types of responsibility: • primary (original) responsibility of the State where the act committed emanates from the government or a person acting as its agent; and • derived (vicarious) responsibility where the act emanates from any other person but the State has not taken the necessary measures to prevent or punish this conduct. The notion of complicity is fiercely criticized by the volontarist authors at the beginning of the 20th century in the name of a dualist conception of the legal orders. The international and internal legal orders constitute two separate spheres, with their own subjects. As a result, the individual, subject of internal law, cannot breach international law under which he has no obligations. In the same way, the State should not be co-responsible or accomplice to a breach of internal law of the State by an individual. The duality of these legal orders leads to a watertight nature for the systems of responsibility. But that does not exclude that State responsibility can arise at the commission of a breach of internal law by an individual, as Dionisio Anzilotti explains: These acts, as done by individuals, are not contrary to international law, since individuals, being foreign to the rules of this law, should not breach its precepts; it is thus in the conduct of the State, that has omitted to prohibit these acts or to take measures necessary to prevent them, that the breach of international law is found: the wrongful act, from the point of view of international law, is, in such a case, the omission of the State and not the positive act of individuals; and the State is thus obliged because of its act, but not in its quality as accomplice of individuals, as has often been said since Grotius.90 Special Rapporteur Roberto Ago explained this mode of engaging responsibility with the idea of catalysis. The individual act is foreign to the act of the State. But it constitutes a catalytic element for its responsibility, insofar as, when confronted with such an act, the State breaches its international obligations.91 In fact, from a theoretical point of view, the rejection of the idea of complicity is not necessarily linked to a dualist conception of the legal orders. It simply follows from the classical structure of normativity in international law which is articulated around the obligations, the only subjects of which are States and which are imposed on a more or less large circle of States which are bound by the same norm. Going beyond the dualist explanation seems necessary if one wishes to envisage certain phenomena that Anzilotti maybe could not distinguish clearly in his time. (p. 277) First, contemporary international law directly imposes obligations on individuals, the breach of which can be the subject of criminal sanctions, this being the cases regardless of the position—official or not—of the author of the breach. So, a system of specific responsibility is associated with these obligations. The duality can thus be found at the level of international law: if the individual cannot be an ‘accomplice’ to a wrongful act of the State, the State can conversely not be the accomplice of an international crime within the meaning of international criminal law. However, this can find a clear exception when the norms that are breached do address both individuals and State at the same level. According to the ICJ, this is the case for the prohibition of genocide: in Application of the Convention on Genocide, the Court accepted the idea—although its conclusion was negative—that the Federal Republic of Yugoslavia could be found complicit in the crime of genocide perpetrated by the Republika Sprska—a non-State actor—in Srebrenica.92

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In the same way, one cannot exclude that the notion of complicity can find a place in international law, if the renewed forms of normativity induced by the institutionalization and centralization of the international society are taken into account. More and more, international organizations in fact tend to formulate norms which equally address private persons and States. If a private person and a State are bound by the same norm of international law, why should they not be capable of being considered as accomplices in its breach? It is still necessary that they are effectively bound by this norm, whether they have both accepted it voluntarily, or whether it is imposed on them in an ‘authoritarian’ manner, a situation which mainly concerns, in the case of States, the norms enacted by the UN Security Council where it acts under the terms of Chapter VII of the Charter.93 If these situations resulting from the recent evolution of international law are taken aside, it is certain that the idea of complicity has not adapted in the great majority of norms of public international law, the only subject of which is the State.

(b) Responsibility of the State for its own act Generally speaking the State thus does not make itself an accomplice to the act of the individual. But it may be that it breaches its own obligations in relation to such an act. The classic foundation for the form of ‘responsibility by catalysis’ can be found in the obligation of due diligence which falls on any State with regard to nationals of foreign States that are on its territory.94 This general obligation conceals two main obligations: the obligation to prevent attacks on persons and the obligation to punish the perpetrators of such attacks. And these two main obligations come in a variety of contextualized obligations, specified by treaty law (for example the Vienna Conventions on diplomatic and consular relations) or even by the international judge, depending on the case submitted to the court. In the subject matter of human rights the jurisprudence has transposed the classic doctrine of due diligence to give rise to the general obligation of the State to protect individuals

References (p. 278) who fall within its jurisdiction against acts committed by private persons and who would be susceptible to being qualified as a breach of their rights, in the sense of the considered treaty (this is thus not in any way a ‘horizontal’ effect of the Convention).95 Under this logic, the judge recognizes implicit ‘positive obligations’ for the State party for every human right. So, for example, in Osman v The United Kingdom96 the European Court of Human Rights had to determine if the responsibility of the United Kingdom was engaged under article 2 of the Convention (the right to life) because of an omission of the police that could not prevent the murder of a private person by another private person. The Court considered on this occasion the extent of the obligation of due diligence that falls on States under article 2: The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction […]. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.97 Having stated the problem, the Court defined the following standard: In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person […] it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of

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a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. […] For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.98 In this particular context of the Convention, the State party that has to exercise due diligence—that is to say that to take all measures that can reasonably be expected of it—to prevent and sanction an act of a private person that intervenes in breach of article 2. But in fine, it is not the act of the private person that engages the responsibility of the State party, but rather the fact that the State itself is not in accordance with the required standard and thus with the positive obligation that falls upon it under article 2 of the Convention.99

References (p. 279) The European Court has pushed this logic to a height in its judgment on merits in Ilaşcu.100 The applicants found themselves in the hands of the authorities of the Moldavian Republic of Transdniestria (MRT), situated on Moldovan territory but having declared independence, it was under de facto overall control by the Russian Federation. Rather than contenting itself with engaging the responsibility of the Russian Federation— to which the acts of the MRT were imputed according to the principles of the Loizidou jurisprudence—the Court ruled that responsibility of Moldova in relation to the acts of the MRT could be engaged under its positive obligations. In other words: even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.101 More recently, the ICJ applied the same kind of reasoning on the basis of the obligations to ‘prevent’ and ‘punish’ under the Genocide Convention.102 Did the rule of responsibility by catalysis have a place in the Articles on State responsibility? At first, the ILC responded positively to this question, under the influence of Special Rapporteur Ago. He considered it necessary to accompany the statement of the rule of non-attribution of acts of natural persons to the State under draft article 11(1) with a ‘reservation’ or a type of safeguard clause. This was situated in draft article 11(2) and specified that notwithstanding the rule of nonattribution, the State remained responsible ‘by their passive attitude towards the action of individuals’.103 At the same time, Ago observed that it was necessary that ‘no attempt whatsoever must be made to define, in this context, the content of the various obligations of protection incumbent upon the State with regard to foreign States, their official representatives or simply their nationals’.104 But during the discussions of this article, Ushakov remarked with clear-sightedness that the proposition of the Special Rapporteur contained a contradiction in terms: In referring to the way in which an organ ought to have acted according to a primary rule of international law—which required it to prevent or punish the conduct of an individual— the Commission was taking a subjective element into consideration and leaving the sphere of ‘acts of the State’ to enter that of wrongful acts of the State.105 Ago rejected Ushakov’s criticism but recognized that it was possible to detect in draft article 11 ‘a

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shift from the subjective element of attribution to the State, to the objective element of breach of an international obligation’.106 During the discussion of the revised article by the Drafting Committee, Kearney observed that the paragraph could be deleted and replaced in the text of paragraph 1 with the idea that the rule of nonattribution does not prejudice the previously listed cases of attribution. But Ago stood fast and defended his paragraph with the help of explanations that Kearney judged to be ‘not

References (p. 280) … entirely satisfactory.107 The ILC thus adopted the article as revised by the Committee, with paragraph 2 worded as follows: 2 . Paragraph 1 [which stated the rule of non-attribution of acts by private persons to the State] is without prejudice to the attribution to the State of any other conduct which is related to that of the persons or groups of persons referred to in that paragraph and which is to be considered as an act of the State, by virtue of articles 5 to 10. 108 Ushakov and Kearney were right: with this paragraph 2, Ago derogated from the distinction which he himself had carefully elaborated between primary and secondary obligation— a distinction which both constituted the starting point and in a way the parapet of the new codification attempt that was undertaken under his leadership. But as we know, some twenty years later, the new Special Rapporteur Crawford decided to offer a radical solution to these problems by purely and simply eliminating draft article 11 from the Articles. Since it is not as such a case of attribution of a wrongful act to the State, the idea of responsibility by catalysis has its place in textbooks of international law rather than in the codification of international law. Further reading D Anzilotti, ‘La responsabilité internationale des États à raison des dommages soufferts par des étrangers’ (1906) 13 RGDIP 5 and 285 L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984-VI) 189 Recueil des cours 9 H Dipla, La responsabilité de l’État pour violation des droits de l’Homme. Problèmes d’imputation (Paris, Pedone, 1994) AJJ de Hoogh, ‘Articles 4 and 8 of the 2001 ILC Articles on State Responsability, the Tadić Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia’ (2001) 72 BYIL 255 R Kolb, ‘The Jurisprudence of the Yugoslav and Rwandan Criminal Tribunals on their Jurisdiction and on International Crimes’ (2000) 71 BYIL 259 C Kress, ‘L’organe de facto en droit international public. Réflexions sur l’imputation à l’État de l’acte d’un particulier à la lumière des développements récents’ (2001) RGDIP 93 T Meron, ‘Classification of Armed Conflicts in the Former Yugoslavia: Nicaragua’s Fallout’ (1998) 92 AJIL 236 J-P Queneudec, La responsabilité internationale de l’Etat pour les fautes personnelles de ses agents (Paris, LGDJ, 1966) P Reuter, ‘La responsabilité internationale. Problèmes choisis (Cours de DES Droit public, 1955–1956)’, in Le développement de l’ordre juridique international. Ecrits de droit international (Paris, Economica, 1995) 377

Footnotes: 1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007; merits

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pending in Croatia v Yugoslavia. 2 H Grotius, The Rights of War and Peace (R Tuck (ed), Indianapolis, Liberty Fund, 2005; 3 Vols). I would like to warmly thank Professor Emmanuelle Jouannet for reviewing the lines that follow. 3 Ibid, Vol II, 1053; Book II, Chapter XXI, I, 1; and see Book II, Chapter I. 4 Ibid, 1053; Book II, Chapter XXI, I, 1. 5 Ibid, 1055; Book II, Chapter XXI, II, 1 (emphasis in original). 6 Ibid, 1056; Book II, Chapter XXI, II, 1. 7 Ibid, 887–888; Book II, Chapter XVII, VI, VII. 8 Ibid, 1053ff; Book II, Chapter XXI, I, 2. 9 Ibid, 888 ff; Book II, Chapter XVII, VIII, IX. The distinction established by Grotius between ‘Expletive Justice’ and ‘Attributive Justice’ (ibid, vol I, 142–147; Book I, Chapter I, VIII) constitutes a slightly deformed application of the Aristotelian distinction between commutative and distributive justice. The notion of ‘Expletive Justice’ refers grosso modo to commutative justice in Aristotle, but at the same time diverges from it since Grotius considers it as the only type that has ‘perfect rights’ as its objective, in other words rights that are binding and directly enforceable: see on this point E Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique (Paris, Pedone, 1998), 167ff. 10 E Vattel, The Law of Nations or, Principles of the Law of Nature Applied to the Conduct and Affairs and Nations and Sovereigns (B Kapossy and R Whatmore (eds), Indianapolis, Liberty Fund, 2008; 2 Vols), Vol 1, 30 9ff;), Book II, Chapter VI. 11 Ibid, 310; Book II, Chapter VI, para 73. 12 D Anzilotti, ‘La responsabilité internationale des États à raison des dommages soufferts par des étrangers’ (1906) 13 RGDIP 5, 13. 13 E Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique (Paris, Pedone, 1998), passim. 14 E de Vattel, The Law of Nations or, Principles of the Law of Nature Applied to the Conduct and Affairs and Nations and Sovereigns (B Kapossy and R Whatmore (eds), Indianapolis, Liberty Fund, 2008; 2 Vols), Vol I, 31 1; Book II, Chapter VI, para 74. 15 Ibid, 312; Book II, Chapter VI, para 77. 16 Cf J Combacau, ‘Pas une puissance, une liberté: la souveraineté internationale de l’État’ (1993) 67 Pouvoirs 47. 17 See P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des États’ (1984-V) 188 Recueil des cours 9, 32. 18 Corfu Channel Merits, Judgment, ICJ Reports 1949, p 4. 19 Ibid, 18. 20 On this point, see P-M Dupuy, Droit international public (6th edn, Paris, Dalloz, 2002), 464. 21 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71. 22 Ibid, 126 (para 146). 23 ILC Yearbook 1975, Vol I, 214. 24 ILC Yearbook 1975, Vol I, 31 (para 30). 25 Ibid, 214 (para 10). 26 Ibid, 214 (para 12). 27 ILC Yearbook 1980, Vol II(1) 97, cited in J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 32 (para 246, footnote 146).

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28 Ibid, 32 (para 247). 29 See eg J-L Brierly, ‘Règles générales du droit de la paix’ (1936-IV) 58 Recueil des cours 172. 30 Cf Pelletier, Tribunal des conflits, 30 July 1873, reproduced in Les grands arrêts de la jurisprudence administrative (13th edn, Paris, Dalloz, 2001), 8. 31 A rule which can also be derived from international humanitarian law, as shown in Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment of 19 December 2005, para 214. 32 ARSIWA, Commentary to draft art 10, para 17, ILC Yearbook 1975, Vol II, 67 (emphasis added). 33 J-P Quéneudec, La responsabilité internationale de l’Etat pour les fautes personnelles de ses agents (Paris, LGDJ, 1966), 144–146. 34 These awards are studied by Quéneudec, ibid, 142–143. 35 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 93 (para 55). 36 Ibid, 95 (para 60). 37 Cf ARSIWA, Commentary to Art 7, paras 7–8. 38 In this sense see L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984-VI) 189 Recueil des cours 9, 84. 39 ARSIWA, Introductory Commentary to Part One, Chapter II, para 4. 40 D Anzilotti, Cours de droit international (1st edn, Paris, Librairie du Recueil Sirey, 1929; reprinted, Paris, Ed. Panthéon-Assas, 1999), 469. 41 ILC Yearbook 1974, Vol I, 32 (para 1). 42 ILC Yearbook 1974, Vol I, 152–153 (para 14). 43 ILC Yearbook 1974, Vol II(1), 283 (para 2). 44 P Reuter, ‘La responsabilité internationale. Problèmes choisis (Cours de D.E.S. Droit public, 1955–1956)’, in Le développement de l’ordre juridique international. Ecrits de droit international (Paris, Economica, 1995), 377, 461. 45 ILC Yearbook 1974, Vol II(1), 284 (emphasis added). 46 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14. 47 (1987) 17 Iran-US CTR 92ff. 48 Loizidou v Turkey (App No 15318/89), Preliminary Objections, ECHR, Series A, No 310. 49 Loizidou v Turkey (App No 15318/89), Merits and Just Satisfaction, ECHR Reports 1996-VI. 50 ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Trial Chamber, Judgment of 7 May 1997 and Appeals Chamber, Judgment of 15 July 1999. 51 Stocké v Germany (App No 11755/85); the report is reproduced after the judgment of the Court in ECHR, Series A, No 199, 21ff. 52 A v France (App No 14838/89), (Merits and Just Satisfaction), ECHR, Series A, No 277-B. 53 MM v The Netherlands (App No 39339/98), (2004) 39 EHRR 19. 54 Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV, paras 69–81; Ilasçu and others v Moldova and Russia (App No 48787/99), ECHR, Decision on Admissibility of 4 July 2001 [GC]; Adali v Turkey (App No 38187/97), ECHR, Decision on Admissibility of 31 January 2002. 55 Cf Report of the Working Group on Arbitrary Detention at the UN Commission on Human Rights, E/CN.4/2000/4. 56 G Guillaume, ‘The proliferation of international judicial bodies: The outlook for the international legal order’, Speech to the Sixth Committee of the General Assembly, 27 October 2000, available at From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

. 57 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14. 58 Ibid, 45 (para 75); 50–51 (para 86). 59 Ibid, 64 (para 115). 60 Ibid, 64–65 (para 115). 61 Ibid, Separate Opinion of Judge Ago, 188 (para 16). 62 Ibid, 64 (para 116). 63 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 72 (footnote 4). 64 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14. 65 Loizidou v Turkey (Application No 15318/89), Preliminary Objections, ECHR, Series A, No 310, para 62. 66 Loizidou v Turkey (Application No 15318/89), Merits and Just Satisfaction, ECHR Reports 1996-VI, para 56. 67 See in this sense T Meron, ‘Classification of Armed Conflicts in the Former Yugoslavia: Nicaragua’s Fallout’ (1998) 92 AJIL 236; R Kolb, ‘The Jurisprudence of the Yugoslav and Rwandan Criminal Tribunals on their Jurisdiction and on International Crimes’ (2000) 71 BYIL 259, 277–278. 68 ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Appeals Chamber, Judgment of 15 July 1999. 69 Ibid, 47 (para 115). 70 Ibid, 51 (para 124). 71 Ibid, 60–62 (paras 137–141). 72 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 4. 73 See ARSIWA, Commentary to art 8. 74 ARSIWA, Commentary to art 8, para 8. 75 ARSIWA, Commentary to art 9, para 1. 76 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, as adopted on first reading, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 59, art 8. 77 See eg in French administrative law, although in the framework of a dispute as to the of legality of an administrative act: Conseil d’Etat Assoc. des fonctionnaires de l’administration centrale des Postes, 2 November 1923, Rec Lebon, p 699 and more recently Conseil d’Etat Sect, Préfet de police c/ M. Ihsen Mtimet, 16 May 2001, Revue de Droit Public 2001, no 3, 655–656, note by X Pretot, 645–654. 78 75 UNTS 135. 79 Yeager v Iran, 17 Iran-US CTR 92, 103 (para 42). 80 Cited in R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 101 (para 77). 81 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment, ICJ Reports 1980, p 3. 82 Ibid, 29 (para 58). 83 Ibid, 35 (para 74). 84 ARSIWA, Commentary to art 11, para 6. 85 Ibid, para 9.

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86 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 43 (para 283). 87 Affaire relative à la concession des phares de l’Empire ottoman, 24 July 1956, 12 RIAA 155, 198, cited in J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 42 (para 282). 88 See eg M Bluntschli, Le droit international codifié (2nd edn, Paris, Librairie de Guillaumin et Cie, 1873), 264. 89 P Reuter, ‘La responsabilité internationale. Problèmes choisis (Cours de D.E.S. Droit public, 1955–1956)’, in Le développement de l’ordre juridique international. Ecrits de droit international (Paris, Economica, 1995), 377, 393. 90 D Anzilotti, ‘La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers’ (1906) 13 RGDIP 5–29, 285–309, 14–15. 91 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 97 (para 65) and fn 120. 92 See Judgment of 26 February 2007, paras 416ff. On the link between the State’s and individual’s regimes of responsibility, see R Maison, La responsabilité individuelle pour crime d’Etat en droit international public (Brussels, Bruylant, 2004). 93 On the notion of ‘unilateral authoritarian act’ (‘acte unilatéral autoritaire’) in public international law see H Ascencio, L’autorité de chose décidée en droit international public (thèse, Université Paris X-Nanterre, 1997). 94 See T Koivurova, ‘What Is the Principle of Due Diligence’, in J Petman & J Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Leiden, Martinus Nijhoff, 2003), 341; R Pisillo Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsability of States’ (1992) 35 German Yearbook of International Law 9. 95 Cf L Condorelli, ‘L’imputation à l’État d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ (1984-VI) 189 Recueil des cours 9, 149–156; G Cohen-Jonathan, ‘Responsabilité pour atteinte aux droits de l’homme’, in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991) 101, 112–115; H Dipla, La responsabilité de l’Etat pour violation des droits de l’homme. Problèmes d’imputation (Paris, Pedone, 1994). 96 Osman v The United Kingdom (App No 23452/94), ECHR Reports 1998-VIII. 97 Ibid, para 115. 98 Ibid, para 116 (emphasis added). 99 The jurisprudence offers many examples of responsibility by catalysis. See eg in relation to article 8, X and Y v The Netherlands (App No 8978/80), ECHR, Series A, No 91 (1985), concerning the impossibility of bringing criminal proceedings with regard to the perpetrator of sexual violence against a mentally handicapped minor. See also, with regard to article 3, A v The United Kingdom (App No 25599/94), ECHR Reports 1998-VI; or on the subject of the freedom of expression (art 10): Özgur Gündem v Turkey (App No 23144/93), ECHR Reports 2000-III. 100 Ilaşcu and others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VII [GC]. 101 Ibid, paras 330–331. For a critical reading, see our commentary in the chronique edited by E Decaux & P Tavernier (2005) 132 JDI 472–477. 102 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, in particular para 430. 103 R Ago, Fourth Report on State Responsibility, ILC Yearbook 1972, Vol II, 71, 126 (para 145). 104 Ibid. 105 ILC Yearbook 1975, Vol I, 33 (para 51).

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106 Ibid, 41 (para 20). 107 Ibid, 215 (para 16). 108 Ibid, 214.

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Part III The Sources of International Responsibility, Ch.21 State Succession and Responsibility Václav Mikulka From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — State succession

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(p. 291) Chapter 21 State Succession and Responsibility 1 Introduction 291 2 Earlier practice and doctrine 292 3 Difficulties in relying on earlier practice and doctrine 294 Further reading 296

1 Introduction In 1963, the Chairman of the ILC’s Sub-committee on Succession of States and Governments, Manfred Lachs, proposed to include succession in respect of responsibility for torts as one of possible sub-topics to be examined in relation with Commission’s work on question of succession of States.1 There was, however, a divergence of views on the suitability of its inclusion,2 and the Subcommittee decided therefore to exclude the problem of torts from the scope of the topic.3 During its work on the topic of the responsibility of States for internationally wrongful acts, the Commission did not examine situations where, after the commission of a wrongful act, a succession of States occurs by either a wrongdoing State or an injured State. Accordingly, the Articles on Responsibility of States for Internationally Wrongful Acts do not answer the question whether or in which circumstances the successor State may replace the predecessor State in the new legal relations (secondary obligations or rights, as the case may be), which arise by reason of an internationally wrongful act committed by the predecessor State or another State against the predecessor State. The problem of succession of States in relation to responsibility has two components—the first concerning succession in respect of secondary obligations arising from a wrongful act of the predecessor State, the second concerning succession in respect of secondary rights of the predecessor State arising from a wrongful act of another State (ie a ‘third’ State vis-à-vis both the predecessor and successor States). This Chapter deals only with the first part of the problem. The second part of the problem is addressed in Chapter 65 below. While the separation of the two parts of the problem is useful for the purpose of analysis, it is obvious that, as in many situations where the same State may appear both as a wrongdoing and an injured State, a successor State may also find itself in a position of a ‘heir’ to such a complex situation. (p. 292) In analysing the problem of succession of States in respect of international responsibility we should set aside situations envisaged in article 10(2) of the Articles on State Responsibility dealing with attribution of an internationally wrongful act of a movement, insurrectional or other which succeeds in establishing a new State to such a new State, even if it cannot be excluded that the problems of succession and of such attribution could arise in parallel. We should also disregard situations in which a successor State, which is not a new State, might be responsible in connection with the act of the predecessor State on the grounds of the rules contained in Chapter IV of the Articles, namely because of its aid and assistance to the predecessor State in the commission of the internationally wrongful act (article 16), its direction and control over the commission of such an act by this State (article 17), or because it coerced this State to commit the act (article 18).

2 Earlier practice and doctrine According to a view commonly held in all cases of succession of States, where the predecessor State continues to exist (ie its legal personality remains identical), namely ‘cession’ (transfer of part of the territory) or ‘secession’ (separation of part of the territory), the predecessor State remains responsible for its own wrongful acts, even if they may have related in whole or in part to the territory thereby lost. The question of succession in respect of State responsibility therefore has to be limited to situations where, as a result of the territorial change, the predecessor State that committed a wrongful act has ceased to exist, namely when a dissolution of a State or certain cases of unification of States took place.4 If unification occurs through absorption of one State by

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another State, which retains its legal personality, only the case of a wrongdoing State thus ceasing to exist falls within the scope of the above situations. Neither practice nor doctrine provide a uniform answer to the question whether, and if so, in what circumstances a successor State may be held responsible for an internationally wrongful act of its predecessor. Concerning State practice, reference is often made to dissolution of the Union of Colombia (1829– 1831), after which the United States held the three successor States responsible for illegal acquisitions of American ships in 1827. Negotiations resulted in division of liability between successor States (even if not the full amount claimed), and the conclusion of agreements between the United States and Venezuela, Colombia, and Ecuador in 1852, 1857, and 1862 respectively.5 The claim by the United States for reparation for the illegal seizure of American ships in Dutch harbours in 1809 and 1810, during the period of French domination, was rejected by the Dutch Government after the (re)creation of the Kingdom of Holland in 1815 and the United States finally recognized this position.6 Following the independence of India and creation of Pakistan, prior rights and liabilities ‘including liabilities in respect of an actionable wrong’ were allocated to the State in

References (p. 293) which the cause of action arose.7 Many of the devolution agreements concluded by the former dependent territories of the United Kingdom in connexion with their accession to independence provide for continuity of delictual responsibility of the new States.8 More recently, after unification the Federal Republic of Germany assumed the liabilities arising from the delictual responsibility of the former German Democratic Republic.9 In certain decisions of arbitral tribunals, the thesis of succession of States in respect of State responsibility was rejected. In the Brown case, the Tribunal held that Great Britain was not liable for wrongs done to an American citizen, neither as a succeeding State, nor as a former suzerain over South African Republic.10 In the case concerning the Hawaiian Claims, the Tribunal held that no general principle of succession to liability for delicts exists to which succession through conquest would be an exception.11 In the Socony Vacuum Oil Company case, the International Mixed Commission (United States-Yugoslavia) held that Yugoslavia was not responsible for the confiscation of property by Croatia during the Second World War. The situation, however, was considered by the Commission as involving the problem of responsibility for the acts of a government which was not subject to control by Yugoslavia rather than a problem of succession of States, Yugoslavia having continued to exist as a State throughout the War.12 In its decision in the Lighthouses Arbitration, the Arbitral Tribunal answered affirmatively the question whether Greece was liable, as successor State, for breaches of the concession contract by Crete prior to its cession in 1913, refusing, nevertheless, to provide a solution other than for the case in question.13 According to a view which prevails in the literature: There exists in international law no customary rule or general principle postulating the automatic transfer to the State successor of the obligations resulting from the international responsibility of a predecessor State … The homogeneity of the international jurisprudence on this matter is not to be found in any other area in which the problem of State succession arises.14 The thesis of non-transmissibility of State responsibility is most often justified by the highly personal character of the responsibility,15 or as an inevitable consequence of the sovereign equality of States,16 arguments which no longer appear convincing. This thesis

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References (p. 294) also seems to rely on ‘analyses [which] remained linked with the old concept of responsibility in which the notion of fault was in the centre, and which did not take into account the evolution of the concept of responsibility towards its greater objectification’.17 According to some writers: [t]here is good authority for saying that a State does not become liable for unliquidated damages for the torts of delicts of the extinct State it has absorbed. Where, however, the latter had acknowledged its liability and compensation had been agreed, a debt has arisen which, it is suggested, ought to survive the extinction of personality and be discharged by the absorbing State.18 Others are, however, critical about the distinction between liquidated and unliquidated damages, advocating that: [there is no] support in practice for the distinction … most of the claims previously recognised by successor States through treaty or paid in settlements were manifestly unliquidated.19 According to this view, there is ‘sufficient support for a norm establishing a rebuttable presumption of succession to responsibility for international delicts, especially when primary focus is placed on the most recent and cogent precedents’.20 It has also been argued that: there is a … certain illogicality in recognising or not recognising the transmission of a legal relationship which arises following a certain event, depending on the moment when it is invoked. This is particularly striking since responsibility arises from a denial of justice, through which the State refuses the victim the possibility of obtaining reparation.21

3 Difficulties in relying on earlier practice and doctrine The practice mentioned above, as well as numerous other examples referred to in the literature,22 are not equally relevant in identifying rules of current-day international law governing the fate of obligations arising from an internationally wrongful act of a State in the event of succession of States. In many cases analysed in the writings, the substitution of one State to another on a given territory resulted from a conquest that would be illegal under contemporary international law. The conquest itself was sometimes considered as sufficient reason for rejecting responsibility for wrongs committed by a predecessor State. For example, in the Brown case, Great Britain argued: … it has never so far as His Majesty’s Government are aware been laid down that the conquering State takes over liabilities for wrongs which have been committed by the Government of the conquered country and any such construction appears to them to be unsound in principle.23

References (p. 295) Many cases belonged to the realm of municipal, not international law and their use by way of analogy may not be appropriate.24 Practically all cases involved claims for damage caused by the predecessor State to individuals or legal persons, and not directly to another State. Moreover, in some situations ‘the failure to characterise the event properly has produced a defective jurisprudence’.25 According to the ILC Articles on State Responsibility, ‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’26 which ‘… shall 27

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take the form of restitution, compensation and satisfaction, either singly or in combination …’.27 The succession of States in respect of responsibility would therefore mean the devolution of the obligation of reparation from the predecessor State to the successor State. The view has already been expressed: that it is easily conceivable to consider that certain financial obligations—which are most often the outcome of reparation—could be transmitted at the time of a succession of States from the predecessor State to the successor State in the same way as State debts are transferred.28 However, does State practice provide evidence of at least an emerging rule of international law providing for the devolution of the obligation of reparation from the predecessor State to the successor State? Most recently the question of succession in respect of international responsibility arose in the case concerning the Gabčíkovo-Nagymaros Project.29 The problem of succession of States in respect of State responsibility involved ‘responsibility’ in the meaning given to this term in the ILC Articles, ie directly in the context of international legal relations between States. The case is therefore of special importance for this discussion. In determining the consequences of its judgment for the payment of damages the Court stated that: Slovakia […] may be liable to pay compensation not only for its own wrongful conduct, but also for that of Czechoslovakia, and it is entitled to be compensated for the damage sustained by Czechoslovakia as well as by itself as a result of the wrongful conduct by Hungary.30 The Court thus answered in the affirmative both the question of succession in respect of secondary obligations and secondary rights resulting from respective wrongful acts. It should be noted that in Gabcíkovo-Nagymaros, the question of consequences of succession of States in respect of secondary rights and obligations was considered in close connection with that of succession in respect of rights and obligations under a bilateral treaty, the validity and continued effect of which was confirmed by the Court. In the Special Agreement, the Parties had agreed that: … the Slovak Republic is … the sole successor State of [Czechoslovakia] in respect of rights and obligations relating to the Gabčíkovo-Nagymaros Project.31

References (p. 296) Moreover, the Court was also explicitly requested by the Parties to answer questions relating to the conduct of the predecessor State, which no longer existed, as well as ‘… to determine the legal consequences, including the rights and obligations for the Parties, arising from its Judgment’.32 It was therefore obvious that the Parties were in agreement that, at least in some cases, there may be devolution under international law of secondary obligations or rights deriving from a breach of an international obligation from the predecessor to the successor State. Hungary, while assuming on one hand that Slovakia could not be deemed responsible for breaches of treaty obligations and obligations under customary international law attributable only to Czechoslovakia, which no longer existed, on the other hand argued that such breaches ‘created a series of secondary obligations; namely, the obligation to repair the damage caused by the wrongful acts [and that] these secondary obligations were not extinguished by the disappearance of Czechoslovakia’.33 Hungary also claimed responsibility of Slovakia by reference to ‘adoption’ of Czechoslovakia’s breaches by Slovakia after its independence.34 Finally, unlike older cases which dated from the period when both in doctrine and practice there

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was less support for automatic succession even in respect of primary obligations to which the secondary obligations are only consequential, Gabcíkovo-Nagymaros falls within the period of time when international law evolved towards broader acceptance of continuity of international obligations for successor States.35 In view of the link which exists between the primary obligation and secondary obligations arising from its breach, the presumption of succession in respect of responsibility may be stronger or weaker depending on the outcome of succession in respect of the primary obligation itself. Any hypothesis formulated on this basis could, however, be verified only in the light of further State practice and jurisprudence in this field. Further reading W Czaplinski, ‘State Succession and State Responsibility’ (1990) 28 Can YBIL 339 P Dumberry, State Succession to International Responsibility (Leiden, Martinus Nijhoff, 2007) JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) 8 AFDI 65 DP O’Connell, State Succession in Municipal Law and International Law (Cambridge, CUP, 1967), Vol I, ch 19 B Stern, ‘Responsabilité internationale et sucession d’Etats’, in L Boisson de Chazournes and V Gowlland-Debbas, The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff, 2001), 335 MJ Volkovitsch, ‘Towards a New Theory of State Succession to Responsibility for International Delicts’ (1992) 92 Columbia Law Review 2166

Footnotes: 1 ‘Report of the Sub-Committee on Succession of States and Governments’, ILC Yearbook 1963, Vol II, 260. 2 See the comments of TO Elias and S Rosenne, ibid, 282, 287. 3 Ibid, 299. 4 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) 8 AFDI 65, 67; B Stern, ‘Responsabilité internationale et sucession d’Etats’, in L Boisson de Chazournes & V Gowlland-Debbas, The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff, 2001), 335, 336. 5 See W Czaplinski, ‘State Succession and State Responsibility’ (1990) 28 Can YBIL 339, 341. 6 Ibid, 342. 7 DP O’Connell, State Succession in Municipal Law and International Law (Cambridge, CUP, 1967), vol I, 493. 8 See Materials on Succession of States, UN Doc ST/LEG/SER.B/14, 1967. 9 See art 24, Treaty on the Establishment of German Unity, 31 August 1990, 30 ILM 463. 10 RE Brown (United States) v Great Britain, 23 November 1923, 6 RIAA 120, 130: ‘The contention of the American Agent amounts to an assertion that a succeeding State acquiring a territory by conquest without any understanding to assume such liabilities is bound to take affirmative steps to right the wrong done by the former State. We can not indorse this doctrine.’ 11 FH Redward and others (Great Britain) v United States (Hawaiian Claims), 10 November 1925, 6 RIAA 157, 158: ‘We think there is no such principle … Nor we do see any valid reason for distinguishing termination of a legal unit of international law through conquest from termination by any other mode of merging in, or swallowing up by, some other legal unit. In either case the legal unit, which did the wrong no longer exists, and legal liability for the wrong has been extinguished

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with it.’ 12 Socony Vacuum Oil Company (1954) 21 ILR 55. 13 Lighthouses (1956) 23 ILR 81 (claims No 11 and 4). 14 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) 8 AFDI 65, 86. See also L Cavaré, Le droit international positif (Paris, Pédone, 1967), Vol I, 416; Ch Rousseau, Droit international public (Paris, Sirey, 1977), 505; P Guggenheim, Traité de droit international public (Geneva, Librairie de l’Université, 1953), 474. 15 See M Udina, ‘La succession des Etats quant aux obligations internationales autres que les dettes publiques’ (1933-II) 44 Recueil des cours 767. 16 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) 8 AFDI 65, 86. 17 B Stern, ‘Responsabilité internationale et sucession d’Etats’ in L Boisson de Chazournes & V Gowlland-Debbas, The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff, 2001), 335. 18 R Jennings & A Watts, Oppenheim’s International Law (9th edn, London, Longmans, 1996), Vol I, 218. 19 MJ Volkovitsch, ‘Towards a New Theory of State Succession to Responsibility for International Delicts’ (1992) 92 Columbia Law Review 2162, 2190. 20 Ibid, 2197. 21 B Stern, ‘Responsabilité internationale et sucession d’Etats’ in L Boisson de Chazournes and V Gowlland-Debbas, The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff, 2001), 335, 337 22 See eg C Hurst, ‘State Succession in Matter of Torts’ (1924) 5 BYIL 163, 170ff. 23 6 RIAA 128. 24 W Czaplinski, ‘State Succession and State Responsibility’ (1990) 28 Can YBIL 339, 351, 356. 25 DP O’Connell, State Succession in Municipal Law and International Law (Cambridge: CUP, 1967), vol I, 482. 26 Art 31(1) ARSIWA. 27 Art 34 ARSIWA. 28 B Stern, ‘Responsabilité internationale et sucession d’Etats’, in L Boisson de Chazournes & V Gowlland-Debbas, The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab (The Hague, Martinus Nijhoff, 2001), 335, 339. 29 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7. 30 Ibid, 78 (para 151). 31 Preamble, para 2 of the Special Agreement for submission to the ICJ of the differences between the Republic of Hungary and Slovak Republic concerning the Gabčíkovo-Nagymaros Project of 7 April 1993, ICJ Reports 1997, p 7, 11. 32 Ibid, art 2, para 2. 33 Memorial of the Republic of Hungary, para 8.03. 34 Ibid, para 8.04. 35 See J Crawford, ‘The Contribution of Professor D.P. O’Connell to the Discipline of International Law’ (1980) 51 BYIL 1, 40; O Schachter, ‘State Succession: The Once and Future Law’ (1993) 33 Virginia JIL 253, 258; ED Williamson & JE Osborn, ‘A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia’ (1993) 33 Virginia JIL 261, 263; V Mikulka, ‘Dissolution of Czechoslovakia and succession in respect of treaties’, in M Mrak

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(ed) Succession of States (The Hague, Nijhoff, 1999), 109, 124; G Hafner ‘Austria and Slovenia: Succession to bilateral treaties and the State Treaty of 1955’, in M Mrak (ed) Succession of States (The Hague, Nijhoff, 1999), 127, 140; J Klabbers & others (eds), State Practice Regarding State Succession and Issues of Recognition (The Hague, Council of Europe, 1999), 112–116.

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Part III The Sources of International Responsibility, Ch.22 The Attribution of Acts to International Organizations Pierre Klein From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Responsibility of international organizations — Wrongful acts — Ultra Vires conduct — United Nations (UN) — NGOs (Non-Governmental Organizations) — Peace keeping

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(p. 297) Chapter 22 The Attribution of Acts to International Organizations 1 Attribution to the organization itself 298 (a) Definitions of organ and agent 298 (i) Formal organic ties or control as elements of attribution 298 (ii) Non-attribution to an international organization in the absence of an organic link or control 301 (b) The exercise of official functions 304 (i) Acts in excess of authority 304 (ii) Conduct of agents acting entirely without reference to their official functions 306 2 Joint or parallel attribution of wrongful acts to the organization and to its members 306 (a) The member State as co-author of the organization’s wrongful act 307 (b) The member State as an accomplice in the organization’s wrongful act 307 (c) Control of a member State over the activities of an organization 309 (d) Failure of due diligence by member States in relation to acts of an organization 310 Further reading 315 The applicability to international organizations of rules of international responsibility as they were created in the context of State relations is generally accepted.1 As has been noted, this transposition ‘is all the more natural given that these rules are customary in nature’.2 The attribution of wrongful acts to an international organization is therefore governed by rules in large part modelled on those applicable to States. However, the particular character of international organizations as subjects of the international legal order implies that in certain situations a wrongful act may entail joint or parallel responsibility of an international organization and its members.

(p. 298) 1 Attribution to the organization itself As is the case for States, the basic principle is the attribution to the organization of acts of its organs and agents.3 The International Court reiterated this principle in the Cumaraswamy Advisory Opinion when it stated that the UN ‘may be required to bear responsibility for the damage … incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity’.4 This finding results from an abundant and constant practice. Its concrete implementation implies that entities or persons that may be considered as organs or agents of an international organization must be clearly identified. As the Court indicated, it is also required that the wrongful act arise in the context of the official capacity of the organs or agents concerned.

(a) Definitions of organ and agent An organ of an international organization is defined as an ‘[e]lement of the structure of an international organisation through which the latter acts, expresses its will and discharges its duties’.5 As for the notion of agent, the International Court has understood it to include ‘any person who … has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts’.6 Hence an organ or an agent

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may or may not be connected to the organization by formal organic ties, and, in the latter case, acts may be attributed to the organization if the entity or person is under the control of the organization. By contrast, absent an organic tie or the exercise of control, a wrongful act may not be attributed to the international organization. (i) Formal organic ties or control as elements of attribution In the vast majority of cases organs and agents are tied to the international organization they serve by a formal organic bond. This is particularly obvious for principal and subsidiary organs whose place and role within the structure of the international organization is generally defined by its constitutive document or by secondary law (such as, for example, resolutions creating subsidiary organs). Similarly, the connection of officials to the organization is generally specified in a formal act (personnel regulations or similar documents). This tie may also result from legal instruments specific to particular activities of the organization. This is the case, among others, for peacekeeping operations of the United Nations: the texts establishing the missions systematically specify that ‘[t]he United Nations peace-keeping operation, as a subsidiary organ of the United Nations, enjoys the status, privileges and immunities of the United Nations …’.7 The attribution of the wrongful act to the organization, in such circumstances, finds its justification on a more general and theoretical level, given that,

References (p. 299) in the international legal order, organs of an international organization do not possess their own legal personality and the organization is therefore the only legal entity which may be subject to responsibility at the international level.8 It should be noted that, as is the case for States, the type of power exercised by the organ does not matter, nor does the position of the organ or agent in the hierarchy of the organization. Hence even if thus far it has been mostly material acts occurring in the context of ‘executive’ functions that have been attributed to international organizations, the same reasoning should hold true for wrongful acts committed by the judicial or ‘legislative’ organs of an organization.9 The UN’s responsibility therefore could be entailed as a result of a decision taken by one of the ad hoc international criminal tribunals which clearly violated international norms for the protection of the rights of the accused, or as a result of the adoption by the Security Council of a resolution that ran counter to peremptory norms of international law. As is well known, the issue of conformity with international law of Security Council resolutions was raised by Libya in the Lockerbie case before the International Court.10 One may thus speak, as is the case with States, of the principle of the ‘unity of the organization’. In the context of its work on the responsibility of international organizations the ILC has provisionally adopted a general rule of attribution of conduct to international organizations, which provides as follows: 1 . The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization. 2 . For the purposes of paragraph 1, the term ‘agent’ includes officials and other persons or entities through whom the organization acts….11 As is suggested by the concept of ‘agent of an international organisation’ adopted by the International Court in its 1949 Reparations Advisory Opinion,12 and later by the ILC, it is nonetheless important to look beyond situations of formal links, and to take into account the actual relations of the individuals (or groups of individuals) with an international organization in any given situation. The criterion of effective control by an organization over the activities of the organ or agent in question then becomes predominant, as is apparent, for example, from UN practice in relation to peace-keeping operations. Due to the lack of its own military resources, the United

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Nations has had to have recourse to military units made available to it by member States to pursue such operations. In such circumstances, the question could have arisen of the attribution of potentially wrongful acts committed in the context of these operations to the States which had provided troops, rather than to the Organization. However insofar as the United Nations exercises operational control of the activities in the course of which wrongful acts have been

References (p. 300) committed, it is the United Nations itself which has accepted responsibility for such acts. The precedent of the UN operation in Congo (ONUC) is certainly the most emblematic in this respect; 13 a constant practice since then has confirmed this interpretation,14 which is understood to reflect a well-established practice.15 The reality of the control exercised by an international organization over a given person or entity is a question of fact that must be evaluated on a case-by-case basis. In relation to this issue it has been observed that control ‘will necessarily comprise a series of competences and attributions, the various elements of which need not necessarily be present in each and every case but which, taken as a whole, must be sufficiently strong and coherent to justify effective allegiance’ of the agent or entity to the organization.16 The various elements taken into account in this respect have to prove the effectiveness of control exercised by the organization if a wrongful act is to be attributed to it on this basis. This criterion also plays a decisive role in the attribution of wrongful acts committed by organs common to several international organizations (as was the case, for instance, with the European bodies when they were acting on behalf of the three Communities), by ‘de facto’ organs or by organs ‘borrowed’ by one organization from another.17 In the latter case, the control criterion may even supplant the formal organic connection tying the agent or organ to its organization of origin. The criterion also allows resolution of cases where organizations rely on their member States to execute some of their tasks, once again due to their lack of material or human means; among others this is the case of the European Community, which entrusts some of its duties to member States in relation to collection of taxes and other monies owed to the Community. In most cases, however, it appears that organizations exercise a very limited authority over their member States in such circumstances, which would not permit the conclusion that there is effective control by the organization of the acts of its member States and hence, it may not be said that wrongful acts committed by member States in the exercise of such duties are attributable to the organization.18 Everything depends on the margin of manoeuvre at the disposal of the member States. The less their margin of manoeuvre and the greater the authority of the organization, the greater the probability that wrongful acts committed in such circumstances will be attributed to the organization itself. The greater the margin of manoeuvre left to the State, and the more autonomy it retains in the implementation of the tasks entrusted to it by the organization, the more likely it is that wrongful acts will be attributed to the State itself rather than to the organization.19 Similarly, it could be possible to attribute the acts (p. 301) of non-governmental organizations to an international organization in situations where the effective control exercised by the intergovernmental organization over such NGOs permits characterization of the latter as an agent of the organization.20 Here again, the reality of such control must be established on a caseby-case basis, taking into account all the pertinent factual elements. The criterion of effective control as a basis of attribution of conduct to an international organization has been adopted on a more restrictive basis by the ILC in its work on the responsibility of international organizations by limiting this hypothesis to organs ‘borrowed’ by an organization. Draft article 6 reads: The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.21

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From a conceptual standpoint, the importance of control as a crucial criterion for attributing wrongful acts to an international organization has been highlighted on various occasions. Paul De Visscher underlined the extent to which control reinforces the cohesion of action by the United Nations, and his comment may be extended to all international organizations: While responsibility is based on control, it also is a guarantee of the effectiveness of control … Indeed, it is clear that if responsibility for wrongful acts committed by United Nations Forces was to be borne by participating States, the latter would naturally be inclined either to refuse to participate in peacekeeping operations, or to require full control of their divisions at the tactical and strategic levels. United Nation Forces operations designed to fulfil goals of common interest would then degenerate in a multitude of armed operations, generating a state of complete anarchy incompatible with the object and principles of the Organisation.22 Whether based upon a formal organic link or upon control, or upon a combination of these two elements, the attribution of a wrongful act to an international organization constitutes the consecration of the latter’s autonomy on the international scene and the effectiveness of its separate legal personality.23 However, absent either of these elements there is no question of the attribution to an international organization of a wrongful act, even if that act was committed in the course of an activity undertaken or authorized by the organization. (ii) Non-attribution to an international organization in the absence of an organic link or control Various precedents show that violations of international law committed by entities of member States may not be attributed to an organization, even where the violation occurred within the context of activities or an operation authorized or undertaken by the organization. The practice of the United Nations, as well as that of the North Atlantic Treaty

References (p. 302) Organisation (NATO), offers various examples. As regards the UN, this is particularly the case in relation to coercive operations that the UN has merely authorized pursuant to Chapter VII of the Charter without directly involving itself.24 Accordingly, it was the United States, and not the United Nations, which had to answer to demands for reparation made by third States due to violations of international obligations that occurred during the Korean War.25 This outcome prevailed despite the fact that military action against Korea was authorized and monitored by the Security Council, and subsequently by the General Assembly, and that a formal tie linked the States leading the intervention with the UN insofar as the forces were subject to the ‘Unified Command of the United Nations’, were authorized to wear the UN insignia and fought under the UN flag. However, those elements did not prevent the attribution of wrongful acts to the United States insofar as that State in fact assumed complete control of the military operations on the ground, the role of the United Nations being limited essentially to political oversight of the operation.26 The same solution was made applicable to any violations of international law committed in the course of the 1991 Gulf War, in relation to which the Security Council merely authorized the use of force against Iraq.27 The same holds true for military actions undertaken under the auspices of NATO. Military forces deployed in that framework remain subject to national control and command and are not linked to the Organisation by any formal organic tie. The practice reveals accordingly that it is the member States, and not NATO as such, that have had to answer for the consequences of wrongful acts committed in the course of operations undertaken by the Organisation. Thus contributions to cover damage caused by national contingents taking part in the multinational force deployed under the auspices of NATO in Bosnia-Herzegovina following the Dayton Agreement (IFOR and SFOR) were made by the participating States and not by an international organization.28 Similarly, it was the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

United States, and not NATO, which offered an ex gratia payment to the Chinese authorities after the bombing of the Chinese embassy in Belgrade in the course of military operations undertaken by NATO States against the Federal Republic of Yugoslavia in the first half of 1999, even though this incident took place in the context of a military campaign under the aegis of NATO.29 Moreover, it is significant that in the context of the judicial proceedings instituted by Yugoslavia against 10 NATO member States before the International Court of Justice regarding those military operations, very few of these countries attempted during the proceedings on provisional measures requested by Yugoslavia

References (p. 303) to argue that the attacks were attributable to NATO as an international organization and thereby to shield themselves behind the separate legal personality of the organization.30 Whether these precedents concern the UN or NATO, they converge in showing that the mere fact that an international organization is implicated in a specific activity does not suffice for any wrongful acts committed in the course of that activity to be ipso facto attributed to it. The acts in question must in effect be linked back to the organization, either because the acts were committed by one of its organs, or because it can be shown that the organization exercised effective control over the entity or person which committed the acts in question at the time of their commission. This well-established practice has, however, been brought into question by the European Court of Human Rights in the cases of Behrami and Saramati.31 In the case, the Court considered that the acts of the ‘international security presence’ (KFOR), deployed in Kosovo by virtue of Resolution 1244 (1999) of the Security Council, were ‘in principle’ attributable to the UN.32 Despite the fact that the troops deployed had been placed under NATO’s ‘operational control’, the Court maintained that the decisive factor determining the attribution of the acts of KFOR to the UN was the ‘ultimate authority and control’ that the Security Council had retained over KFOR.33 This decision of the Court has been strongly criticized by legal scholarship, on the basis that the Court gave preference to an essentially institutional and formal analysis of the institution of international responsibility, when this institution has been traditionally characterized by a strong reliance on the facts, as evidenced particularly by the pre-eminent position recognized to effectiveness in this field.34 This did not prevent both the European Court itself and some national courts to uphold this line of reasoning in similar cases. Hence, the Strasbourg judges held that acts of the Office of the High Representative (OHR) in Bosnia-Herzegovina were in principle attributable to the UN since the authority exercised by the OHR over this territory had been delegated by the UN Security Council.35 And in the Al-Jedda case before the House of Lords, the Law Lords scrupulously followed of the Behrami template, even though the majority decided that the situations in Iraq and Kosovo, respectively, were not sufficiently similar to justify attributing acts of the British military contingent in Iraq to the United Nations.36

References (p. 304) Be that as it may, there is no doubt that wrongful acts cannot be attributed to the organization in question unless they satisfy a supplementary condition: that the wrongful acts fall within the scope of the official functions by the organ or agent carrying them out.

(b) The exercise of official functions As with State agents, individuals or groups acting on behalf of an international organization maintain a capacity to take autonomous action which remains essentially in the private sphere; accordingly, it is not possible to consider all acts of the individual or group as ‘acts of the organization’. A link must be established between the (hypothetically wrongful) conduct of the agent and the functioning of the organization in question in order for the responsibility of the

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organization to be engaged on account of that conduct. Specifically, the agent’s behaviour must fall within the scope of his official functions in order to be attributable to the organization.37 In the majority of situations this requirement does not cause difficulties. Thus, refusal by an executive organ to adopt measures necessary for the implementation of an international treaty duly concluded by an organization, or an order given by the person responsible for a peace-keeping operation to attack a civilian target in the context of a duly authorized military action, may without difficulty be attributed to the international organization to which the agent or organ is affiliated. However there exist situations which are more ambiguous where attribution of a wrongful act may not be quite as clear. Such is the case in particular for violations of international obligations committed by an organ or agent acting in excess of his authority. By contrast, there is no question that an act committed by an agent that bears no connection with his official functions is not attributable to the organization. (i) Acts in excess of authority Although the link between the wrongful act and the discharge of official functions constitutes an essential condition for the attribution of the act to the organization, the required connection is not limited only to those acts that are in conformity with orders or instructions received by the organ or agent, or, more generally, to the norms defining the internal legal framework of the organization. Situations in which organs or agents of an international organization commit a wrongful act while acting outside the scope of their duties (ultra vires) generally occur in two types of situations. First, it may be that the wrongful act occurs in the course of the regular execution of an action decided upon by an organ acting outside the scope of its material competence, or in violation of applicable procedural rules. On the other hand, it may be that the agent himself acts beyond the limits of instructions given to him or beyond the limits set for his actions and commits a wrongful act in the course of the execution of a mandate that was conferred in a perfectly appropriate manner. In both hypotheses the illegality of the act in question having regard to the internal legal framework governing the organ, or the legal limits on the agent’s action, is not an obstacle to the attribution of the wrongful act to the organization. Thus, it has been argued in several instances that the UN should be held responsible for international law violations committed in the course of peacekeeping operations, whether or not

References (p. 305) the operation was legally instituted.38 Similarly, the United Nations has accepted responsibility for the consequences of wrongful acts committed by members of peace-keeping forces when they act without superior orders or fail to abide by instructions that they have been given, for instance in the context of the United Nations Operation in Congo.39 In general the attribution to an international organization of the ultra vires acts of its organs and agents is widely accepted.40 The principle has been consecrated by the ILC in its work on the Responsibility of International Organizations. Draft article 7 states: The conduct of an organ or an agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in that capacity, even though the conduct exceeds the authority of that organ or agent or contravenes instructions.41 The attribution of such ultra vires acts to an international organization finds several bases. The fact that ultra vires acts may bind a subject of international law vis-à-vis third parties was recognized in very general terms by the International Court in the 1962 Advisory Opinion on Certain Expenses of the United Nations.42 More specifically the application of this solution in the field of international responsibility finds justification in the fact that, although the act in question may have been committed outside the limits of the functions of the organ or agent, it appears to have, at least from the perspective of third parties, a close connection with the exercise of an official

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function. In many cases, third parties lack any ability to determine whether the act in fact remained within the limits of the authority of the organ or agent, or on the contrary, whether the act exceeded it. This connection, even if only apparent, is essential: ‘[the] organisation may be responsible for acts committed by its officials even when the latter lacked competence or abused their power. What is decisive from an international law standpoint is the possibility of imputing the official’s act to the public organisation that employs him, the link between the culpable agent and the organisation that entrusted him with the authority or the material power that he abused’.43 The attribution of the ultra vires acts of its agents to an organization is therefore justified in part, by the organization’s shortcomings in relation to the obligation of vigilance which requires it to ensure that the means or powers that it has made available to its agents and organs for the accomplishment of their mission are utilized exclusively for that purpose and are not abused. Moreover, to exclude the attribution of such acts to the organization would result in permitting the ‘internal law’ of the organization (ie those rules attributing competence within the organization) to prevail over international law, which would obviously be contrary to well-established principles in this area. If such were the case the

References (p. 306) organization could escape all responsibility merely by certifying that the act in question was beyond the competence of the particular organ or agent. The institution of responsibility would then be at risk of being rendered devoid of all meaning when applied to international organizations. It is important to bear in mind, nevertheless, that in all such cases of attribution the acts in question must present a direct relation with the exercise of official duties by the organ or agent in question, even if they have acted beyond their competence. By contrast the non-attribution of wrongful acts to the organization remains the rule when these acts were committed by an agent entirely without reference to his official functions. (ii) Conduct of agents acting entirely without reference to their official functions It is unanimously accepted that wrongful acts committed by the agent of an organization in what is commonly referred to as the ‘private domain’ of his activities are not attributable to the organization.44 Such is the case precisely because the act in question fails to present any connection with the exercise of official functions and therefore may not be linked back to the organization. Such acts could just as easily have been committed by any private person, with no connection to an international organization. International practice offers some illustrations of such a situation; for instance, the responsibility of the UN does not appear to have been in any way engaged in relation to the proceedings initiated by the Israeli authorities against a member of the UN Interim Forces in Lebanon, accused of having attempted to enter Israeli territory as a tourist when he was off-duty to deliver explosives to a PLO representative.45 In more general terms, the UN Office of Legal Affairs has indicated that the Organisation does not accept responsibility for the wrongful acts of a member of a peace-keeping force when the latter is ‘off-duty’, whether within or outside the zone of operations.46 There is here a clear parallel with the analogous rules applicable to States.

2 Joint or parallel attribution of wrongful acts to the organization and to its members The responsibility of an international organization may arise in situations where distinct wrongful acts may also be attributed to the member States of that organization—or to some of them—where the act of the member State (or States) is closely related to the act committed by the organization itself. It must first be noted that in general, the question is not one of attributing to the member State or States an act committed by the international organization; on the contrary, responsibility in general arises due to some wrongful act directly attributable to the State or States, even if such From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

wrongful acts occurred as a result of or in the context of the conduct of an agent or organ of an intergovernmental organization, and that action was itself contrary to international law. Four situations may be distinguished: situations where a State directly participates in the wrongful act of an international organization of which it is a member, thereby becoming a co-author of the act; situations where a member State of an organization, without being (p. 307) the direct author of the wrongful act, allows or promotes it, either because of its complicity with the organization, or due to the control it exercises over the organization’s acts, or by contrast, due to the lack of vigilance by the State over the organization of which it is a member. It must be noted that most of these hypothetical fact-patterns remain purely theoretical, and that it has only been in rare cases that a State’s responsibility has been potentially engaged on one of the above bases, and even more rarely that responsibility has actually been found to exist. However, the possibility of such an occurrence may not be excluded. As will be seen, it has been given detailed consideration in the context of the European Convention on Human Rights.

(a) The member State as co-author of the organization’s wrongful act Activities carried out jointly by an international organization and one or several of its member State(s) may give rise to violations of international obligations binding both the organization and its members. In such a situation, the organization and the State(s) would be co-authors of the wrongful act, and that act could be attributed to one or the other. Hence, it has been suggested that a failure to comply with the obligation to ‘respect and ensure respect for’ the rules of international humanitarian law as formulated by the 1949 Geneva Conventions could be attributed concomitantly to the UN and to its member States in the case of the 1994 Rwandan genocide, where neither the organization nor its members had adopted measures sufficient to prevent the genocide.47 Such an analysis is in part confirmed by the report of the Inquiry Commission set up to shed light on the role of the UN in the events of 1994, as the Commission highlighted the abstention of the UN as well as that of the member States.48 The report of the Secretary-General on the respective responsibilities of the UN and its members in the taking of the town of Srebrenica by ethnic Serbian forces in July 1995 points in a similar direction.49 However, it may be observed that the responsibility established in those reports seems to be more political than legal. The existence of parallel international responsibility as between an international organization and one or more of its members therefore continues for the present to be of a purely hypothetical kind; however nothing appears to prevent it from a theoretical standpoint.

(b) The member State as an accomplice in the organization’s wrongful act In the same vein, a State could see its own responsibility engaged because of the provision of aid or assistance to an international organization for the purposes of the commission of an internationally wrongful act. This hypothesis was accepted by the ILC in the context of its work on the responsibility of international organizations. Draft article 57, provisionally adopted on first reading, provides that: A State which aids or assists an international organization in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.

References (p. 308) These conditions, which follow those established in article 16 of the 2001 Articles on State Responsibility, would be fulfilled if a State was knowingly to make its territory available to an international organization in order to enable the latter to undertake wrongful military operations From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

against another State. Equally, the complicity theory could also apply to the everyday activities by which States participate in the operation of organizations of which they are members, such as the adoption of institutional acts; to the extent that the vote of each member State allows the adoption of a resolution by the organization which, ex hypothesi is contrary to the international obligations weighing upon both the organization and the members involved, the act of voting would appear to constitute an act by which the member States involved assist the organization to commit an internationally wrongful act. However, in such a case, the responsibility of a member State can only be envisaged if its vote actually facilitated the commission of the wrongful act, which implies that the act in question could not have been adopted without that State’s vote. Similarly such a construction presupposes that the State acted in full awareness of the consequences of its vote. Such an awareness would, in the vast majority of cases, be demonstrated by the high standard of care with which States generally take into account the consequences—even remote—of their votes within international organizations of which they are members. Such an application of the complicity theory to the participation of States in the decision-making processes of international organizations has so far had little application in practice. The only attempt to implement this theory was that which was briefly considered by Bosnia-Herzegovina against the United Kingdom before the International Court.50 That development took place in the context of the contestation by Bosnia-Herzegovina of the arms embargo imposed by Security Council Resolution 713 (1991) on all entities arising out of the former Yugoslavia. The aim of the action seems to have been to attempt to invoke the responsibility of the United Kingdom, not for the (in)action of the United Nations, but for its own actions, the principal of which was the fact of having, by its votes within the Security Council, permitted the adoption and maintenance of the embargo which allegedly prevented the Bosnian people from defending itself against the genocide perpetrated against it. However the discontinuance of those proceedings gave no indication as to what treatment the Court would have given to such a line of argument. At any rate it may be noted that the only act attributable to the State in such a case would be its own conduct; there is no question of attributing to it the wrongful conduct of the organization, even if the organization’s action was made possible by the aid or assistance of the State.51 In fact, the ILC has recently considered that the complicity theory should not be extended to this sort of conduct. It considered that to properly speak of complicity, the influence required ‘has to be used by the State as a legal entity that is separate from the organization’52 and not by the State as a constituent element of the organization. It is very likely that this proposition will be followed by States, probably concerned by the extension of the regime of complicity to participation in the adoption of institutional acts, since there is a risk that this construction could compromise relatively frequent situations where their responsibility could be engaged.

References

(p. 309) (c) Control of a member State over the activities of an organization It has sometimes been suggested that member States exercise such control over international organizations that the organization’s wrongful acts should be attributed to those States.53 This hypothesis has been accepted by the ILC in its work on the responsibility of international organizations, albeit in a much more restrictive way than the doctrine had frequently envisaged. Indeed, ‘direction’ and ‘control’ constitute one of the sources of the ‘derived responsibility’ endorsed by the ILC.54 The Commentaries to article 17 of the Articles on State Responsibility—the provision which served as the basis for article 58—clearly show that the situations envisioned by the ILC in this regard imply a degree of subordination that is largely foreign to the usual content of relations between international organizations and their member States. The ILC observed in that regard that ‘the term ‘‘controls’’ refers to cases of domination over the commission of wrongful conduct and not simply the exercise of oversight’.55 The examples of such domination given by the

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ILC include, among others, ‘instances … where one State exercises the power to direct and control the activities of another State, whether by treaty or as a result of a military occupation or for some other reason’.56 Such examples appear relatively removed from the usual functioning of contemporary intergovernmental organizations. Such a global control by States over the international organizations of which they are members would normally prove to be incompatible with the autonomy that is generally recognized to the latter under the guise of recognition of their separate legal personalities. However, if it were possible to actually establish the existence of control by member States (or some of them) over some or all of the organization’s activity in the course of which a wrongful act is committed, nothing would then preclude the attribution of that act to the State or States in question, and the ensuing responsibility for those acts; 57 however that would imply that the State or States in question had ‘controlled and directed the act in its entirety’.58 However, whether control is exercised over the entirety of the organization’s activities or solely over the activity in the course of which the wrongful act was committed, in practice it appears difficult to prove such control. Indeed such arguments have systematically been rejected by domestic courts in cases where States have been alleged to be liable for the shortcomings for which an organization was responsible.59 Neither the simple fact of membership, direct participation in the management of the organization, nor participation in a decision leading to a wrongful act have been accepted as criteria sufficient to establish actual control by member States over the organizations in question. In any case the distinct legal personality with which organizations are endowed has been found to form an obstacle impeding the attribution of wrongful conduct to member States. In this regard, it may be recalled that the ILC explicitly excluded the possibility that control by one State over an organization and attribution to that State of the organization’s

References (p. 310) resulting wrongful acts could be deduced solely from the fact that the wrongful acts were committed on the State’s territory.60 The principal justification behind this provision was precisely that there existed no ground for attributing responsibility to a State for the acts of an organization over which, a priori, it did not exercise any control. In conclusion, while the argument that a State’s control over an organization’s activities can in theory justify attribution of the organization’s wrongful act to that State, it follows from the various factors discussed above, both theoretical, and practical, that the circumstances in which the international responsibility of a State may be entailed by the act of an organization are in fact quite narrow. Nevertheless, the possibility of such responsibility should not be completely discarded or ignored.

(d) Failure of due diligence by member States in relation to acts of an organization One last basis may be envisaged as permitting the member States to be held responsible in the context of wrongful conduct of the organization, namely where they have failed to exercise due diligence regarding the activities of the organization. In this respect the due diligence obligation that general international law imposes on States is relevant not only in its most traditional meaning (ie as a result of territorial control), but also has a broader scope insofar as it requires, in some cases, that States ensure that intergovernmental organizations of which they are members comply with certain international obligations in the performance of the functions which have been assigned to them. In its traditional meaning, due diligence imposes upon States the obligation to make sure that their territories are not used to ends contrary to the rights of other States.61 This duty is of a general scope, and the obligation applies to any situation where such acts are committed on the territory of a State, regardless of whether these acts are committed by another State, private persons or an international organization.62

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State practice offers precedents for this type of situation, given that it appears that it was on the basis of an alleged failure to exercise due diligence that Italy and Germany addressed protests to Switzerland in 1939 for the broadcast by the League of Nations radio located in Swiss territory of ‘hostile propaganda’ which these States considered to be contrary to international law.63 As stated above, the sole occurrence of a wrongful act on the territory of a State does not suffice; rather, it must be established, in each case, that the State fell short of the standard required by the obligation of due diligence, taking into account the material means that the State had at its disposal to supervise activities taking place on its territory. In such a situation, it is once again not the wrongful act of the organization, ex hypothesi committed on its territory, that is attributed to the State, but rather the State’s own separate wrongful act (ie the failure to exercise due diligence) which

References (p. 311) is revealed through the wrongful act of the organization. While this situation presents obvious common features with potential responsibility for complicity, in the sense that in both cases the State contributes, by its (in)action, to make possible the perpetration of an internationally wrongful act by the organization, the two cases nonetheless differ on an essential point, namely the degree of implication in the occurrence of the wrongful act. While responsibility for complicity requires active and wilful participation in bringing about the wrongful act, a failure to exercise due diligence does not imply such a degree of involvement with the author of the wrongful act, but rather that the State the territory of which was involved was negligent and had failed to exercise the requisite territorial control. The requirements contained in article 16 of the Articles on State responsibility are therefore not applicable. In addition to these traditional situations of ‘territorial’ responsibility, it seems possible to envisage a wider field of application of the obligation of due diligence, as regards the relations between States and the international organizations of which they are members. In such a case, due diligence would require that States ensure that the rights and interests of third parties are not violated in the course of activities of the organizations which they have created. By contrast to the due diligence obligation based on territorial control, this obligation does not have any foundation in general international law. However, it has sometimes been embodied in conventional instruments; for instance, article 139(1) and (2) of UNCLOS imposes a due diligence obligation upon organizations and member States for activities carried out in the Area and enunciates the principle of their responsibility for any damage resulting from such activities. Further, article 129(3), which provides that ‘States Parties that are members of international organizations shall take appropriate measures to ensure the implementation of this article with respect to such organizations’ constitutes an independent basis for responsibility aimed at sanctioning the inaction of member States of international organizations which are parties to the Convention. However such conventional regimes appear to be exceptional, raising the question whether there exists a general obligation of due diligence in relation to the acts of international organizations beyond those instruments that specifically provide for it. The jurisprudence of the monitoring bodies of the European Convention on Human Rights suggests that, in that area at least, such an obligation of due diligence also applies to States parties to the Convention with respect to international organizations to which they have transferred the exercise of certain competences. The Commission and subsequently the European Court of Human Rights have on several occasions been called upon to rule on the scope of the obligations that the Convention imposes on State parties, for the most part in relation to certain activities or decisions occurring within the framework of the European Community, or to acts of its organs. Within the past 30 years a number of applications have been made against member States of the Community alleging violations of the Convention in the course of the adoption or implementation of Community measures; 64 given that the Community is not a party to the Convention, applications made against member States are the only ones with any prospect of success. While the European Commission on Human Rights from the

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start excluded any possibility of direct responsibility of member States for acts of the

References (p. 312) Community as a result solely of membership of the Community,65 the Commission also highlighted at a relatively early stage that it could not ‘be accepted that, by means of transfers of competences the High Contracting Parties may at the same time exclude matters normally covered by the Convention from the guarantees enshrined therein’.66 The scope of obligations which remain incumbent upon the member States in such circumstances was later specified in the case of M & Co v Germany, where the applicant company complained that Germany had granted a writ of execution for enforcement of a decision of the European Court of Justice which had ordered the applicant to pay a large fine without due respect for the rights of the defence. After having observed that the Convention ‘does not prohibit a Member State from transferring powers to international organisations’ the Commission underlined that ‘a transfer of powers does not necessarily exclude a State’s responsibility under the Convention with regard to the exercise of the transferred powers. Otherwise the guarantees of the Convention could wantonly be limited or excluded and thus be deprived of their peremptory character’.67 The Commission concluded that ‘the transfer of powers to an international organisation is not incompatible with the Convention provided that within that organisation fundamental rights will receive an equivalent protection’.68 After enquiring into the mechanisms of protection of such rights in the context of Community law,69 the Commission nevertheless rejected the application by finding that, on the facts, the necessary ‘equivalent protection’ had been provided. This standard was subsequently polished in Bosphorus Hava Yollari Turzim Ve Ticaret Anonim Sirketi v Ireland, decided by the European Court of Human Rights in June 2005.70 The Strasbourg judges clarified, on the one hand, that a finding that an ‘equivalent protection’ had been provided cannot be final, and that it ‘would be susceptible to review in the light of any relevant change in fundamental rights protection’.71 On the other hand, they clarified the exact scope of the standard, limiting it to a presumption of respect of the Convention: If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a ‘constitutional instrument of European public order’ in the field of human rights.72 Yet the Court once again upheld the existence, in the European Communities system, of guarantees of ‘equivalent protection’ for the protection of the rights enshrined in the Convention, and considered that there was no basis to reverse the presumption that the defendant State had acted in conformity with its Convention obligations.73

References (p. 313) Ultimately, the only case where the European Court of Human Rights considered that a State had breached its obligations under the Convention by virtue of the transfer of the exercise of certain competences to an international organization is the Matthews case. In that case, the applicant had argued that the United Kingdom had violated article 3 of Protocol No 1 to the European Convention on Human Rights (ECHR) due to the fact that residents of Gibraltar had not been allowed to participate in the 1994 elections for the European Parliament. The Court held that,

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given that Community law failed to offer any recourse against the instruments which restricted the right to participate in the elections solely to the United Kingdom, to the exclusion of Gibraltar, the Community legal system did not provide protection for the right to free elections equivalent to that required of States parties by article 3 of Protocol 1.74 As a result, ‘the United Kingdom [was] responsible under Article 1 of the Convention for securing the rights guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or European’.75 The Court accordingly concluded, for the first time, that a State party had failed to comply with its obligations under the European Convention because it had not ensured that a protection of fundamental rights equivalent to the protection under the Convention was provided within the Community legal system. This is a clear example, at any rate in the field of human rights, of the existence of an obligation of due diligence requiring States to ensure that the activities and decisions of international organizations of which they are members do not result in violations of the international obligations binding upon those States. Such a development is all the more interesting that, contrary to, for instance, UNCLOS, the European Convention does not include any clause requiring such a type of due diligence from State parties. It is clear that the Court did not attribute to the member State the allegedly wrongful conduct of the organization. Rather, responsibility derived from the failure of the respondent State to take those measures necessary to ensure that the rights of third parties (being rights of which the State was obliged to ensure respect) received adequate protection within the context of the organization. As with the traditional obligation of due diligence it is the State’s own default that entails its responsibility. This interpretation seems to have been echoed by the ILC in its work on the responsibility of international organizations, as evidenced by article 60 as provisionally adopted on first reading. This provides that: 1 . A State member of an international organization incurs international responsibility if it seeks to avoid complying with one of its own international obligations by taking advantage of the fact that the organization has competence in relation to the subject matter of that obligation, thereby prompting the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation. 2 . Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization. While it is true that the language used by the Commission seems to require an intentional act by the State, rather than a negligent one, it still remains that this text establishes, in substance, a source of responsibility for States members of an international organization, which corresponds largely to the reasoning here recalled.

References (p. 314) The similarities between the rules governing attribution of an internationally wrongful act to an intergovernmental organization and those applicable to States are undeniable. As is the case in relation to States, the basic principle is the attribution to the organization of conduct of its agents or organs. In this regard, the existence of a formal organic link tying them to the organization plays an important role in identifying the entities or individuals likely to qualify as organs or agents; however, of greater importance is the existence of material control over the activities of the entities or individuals in question, which constitute the determining factor in this respect. This criterion allows, for instance, the attribution to an international organization of the wrongful acts com mitted by armed forces or by officials made available to the organization by one or more of its member States. By contrast the absence of any control provides a justification for the conclusion that the acts of persons or entities that remain under the authority of member States, even if they act in the context of activities decided upon or authorized by the organization, are not attributed to the organization. Where the institutional tie with the organization or the control exercised by it over the activities in question are established, the acts committed may be attributed to the organization independently of the type of power exercised by the organ (executive, ‘legislative’ or judicial) and

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independently of its place in the organization’s hierarchy. It is nonetheless essential that the act in question fall within the scope of the official functions of the agent (and not within the sphere of his or her private activities). This does not prevent acts committed by an agent outside the scope of authority (ultra vires) from also being attributed to the organization to which he is answerable, precisely because of the relationship that continues to link such acts to the organization’s functioning. But beyond their own responsibility, the specificities of intergovernmental organizations as secondary subjects of inter national law imply that in some situations their member States may see their responsibility engaged due to, or in the course of, conduct adopted by the organization. This is particularly the case for member States which are co-authors of wrongful acts together with the organization, where they provide aid or assistance of such a type that it allows the perpetration of a wrongful act by the organization, where they exercise over the latter control such that the wrongful acts committed by the organization must ultimately directly be attributed to them, or when it can be established that the member States failed in their obligation of due diligence with respect to certain wrongful conduct of the organization. Such hypotheses remain to this day mostly theoretical. The situation of the European Community with regard to the European Convention on Human Rights nonetheless offers a notable exception, since the European Court of Human Rights has at least in one instance concluded that one of the member States of the Community was responsible because it had not ensured that certain rights recognized by the Convention received in the Community context a protection equivalent to the protection that the Convention required that State parties provide in their domestic legal systems. It should be noted that, except in the case of control exercised by one or several member States over part or all of an organization’s activities, these bases of responsibility do not have the effect of directly attributing the wrongful acts com mitted by an international organization to the member States. Rather, in such cases the responsibility of the member States is entailed as a result solely of their own acts or abstentions, the only specific circumstance being that these wrongful acts were adopted in direct relation to the activities of the international organization. The separate legal personality with which intergovernmental organizations are endowed excludes, in the vast majority of cases, any other outcome.

References (p. 315) Further reading M Hirsch, The Responsibility of International Organizations Towards Third Parties: Some Basic Principles (Dordrecht, Nijhoff, 1995) P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998) JP Laugier,Contribution à la théorie générale de la responsabilité des organisations internationales (PhD Dissertation, University of Aix-Marseille, 1973) M Perez Gonzalez, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92 RGDIP 63 United Nations, Report of the Secretary-General on the administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, A/51/389, 20 September 1996(p. 316)

Footnotes: 1 See confirmation by the Secretary General of the United Nations in his report on ‘Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations: financing of the United Nations peacekeeping operations’, UN Doc A/51/389 (20 September 1996), para 6. 2 P Daillier & A Pellet, Nguyen Quoc Dinh, Droit International Public (7th edn, Paris, LGDJ, 2002), 781. 3 See JP Ritter, ‘La protection diplomatique à l’égard d’une organisation internationale’ (1962) 8

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AFDI 441; J Salmon, ‘Les accords Spaak-U Thant du 20 février 1965’ (1965) 11 AFDI 482; M Pérez González, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 94 RGDIP 81; M Hirsch, The Responsibility of International Organizations Towards Third Parties: Some Basic Principles (Dordrecht, Nijhoff, 1995), 62. 4 Difference relating to immunity from legal process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1999, p 62, 88–89 (para 66). 5 J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 791. 6 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, p 174, 177. 7 See para 15 of the Model Status-of-Forces Agreement for Peace-Keeping Operations, annexed to the Report of the Secretary-General, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects’: A/45/594 (9 October 1990) (emphasis added). 8 See F Seyersted, ‘International Personality of Intergovernmental Organizations’ (1965) IJIL 63; M Arsanjani, ‘Claims Against International Organizations: quis custodiet ipsos custodies’ (1981) Yale Studies in World Public Order 155. 9 See E Butkiewicz, ‘The Premises of International Responsibility of Intergovernmental Organizations’ (1981–1982) 11 Polish YIL 131; A Di Blase, ‘Sulla responsabilitá internazionale per attivitá de l’ONU’ (1974) 57 Riv DI 250. 10 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Preliminary Objections, ICJ Reports 1998, p 9, 115. 11 Report of the ILC, 56th Session, 2004 A/59/10, 98 (para 71); for the draft Commentary, see 103–109. 12 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174. 13 See D Bowett, United Nations Forces—A Legal Study of United Nations Practice (London, Stevens, 1964), 245. 14 In relation to the United Nations Protection Force in the Former Yugoslavia (UNPROFOR), see M Guillaume, ‘La réparation des dommages causés par les contingents français en ex-Yougoslavie et en Albanie’ (1997) 43 AFDI 151. 15 On this point specifically, see D Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage’ (2000) 94 AJIL 406, 412. 16 P de Visscher, ‘Les conditions d’application des lois de la guerre aux opérations militaires des Nations Unies’ (1971) 54-I Annuaire IDI 48. 17 See M Hirsch, The Responsibility of International Organizations Towards Third Parties: Some Basic Principles (Dordrecht, Nijhoff, 1995), 64. 18 In relation to the European Communities, see HG Schermers and D Waelbroeck, Judicial Protection in the European Communities (5th edn, Deventer, Kluwer, 1992), 353. 19 See JP Ritter, ‘La protection diplomatique à l’égard d’une organisation internationale’ (1962) 8 AFDI 441; JP Jacqué, ‘Communautés européennes et Convention européenne des droits de l’homme’, in C Debbasch and J-C Venezia (eds), L’Europe et le Droit: Mélanges en hommage à Jean Boulouis (Paris, Dalloz, 1991), 337. 20 On the relations between UNHCR and certain NGOs participating in the missions of that agency, see C Wickremasinghe & G Verdirame, ‘Responsibility and Liability for Violation of Human Rights in the Course of UN Field Operations’, in C Scott (ed), Torture as Tort (Oxford, Hart Publishing, 2001), 469.

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21 See Report of the ILC, 56th Session, 2003, 98 (para 71). See DARIO Commentary (2009), paras 1–14. 22 P de Visscher, ‘Les conditions d’application des lois de la guerre aux opérations militaires des Nations Unies’ (1971) 54-I Annuaire IDI 48, 56. 23 See A Di Blase, ‘Sulla responsabilitá internazionale per attivitá de l’ONU’ (1974) 57 Riv DI 250, 250–251. 24 See generally 1996 Report of the Secretary-General, ‘Administrative and budgetary aspects … ’, para 17. 25 See F Seyersted, United Nations Forces in the Law of Peace and War (Leiden, Sijthoff, 1966), 110, and the references cited therein. 26 See R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol. II(1), 272–3 (para 211); A Freeman, ‘Responsibility of States for Unlawful Conduct of their Armed Forces’ (1955-II) 88 Recueil des cours 357; for the opposite view, see D Sarooshi, The United Nations and the Development of Collective Security—The Delegation by the UN Security Council of its Chapter VII Powers (Oxford, Clarendon Press, 1999), 165. 27 On the status of the coalition assembled in this context, see J Verhoeven, ‘États alliés ou Nations Unies? L’ONU face au conflit entre l’Irak et le Koweït’ (1990) 36 AFDI 179; on the nonattribution of wrongful acts to the UN, see CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, Cambridge, CUP, 2005), 401–406; for other examples regarding the UN, see G Gaja, Second Report on Responsibility of International Organizations, 2004, A/CN.9/541, 16 (paras 33ff). 28 See M Guillaume, ‘La réparation des dommages causés par les contingents français en exYougoslavie et en Albanie’ (1997) 43 AFDI 151, 152. 29 On this episode, see SD Murphy, ‘Contemporary Practice of the United States Relating to International Law’ (2000) 94 AJIL 127. 30 See L Boisson de Chazournes, ‘La Cour internationale de Justice aux prises avec la crise du Kosovo: A propos de la demande en mesures conservatoires de la République fédérale de Yougoslavie’ (1996) 42 AFDI 466; for contrary opinions favourable to the imputation to NATO of the acts in question, see the references cited in G Gaja, Second Report on the Responsibility of International Organizations, 2004, A/CN.9/541, note 9; see also, at a later stage of the proceedings, the arguments put forward eg by France (Preliminary Objections, 4 July 2000, at paras 23ff.). 31 Behrami and Behrami v France and Saramati v France, Germany and Norway (App No 71412/01 and 78166/01), ECHR, Decision on Admissibility, 2 May 2007. 32 Ibid, 41 (para 141). 33 Ibid, 39 (paras 133ff). 34 P Palchetti, ‘Azioni di forze istituite o autorizzate dalle Nazioni Unite davanti alla Corte europea dei diritti dell’uomo: i casi Behrami e Saramati’ (2007) 90 Riv DI 684; P Klein, ‘Responsabilité pour les faits commis dans le cadre d’opérations de paix et étendue du pouvoir de contrôle de la Cour européenne des droits de l’homme: quelques considérations critiques sur l’arrêt Behrami et Saramati’ (2007) AFDI 52; A Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’ (2008) 8 Human Rights Law Review 159. 35 Dusan Beric and others v Bosnia and Herzegovina (App Nos 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05), ECHR, Decision on Admissibility, 16 October 2007, para 28. 36 R (app of Al-Jedda) (FC) v Secretary of State for Defence [2007] UKHL 58 (Lord Bingham of Cornhill).

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37 See in this respect the formulation of draft art 4(1) of the International Law Commission’s Draft Articles on Responsibility of International Organisations, adopted on First Reading in 2009, which refers to ‘The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent … ’: see Report of the ILC, 61st Session, A/61/40, 2009 20; for the draft Commentary, see ibid, 54–55. 38 See F Seyersted, United Nations Forces in the Law of Peace and War (Leiden, Sijthoff, 1966), 178; P de Visscher, ‘Les conditions d’application des lois de la guerre aux opérations militaires des Nations Unies’ (1971) 54-I Annuaire IDI 48. 39 See UN Jur Yearbook (1965), 41; F Seyersted, ‘United Nations Forces: Some Legal Problems’ (1961) 37 BYIL 420; B Amrallah, ‘The International Responsibility of the United Nations for Activities Carried out by UN Peace-Keeping Forces’ (1976) 32 Rev Egypt DI 65, 71. 40 See G Gaja, ‘Some Reflections on the European Community’s International Responsibility’, in H Schermers et al (eds), Non-Contractual Liability of the European Communities (Dordrecht, Nijhoff, 1988), 10; J Salmon, ‘Immunités et actes de la function’ (1992) 38 AFDI 348; P Daillier & A Pellet (Nguyen Quoc Dinh) Droit International Public (7th edn, Paris, LGDJ, 2002), 782. 41 See Report of the ILC, 61st Session, A/61/40, 2009, 21; for the draft Commentary, see ibid, 70– 74. 42 Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962, p 151, 168. 43 J Salmon, ‘Quelques réflexions sur l’immunité de juridiction des fonctionnaires internationaux pour les actes accomplis en qualité officielle’ (1969) CDE 457. 44 See generally JP Laugier, Contribution à la théorie générale de la responsabilité des organisations internationales (doctoral thesis, Aix-Marseille University, 1973), 223. 45 See the summary of the proceedings initiated against the individual in 1979 United Nations Juridical Yearbook, 223. 46 1986 United Nations Juridical Yearbook, 345. 47 E David, Droit des organisations internationales (6th edn, Brussels, PUB, 2005), Vol 2, 336. 48 Report of 15 December 1999, S/1999/1257; and see E David, Droit des organisations internationales (6th edn, Brussels, PUB, 2005), Vol 2, 340–341. 49 Report of 15 November 1999, A/54/549; E David, Droit des organisations internationales (6th edn, Brussels, PUB, 2005), Vol 2, 342–343. 50 For additional details on these proceedings see (1994) 43 ICLQ 714. 51 See, by way of analogy, ARSIWA, Commentary to art 16, para (1). 52 G Gaja, Fourth Report on the Responsibility of International Organizations, 2006, A/CN.4/564/ Add.1, 5 (para 62). 53 See HG Schermers, ‘Liability of International Organisations’ (1998) 1 Leiden Journal of International Law 7, 9; P Pescatore, ‘Les relations extérieures des Communautés européennes (contribution à la doctrine de la personnalité des organisations internationales)’ (1961-II) 103 Recueil des cours 224–225. 54 See DARIO, draft arts 14, 58, and see further Report of the ILC, 58th Session 2006, A/61/10, 252 (para 90). 55 ARSIWA, Commentary to art 17, para 7. 56 Ibid, para 5. 57 In this regard, the consequences of control differ from those of complicity: see ARSIWA, Commentary to art 17, para 1. 58 Ibid. 59 See eg the decision by the Swiss Federal Court in the Westland Helicopters case (1988) 80 ILR From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

658 and the decision of the English Chancery Division in Maclaine Watson v Department of Trade (1987) 80 ILR 46. 60 See art 13 of the draft Articles on State responsibility adopted on first reading in 1996; that provision, as with other provisions containing rules of ‘negative attribution’, was deleted, essentially for drafting reasons: Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58. 61 See the classic formulation by Max Huber in the Island of Palmas (1928) 2 RIAA 838, 839. 62 On this last point, see JP Ritter, ‘La protection diplomatique à l’égard d’une organisation internationale’ (1962) 8 AFDI 441, 446; I Seidl-Hohenveldern, ‘Responsibility of Member States of an International Organization for Acts of that Organization’, in International Law at the Time of Its Codification: Essays in Honour of Roberto Ago (Milan, Giuffrè, 1987), Vol III, 416; H Dipla, La responsabilité de l’État pour violation des droits de l’homme—Problèmes d’imputation (Paris, Pedone, 1994), 85. 63 See F Seyersted, ‘International Personality of Intergovernmental Organizations’ (1965) 5 Indian JIL 63, 256. 64 See P Apraxine, ‘Violation des droits de l’homme par une organisation internationale et responsabilité des États au regard de la Convention européenne’ (1995) RTDH 13; G CohenJonathan, ‘Cour européenne des droits de l’homme et droit international général (2000)’ (2000) 46 AFDI 616. 65 See CFDT v European Communities, Application No 8030/77, 10 July 1978, 13 DR 240 (para 7). 66 E Tête v France, Application No 11123/84, 9 December 1987, 54 DR 67 (para 3). 67 M & Co v Federal Republic of Germany, Application No 13258/87, 9 February 1990, 64 DR 145. 68 Ibid, 153. 69 The analysis conducted by the Commission has been criticized by many as being cursory: for further details, see P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998), 476–478. 70 Bosphorus Hava Yollari Turzim Ve Ticaret Anonim Sirketi v Ireland (App No 45036/98), ECHR Reports 20 05-VI. 71 Ibid, 46 (para 155). 72 Ibid, 46 (para 156). 73 Ibid, 48 (paras 165–166). 74 Matthews v United Kingdom (App No 24833/94), ECHR Reports 1999-I, 12–13 (paras 33–34). 75 Ibid, 13 (para 35).

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Part III The Sources of International Responsibility, Ch.23.1 The Responsibility of Other Entities: Private Individuals Christian Tomuschat From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of individuals — Responsibility of states — Wrongful acts — Individual criminal responsibility — Crimes against humanity — Organization for Economic Cooperation and Development (OECD) — NGOs (Non-Governmental Organizations) — International Committee of the Red Cross (ICRC) — Soft law — Belligerents — National liberation movements

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(p. 317) Chapter 23.1 The Responsibility of Other Entities: Private Individuals 1 International responsibility of private individuals stricto sensu 318 (a) The individual as a subject of international law 318 (b) Individual responsibility according to the law of international organizations 319 (c) Responsibility for international crimes 321 (d) Responsibility for human rights violations 322 2 Civil responsibility pursuant to conventional regimes 323 (a) The domain of nuclear energy 323 (b) The domain of the environment 324 3 Responsibilty pursuant to national law, based on a breach of international law 325 4 ‘Soft law’ 327 Further reading 329 While State responsibility is a well-known notion in international law, the international civil responsibility of private individuals, whether individuals or juridical persons, is not a well-defined and generally accepted concept. Often, it is an ensemble of rules of international and domestic law which define the rights and obligations of private individuals. Ideally, one could speak of international responsibility if all the questions pertaining to it were regulated by rules forming part of international law. But the evolution of the regime of individual responsibility is only in its initial stages. In particular, at present there is no specific system for the implementation of individual responsibility under international law, except for criminal responsibility. Given the limited number of disputes, the creation of a tribunal with special competence in the field is not necessary. However, in consequence, one is often found in a position where a vast number of the rules to be applied must be derived from the national law of the State implicated in such a dispute. It goes without saying that international responsibility implies the breach of an international obligation. Every regime of responsibility is aimed at sanctioning the conduct of a subject of the law who behaves contrary to the duties incumbent upon it. In this respect, the initial point must be the same for both private individuals as well as for States or other subjects of international law. Thus, it will be always necessary to start by identifying the cases in which an individual is the direct addressee of a rule of international law. (p. 318) As in classical international law of an inter-State character, it is convenient here to distinguish between primary rules, the violation of which can entail responsibility, and the regime of responsibility which defines the consequences of such a violation. After the ILC approached its work on responsibility following the Ago model, and after the General Assembly ‘took note’ of the articles in 2001,1 the belief spread that there was an automatic link between primary and secondary rules. But such automatism does not exist. The famous words of the Permanent Court of International Justice in Chorzów Factory, according to which the State author of a breach of international law must erase all the negative consequences arising from it,2 cannot be applied without having first examined the different classes of individuals who have breached a duty they were bound to respect. Often, the establishment of this secondary regime is left to States. In other cases, it is only the lack of certainty which is certain.

1 International responsibility of private individuals stricto sensu

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(a) The individual as a subject of international law Even though the old model of international law where, save for pirates as hostes humani generis, private individuals existed only as objects of protection is now outdated, it still holds true today that individuals only sporadically have access to the international legal system. Sometimes they can hold rights, and sometimes they are considered as being subjected to certain international obligations. But there is no general law regulating the status of private individuals in international law. The essential rights of individuals have been set out in numerous instruments establishing human rights guarantees. However in contrast, the international community has deliberately left to States the task of defining the duties of individuals. It is true that the Universal Declaration of Human Rights establishes in its preamble that individuals themselves are called upon to: … strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.3 Moreover, article 29 of the Declaration establishes that ‘everyone has duties to the community in which alone the free and full development of his personality is possible’. But this wording only enunciates a political truth, and not a legal obligation. It is significant in this respect that the International Covenants of 1966 do not speak of human duties in their respective operative sections. Only the preambles of these two instruments recall, in identical terms, that the individual has ‘duties to other individuals and to the community to which he belongs’.4 The African Charter on Human and Peoples’ Rights of 1981 finds itself in an isolated position by dedicating an entire section (articles 27–29) to the duties of individuals.5 But, failing the existence of mechanisms for the implementation of these duties in international law, this affirmation also remains solely on the plane of political postulates.

References (p. 319) The caution of the authors of these great human rights codifications is clearly understandable. The modern State has all the means at its disposal to impose its will on its nationals as subjects. The doctrine of sovereignty provides the State with a legal arsenal sufficient to overcome any individual resistance. It is because governments, ignorant of the duties they have towards citizens, may abuse their sovereign prerogatives that the concept of human rights arose as a tool of legal defence. The dictatorships of Hitler and Stalin taught the world that the international community bears a responsibility towards each human being and that their fate must not be left to the arbitrariness of a criminal government. To the contrary, the international community has never felt the need to support governments so that they could consolidate their authority within their respective national communities, by reminding individuals of their civic duties. Politically, it is trivial to maintain that all rights go hand in hand with obligations. A human group whose members insisted only on their rights would not be viable. But until recently, there was no need to establish in international law the corresponding legal obligations. The phenomenon of the failing State could, in the future, change this state of affairs.

(b) Individual responsibility according to the law of international organizations In the framework of its competence under Chapter VII of the Charter, the Security Council enjoys a wide margin of discretion. The text does not limit the ratione personae scope of application of its decisions. In consequence, it can be concluded that it is authorized to address not only States and international organizations, but also every subject or group that it considers to have an influence on international peace and security, of which it is the guardian. In fact, the Council frequently invites the parties to internal armed conflict to respect humanitarian law and human rights. To the contrary, so far it has refrained from imposing orders directly on individuals and private

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businesses. But it is not prevented from so doing. In imposing an economic embargo, for instance, it could without great difficulty determine the firms falling within the scope of application of the measure. The reasons for its reluctance to do so are easy to guess: the absence of a defined regime of responsibility would make any attempt to establish direct legal contacts illusory. Normally, States are in a much better position to compel individuals under their control to comply with constraining legal orders. If the Security Council wanted to command respect for its decisions by private entities it would find itself in great difficulty in the absence of a code specifying the sanctions capable of being imposed on those private entities which breach the obligations imposed by Security Council resolution. However, in order to combat terrorist activities, to prevent the spreading of weapons of mass destruction or to put pressure to bear on parties to internal armed conflict, the Security Council has introduced a practice according to which persons bearing direct or even indirect responsibility for such activities may be targeted as persons individualized by their name. Their assets may be frozen, and a travel ban may be imposed upon them. The relevant orders are not addressed to the individuals themselves, but to the States that have jurisdiction over them. The Security Council has delegated these tasks to so-called Sanctions Committees, the best-known of which is the Al-Queda and Taliban Sanctions Committee established by Resolution 1267 (1999). They establish lists of persons presumed to be involved in any of the activities deemed to run counter to international peace and security. The burden of enforcement of such lists rests with the States concerned or, in

References (p. 320) the case of supranational organizations to which the relevant sovereign powers have been transferred, with these organizations. Evidently, States or other entities lack any discretion in making the orders issued by a Sanctions Committee operative. It is only natural that questions have arisen as to the judicial protection against such indirect targeting. Within the UN system itself, no such remedies are provided for. However, the Security Council has drawn up careful rules for the process of listing and delisting of such persons. According to the view of the Court of Justice of the European Communities, such administrative procedures fail to meet the requisite standard of protection as implied within the legal system of the European Union.6 Within the European Communities, certain provisions establish individual obligations which may be accompanied by sanctions. The most famous example is that of article 83 of the EC Treaty.7 Concerning the substantive articles on competition law, this provision stipulates in paragraph 2 that regulations and directives may establish a system of fines and penalties to ensure the respect for the substantive obligations. In fact, this authorization was implemented by Regulation (CEE) No 17/62 of the Council,8 which sets forth, especially in articles 15 and 16, the maximum amounts which may be imposed on businesses in case of breach. In dealing with the responsibility of individuals in international law, normally this supranational regime is not analysed. In fact, the regime of individual obligations as it is applied in the European Communities closely resembles the regimes established in the administrative law of the member States, on which it is based. Community law, although international in its origin, has acquired specific characteristics which bring it close to an internal legal order. Yet, the example of the European Communities clearly shows that the responsibility of private individuals results from a different logic than that of the responsibility of States. The breach by a State of its obligations towards another State generates a legal relationship which, despite the wrongful action, is established on a level of parity. In the absence of a competent international jurisdiction, no State may ‘punish’ another State. The two actors, the State author of the unlawful act and the victim, are and remain sovereign entities. In contrast, when an individual commits an act contrary to an obligation which is imposed on him or her by international law, he or she may be characterized as the author of a criminal act. A private individual does not have the same ‘ceremonial dignity’ as a State.

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This fundamental difference in approach also reveals that the consequences that the ILC articles establish for internationally wrongful acts are not generally appropriate to be applied to individuals. The responsibility of individuals has a different tone from that of States. The example of satisfaction (article 37 of the ILC Articles) clearly demonstrates this. Apologies or expressions of regret are adequate means of satisfaction for interstate relations; apologies presented by an individual are no more than a gesture of courtesy and do not have the same weight as official apologies offered by a State. On the other hand, as has already been said, while punishment is excluded in the relations between States, given that both parties have the same hierarchical rank in international law, nothing precludes a private person, an individual or a legal person, from being subjected to a true criminal

References (p. 321) sanction. Thus where an individual obligation directly derives from international law, it is necessary to take the greatest care to define the applicable secondary regime.

(c) Responsibility for international crimes The most accurate reflection of a regime of responsibility of private individuals can be found in the regime of criminal responsibility of individuals for the commission of international crimes. The crimes which were included initially in the Statutes of the International Military Tribunals for Nuremberg and the Far East,9 which were taken up by the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda,10 which appear in the draft Code of Crimes against the Peace and Security of Mankind adopted by the ILC in 1996,11 and which were finally included in the Rome Statute for the International Criminal Court,12 are all internationally wrongful acts which can never be justified by internal legislation. Whoever perpetrates one of these acts has, in all circumstances, committed a wrongful act. By logical deduction, the object of any attack must have the right to defend himself. The potential victim of a genocidal action cannot be obliged, by virtue of a rule of law, to allow his murder. In this respect, international law eliminates and destroys all justifications that internal laws could provide. Thus if the author of such a crime is responsible for an act characterized by international law as unlawful, all arguments seem to favour a right for the victim or persons claiming through the victim to obtain reparation for the damage caused and a corresponding obligation to do so on behalf of the author of the crime. It seems logical to argue that the effectiveness of the prohibitions enunciated in the relevant international instruments depends on a number of factors. As in internal legal systems, criminal proceedings constitute only one of the responses which the legal order establishes for the commission of criminal acts, the other being the establishment of civil responsibility. In international law, a right for the victim to obtain reparation would definitively wipe out the negative consequences of the injurious act. Yet what initially seems to respond to perfect logic may often encounter practical difficulties. All international crimes are of a political nature. Both the Draft Code of Crimes and the Rome Statute highlight that these crimes are characterized either by their widespread character or their systematic commission. In other words, by definition the author of an international crime has not committed an isolated crime; he must normally threaten the life or physical integrity of at least dozens of persons, often hundreds, thousands, or millions of victims. Hitler, if he had survived the end of World War II in 1945, would have certainly been accused before the International Military Tribunal at Nuremberg. To bring against him an action to obtain reparation for the dreadful damages caused would not have made sense. Hitler was not a rich man. Even if he had garnered a considerable fortune during his time as head of the Nazi dictatorship in Germany, it would have

References

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(p. 322) not begun to cover all the damages which could be attributed to him. The problem of the just distribution of the goods of an accused convicted for having committed international crimes is not a contingent factor. It poses a structural problem. It might be expected that the Statutes of the existing International Criminal Tribunals and in the Rome Statute would provide an answer to the questions posed. In fact, the Statute for the Yugoslavia Tribunal contains certain rules on this matter. But these rules do not assume that the author of a crime is under an international obligation to make reparation for the damage caused by him. Article 105 of the Rules of Procedure and Evidence of the ICTY make provision for the restitution of property; 13 in relation to all other damage, article 106(B) specifies that the victim or persons claiming through the victim ‘pursuant to the relevant national legislation … may bring an action in a national court or other competent body to obtain compensation’. In other words, there is a renvoi to national legislation. In these circumstances it is difficult to interpret the Rules in the sense of recognizing an international law obligation for the author of the crime to make reparation. At a pinch, it could be argued that the obligation is found in international law and only the modalities of its implementation result from national law. However, there remains uncertainty as to the foundations of individual responsibility to victims. According to article 75(2) of the Rome Statute, the International Criminal Court is authorized to adopt against a convicted person an order indicating the reparation that should be paid to the victims or persons claiming through the victim. This reparation may take the form of restitution, compensation or rehabilitation. But if need be, the Court can decide that the award for reparations be made through a Trust Fund, created for the benefit of the victims. This Trust will be funded by money and other property collected through fines or forfeiture (article 79). Given the discretion that the Court enjoys in taking the appropriate decision, it might be asked whether this regulation is effectively the reflection of a civil responsibility in the proper sense of the term. In any event, the possible payments which a convicted person must make as a fine, pursuant to article 75(2), are the corollary of his punishment by the International Criminal Court.

(d) Responsibility for human rights violations International crimes constitute the worst form of violation of human rights. It is for this reason that international law expanded classical international responsibility and imposed criminal responsibility on the material authors of such criminal acts. In this context, it can be argued that there is a general responsibility for violations of human rights, which presupposes the horizontal effect (in the mutual relationships between private individuals) of the relevant norms. Essentially, however, private persons are not bound by human rights norms such as they exist in contemporary international law. The European Court of Human Rights has never recognized such a horizontal effect, all the less since individual applictions for breaches of the rights established in the European Convention on Human Rights14 can only be filed against the States parties to the Convention. Similarly, the caselaw of the Human Rights Committee, established under the International Covenant on Civil and Political Rights, contains no indication that the obligations under the Covenant are extended to subjects other than States parties. The General Comments of the

References (p. 323) Committee on Economic, Social and Cultural Rights, according to which civil society and the private business sector have responsibilities in the realization of the right to adequate food and the right to the highest attainable standard of health,15 are only recommendatory statements and do not have specific legal significance. The efforts to include the economic sector in this respect pertain more to a political than to a legal dimension. However, even characterized as such, these efforts deserve further attention.

2 Civil responsibility pursuant to conventional regimes From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Several contemporary international treaties include provisions placing the responsibility for damages caused by the exploitation of an activity or a business that is intrinsically dangerous on the operator. The territorial State is thus relieved from responsibility for negligent control. Often, these conventions establish that the State assumes a supplementary guarantee in case the operator is not capable to meet his debts. This model of direct responsibility of the concerned economic operators can be found especially in the nuclear field as well as in environmental law.

(a) The domain of nuclear energy The OECD Paris Convention on Third Party Liability in the Field of Nuclear Energy16 constitutes the typical example of the regime of direct responsibility of the operator. Two Additional Protocols of 28 January 1964 and 16 November 1982 amended this Convention,17 but its guiding principles remained unchanged. According to article 3, the operator of a nuclear installation is directly responsible for the damage caused by its activity. This responsibility has an objective character. However, the absence of fault as a condition of responsibility corresponds to a rather low ceiling of 15 million Special Drawing Rights per nuclear incident (article 7). On the other hand, the operator is under an obligation to subscribe to an insurance covering the entire amount of its possible responsibility. In addition to the upper limit, the other great advantage for the operator is the limitation of jurisdictional competence. Only the tribunals of the place where the damaging incident occurred are competent to deal with legal actions concerning the incident. Similar traits characterize the Vienna Convention on Civil Liability for Nuclear Damage,18 amended by a Protocol in 1997.19 This Convention owes its existence to the work of the International Atomic Energy Agency and is thus intended to apply universally. The 1997 Protocol raised the ceiling of responsibility from 5 to 300 million Special Drawing Rights. Moreover, through a joint Protocol in 1988 the two Conventions were linked so that the higher ceiling of the Vienna Convention can now benefit the victims of nuclear incidents residing in one of the OECD member States.20 Although regulated by an international agreement, responsibility for nuclear damage does not result from international law. The sole function of these two Conventions is to

References (p. 324) establish certain minimal rules for the responsibility of the operator of a nuclear installation, rules which must be transposed in the internal legal order by the States parties to them. The regulation of the damage is entirely left to the private persons concerned: the operator on the one hand and the victims of its activity on the other. Neither the national States of these parties nor the organs of the international community intervene in this process. In addition to the specific rules established in the international instruments, all other applicable rules are part of the internal laws of the State in question. Both the Paris Convention and the Vienna Convention establish that the nature, form and amount of compensation, as well as its equitable distribution, depend on internal law. Similarly, internal laws can to a certain extent modify the maximum and minimum amounts established in the Conventions; the contracting parties equally granted themselves the rights to determine the statutes of limitation. Finally, every dispute shall be settled before the tribunals of the State where the incident occurred. All things considered, the obligations of the operator remain essentially subject to the civil law of a State. Both Conventions have only established an agreement over certain modifications of the normal regime of responsibility, modifications which seemed necessary in view of the special dangers inherent to nuclear energy. They also reflect a method well known to private international law, which often seeks to harmonize or make uniform the rules of internal laws by drafting an international treaty whose content will then be translated in the internal legal orders of the States parties. The entire work of the ILO is based on this method.

(b) The domain of the environment From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

The same scheme underlies several treaties concerning the responsibility for damage caused to the environment. The most ambitious instrument is the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, which created an objective responsibility for the operators of such activities, without limitation to a specific field.21 But the political ambition has exceeded reality. As at 23 September 2009 no State had ratified the Convention. The 1999 Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal,22 intended to complement the Basel Convention,23 also follows this general model. In article 18 the Convention establishes that all substantive or procedural questions concerning claims not expressly regulated by the Protocol are regulated by the laws applied by the national tribunal approached by the claimant. The treaties drafted by the International Maritime Organization fall within this same category: the 1969 International Convention on Civil Liability for Oil Pollution Damage,24 which makes the owner of the vessel aboard which the leak or waste of polluting hydrocarbons occurred responsible; the 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material25 as well as the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous

References (p. 325) and Noxious Substances by Sea.26 Also according to these treaties, the relationship between the person causing the damage and the victims of the damage are essentially placed under the domain of the national laws of one of the contracting parties, save for the specific rules established under the convention which have become an integral part of national laws.

3 Responsibilty pursuant to national law, based on a breach of international law Another form of ‘indirect’ international responsibility is constituted by national regimes which attach a system of national sanctions to acts which are internationally unlawful. In principle, each State is authorized to promote respect for international norms by placing at the disposal of victims certain means of implementation which are absent in international law itself. Often international treaties invite States to provide the victims of violations with a right to reparation. Thus, for instance, article 14(1) of the UN Convention against Torture27 establishes that each State party ‘shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation’. Normally, effectiveness seems to require that this right be directed against a responsible State, but nothing prevents national legislation to provide for a claim of reparation against the responsible agent himself. The only problem raised in this context is that of international jurisdiction. Even by providing a means for the performance of international obligations, a State must respect the limits by which international law defines its scope of application. If the State places its judicial system at the service of international legality in relation to acts occurred abroad, it must be able to invoke a valid jurisdictional link. In the United States, a legislative act of 1789, the Alien Tort Claims Act (ATCA),28 was rediscovered by American tribunals in the Filártiga v Peña Irala case.29 In this case, the parents of a young Paraguaian tortured to death by a police officer filed, in the United States, an action for the reparation of the damage caused by this barbarous act against the agent who inflicted the torture, whom they had located in New York. To proceed with the request presented by the claimants, the tribunal referred to the ATCA, specifying that torture was a crime pursuant to international law. Since then, the ATCA has served as a basis for numerous legal actions. It establishes that: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

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It was originally believed by the American courts that the ATCA had two functions. On the one hand, it established the competence of the federal courts—and thus, the competence of the United States. On the other hand, it would also establish a substantive right to reparation. This second component was eventually denied by the US Supreme Court in Sosa v Alvarez-Machaín,30 which held that a cause of action must be derived from common law: it allowed courts to recognize private claims for violations of international law norms with a ‘definite content and acceptance among civilized nations’ comparable to the torts originally understood to be covered by the statute: violations of safe conducts, infringement of the rights of ambassadors, and piracy. After having realized the inherent limitations of

References (p. 326) ATCA, and especially the fact that it operates to discriminate against American nationals who cannot benefit from it, another legislative act was adopted in 1991, the Torture Victims Protection Act (TVPA).31 This law confers on all victims of torture or extrajudicial executions perpetrated ‘under actual or apparent authority, or color of law, of any foreign nation’ a right to reparation that can be actioned before American tribunals, as long as the claimants have duly exhausted all the adequate and available remedies in the State where the crime occurred. Abuses committed at home in private relationships are not taken into account. Clearly under both the ACTA and the TVPA, the starting point is a violation of international law. The ATCA expressly establishes it, while the TVPA presupposes this type of violation, at least implicitly. The first article of the Convention against Torture specifies in its definition of torture that it can only be committed ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. On the other hand, extrajudicial, summary and arbitrary executions were recognized by the General Assembly as constituting a flagrant violation of the fundamental right to life.32 It has already been shown that the rules elevating an act to the rank of international crime constitute at the same time prohibitions: the person who commits an international crime does not only become subject to punishment, but at the same time breaches a rule of international law. Thus the two statutes cover a broad field of tortuous activities that may entail individual civil responsibility. In the United States, a debate took place on the circumstances in which a private person is capable of infringing international law, as required by the ATCA. In the case of Forti v Suarez Mason,33 the Court specified that the breach must concern universal, obligatory and definable norms; another formulation speaks of specific, universal and obligatory norms. These definitions are infelicitous for they englobe a great number of rules that can produce their effects only as between States. Recently, in Doe v Unocal 34 a court affirmed that the rules of international law to which ATCA refers are those having the character of jus cogens, an opinion that has been dismissed by legal scholarship.35 In principle, it seems correct to affirm that the rules of general international law which create obligations for private persons are norms of jus cogens. In any event, the practice of American courts considers that a single act is sufficient for the ATCA to be applicable. It is not necessary that the claim deals with a group of acts attaining the gravity of a crime against humanity. Although legal persons are not yet subject to any regime of international criminal responsibility, they may incur responsibility under the ATCA. Tribunals consider that a private business may particularly be accomplice to governmental actions which breach human rights. In this respect, in Doe v Unocal the claimants had argued that the defendant supported the unlawful operations of the Burmese government, engaged in expelling indigenous populations from their ancestral lands in order to facilitate the construction of a gas pipeline. Since the case was settled, Doe v Unocal has essentially lost its character as an authoritative precedent. But other courts have followed suit. In Khulumani v Barclay National Bank Ltd,36 where dozens of corporations were sued for aiding and abetting

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References (p. 327) the South African apartheid regime, the Second Circuit came also to the conclusion that civil liability of private entities was indeed conceivable. The case is currently proceeding before the lower courts.37 Up until now, the ATCA has mostly been considered as a great step forward towards the progressive realization of human rights. But it is clear that it also brings a number of inconveniences. It is not certain that a State can assume the right to establish itself as a civil judge of all violations of international law committed by private persons, without regard for the place where the relevant events occurred. Thus, as already hinted above, some claims have been brought in order to obtain reparation orders against the European banks which remained in South Africa during the apartheid era. The claimants allege that these banks lent active assistance to the minority white government. It is true that eventually the claims may not have any serious chance of success, because the attempt, based on the 1973 International Convention on the Suppression and Punish ment of the Crime of Apartheid,38 to render apartheid a punishable international crime was unanimously opposed by western States. But it is in any event worrisome that the United States wishes to impart justice in a matter which has no relationship at all with the United States. The requests made by the claimants can only be based on the principle of universal jurisdiction. On the other hand, it is precisely the United States which has challenged universal jurisdiction, inter alia in its opposition to the Inter national Criminal Court. As the caselaw concerning the application of ATCA develops, it will more clearly be seen whether the international community accepts the role that American courts have assumed, somewhat accidentally, in rediscovering a law whose original philosophy remains obscure to this day. It should be mentioned, in this connection, that according to the jurisprudence of the International Court of Justice and the majority of writers neither the immunity of States nor the immunity of their highest representatives ceases if a claim is based on the allegation that an international crime has been committed. In the relevant Arrest Warrant case,39 Judges Higgins, Kooijmans, and Buergenthal delivered a dissenting opinion to the contrary; 40 but their view has not gained significant ground.

4 ‘Soft law’ It cannot be denied that large companies, especially multinational companies, play a decisive role in many States. Often, in the third world, the budget of a multinational company is larger than the budget of the State where it has established a subsidiary company. Due to the social climate which may prevail in the relevant country, it is essential that multinational companies are guided in their commercial practices by the same principles which must inspire public authorities. Thus, a considerable number of instruments already in existence or currently being drafted emphasize the duty of these large enterprises to respect human rights. Yet without exception all these instruments are conceived as bills or charters to which the companies must voluntarily adhere. Lacking any mandatory character, they are not capable of engaging the responsibility of an actor who infringes the rules

References (p. 328) established therein. However, as these instruments may evolve from soft law into hard law eventually, it is convenient to briefly look at the most relevant ones. On the one hand, international organizations have made an effort to collect in a single code the principles by which large companies, especially companies with transboundary ramifications, should be guided. It is thus that the 1997 ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy establishes that these enteprises must respect notably the Universal Declaration of Human Rights as well as the two 1966 International Covenants on 41

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Human Rights.41 While the ILO declaration has a universal application, the OECD Guidelines for Multinational Enterprises,42 are addressed to multinationals operating in the territory of the member States of the Organization. But their content is nearly identical. They recommend enterprises to ‘[r]espect the human rights of those affected by their activities’.43 Another expression of this same idea may be found in the ‘Global Compact’ initiated by the former Secretary General of the United Nations, KofiAnnan in January 1999.44 The first of the ten principles established in this compact requests that businesses should support and respect the protection of internationally proclaimed human rights. More recently, the Sub-Commission for the Promotion and Protection of Human Rights, acting under the authority of the Commission of Human Rights of the United Nations, adopted in 2003 ‘Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’45 according to which transnational corporations and other commercial companies ‘shall’ recognize and respect the applicable norms of international law, notably civil, cultural, economic, political and social rights, and contribute to their realization, in particular the right to development and a long list of other rights. At the same time, this text provides that the concerned enterprises ‘shall’ make reparation for all the damage caused by their failure to respect the rules enounced therein. It is evident that these Principles find little basis in existing international law; it therefore seems unlikely that they will move from soft to hard law at any point in the near future. Indeed, this text was not well received by the Commission of Human Rights,46 but the subject has given rise, within the United Nations, to new studies by independent experts. It is not surprising that a great number of NGOs, including Amnesty International, the Caux Roundtable, the Global Reporting Initiative, as well as Social Accountability International, have supported such initiatives. Up to the present, however, all of their initiatives have remained in the domain of legal policy. International law has not yet evolved to the point of imposing on multinational enterprises proper legal obligations that could serve as a basis for their potential international responsibility.

References (p. 329) Further reading A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006) O de Schutter (ed), Transnational Corporations and Human Rights (Oxford, Hart, 2006) MT Kamminga and S Zia-Zarifi, Liability of Multinational Corporations under International Law (The Hague, Kluwer, 2000) D Kinley (ed), Human Rights and Corporations (Farnham, Ashgate, 2009) JJ Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) Vanderbilt JTL 801 S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) Yale LJ 443 B Stephens, ‘Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations’ (2002) Yale JIL 1 B Stephens, ‘Expanding Remedies for Human Rights Abuses: Civil Litigation in Domestic Courts’ (1997) GYBIL 117 C Tomuschat, ‘Grundpflichten des Individuums nach Völkerrecht’ (1983) Archiv des Völkerrechts 289 SG Wood & KBG Scharffs, ‘Applicability of Human Rights Standards to Private Corporations: an American Perspective’ (2002) American Journal of Comparative Law 801 JA Zerk, Multinationals and Corporate Social Responsibility (Cambridge, Cambridge University Press, 2006)(p. 330)

Footnotes: 1 GA Res 56/83, 12 December 2001.

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2 Factory at Chorzów, 1925, PCIJ, Series A, No 17, p 4, 47. 3 GA Res 217A (III), 10 December 1948. 4 International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, 993 UNTS 3. 5 African Charter on Human and People’s Rights, Banjul, 27 June 1981 (1982) 21 ILM 58. 6 C-402/05 P and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission, 3 September 2008, OJ C 106. 7 Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community (consolidated text), OJ C 321E of 29 December 2006; see now art 103 of the Treaty on the Functioning of the EU. 8 Regulation (CEE) No 17/62 of the Council, 6 February 1961, OJ L 285 of 29 December 1971, 49. 9 Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed and entered into force 8 August 1945, 82 UNTS 279, art 6; Charter of the International Military Tribunal for the Far East, 19 January 1946 (as amended 26 April 1946), 4 Bevans 21. 10 Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 48 UN SCOR (3217th mtg), UN Doc S/Res/827 (1993), 32 ILM 1203, arts 2–5; Statute of the International Tribunal for Rwanda, SC Res 955, 49 UN SCOR (3452nd mtg), UN Doc S/Res/955 (1994), 33 ILM 1598, arts 2– 4. 11 ILC Yearbook 1996, Vol II(2), 15. 12 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, arts 5–9. 13 ICTY, Rules of Procedure and Evidence, IT/32/Rev.43, 23 July 2009, art 105. 14 213 UNTS 222. 15 ECOSOC, The right to adequate food (art 11), E/C.12/1999/5, 12 May 1999, para 20; ECOSOC, The right to the highest attainable standard of health, E/C.12/2000/4, 11 August 2000, para 42. 16 956 UNTS 251. 17 1519 UNTS 329. 18 1063 UNTS 265. 19 (1997) 36 ILM 1454. 20 Joint Protocol Relating to the Application of the Vienna Convention on Civil Liability for Nuclear Damage and the Paris Convention on Third Party Liability in the Field of Nuclear Energy (Vienna, 21 September 1988), 1672 UNTS 301. 21 ETS No 150, (1993) 32 ILM 1228. 22 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, Basel 10 December 1999, UN Doc UNEP/CHW.5/29. The Protocol currently has 10 States parties and is not yet in force. 23 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Basel 22 March 1989; 1673 UNTS 126. 24 973 UNTS 3. 25 974 UNTS 255. 26 (1996) 35 ILM 1406. 27 1465 UNTS 112. 28 28 USC par 1350.

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29 630 F.2d 876 [2d Cir. 1980]; (1980) 19 ILM 966. 30 542 US 692 (2004). 31 28 USC par 1350. 32 GA Res 55/111, 4 December 2000. 33 672 F Supp 1531, 1540 (ND Cal 1987). 34 110 F Supp 2d 1294, 1304 (CD Cal 2000). Eventually, a settlement was reached by the parties. 35 JJ Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) Vanderbilt JTL 801, 824. 36 504 F 3rd 254 (2nd Cir 2007). 37 See also Prebsyterian Church of Sudan v Talisman Energy Inc, 2 October 2009, where the 2nd Circuit materially limited the scope of complicity in conduct of the state. 38 1015 UNTS 243. 39 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, 3. 40 Ibid, 63, 84–89. 41 ILO, OB Vol LXI, 1978, Series A, No 1, para 8. 42 Adopted in 1976, and revised in 2000, the text is available at: . 43 OECD Guidelines for Multinational Enterprises, §II, para 2. 44 . 45 ECOSOC, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2003/38/Rev.2, 26 August 2003. 46 ECOSOC, Commission on Human Rights, Decision No 2004/116.

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Part III The Sources of International Responsibility, Ch.23.2 The Responsibility of Other Entities: Armed Bands and Criminal Groups Gérard Cahin From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 331) Chapter 23.2 The Responsibility of Other Entities: Armed Bands and Criminal Groups 1 Situations already regulated by the law of international responsibility 332 (a) Groups acting as de facto organs of the State 333 (b) Groups constituting insurrectional movements 334 (c) Groups exercising elements of governmental authority 334 2 Emergence of international responsibility of armed bands and criminal groups 335 (a) Justifications for the emergence of international responsibility of armed bands and criminal groups 335 (b) Manifestations of the emergence of international responsibility of armed bands and criminal groups 337 Further reading 341 The notion of armed bands first made its appearance in the vocabulary and practice of international law after the First World War. There are numerous diplomatic documents, as well as bilateral treaties concerning good neighbourly relations and borders or of a more general nature, containing measures by which the States parties recognize that they bear responsibility for the training, support for, or toleration of the presence on their territory of armed bands or groups capable of infiltrating the territory of neighbouring States in order to conduct armed actions there against the interests of that State or those of other State; they accordingly commit themselves to take measures to prevent and punish such actions.1 By recalling that ‘every State has the duty to

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refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’, the 1970 Declaration on Friendly Relations2 did no more than codify a customary rule which has been well established by State practice since the 1920s; the violation of this rule engenders the international responsibility of the State itself. Pursuant to that rule a State may not even ‘tolerate’ on its territory activities carried out with a view to perpetrating acts of civil war or of terrorism on the territory of another State. However, while international texts frequently talk of national liberation movements,

References (p. 332) armed bands, and terrorist organizations, the classic system of international responsibility still manages spectacularly to ignore the existence of such diverse entities. In addition to strictly limiting the category of subjects which may be internationally responsible, the law of responsibility ‘tends to deconstruct, one may say, these entities and examine their activities by looking at the isolated acts of their members’,3 and in special cases by contemplating the possibility of attribution of those acts to the State. This exclusive approach has, however, become progressively less and less adapted to the realities of modern conflict. While modern wars tend to be characterized by an escalation in violence in response to infiltrations by armed groups from one State to another, most of the armed conflicts taking place in the world today are internal conflicts having as their protagonists insurrectional movements, irregular forces, paramilitary groups, militias, and armed bands, fighting either against the established government or amongst themselves, but which in any case regard civilian populations as a permissible target. The massive and repeated violations of international humanitarian law of which these belligerent groups are guilty coincide with the growing criminalization of their activities, including political gangsterism, the financing of their armed struggles by production or trafficking in drugs, and illegal trading in commodities including diamonds.4 Faced with the scale of this phenomenon, certain developments in international practice today provide the ‘signs of a possible change in the position of non-state entities in the contemporary international legal order’.5 These developments can be seen in particular in the efforts undertaken by the international community to adapt the rules applicable to armed conflicts in which non-State entities take part to the requirements of the protection of civilian populations, as well as in the relations which States and governmental and non-governmental organizations establish with such entities during the conduct of hostilities and subsequently during the political resolution of the conflict. The law of international responsibility no longer entirely ignores these entities; it already regulates certain situations concerning armed bands and criminal groups by elaborating the conditions for attribution of their illegal acts to the State. However, the corollary of the erosion of the role of the State and the limits of its responsibility, namely the increase in power of such entities and their potential to cause harm, may justify making them answer themselves for their behaviour by making them inter national responsible. Certain elements of modern practice may be seen as already pointing towards this conclusion.

1 Situations already regulated by the law of international responsibility There are three principal situations in which the acts of an armed band or criminal group may be attributed to the State. Two classic hypotheses are where these groups act as de facto organs of the State and where they may be classified as insurrectional movements; both of these situations are codified in the ILC’s Articles on State Responsibility. The Articles also (p. 333) deal with the hypothesis, of more recent emergence, where such groups exercise elements of governmental authority.

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(a) Groups acting as de facto organs of the State While it has been said that the situation of individuals or groups of individuals acting on the initiative or at the behest of the State ‘has long had an episodic and marginal character’, the increase in situations involving irregular forces is beginning to make it ‘lose its exceptional character’ while also providing many of the pertinent illustrations of this hypothesis.6 In the majority of cases making up international practice and jurisprudence, individuals whose acts are attributed to the State entailing State responsibility are in reality members of armed bands or groups, who have relations with the State such that ‘they cease to be individuals from the standpoint of international law. They become formations which act in concert with, and at the instigation of, the State, and perform missions authorized by or even entrusted to them by that State. They then fall into the category of persons or groups which are linked, in fact if not formally, with the State machinery’.7 The notion of the de facto organ is apparently embodied in ILC article 8, which declares that conduct of a person or group of persons is attributable to the State where they are ‘in fact acting on the instructions of, or under the direction or control of, that State’. But according to the International Court of Justice, this hypothesis is different from the question whether the persons who committed the acts of genocide had the status of organs of the Respondent under its internal law; nor however, and despite some appearance to the contrary, is it the same as the question whether those persons should be equated with State organs de facto, even though not enjoying that status under internal law.8 Nevertheless, the wording of article 8 defines the criteria to qualify as a de facto organ more rigorously than the corresponding provision in the 1996 draft, which referred to a person or group of persons ‘in fact acting on behalf of that State’.9 In refusing to classify irregular groups simply tolerated or supported by the State as organs of the State, the ILC has taken the position that their behaviour should be attributed to the State only ‘if it directed or controlled the specific operation and the conduct complained of was an integral part of the operation’.10 That is precisely the case where, in accordance to the General Assembly’s definition, there exists an act of aggression as the result of ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to’ invasion, bombardment, blockade or attack.11 It was on this basis that the International Court attributed to the United States, albeit without finding an act of aggression, the attacks against Nicaragua carried out by the ‘Contras’, which were composed principally of nationals of Latin-American States paid by the United States and acting on the direct instructions and under the supervision

References (p. 334) of the CIA or American military personnel.12 Instead, no direct or indirect implication of the Democratic Republic of the Congo in the attacks by the rebel forces of the FDA against Uganda was noted by the Court.13 The same reasoning was relied upon by the UN Human Rights Commission in holding Indonesia liable for crimes committed in East Timor by pro-integration militias, which were perpetrated with the direct and indirect support of the armed forces and the Indonesian police, both in respect of the organization and financing of the militias as well as in the planning and execution of their activities.14

(b) Groups constituting insurrectional movements There is a major difference between armed bands supported by the State and insurrectional movements, which cannot be considered as an organ of the State whose established government they wish to overthrow, or on whose territory they aim to create a new State. The aspiration of insurrectional movements to form a new government or State is precisely the basis on which the

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theoretical international responsibility of such movements is founded, albeit that that responsibility is almost never implemented during the conflict. Customary international law, as codified by ILC article 10, already attributes to the State illicit acts committed by an insurrectional movement during a conflict from which it emerges victorious.15 The characteristics of modern armed conflict put this distinction, which is a priori clear cut, into perspective. Numerous insurrectional movements turn to criminal activities in order to finance the war they are waging against established authority, including by traffi cking of diamonds, as practiced by UNITA in Angola and the RUF in Sierra Leone, or trafficking of drugs as practised by the Shining Path in Peru, FARC in Colombia, or the UCK in Kosovo.16 But quite apart from the increasing criminalization of armed conflicts, an insurrectional movement ultimately remains an armed band which fulfils the conditions which international law has developed as a prerequisite for its classification as such. This is a result of the retention of the criterion contained in Additional Protocol II for the application of the law of armed conflicts, which, according to the ILC, should serve as a guide for identifying insurrectional movement to which illicit acts may eventually be attributed. Article 1(1) of Additional Protocol II limits the application of the rules of armed conflict to ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.17

(c) Groups exercising elements of governmental authority Pursuant to ILC article 9, the acts of a group which ‘is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority’ are attributable to

References (p. 335) the State. This rule, which gives effect to the old notion of the levée en masse by citizens for their own defence from an approaching enemy, deals with a fairly exceptional circumstance; however it also apt to cover acts falling outside the hypothesis of attribution discussed in the previous paragraphs, where an insurrectional movement succeeds in its struggle and forms a new government or State. The ILC’s commentary makes clear that the provision is applicable where, excluding situations where there exists a de facto government, irregulars take the place of the official authorities, and this not only in cases of a partial or total collapse of the State, but also where the authorities are prevented from exercising their functions in a particular field or place, for example in cases of a loss of control of a particular area.18 The frequent coincidence between break-down of authority in a State and the presence of armed bands fighting the government or each other underlines the topical nature and pertinence of the scenario. Although international practice and jurisprudence is lacking in this regard, taking account of the activity carried out by armed groups exercising a real and effective control over a piece of territory could permit the attribution to the State of the acts committed in the course of the performance of certain essential public functions, such as the maintenance of public order. The key factor is that the circumstances require the exercise of elements of governmental authority, even if, in fact, they do not justify the illegal behaviour in question.19

2 Emergence of international responsibility of armed bands and criminal groups Although the law of international responsibility regulates a certain number of situations involving the actions of armed bands and criminal groups, the situations described above are far from covering all possible situations involving such groups. While it may not be assimilated to these cases, the case of Hezbollah further illustrates the difficulty of subsuming the situations concerning this group

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in the categories contained in the international rules regulating the attribution of wrongful acts to the State: the relationship existing between this religious-political group with the Lebanese State cannot in fact be defined ‘either in terms of absolute autonomy nor in terms of strict dependency’.20 The limits of the existing law explain certain evolutions in State practice, which reveal the emergence of an international responsibility of these entities themselves. The significant upheavals which this evolution inevitably causes in the system of international responsibility makes it necessary to consider both its justifications and the ways in which it manifests itself.

(a) Justifications for the emergence of international responsibility of armed bands and criminal groups Although it could, in theory, exist cumulatively with the international responsibility of the State, it is the lack of effectiveness of State responsibility in the situations in question (p. 336) which, above all, justifies the recognition of an international responsibility of armed bands and criminal groups. This lack of effectiveness results from the fact that these diverse entities enjoy, as regards both States and entities with aspirations to Statehood, a level of functional autonomy which makes it impossible to attribute their illicit behaviour to either one or the other. The same applies when armed groups, actively supported by a State which has ‘a substantial involvement’ in the action within the meaning of the Gene ral Assembly’s Definition of Aggression,21 nevertheless operate in their own interests by virtue of a freedom of movement which makes it impossible to consider them as a de facto organ of the State. Accordingly, in the absence of ‘effective control of the military or paramilitary operations’ of the Nicaraguan contras, the assistance ‘albeit premeditated or decisive’ given to them by the United States was, according to the International Court, insufficient to attribute to the United States the violations of human rights and humanitarian law committed in the course of the operations in questions; 22 in underlining that ‘these acts could easily have been committed by the contra force outside the control of the United States’, the Court implicitly opened a breach in the State’s monopoly in respect of wrongful conduct, without elaborating more precisely its extent as to the nature of the responsibility of the contras. The same analysis can also be applied to the massive violations of the same rules by the RUF in Sierra Leone in spite of the varied forms of ‘active support’ given by the Liberian Government from its own territory to the totality of the RUF’s activities,23 as well as to the attacks in New York on 11 September 2001, in spite of the narrowness of the links uniting the Taliban regime in Afghanistan with Al Qaida. As on several occasions since 1998, the Security Council condemned the Taliban regime ‘for having allowed Afghanistan to be used as a base for terrorist training and terrorist activities, including the exporting of terrorism by the Al Qaida network and other associated terrorist groups’, but the Council never declared that the attacks were acts of a State carried out by a de facto State organ, and contrary to to earlier resolutions, it also condemned the ‘Al-Qaida network and other associated terrorist groups, for the multiple criminal, terrorist acts’ which they have committed.24 As this last example forcefully shows, armed groups not acting in the name of or on behalf of a State cannot automatically be deemed instead to be insurrectional movements. As with regular armies, insurrectional movements are today often superseded by all sorts of bands or militias, either born out of internal schisms or formed ex nihilo, which constitute as many uncontrolled vectors within the multiple dynamics between groups at work within armed conflicts having a strong community or identity element. Under these conditions, ‘the objective genuinely being pursued by the movement’ is the only element permitting a distinction between an entity aspiring to exercise the functions of the State and an armed band acting for a purely private goal.25 The disappearance of the political and ideological goals of war is a recurring feature of these groups, whose ambition is less to accede to power than to gain control of humanitarian aid or national resources, or even simply to obtain a ransom.26 This phenomenon of atomization and depoliticization also

References

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(p. 337) makes the exercise of elements of governmental authority more uncertain in the context of the defence of citizens.27 In the various situations evoked above, the impossibility of attributing to the State acts which are too weakly linked to its sovereignty is not always compensated for by the effectiveness of its responsibility in cases where it has failed to meet its own obligations. Whilst it is true that under international customary law, as codified by the Friendly Relations Declaration, each State is internationally responsible for the active or passive support which it gives to armed bands which infringe the sovereignty of another State, the law exonerates the State from responsibility when its failure to meet its obligation to prevent or halt the armed bands’ activities is due not to a voluntary omission but to an involuntary incapacity to control their activities by exercising reasonable vigilance, taking into account the circumstances and especially the size and organization of the groups in question.28 This classical solution also applies in the exceptional case of the ‘failed State’. The resolutions in which the Security Council authorizes States which cooperate with the transitional Somalian Government to enter into the territorial waters of Somalia and to use all necessary means to repress acts of piracy on the high seas also underline that this government lacks the capacity ‘to interdict pirates or patrol and secure either the inter national sea lanes off the coast of Somalia or Somalia’s territorial waters’.29 The appearance of micro-powers of a criminal kind, and the spreading of guerrilla armies which have under their control entire sections of the economy and entire regions, is at the same time both the cause and the consequence of the State’s inability to keep its territory and its population under its own control, and of a process which can lead to its effective displacement.30 While such a situation may prevent the attribution to the State of the illegal acts of groups, it also renders easier a presumption of constrained passivity, rather than the existence of a voluntary omission constituting a failure to comply with an obligation of due diligence. The very gravity of the illegal acts which the State is unable to halt demonstrates the extent of the ineffectiveness of its international responsibility. Consisting essentially, in the classic cases of internal disturbance, revolution or civil war, of acts causing harm to the person, to possessions or to foreign nationals, the type of illegal behaviour which characterizes contemporary situations is on the entirely different scale of massive and serious violations of human rights and international humanitarian law, the trafficking of arms and drugs, and acts of international terrorism which ‘constitute one of the most serious threats to international peace and security in the twenty-first century, [and] a challenge to all States and to all of humanity’.31

(b) Manifestations of the emergence of international responsibility of armed bands and criminal groups The existence of a double lack of responsibility, of both the State and the armed groups, can therefore justify a normative evolution with the aim of making armed groups ‘new

References (p. 338) subjects’ of the law of international responsibility. In this regard, it is necessary not to give too much weight to the fear, often stated in the academic literature, that such groups would thereby be accorded legitimacy and the legal personality, even if functional and limited, which is the necessary corollary of responsibility. In reality, legal personality is only of value to the extent of its social utility, which in this case is the aim of making the formidable power to cause harm of such entities, a power which is not reducible to the individual acts of their members, coincide with a corresponding capacity to be held responsible. Certain elements of recent international practice show a progressive, though imperfect, evolution in this direction. First, in the large number of armed conflicts which it has been called upon to deal with, the Security Council has frequently addressed ‘all parties, including those other than States’, ‘all parties, all From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

movements et all factions’, ‘all parties and other interested persons’, or ‘all forces and armed groups’, or to individual named groups, for instance ‘the Serbs of Bosnia’, ‘elements of the Croatian Army’, ‘the Kosovo Liberation Army or all other groups or individuals’, ‘the Burundi Front for the Defence of Democracy (FDD), the former armed forces of Rwanda (ex-FAR)/Interhamwe and the Alliance of Democratic Forces’, ‘the RUF, the civil defence forces and other armed groups’, and ‘the Sudanese rebel groups, especially the Movement for Justice and Equality/Sudan Liberation Movement’.32 The Security Council has called upon these groups to fulfil their obligations undertaken under internationalized peace accords, and more generally, ‘to comply with the provisions of the Charter of the United Nations and with rules and principles of international law, in particular international humanitarian, human rights and refugee law, and to implement fully the relevant decisions’,33 or to put an immediate end to violations of such obligations. Particularly as concerns humanitarian law, the Security Council makes no distinction between rules applicable to international and non-international armed conflicts; this has helped contribute to the emergence of a more uniform regime as applied by the International Committee of the Red Cross (ICRC), and which the Institute of International Law has recommended should apply to all conflicts in which non-State entities are taking part, whether they are fighting the armed forces of the government, or the forces of one or more other non-State entities, or, in the case of the State’s destruction, where several non-State entities are fighting one another, and whether or not the conflict has been internationalized by the intervention of foreign States or United Nations forces.34 The broad subjection of armed bands to international humanitarian law will be reinforced by recalling their obligations under international law and the consequence of their violation by such groups in the agreements which governments and humanitarian bodies are forced to conclude with them in order to gain access to the populations of the zones they control, as has been recommended by the Secretary General.35 This also holds true for the international law of human rights, for armed groups are not: … strictly speaking, legally bound to respect the provisions of international human rights treaties which are instruments adopted by States and can only be formally acceded to or ratified by States. (p. 339) The supervisory mechanisms established by these treaties are not empowered to monitor or take action on reports on the activities of armed groups.36 This distinction with international humanitarian law is at the origin of recent proposals de lege ferenda, aiming to subject non-State entities, in the same way as de facto governments, to the obligation to respect international human rights law, notably in cases where no governmental or State structure exists or where governments cannot or do not wish to bring to justice the principal actors.37 The criminal responsibility of the members of various armed groups, regularly reaffirmed in the various resolutions cited previously, does not constitute the only way in which those individuals may be held to account for illegal acts which are attributable to them. Another form of responsibility may be said to exist, as a result of the ‘sanctions’ adopted by the Security Council against such groups, as part of an analysis, shared by a number of authors, according to which the coercive action of the Security Council is increasingly obeying the logic of the rules of international responsibility as codified by the ILC.38 To the extent that the ILC has clearly accepted the existence of a principle of international responsibility of insurrectional movements, albeit without expressly including it in the text of the Articles, the fact that the Security Council imposes such measures without hesitation is an indication of a convergence of the two systems for sanctioning illegal conduct. Accordingly, a military and oil embargo, the blocking of funds, possessions and other economic resources, and the refusal of entry and transit of its leaders on or through the territory of any State were imposed on UNITA as a result of its breach of the obligations to which it had subscribed in the Lusaka Peace Accords.39 Military and logistical embargos have subsequently been adopted against armed groups and foreign militias present on the territory of the Democratic Republic of the Congo, 40

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especially in Kivu and Ituri,40 and against the non-State protagonists, non-governmental entities, militias, and armed groups operating in Liberia41 and in the Sudanese province of Darfur.42 The Secretary General equally proposed that targeted measures be taken against the military and political leaders of the Liberation Tigers of Tamil Eelam (LTTE).43 However, the adoption of such measures confirms and reflects above all the progressive convergence between the enlargement of the notion of standing and interest to act of the global community, accompanying the expansion of the notion of threat to the peace, and the development of a multilateral system of relationships of responsibility resulting from the violation of obligations established for the protection of a collective interest of the ‘international community of States as a whole’. The same is true as regards massive and serious violations of human (p. 340) rights and international humanitarian law by the majority of the aforementioned entities, as well as for acts of international terrorism which have become such a persistent threat since the attacks of 11 September 2001, which have resulted in the adoption of measures, analogous to those used against UNITA, ‘with respect to Usama bin Laden, members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them’, identified by name.44 The Security Council has not yet gone so far as to impose on non-State entities the same duty it has imposed on States, namely the obligation to make reparation for the damage caused by their actions. Nevertheless, there is no justification for subjecting non-State groups to rules which are substantially different from those applicable to States. An evolution of the practice of the Security Council in this regard is not to be excluded especially given that reparation may ‘sometimes reveal a dimension of repression which can, marginally, make it appear, punitive, as with punitive damages, one of the objectives of which is to prevent the repetition of acts causing damage’.45 It is true that this concerns an institution of internal law, frequently found in common law systems.46 From a technical point of view, the international management of an indemnity fund, composed of blocked funds and assets, is perfectly foreseeable in this regard. Nevertheless, the power of the Security to order sanctions is not a power to punish, and the notion of punitive damages was not retained by the ILC, in accordance with the dominant international case-law. In an analogous fashion, the individual responsibility of the members of a group may also contribute to the way in which the group’s international responsibility is structured. This is so indirectly where the two types of responsibility, existing independently from one another, converge in a common apprehension of the true authors of the illicit behaviour behind the more or less transparent veil of the State. But it is also so, more directly, where the Security Council concerns itself with criminal punishment, acting under Chapter VII, thereby confirming and reinforcing the infiltration of the system of responsibility into the domain of coercive action.47 It is true that the Security Council only addresses its remarks directly to non-State entities when they are parties to an armed conflict in order to demand that they respect the obligations incumbent on them by virtue of international humanitarian law or by a peace agreement to which they are party. Outside of these cases, armed bands and criminal groups are not the direct addressees of resolutions of the Security Council, which, above all, are addressed to States requiring them to take measures designed to prevent and suppress the illegal behaviour of such organizations, in particular as regards acts of terrorism: thus ‘eliminating the supply of weapons to terrorists’,48 and refraining ‘from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery’.49 (p. 341) When considered from the angle of responsibility, the coercive action of the Security Council is, in any event, better adapted to the non-State character of these actors than the individual or collective self-defence of States. In spite of their gravity, the terrorist attacks of September 11 cannot be classified as an act of aggression by Afghanistan, in accordance with the rules governing the attribution of such acts to States. However, by targeting Al Qaïda and the Taliban regime indiscriminately, Operation ‘Enduring Freedom’ launched by the United States could not avoid making Afghanistan appear to be the author, or the co-author, of the attacks.50 These examples illustrate at one and the same time the limits of international responsibility of armed bands From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

and criminal groups in the framework of the current system of international law. Further reading R Bertrand, ‘L’affaire de la prise d’otages de Jolo: un exemple de criminalisation du politique en Asie du Sud-Est’ (2001) 43 Revue internationale et stratégique 40 I Brownlie, ‘International Law and the Activities of Armed Bands’ (1958) 7 ICLQ 712 G Cahin, ‘L’Etat défaillant en droit international: quel régime pour quelle notion?’, in Droit du pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon, (Brussels, Bruylant, 2007), 177 E Cannizzaro, ‘Entités non-étatiques et régime de l’emploi de la force: le cas de la réaction israélienne au Liban’ (2007) 111 RGDIP 333 FW Dahmane, ‘Les mesures prises par le Conseil de sécurité contre les entités nonétatiques’ (1999) 1 Revue africaine de droit international et comparé 227 H Dipla, ‘Les résolutions du Conseil de sécurité imposant des mesures coercitives et leur mise en oeuvre: quelques réflexions concernant la responsabilité des États’, in H Ruiz Fabri, L-A Sicilianos, & J-M Sorel (eds), L’effectivité des organisations internationales: mécanismes de suivi et de contrôle (Paris, Pedone, 2000), 23 F Dopagne, ‘La responsabilité de l’Etat du fait des particuliers: les causes d’imputation revisitées par les articles sur la responsabilité de l’Etat pour fait internationalement illicite’ (2001) 34 Revue belge de droit international 492 J-L Florent, ‘Les destinataires non-étatiques des résolutions du Conseil de sécurité’, SFDI, Le sujet en droit international (Paris, Pedone, 2005), 107 V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43 ICLQ 55 S-G Kahn, ‘Private Armed Groups and World Order’ (1970) 32 NYBIL 47 C Kress, ‘L’organe de facto en droit international public’ (2001) 105 RGDIP 93 L-A Sicilianos, ‘L’invocation de la légitime défense face aux activités d’entités non-étatiques’ (1989) 2 Annuaire de La Haye de droit international 147(p. 342)

Footnotes: 1 I Brownlie, ‘International Law and the Activities of Armed Bands’ (1958) 7 ICLQ 712. 2 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, GA Res 2625 (XXV), 24 October 1970. 3 L-A Sicilianos, ‘L’invocation de la légitime défense face aux activités d’entités non-étatiques’ (1989) 2 Annuaire de La Haye de droit international 147, 150. 4 T Garcin, ‘De nouveaux conflits armés?’ (1999) 55 Défense nationale 39. 5 M Sahovic, ‘L’application du droit international, notamment humanitaire, dans les conflits armés auxquels prennent part des entités non-étatiques’ (1999) 68-I Annuaire IDI (Session de Berlin) 251, 254. 6 P Daillier and A Pellet, Nguyen Quoc Dinh, Droit international public (7th edn, Paris, LGDJ, 2002), 779. 7 Report of the ILC, 27th Session, ILC Yearbook 1975, Vol II, 79–80 (para 32). 8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 397. 9 C Kress, ‘L’organe de facto en droit international public’ (2001) 105 RGDIP 93. 10 ARSIWA, Commentary to art 8, para 3. 11 Definition of Aggression, GA Res 3314 (XXIX), 14 December 1974, annex, para 3(g). 12 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 6, 45–51 (paras 80–86).

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13 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 19 December 2005, paras 131–135. 14 UN Doc A/54/660, 10 December 1999, paras 59–65. 15 See also above, Chapter 19.2, for a more detailed examination of art 10 ARSIWA. 16 See Problems and Dangers Posed by Organised Transnational Crime in the Various Regions of the World, UN Doc E/Conf. 88/2, 18 August 1994. 17 Additional Protocol II, 1125 UNTS 609. 18 ASRSIWA, Commentary to art 9, paras 1, 5. 19 D Thürer ‘The “Failed State” and International Law’ (1999) 81 International Review of the Red Cross 731, 747; G Cahin, ‘L’Etat défaillant en droit international: quel régime pour quelle notion?’, in Droit du pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 177, 202–205. 20 E Cannizzaro, ‘Entités non-étatiques et régime de l’emploi de la force: le cas de la réaction israélienne au Liban’ (2007) 111 RGDIP 333, 339. 21 Art 3(g), GA Res 3314 (XXIX). 22 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 6, 64–65 (paras 115–116). 23 Cf SC Res 1343, 7 March 2001. 24 SC Res 1390, 16 January 2002; see also SC Res 1378, 14 November 2001. 25 E David, Principes de droit des conflits armés (Brussels, Bruylant, 2002), 386. 26 Cf R Bertrand, ‘L’affaire de la prise d’otages de Jolo: un exemple de criminalisation du politique en Asie du Sud-Est’ (2001) 43 Revue internationale et stratégique 40. 27 In relation to the ‘Maï-Maï’ in the Congo, UN Doc S/2002/341, 5 April 2002, Appendix, 12–13. 28 S-G Kahn, ‘Private Armed Groups and World Order’ (1970) 32 NYBIL 47–49. 29 SC Res 1816, 6 November 2008; SC Res 1846, 2 December 2008; SC Res 1851, 18 December 2008. See T Treves, ‘Piracy, Law of the Sea and Use of Force: Developments off the Coast of Somalia’ (2009) 20 EJIL 399. 30 JD Mouton, ‘Retour sur l’Etat souverain à l’aube du XXIe siècle’, in Etat, société et pouvoir à l’aube du XXIe siècle, Mélanges en l’honneur de F. Borella (Nancy, Presses Universitaires de Nancy, 1999), 319, 320. 31 SC Res 1377, 12 November 2001. 32 See the resolution cited by E David, Principes de droit des conflits armés (Brussels, Bruylant, 2002), 644. 33 SC Res 1296, 19 April 2000, para 12. 34 See the resolution on The Application of International Humanitarian Law and Fundamental Human Rights, in Armed Conflicts in which Non-State Entities are Parties, adopted by the Institut de Droit International at its Berlin session in 1999: (1999) 68-I Ann IDI 367–370. 35 UN Doc S/2001/331, 5 (paras 19–21), 11 (paras 48–50). 36 Report of the Secretary General to the Commission on Human Rights, Minimum Humanitarian Standards, E/CN.4/1998/87, 5 January 1998, para 59. 37 Ibid; see A Eide, A Rosas & T Meron, ‘Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards’ (1995) 89 AJIL 215; J Moore, ‘From Nation State to Failed State: International Protection from Human Rights Abuses by Non-State Actors’ (1999) 31 Columbia HRLR 81; M Schoiswohl, ‘De Facto Regimes and Human Rights Obligations: The Twilight Zone of Public International Law’ (2003) 6 Austrian RIEL 45.

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38 V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43 ICLQ 55. 39 See FW Dahmane, ‘Les mesures prises par le Conseil de sécurité contre les entités nonétatiques’ (1999) 1 Revue africaine de droit international et comparé 227. 40 SC Res 1493, 28 July 2003; SC Res 1552, 27 July 2004; SC Res 1596, 18 April 2005. 41 SC Res 1521, 22 December 2003. 42 SC Res 1556, 30 July 2004. 43 Report of the Secretary-General on children and armed conflict in Sri Lanka, 20 December 2006, S/2006/1006, 18–19 (para 63). 44 See SC Res 1390, 16 January 2002, and subsequent related resolutions. 45 J Verhoeven, Droit international public (Brussels, Larcier, 2000), 655–656. 46 JJ Paust, ‘Sanctions against Non-state Actors for Violation of International Law’ (2001–2002) 8 ILSA J Int’l & Comp L 417, 418–422. 47 H Dipla, ‘Les résolutions du Conseil de sécurité imposant des mesures coercitives et leur mise en oeuvre: quelques réflexions concernant la responsabilité des États’, in H Ruiz Fabri, L-A Sicilianos, & J-M Sorel (eds), L’effectivité des organisations internationales: mécanismes de suivi et de contrôle (Paris, Pedone, 2000), 23, 41. 48 SC Res 1373, 28 September 2001. 49 SC Res 1540, 28 April 2004. 50 F Dopagne, ‘La responsabilité de l’Etat du fait des particuliers: les causes d’imputation revisitées par les articles sur la responsabilité de l’Etat pour le fait internationalement illicite’ (2001) 34 Revue belge de droit international 492, 522–525.

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Part III The Sources of International Responsibility, Ch.23.3 The Responsibility of Other Entities: NonGovernmental Organizations Anna-Karin Lindblom From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 343) Chapter 23.3 The Responsibility of Other Entities: Non-Governmental Organizations 1 State responsibility and NGOs 343 (a) Introduction 343 (b) State responsibility and NGOs 345 (c) The composite legal status of NGOs 345 2 The obligations of NGOs under international law 346 (a) Treaties and other international instruments 346 (b) Obligations of NGOs in co-operation with intergovernmental organizations 348 (c) Codes of conduct 351 3 The international responsibility of NGOs 352 Further reading 354

1 State responsibility and NGOs (a) Introduction As a consequence of the considerable number, resources, and political role of nongovernmental organizations (NGOs), the demands for their accountability are increasing.1 The NGO sector attracts large amounts of international funding and, as a consequence of developments such as the privatization of public services in many countries and the globalization of decision-making, their

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role is powerful both locally and transnationally. The possibility of holding NGOs legally responsible for their conduct is only one aspect of the larger question of their accountability.2 Here, the focus lies on this legal aspect: to what extent can NGOs be held responsible in international law? (p. 344) The issue of the international responsibility of NGOs has no evident place in relation to the more solid areas of international law, such as State responsibility, international obligations and courts, but seems to float somewhere off the coastline. In this Chapter, I will try to locate the place of NGOs in relation to international responsibility by identifying and examining their obligations under international law. After briefly touching on the rules on State responsibility, the obligations and responsibilities of NGOs under treaties, resolutions and other instruments will be examined. On the basis of this discussion, conclusions will be drawn regarding the international responsibility of NGOs. This approach may appear clinical, even superficial. As Jordan and van Tuijl state: ‘NGO accountability has become a “wedge issue” that appears uncontestable across different constituencies on the surface but disguises deep and often undeclared divisions of interest beneath’.3 The international obligations of non-State actors raise controversial issues which are essentially about power and control. A short discussion of these aspects of the international responsibility of NGOs will conclude this Chapter. There is no generally applicable legal definition of NGOs. For the purpose of the article, a functional definition will be based on some of the international instruments that relate to NGOs. Thus, the concept of an ‘NGO’ is here understood as an organization which: • is ‘non-governmental’ in the sense that it is established by private initiative, it is free from governmental influence, and does not perform public functions; • has aims that are not-for-profit; if profits are earned, they are not distributed to members or founders but used in the pursuit of the NGO’s objective; • does not use or promote violence; and • has some sort of representative structure and usually, but not necessarily, a formal existence based on a statute. 4 NGOs may be national or international and have diverse objectives and forms, including associations, charities, foundations, churches and religious congregations, non-profit corporations, and trade unions. No distinction will be made here on the basis of the organization’s objective, apart from the requirement that it is not-for-profit. The term ‘non-governmental organization’, which was used in the UN Charter, is sometimes criticized for referring to these actors solely by what they are not, ie States.5 Through the designation ‘non-governmental’, NGOs are to a large extent excluded as irrelevant for international law and defined as belonging to the domestic sphere. This exclusion is precisely where their most important role lies, as it means independence from governments. That is also why the term is adequate in the context of inte rnational law.

References

(p. 345) (b) State responsibility and NGOs The Commentaries to the Articles on State Responsibility for Internationally Wrongful Acts (ARISWA) declare that: The articles are concerned only with the responsibility of States for internationally wrongful conduct, leaving to one side issues of the responsibility of international organizations or of other non-State entities.6 The question of the international responsibility of non-State actors for their conduct is a different

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question from that of, and does not exclude, the responsibility of States. Nevertheless, as the basic structure of international responsibility, it is necessary to refer to the Articles in order to discuss the international responsibility of NGOs. According to article 2 ARISWA, an internationally wrongful act of a State occurs when conduct consisting of an action or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. The most common way to address the issue of responsibility for the actions of an NGO would consequently be consider the issue of attribution.7 The Commentary to article 5 regarding attribution of the conduct of entities, which are empowered by the law of a State to exercise elements of governmental authority, explains that the term ‘entity’ reflects a wide variety of bodies,8 but this can apply only in virtue of their relation to the State itself. However, the focus here is on the responsibility of NGOs themselves directly under international law. According to ARSIWA, there is an internationally wrongful act when conduct constitutes a breach of an international obligation. In that sense, international obligations may be regarded as the source of international responsibility. Thus, the international obligations of NGOs need to be examined before the question of their international responsibility can be addressed.

(c) The composite legal status of NGOs According to the traditional view on the subjects of international law, NGOs cannot have international obligations, at least not in a strict sense, as they are not subjects of inter national law. However, the dichotomy of subject and object will be put aside here as a simplification that can at best serve as a presumption, but that excludes too much information about a complex reality. It is interesting to note that, while the subject-object dichotomy is so often rejected, it is always referred to.9 This paradox can perhaps be explained by the lack of adequate concepts to describe the reality of often multifaceted situations. Here, the expression composite legal status

References (p. 346) will be used in order to describe the legal status of NGOs and non-State actors more generally. The point of this expression is to illustrate that, while States possess an international legal status which has the character of a totality or a monolith, the international legal status of nonState actors consists of different combinations of rights, obligations and capacities. The international legal status of such an actor is thus an aggregation of these different parts. The composite legal status of NGOs, like that of most non-State actors (with a few exceptions, such as the International Committee of the Red Cross) consists of the rights, capacities etc which are expressly conferred on them, and cannot be inferred from a more general recognition of their role and status. Thus, in order to investigate the international legal obligations of NGOs, it is necessary to examine international treaties and other instruments and documents.

2 The obligations of NGOs under international law While there are several examples of obligations placed on the individual in international criminal law, and on national liberation movements, armed opposition groups, and other non-State actors in international humanitarian law, the international legal obligations of NGOs are few. A few examples of obligations laid down in treaties will first be described below. Thereafter, other types of regulation through international instruments will be discussed, such as resolutions, agreements, and codes of conduct.

(a) Treaties and other international instruments As regards treaty law, examples of obligations of NGOs can be found in humanitarian law. The

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presence of international humanitarian organizations in situations of armed conflict have created a need for international law to adapt and encompass NGOs and other non-State actors in order to regulate their status, role, rights and obligations. The special status of the International Committee of the Red Cross (ICRC) in the context of the Geneva Conventions and their Additional Protocols is the clearest example of this. While some of these rules apply specifically to different bodies of the Red Cross and Red Crescent Movement, others refer to humanitarian organizations in general. There are several different terms used in the Conventions and Protocols to refer to NGOs, including ‘any other impartial humanitarian organization’; ‘body’; ‘other Voluntary Aid Societies’; ‘an organization which offers all guarantees of impartiality and efficacy’; ‘international religious organizations’; ‘any other organization giving assistance to prisoners’; ‘relief societies’, and ‘social or cooperative organizations’. In other words, diverse categories of NGOs are afforded rights, protection and, in some cases, obligations under international humanitarian law. Perhaps the clearest example of obligations which may be placed on an NGO is expressed in article 10 of Geneva Convention I (with corresponding articles in other Geneva Conventions), where it is stated that the High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the Convention.10 In some situations,

References (p. 347) the role of protecting power can be taken on by a humanitarian organization. Article 10 also clarifies that whenever mention is made in the Convention of a Protecting Power, such mention also applies to substitute organizations in the sense of the article. The duties of a protecting power include, for example, safeguarding the interests of the parties to the conflict (article 8).11 Article 44 of Geneva Convention I regulates the use of the Red Cross emblem and the words ‘Red Cross’ or ‘Geneva Cross’, and thereby also the obligation not to use these symbols in any other way. According to the article, National Red Cross Societies and other Voluntary Aid Societies, duly recognized and authorized by their Governments, shall have the right to use the distinctive emblem conferring the protection of the Convention only within the framework of the provision.12 International labour law is another area where NGOs, or more specifically organizations of workers and employers, have a special role and status. In spite of the tripartite structure of the International Labour Organization (ILO), most ILO conventions address only member States, and the obligations expressed in conventions are imposed upon States. One of the Fundamental ILO Conventions, however, expressly imposes an obligation on organizations of workers and employers. Article 8(1) of the Freedom of Association and Protection of the Right to Organise Convention (No 87, 1948), provides that workers’ and employers’ organizations shall, like other persons or organized collectivities, respect the law of the land in exercising the rights provided for in the Convention.13 As these organizations do not have the opportunity to choose whether to ratify the convention or not, it can be observed that there is a flaw as to the source of the binding force of this obligation. However, this flaw is, to some extent, remedied by the fact that representatives of organizations of workers and employers participate in the drafting process within the ILO’s tripartite structure. Furthermore, the obligation is formulated in such a way that it has more the consequence of limiting convention rights than of creating actual obligations. Although the UN Declaration on Human Rights Defenders is not a legally binding document, it is of some interest here as one of the few international instruments which formulates responsibilities for NGOs in general.14 Article 18 of the Declaration states: … non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.

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References (p. 348) Further: non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized. The wording of these provisions is vague and—apart from the fact that the Declaration is not a binding document as such—expressions such as ‘important role’ and ‘responsibility’ are used rather than terms signalling a legally binding character, such as ‘duties’ or ‘obligations’. It should also be noted that it is stressed in the Preamble of the Declaration that ‘the prime responsibility and duty to promote and protect human rights and fundamental freedoms lie with the State’. Consistently with the general scepticism towards imposing obligations on individuals, and the fear that such obligations might be perceived as conditions for human rights, there were diverging views on the notion of responsibilities of human rights defenders during the preparatory work on the Declaration.15

(b) Obligations of NGOs in co-operation with intergovernmental organizations There are a number of international instruments which regulate arrangements for cooperation between NGOs and intergovernmental organizations (IGOs), such as the UN Economic and Social Council (ECOSOC), the ILO, the Organisation of American States, and the Council of Europe. Only a few of these will be examined below. ECOSOC resolution 1996/31 specifies the consultative status of NGOs with ECOSOC with the purpose of enabling the ECOSOC and its subsidiary bodies to secure information or advice from NGOs with special competence and to enable NGOs to express their views.16 According to the provisions regarding suspension and withdrawal of consultative status, NGOs which have been granted consultative status ‘shall conform at all times to the principles governing the establishment and nature of their consultative relations with the Council’.17 Three main grounds are specified for suspension or withdrawal of consultative status. First, consultative status shall be suspended or withdrawn if an NGO: clearly abuses its status by engaging in a pattern of acts contrary to the purposes and principles of the UN Charter including unsubstantiated or politically motivated acts against Member States of the United Nations incompatible with those purposes and principles. Secondly, suspension or withdrawal will take place if there is substantiated evidence of influence from proceeds resulting from internationally recognized criminal activities, such as illicit drugs or arms trade or money laundering. Finally, status may be suspended or withdrawn if, within the preceding three years, an organization did not make any positive or effective contribution to the work of the UN.18 In addition, there is an obligation for NGOs to submit to the Council Committee on Non-Governmental Organizations a quadrennial report of activities.19 The decision to suspend or withdraw consultative status is taken by the ECOSOC on the recommendation of its Committee on NGOs. The reports of the Committee demonstrate that the Committee’s considerations regarding applications and cases of possible

References (p. 349) suspension or withdrawal of consultative status are often controversial and politicized, which sometimes makes their obligations under the resolution unclear.20 The documents also

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demonstrate that failure of NGOs to meet the reporting obligation under the Resolution does in fact lead to suspension of consultative status.21 The ECOSOC arrangements are central in the respect of regulating access to a large part of the meeting rooms where important human rights decisions are taken, and also with regard to the high number of NGOs in consultative status (3,289 NGOs by September 2009). However, in terms of rights and duties, there are other examples where NGOs have a stronger status. One example is the Ramsar Convention on Wetlands,22 in the context of which the State parties work closely with four international NGOs. In 1999, these NGOs were given the formal status of international organization partners of the convention, and a fifth NGO has been given the same status subsequently.23 According to the Rules for conferring such status, the partnership organizations are to sign a Memorandum of Cooperation with the Bureau of the Convention, supplemented by work plans, where the responsibilities of each partner organization are specified.24 As an example it can be mentioned that under the Memorandum of Cooperation concluded with BirdLife International, BirdLife undertakes to perform a number of activities, such as to continue to help to stimulate and assist governments at national level with their reporting obligations and to assist countries to join the Convention.25 Article 3 explains that the Memorandum of Cooperation constitutes ‘an expression of a shared objective and vision’.26 An obligation of a more specialized type has been pronounced for NGOs acting as amicus curiae within the context of proceedings before the WTO Dispute Settlement Body.27 According to the Dispute Settlement Understanding, the parties to a dispute shall respect rules of confidentiality. In the case of European Communities—Export Subsidies on Sugar, the Panel decided not to consider an amicus curiae brief from an NGO because, inter alia, ‘it is based on confidential information and is thus evidence of a breach of confidentiality which disqualifies the credibility of the authors’. The Panel considered that, if the NGO—though not a party to the proceedings—wanted to be considered a ‘friend of the court’, it

References (p. 350) should have made every possible effort to respect WTO dispute settlement rules, including confidentiality rules.28 Several regional organizations have also adopted arrangements for participation or consultation with NGOs. For instance, according to the resolution regulating participatory status for international NGOs with the Council of Europe, NGOs with such status ‘shall undertake’ to furnish the different bodies of the CoE with information, documents or opinions and work to promote the respect of the CoE’s standards, conventions and legal instruments in the member States, and assist in the implementation of these standards.29 The participatory status of an NGO may be withdrawn if, for example, it has failed to comply with its obligations under the rules set out in the resolution, or if it has ‘taken any action which is not in keeping with its status as an international non-governmental organization’.30 Co-operation between NGOs and intergovernmental organizations, such as the Food and Agriculture Organization (FAO) and the World Food Programme (WFP), in respect of more specific projects, is also extensive. Although there are different types of agreements and instruments for regulating the IGO—NGO relations in such operations, these instruments often lack provisions on applicable law, and sometimes refer only to general principles of law. Disputes are often referred to arbitration. There are also examples of agreements which provide that the NGO shall apply a specific code of conduct. The Letters of Agreements used by the Food and Agriculture Organization (FAO) for regulating, for example, the provision of funds for NGO projects, are interesting due to the fact that they clearly spell out the obligations of the recipient NGO while being ‘governed by general principles of law, to the exclusion of any single national system of law’.31 Disputes are to be settled by arbitration under the UNCITRAL Arbitration Rules, and the parties to the agreement are bound by the arbitration award as the final adjudication of a dispute. In other

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words, the obligations laid down under these agreements can be described as being ultimately governed by international law, albeit the relationship is of a contractual nature. Other examples of similar documents include the field level agreements used by WFP and its partner NGOs.32 In sum, NGOs which enter into arrangements for co-operation and consultation with IGOs have to accept certain undertakings. These undertakings, or obligations, have binding force in the sense that breaches constitute a ground for the IGO to terminate its relation with the NGO. Some of the agreements, in particular those which regulate a specific project or operation, can be described as being of a bilateral and contractual nature, where the rights and obligations of each party have been formulated by them together. Other arrangements are of a different character in the sense that the instrument that regulates rights and obligations has been formulated and adopted by the member States of an IGO, without any voting rights for NGOs. The rules are the same for a vast number of NGOs, (p. 351) and the responsibilities placed on them sometimes include the obligation to respect more generally applicable instruments of international law, such as in the case of ECOSOC resolution 1996/31, according to which NGOs may not engage ‘in a pattern of acts contrary to the purposes and principles of the UN Charter’.

(c) Codes of conduct In order to enhance their accountability and legitimacy, NGOs often create joint standards for selfregulation, for instance in the area of humanitarian response. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief was elaborated in the mid-1990s by the International Federation of Red Cross and Red Crescent Societies and the ICRC with the co-operation of Caritas Internationalis, Catholic Relief Services, International Save the Children Alliance, the Lutheran World Federation, Oxfam, and The World Council of Churches.33 According to an ICRC official, the drafting of the code responded to a real need in a situation where there was a high rise of demand of humanitarian action and a corresponding increase in supply.34 Parallel to the growth of existing agencies, a host of new NGOs and other organizations were formed, and some organizations launched operations according to questionable ethical standards. By September 2009, the Code had been signed by 481 non-governmental humanitarian agencies.35 The Code is voluntary and ‘self-policing’; the signatories have not established any system for enforcing it other than by the will of the signatories. The purpose of the code is to ‘maintain the high standards of independence, effectiveness and impact to which disaster response NGOs and the International Red Cross and Red Crescent Movement aspires’. The code includes provisions on, for example, the ‘obligation to provide humanitarian assistance wherever it is needed’ (article 1), and states that ‘Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid is calculated on the basis of need alone’ (article 2). It is also declared that the signatories hold themselves accountable to both those the organizations seek to assist and those from whom they accept resources (article 9). Although the Code of Conduct is a voluntary instrument for self-regulation, it does at the same time have a certain degree of normative force, especially for those NGOs that have undertaken to respect it as part of an agreement with an intergovernmental donor agency. According to some IGO —NGO agreements, the NGO ‘must’ comply with the Code, while in other cases, NGOs are ‘encouraged’ to do so.36 Codes of Conduct and similar self-regulatory instruments have also been formulated and adhered to by NGOs active in several other areas, such as the NGO Code of Conduct for Health Systems Strengthening (2008),37 the Code of

References (p. 352) Good Practice for NGOs Responding to HIV/AIDS (2004),38 and the Sphere Humanitarian Charter (original edition 1999, revised edition 2004).39

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3 The international responsibility of NGOs As has been shown above, NGOs have some, but not many, legally binding obligations under international law. The binding force of most of these obligations have their source in an active decision of the NGO to accept them, by entering into an agreement, seeking consultative or partnership status with an IGO, acting as a humanitarian organization in the meaning of the Geneva Conventions, or by signing an instrument for self-regulation. In these cases, it is the instrument and relationship in question which decide the method for determining whether a breach of the obligation has taken place, and what will be the consequences. In other words, the obligations and responsibilities are a bilateral matter, in contrast to the rules on State responsibility, which define the responsibility of States generally, with no possibility for them to ‘opt out’ of the system. Thus, the limited and consent-based system of international responsibility for NGOs can and should be clearly distinguished from the general and obligatory rules on State responsibility. The ‘war against terrorism’ has, however, blurred the difference between these two categories. The UN Security Council has increasingly been using targeted sanctions, for example freezing individual bank accounts, the prohibition of entry or transit through a State’s territory or the prohibition of the sale of arms and related material. Although States are the direct addressees of the obligations created by these resolutions, the targeting of the sanctions towards specific individuals and entities leads to responsibility for them directly under international law.40 These international sanctions may also entail responsibility for NGO-like entities, even in cases where their association with terrorism has not been proven in court. A related development is the one taking place within the intergovernmental Financial Action Task Force (FATF). According to FATF Special Recommendation VIII on nonprofi t organizations (NPOs), countries should review the adequacy of laws and regulations that relate to entities which can be abused for the financing of terrorism.41 In the interpretative note to the recommendation, the more specific meaning of recommendation VIII is partly expressed as direct obligations for NPOs (‘NPOs should …’).42 Through regular evaluations of its member States, FATF seeks to ensure that these obligations are put into practice. Apart from these examples, however, the main rule for NGOs is that international obligations and responsibilities are accepted and taken on by NGOs themselves. There are good reasons for not bestowing international legal obligations on NGOs as these organizations are defined here, ie as organizations that do not use or promote violence. First, obligations must to some extent be balanced by rights and power. Even if the rights, capacities and possibilities of NGOs to for example act before international courts, co-operate with (p. 353) IGOs, and exert influence on international law- and decision-making are considerable, the international legal status of NGOs and non-State actors in general cannot be compared to that of States.43 For instance, NGOs are not parties to treaties which lay down international legal obligations and have little power over the development of customary international law. Further they have no access as parties to the International Court of Justice. To pronounce legally binding obligations for NGOs, without providing them with the option of accepting or refusing them, or to challenge how these texts are interpreted in court, would create an unbalanced legal system. Second, despite of their important and influential international role, NGOs depend on States to a large extent. States create and control the domestic legal systems where NGOs have their bases, and often provide funding. If NGOs were to comply with a system of rules laying down international obligations, some States would be likely to use this avenue for challenging and attacking NGOs, which could obstruct their possibilities to work freely and effectively. This risk is clearly illustrated by the discussions held in the ECOSOC Committee on Non-Governmental Organizations. The growing demands of NGO accountability and responsibility can be met in other ways. NGOs already need to comply with the duties formulated as part of their relationship with IGOs. In addition, the methods for self-regulation seem to be growing and include codes of conduct and good practices, international accountability standards and NGO certification mechanisms.44 When IGOs in their agreements with NGOs refer to or require NGOs to comply with self-regulatory instruments, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

the normative force of these instruments increases. A parallel trend has characterized the role and discussion regarding the responsibilities of transnational corporations (TNCs). One aspect of this trend is the growing interest in and use of codes of conduct and other mechanisms for corporate social responsibility.45 In a report of the Special Representative on human rights and TNCs and other business enterprises, the corporate responsibility to respect human rights is discussed: Whereas governments define the scope of legal compliance, the broader scope of the responsibility to respect is defined by social expectations—as part of what is sometimes called a company’s social licence to operate. The corporate responsibility to respect exists independently of States’ duties. Therefore, there is no need for the slippery distinction between ‘primary’ State and ‘secondary’ corporate obligations …46 The Special Representative has also drawn attention to the concept of ‘shared responsibility’, drawing on the work of the political philosopher Iris Marion Young. This concept recognizes that the challenges arising from globalization are structural, and that they involve governance gaps and governance failures. Accordingly, they cannot be resolved by an individual liability model of responsibility alone, which requires a coherent model focused on realigning the relationships among a wide range of actors, including States, corporations

References (p. 354) and civil society. This line of thinking is relevant for several global challenges today, such as respect for human rights, transboundary environmental harm, and the need for systems which can ensure the legality and legitimacy of humanitarian responses.47 Finally, it should be observed that the often perceived lack of international personality or ‘subjectivity’ of NGOs is not in itself an obstacle for international legal responsibility to embrace them. As demonstrated, for example by international humanitarian and criminal law, the composite international legal status of NGOs and other non-State actors consists of no more and no fewer parts than the international (State) community finds useful. Legal concepts are mostly created to explain, express, or sometimes enable a political will, rather than the other way around. If the State community finds it useful to keep the main dimension of NGOs’ personality and activity within the domestic sphere, which is currently its most likely agenda, it will do so. There are good reasons for limiting the international legal obligations of NGOs to those which are accepted by their own independent decisions and to the requirements of national legislation. However, the day that the State community considers it necessary to increase the international responsibility of NGOs, such a responsibility will be created, and the notions of subject and object will become even more obsolete than they are already. Or, as Groucho Marx could have said: those are my concepts, and if you don’t like them … well, I have others.48 Further reading RB Bilder, ‘What NGO Accountability Means—And Does Not Mean’ (2009) 103 AJIL 170 A Clapham, Human Rights Obligations of Non-State Actors (Oxford, OUP, 2006) S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 AJIL 348 L Jordan & P van Tuijl (eds), NGO Accountability, Politics, Principles and Innovations (Earthscan, London, 2006) A-K Lindblom, Non-Governmental Organisations in International Law (Cambridge, CUP, 2006) E Roucounas, ‘Non-State Actors: Areas of International Responsibility in Need of Further Exploration’, in M Ragazzi (ed), International Responsibility Today. Essays in Memory of Oscar Schachter (The Hague, Martinus Nijhoff, 2005), 391 L Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge,

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CUP, 2002)

Footnotes: 1 For a description of the debate and how it has evolved, see RB Bilder, ‘What NGO Accountability Means—And Does Not Mean’ (2009) 103 AJIL 173, and L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), 9–13. 2 Some writers distinguish between external and internal accountability, see S Charnovitz, ‘Accountability of Non-Governmental Organizations in Global Governance’, in L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), 33. Accountability is also discussed in relation to different stakeholders and as ‘social accountability’, ‘downward accountability’, and ‘accountability from above’: ibid, 53–55. 3 L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), viii. 4 See eg Recommendation C M/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organizations in Europe, 2007, and E/RES/1996/31. It can be observed that this definition differs from the one used by Charnovitz, who includes the more normative element that NGOs should pursue interests that cross or transcend international borders, like the definition used in the draft convention elaborated by the Union of International Associations in 1923: S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 AJIL 350. 5 Art 71 of the UN Charter states that ‘The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence …’ 6 Introduction to Commentary, para 5. This explanation is made in relation to arts 57 and 58 regarding the responsibility of intergovernmental organizations and of individuals. 7 See however, regarding the need to attach some non-State actors more directly to international law for the sake international responsibility, E Roucounas, ‘Non-State Actors: Areas of International Responsibility in Need of Further Exploration’, in M Ragazzi (ed), International Responsibility Today. Essays in Memory of Oscar Schachter (The Hague, Martinus Nijhoff, 2005), 404. 8 Commentary to art 5, para 2. It is also stated that: ‘[i]n theory, the conduct of all human beings corporations or collectivities linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government’: Commentary to art 5, para 2. 9 Rosalyn Higgins has declared that the notion of ‘subjects’ and ‘objects’ is an ‘intellectual prison’: R Higgins, Problems and Process, International Law and How We Use it (Oxford, Clarendon Press, 1994), 49. See also S Charnovitz, ‘Accountability of Non-Governmental Organizations in Global Governance’, in L Jordan and P van Tuijl (eds), NGO Accountability. Politics, Principles and Innovations (Earthscan, London, 2006), 33, and Jan Klabbers, who describes personality and subjectivity as descriptive notions that are normatively empty, as neither rights nor obligations flow automatically from a grant of personality: J Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge, CUP, 2009), 51. 10 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (entry into force 21 October 1950), 75 UNTS 31. 11 It can be questioned in relation to such obligations if and how non-State actors—and in this case non-parties to the conflict—can be bound by treaties to which they are not parties, and the question is not unproblematic. The explanation of the ICRC Commentary is that the commitment made by a State applies also to any established authorities and private individuals within its territory, C Pilloud et al (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (The Hague, Kluwer Law International, 1987), 1345. For a thorough discussion on the origin of obligations of armed groups under inter-State treaties, see L

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Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge, CUP, 2002), 155ff. 12 The Commentary explains that Governments may authorize societies other than the Red Cross Societies to assist the medical service, and that these societies, even when they have no connection with the National Red Cross, are entitled both in peacetime and in wartime to use the red cross sign. J Pictet, Commentary on the Geneva Conventions of 12 August 1949, Volume I (ICRC, Geneva, 1952), 328. 13 International Labour Organization, Convention (No 87) Concerning Freedom of Association and Protection of the Right to Organise, 1948. 14 GA/RES/53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 1999. 15 E/CN.4/1997/92 and E/CN.4/1998/98. 16 E/RES/1996/31, para 20. 17 Ibid, para 55. 18 Ibid, para 57. 19 Ibid, para 61(c). 20 See eg E/2009/32, Parts I and II, E/2006/32 (Part I) and E/2000/88. 21 E/2009/32 (Part II), pp 9–12. 22 Convention on Wetlands of International Importance especially as Waterfowl Habitat; Ramsar, 2 February 1971, UNTS No 14583; as amended by the Paris Protocol, 3 December 1982, and Regina Amendments, 28 May 1987. 23 Resolution VII.3 (1999), Partnership with International Organisations. The decision regarding the fifth NGO was taken through the adoption of Resolution IX.16 (2005). 24 Annex to the resolution VII.3 (1999), para 4.7. 25 Memorandum of Cooperation between Ramsar and BirdLife International, 9 March 2005. 26 Another example of close co-operation between governmental and non-governmental bodies on the international plane is the International Organization for Standardization (ISO), which is a federation of 140 national standard institutes that develops international standards to facilitate trade in goods and services. Each national body is the ‘most representative of standardisation in its country’ and may comprise different combinations of governmental and non-governmental participants. For a thorough and structured description of the status of NGOs in international bodies, see Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience, study by Ecologic and FIELD, 2002. 27 The Agreement Establishing the World Trade Organization (Article V:2) explicitly empowers the WTO to engage with NGOs. However, the General Council decided in 1996 to transfer the main responsibility for contacts with civil society to the national level. As a result, NGOs do not have consultative status in any WTO bodies, even if there are other types of contacts, especially with the Secretariat. 28 European Communities—Export Subsidies on Sugar. Complaint by Brazil, Report of the Panel, 15 October 2004, WTO Doc WT/DS266/R, paras 7.82–7.85. 29 Committee of Ministers, Resolution Res (2003) 8, Participatory status for international nongovernmental organisations with the Council of Europe, Appendix, para 9. 30 Ibid, para 16. A document from 2005 describes the withdrawal of the participatory status of 31 NGOs on the ground of ‘i.e.’ failure to submit a biennial report for the period 2000–2002, SG/Inf(2005)01, 18 January 2005, para 7.

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31 FAO Standard Letter of Agreement, clause 3(f). 32 How to Work with WFP—Manual, A Handbook for Non-Governmental Organizations (NGOs), December 2005, 73–78, Annex 1: Field Level Agreement Template. 33 (1996) 310 International Review of the Red Cross 55–130, annex VI. 34 Bruce Biber, Deputy Head of Division of the ICRC’s Policy and Cooperation within the Movement, The Code of Conduct: humanitarian principles in practice, Focus article on the ICRC website, 20 September 2004. 35 A list of signatories is posted on the website of the International Federation of Red Cross and Red Crescent Societies. 36 Some memoranda of understanding used by WFP state that the NGO ‘must’ follow the code while some local agreements state that the NGO is ‘encouraged’ to do so. The difference may be due to the fact that memoranda of understanding are often not legally binding, while the local contracts are. 37 The NGO Code of Conduct for Health Systems Strengthening, 2008, updated in 2009, available at . 38 Code of Good Practice for NGOs Responding to HIV/AIDS, 2004, available at . 39 Sphere Humanitarian Charter, 1999, revised in 2004, available at . 40 See eg SC/RES/1483 (2003), SC/RES/1532 (2004), SC/RES/1735 (2006) and SC/RES/1822 (2008). 41 FATF, Special Recommendation VIII on non-profit organisations, 2001. 42 FATF, Interpretative Note to Special Recommendation VIII: Non-Profit Organisations, 2006, section b. 43 The legal status of NGOs has been more elaborately described in A-K Lindblom, NonGovernmental Organisations in International Law (Cambridge, CUP, 2006). 44 For information on different initiatives on national, regional and global level, available at . 45 Expressed in eg the OECD Guidelines for Multinational Enterprises (reviewed version 2000) and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted already in 1977. See also A Clapham, Human Rights Obligations of Non-State Actors (Oxford, OUP, 2006), 199ff. 46 A/HRC/8/5 (2008), paras 54 and 55. 47 Report from Workshop on Attributing Corporate Responsibility for Human Rights under International Law, New York University, 2006, p 8. 48 Originally: ‘Those are my principles, and if you don’t like them … well, I have others.’

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Part III The Sources of International Responsibility, Ch.24 Actions and Omissions Franck Latty From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Wrongful acts — Ultra Vires conduct, necessity, emergency

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(p. 355) Chapter 24 Actions and Omissions 1 The action/omission distinction 356 (a) Definition of internationally wrongful actions and omissions in international law 356 (b) Relevance of the distinction 359 2 The consequences of the action/omission distinction 360 (a) The limited consequence of the distinction 360 (b) Use of the distinction as regards the content of international responsibility 362 Further reading 363 ‘Qui peut et n’empesche, pesche’ (Loysel1) He who can but does not prevent, sins. This adage of pre-revolutionary French law has its equivalent, mutatis mutandis, in all systems of law. Even if, as a matter of international law there is no requirement of fault in order to engage international responsibility, the violation by an international legal person of one or more of its obligations may arise just as easily from passivity as from a positive course of action: international legal persons are responsible both for their actions and their omissions insofar as they constitute internationally wrongful acts. This principle has been repeated at length on many occasions; in the award in Case concerning the Acquisition of Polish Nationality, the arbitrator identified an obligation on the State ‘to refrain from all illegal acts, whether by the positive actions of its authorities, or by omission or by a refusal to lend assistance or to do justice’.2 In Corfu Channel, the International Court clearly distinguished the wrongful acts of the United Kingdom from the wrongful omissions of Albania, whilst Judge Winiarski made clear in his dissenting opinion that: In international law, every State is responsible for an unlawful act, if it has committed that act, or has failed to take the necessary steps to prevent an unlawful act, or has omitted to take the necessary steps to detect and punish the authors of an unlawful act. Each of these omissions involves a State’s responsibility in international law, just like the commission of the act itself.3

References (p. 356) The Iran-US Claims Tribunal has also applied the principle, holding that ‘the Government of Iran is responsible, by virtue of its acts and omissions’,4 while the Inter-American Court of Human Rights has stated that ‘a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions … ’.5 A number of awards in investment protection arbitrations have made reference to the principle,6 which is accepted also as a matter of European Community law7 in which there is even a specific remedy provided for a failure to act by Community institutions.8 This overview is obviously not exhaustive, but it highlights the continued vigour of the principle, which has been noted by both academic writers and in private codification drafts.9 The ILC was therefore able to codify as article 2 of its Articles the rule that an internationally wrongful act results from ‘conduct consisting of an action or an omission’, which is attributable to the State and which constitutes a breach of one of its international obligations. The notions of action and omission give form to, and puts some meat on the bones of, the notion of the ‘internationally wrongful act’, a notion which was deliberately left skeletal. While internationally wrongful acts and omissions in international law may be relatively easy to define, the dividing line between the two categories is sometimes difficult to identify (Section 1). However, the

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consequences attached to the distinction for the purposes of the regime of international responsibility are in any case relatively limited (Section 2).

1 The action/omission distinction (a) Definition of internationally wrongful actions and omissions in international law An ‘action’ of a State or any other subject of international law is to be understood as meaning any conduct or positive act which is attributable to it. The wrongful character of such an action derives from the obligation to refrain from particular conduct, generally phrased as a prohibition, imposed by public international law. The unlawfully wrongful action is therefore the violation of a primary obligation ‘not to do’. Public international law is replete with such prohibitions, but the clearest examples of the obligations ‘not to do’ are those which are the direct corollaries of the sovereignty of States. In Military and Paramilitary Activities in and against Nicaragua,10 the International Court held that, by various actions (support to the contras, armed attacks, overfl ight of Nicaraguan territory, and the laying of mines), the United States of America had variously acted in breach of its obligations under customary international law ‘not

References (p. 357) to intervene in the affairs of another State’, ‘not to use force against another State’ and ‘not to violate the sovereignty of another State’.11 Similarly, in Corfu Channel, the Court held that ‘the action of the British Navy’—in carrying out a de-mining operation in Albanian waters without Albania’s consent—‘constituted a violation of Albanian sovereignty’.12 Generally, the prohibitions imposed by international law result from rules creating a particular status or consecrating a right.13 Further, certain areas of international law are particularly fertile sources for the formation of such obligations ‘not to do’: there is a proliferation of prohibited conduct in the norms relating to the status of maritime spaces (eg the obligation not to interrupt peaceful maritime commerce found to have been violated in Military and Paramilitary Activities),14 in diplomatic law (eg the obligation not to infringe the inviolability of premises of a diplomatic mission),15 in relation to the issue by an investigating magistrate and subsequent circulation of an arrest warrant in relation to an incumbent Minister of Foreign Affairs,16 and in the law relating to treatment of foreigners, including rules against arbitrary expulsion,17 and arbitrary arrest followed by ill-treatment.18 Beyond these prohibitions which are binding on States as a matter of customary law, the treatymaking activities of States is a further source of prohibitions. Treaties are the paradigm manner in which States consent to limit the exercise of their competences and to undertake, more or less explicitly, not to do particular things.19 Any action contrary to these prohibitions contained in treaties clearly would be liable to engage the international responsibility of the State in question. But the subjects of international law are not responsible only for their actions; their responsibility is engaged just as much by their omissions. As the European Court of Human Rights has observed, ‘fulfilment of a duty … on occasion necessitates some positive action on the part of the State; in such circumstances, the State cannot simply remain passive and “there is … no room to distinguish between acts and omissions” …’.20 A priori, omissions are not easy to identify as such, given that, by definition, they are not susceptible to any material concretization. They correspond to an abstention, an instance of inaction by an international actor; however, in contrast to those two terms, the word ‘omission’ presupposes to a certain extent an obligation to act which has not been fulfilled. It is therefore almost tautological to speak of a ‘wrongful omission’.

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References (p. 358) Accordingly, an abstention constitutes a (wrongful) omission where some action is required from the international actor; an omission is an abstention consisting of the fact of not doing that which ought to be done.21 In this regard, the remedy for failure to act in EU law is subject to a requirement ‘that the institution concerned should be under an obligation to act, so that the alleged failure to act is contrary to the Treaty’.22 By contrast, in the absence of any primary obligation ‘to do’, no omission may be complained of. For instance, in Mohsen Asgari Nazari v Iran,23 the Iran-US Claims Tribunal, having found that there was no obligation to act on Iran in the circumstances, concluded that no omission could be held to its account.24 The international legal system contains a multitude of obligations ‘to do’. They result for the most part from treaty obligations entered into by States.25 A failure to observe treaty obligations ‘to do’ constitutes an omission which is liable to engage the responsibility of the State in question. In United States Diplomatic and Consular Staff in Tehran,26 the International Court of Justice observed that ‘the Iranian Government failed altogether to take any ‘appropriate steps’ to protect the premises, staff, and archives of the United States’ mission against attack by the militants, and to take any steps either to prevent this attack or to stop it before it reached its completion’,27 and ‘this inaction of the Iranian Government’ constituted a ‘clear and serious violation’ of its obligations under the Vienna Conventions on Diplomatic and Consular Relations.28 For its part, customary law creates a large number of duties incumbent on States which are the corollary of their sovereignty, notably the ‘obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability …’.29 As a consequence, wrongful omissions in international law may be found in particular in relation to failure to comply with obligations of due diligence, as is illustrated by Corfu Channel. The Court there held that Albania had failed to warn the British warships of the existence of a minefield: ‘nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania’.30

References (p. 359) Similarly, in its 2007 judgment in Application of the Convention for the Prevention and Punishment of the Crime of Genocide,31 the International Court held that Serbia, by its omissions, had violated its obligation to prevent the genocide at Srebrenica, after having made clear that the obligation was one of conduct, and that in the assessment of compliance with that obligation the notion of ‘due diligence was ‘of crucial importance’.32

(b) Relevance of the distinction For Brigitte Stern the distinction between action and omission ‘does not seem to be particularly important, given that any obligation may be expressed both positively and negatively’.33 International decisions occasionally distinguish wrongful actions from omissions; as noted above, in Corfu Channel, Albania’s responsibility was based on its omissions, while the actions of the United Kingdom were declared to be internationally wrongful. Similarly, the decision in the Rainbow Warrior established the responsibility of France on the one hand on the basis of positive actions (the repatriation of Captain Prieur from the island of Hao), and on the other on the basis of failures to act (‘by not endeavouring in good faith to obtain […] New Zealand’s consent to Captain Prieur’s leaving the island of Hao’; ‘by failing to order the return of Captain Prieur to the island of Hao’).34 The International Court held that Uganda violated its obligations under international human rights law and international humanitarian law, as a result of the fact that it had ‘incited an ethnic conflict’ (action) and had ‘failed to take measures to put an end to such conflict’ (omission).35 One aspect of the judgment of the Court in Application of the Genocide Convention illustrates the

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subtleties, ignored by the Court in its disposal of the case, which the distinction can generate. While distinguishing between complicity in genocide and the violation of the obligation of prevention, the Court affirmed somewhat simplistically that ‘complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commission, violation of the obligation to prevent results from omission’.36 Such a categorical affirmation leaves room for some scepticism; the possibility of commission by omission, a concept ‘which is well-known in domestic law’,37 should in particular be borne in mind. For example, should not a State which permits transit of its territory by armed groups, being aware of their genocidal intention, be recognized as complicit in their acts as a result of its knowing failure to act?

References (p. 360) In other situations, a single internationally wrongful act may result from a combination of action(s) and omission(s). In its Commentaries, the ILC referred to article 4 of the Hague Convention (VIII) of 19 October 1907 Relative to the Laying of Automatic Submarine Contact Mines,38 which foresees the responsibility of a neutral Power which places automatic contact mines off its coast and which omits to give the required notice to other States parties.39 The notion of composite acts embodied in article 15 of the Articles on State Responsibility also blurs the distinction between action and omission given that the internationally wrongful act may result from a combination of the two. In addition, a failure to comply with an obligation of due diligence may be the consequence of a combination of failures to act (eg the absence of intervention by the police) and positive acts (eg a judicial decision), which permits the conclusion that the State has not complied the obligations incumbent on it as a well-governed State. Further, a wrongful omission may in the end be caused by a positive act. Accordingly, a State taking insufficient measures to prevent a genocide, or less dramatically, in order to prevent a nuisance caused to its neighbour, fails to comply with its obligations. Its responsibility may be engaged by the failure to take appropriate measures, although the measures in fact taken, even if not adequate, form a positive act. The same is true of actions different from those required by the obligation breached. In these two cases, there is an omission by action, with the result that the distinction between the two notions is relatively fragile. In the end, as Ago observed, the difference between the two types of delict is not a material difference but a legal one.40 Rather than speaking of inter nationally wrongful acts or omissions, greater clarity is achieved if one talks of violations of obligations ‘to do’ or ‘not to do’, to distinguish between ‘passive obligations by which a State prohibits itself from acting, and positive obligations by which it obliges itself to act’.41 The responsibility of a subject of international law may therefore be engaged by reason of a violation of its international obligations, both in commitendo as well as in omittendo. For this reason, in French the term ‘fait internationalement illicite’ is to be preferred to ‘acte internationalement illicite’, given that the latter does not include omissions, as is made clear by the Commentary to Article 1 of the Articles; however, the Commentary highlights the absence of any equivalent in English of the term ‘fait’ in French, and the Commission therefore opted for maintenance of the term ‘inter nationally wrongful act’.42 It is now necessary to examine the consequences attached to the distinction between acts and omissions in the regime of international responsibility.

2 The consequences of the action/omission distinction (a) The limited consequence of the distinction The regime applicable to acts giving rise to international responsibility attributes few consequences From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

to whether the act in question is an action or an omission. As international case-law reveals, the rules governing attribution of conduct and breach of an

References (p. 361) international obligation remain the same. The assimilation of the two notions is fully justified: the maintenance of order in any society (the ‘statique sociale’ in the words of Comte) results just as much from obligations to act as from those requiring abstention from its subjects. As a result, a failure to comply (the ‘dynamic’ element) with any obligation causes the same disruption, and the normal balance of things is just as much affected by an action as by an omission. The engagement of international responsibility rests not so much on the active or passive nature of the conduct constituting a breach as on the existence of the breach itself. However, given the lack of any concrete acts, the operation of the rules of attribution of conduct in relation to omissions operates at a greater level of abstraction. In the absence of a positive act, necessarily performed by an actor, the operation of the rules of attribution in relation to omission can only operate by means of identifying the obligation breached, and therefore, the subject by which it is owed. In addition, the distinction can be seen as having a certain effect in relation to questions of causation. According to Ago, ‘whilst in relation to actions it is simply a case of establishing whether a natural relationship of cause and effect exists linking the action of the actor and the event, in relation to delicts by omission it is necessary to decide whether the occurrence of the action required in the concrete case of the actor could have prevented the event’.43 The ILC noted in its Commentaries that ‘it may be difficult to isolate an “omission” from the surrounding circumstances which are relevant to the determination of responsibility’.44 Obligations requiring positive action are however more contingent than obligations imposing prohibitions; according to the circumstances, a more or less strong reaction by way of ‘appropriate steps’45 may be required. The finding of the existence of an unlawful omission is therefore more difficult than a similar finding in relation to a positive action, since it requires a detailed examination of the facts of the case. Certain authors (in particular Schoen and Strupp)46 attempted to establish a distinction based on the notion of fault: in this conception, in contrast to a wrongful positive action, a wrongful omission is not capable of engaging a State’s responsibility except where the State is at fault. However, this analysis is undermined by the current state of international law, since it is well-established that there is no general requirement of any specific intention in order for there to be a breach of an international obligation. That approach is fully justified, if only because, although it might be possible to identify an intention from positive act, proof of the intentional nature of omission would often be very difficult. What is important is therefore not to qualify conduct as an action or omission, but to evaluate it in the light of the obligations binding on the subject of international law. An internationally wrongful act is the result of a failure to comply with an obligation which is attributable to the entity bound by the obligation in question, and not of the active or passive character of that lack of performance. As concerns the source of international responsibility, the action/omission dichotomy therefore has few consequences; however, the distinction is of some use in relation to the content of that responsibility.

References

(p. 362) (b) Use of the distinction as regards the content of international responsibility Prior even to the question of reparation, the first obligation deriving from responsibility for an internationally wrongful act is that to put an end to the wrongful conduct if it has not already ceased. In this regard, as well as in the context of restitutio in integrum the isolation from which is

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sometimes difficult in practice, the distinction between action and omission has a certain relevance. Of course, the cessation of an internationally wrongful act may be relevant to both actions and omissions, ‘since there may be cessation consisting in abstaining from certain actions’.47 All the same, ‘restitutio in integrum is […] the normal sanction for non-performance of contractual obligations’,48 and it matters little whether the obligations in question are obligations of positive action or obligations requiring abstention. However, depending on whether the internationally wrongful act is the result of a positive action or an omission, the content of the obligation of cessation of the wrongful conduct and the obligation to restore (or not) the situation to its previous state will depend on the content of the primary obligation.49 In cases of omission, the continuting obligations of cessation of the wrongful act and the wiping out, where possible, of the consequences of the violation, have the same content as the obligation breached: the international actor is required to act, and the same action remains required of it. In United States Diplomatic and Consular Staff in Tehran, the International Court, having found that Iran had by omission breached its obligations, held that it was required to ‘immediately terminate the unlawful detention of the […] United States nationals now held hostage in Iran’.50 The obligations of Iran therefore remained exactly the same as those contained in the primary obligation requiring it to act. On the other hand, in relation to breaches arising as the result of positive action, the obligation to put an end to the internationally wrongful act and restitutio in integrum take the form of obligations having a content different to that of the obligation breached. The violation of the primary obligation requiring that some act not be done produces a new and different obligation to act: the wrongful acts of the United States established in relation to Nicaragua in Military and Paramilitary Activities produced an obligation to undertake action, an obligation ‘immediately to cease […] all such acts as may constitute breaches of the foregoing legal obligations’.51 Similarly, the illegality of the construction by Israel of a wall in occupied Palestinian territory produced as a consequence an ‘obligation to cease forthwith the works of construction of the wall’, to dismantle those parts of the structure which had been built, and to repeal or render ineffective the legislative or regulatory acts adopted with a view to its construction and to the establishment of the associated regime,52 as well as by way of restitutio in integrum, ‘to return the land, orchards,

References (p. 363) olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall’ to the extent that it was materially possible.53 In a comparable fashion, in Arrest Warrant of 11 April 2000, the wrongful issuing and circulation of an international arrest warrant in relation to the incumbent Congolese Minister of Foreign Affairs resulted in an obligation for Belgium to ‘cancel the warrant in question and so inform the authorities to whom it was circulated’.54 By citing the decision of the Permanent Court of International Justice in Factory at Chorzów,55 the Court indicated that it was acting on the basis of the obligation to restore the state of affairs to the situation pre-existing before the internationally wrongful act, rather than on the basis of the obligation to cease of an internationally wrongful act, and this despite the fact that the interested party had in the meantime ceased to serve as Minister of Foreign Affairs. Several judges nevertheless were of the view that ‘the Judgment suggests that what is at issue here is a continuing illegality, considering that a call for the withdrawal of an instrument is generally perceived as relating to the cessation of a continuing international wrong’.56 However this may be, the result is that a positive wrongful action, ie the breach of an obligation ‘not to do’, gives rise to an obligation ‘to do’ (which is accordingly distinct from the primary obligation) as regards the cessation of the wrong and restitutio in integrum. Quite apart from its concrete manifestations, the distinction between actions and omissions therefore has a discrete theoretical interest, since it indicates that the obligation to put an end to wrongful conduct is indeed a secondary, rather than a primary obligation.57

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Further reading R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 500–506 C Dominicé, ‘Observations sur les droits de l’État victime d’un fait internationalement illicite’, in C Domincé (ed), L’ordre juridique international entre tradition et innovation (Paris, PUF, 1997), 261 D Lévy, ‘La responsabilité pour omission et la responsabilité pour risque en droit international public’ (1961) 65 RGDIP 774 G Perrin, ‘L’agression contre la légation de Roumanie à Berne et les fondements de la responsabilité internationale dans les délits d’omission’ (1957) RGDIP 410 L-A Sicilianos, ‘La responsabilité de l’État pour absence de prévention et de répression des crimes internationaux’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 1999), 115 PA Zannas, La responsabilité internationale des États pour les actes de négligence (Montreux, Gauguin & Laubscher, 1952)

References (p. 364)

Footnotes: 1 H Roland & L Boyer, Adages du droit français (4th edn, Litec, Paris, 1999), 736. 2 Affaire relative à l’acquisition de la nationalité polonaise (Allemagne contre Pologne), 24 July 1924, 1 RIAA 401, 425 (emphasis added). 3 Corfu Channel, Merits, ICJ Reports 1949, p 4, 52 (dissenting opinion of Judge Winiarski) (emphasis added). 4 Tippetts, Abbett, McCarthy, Stratton v TAMS-AFFA Consulting Engineers of Iran and others (1984) 6 Iran-US CTR 219, 225. 5 Velásquez Rodríguez v Honduras, Merits, I-ACtHR, Series C, No 4 (1989), para 170; see also para 164. 6 See eg CME Czech Republic BV v Czech Republic (2001) 9 ICSID Reports 121, 236 (para 605); Eureko BV v Republic of Poland (2005) 12 ICSID Reports 331, 373 (paras 186–189). 7 See Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland; R v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029. 8 See art 232 (ex-175), EC Treaty. 9 For the various codification efforts, see the annexes to R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125, 141. 10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 6. 11 Ibid, 146–147 (paras 292(3)–(6)). 12 Corfu Channel, Merits, ICJ Reports 1949, p 4, 35. 13 C Dominicé, ‘Observations sur les droits de l’État victime d’un fait internationalement illicite’, in C Dominicé (ed), L’ordre juridique international entre tradition et innovation (Paris, PUF, 1997), 261, 281. 14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 6, 147 (para 292(6)). 15 G Perrin, ‘L’agression contre la légation de Roumanie à Berne et les fondements de la responsabilité internationale dans les délits d’omission’ (1957) RGDIP, 410, 419.

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16 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 29–30 (paras 70–71). 17 Paquet, 1903, 9 RIAA 323, 325. 18 Chevreau (France contre Royaume-Uni), 9 June 1931, 2 RIAA 1113, 1131. 19 See eg art 1 of the Antarctic Treaty, Washington, 1 December 1959, 402 UNTS 71, prohibiting all measures of a military nature in the Antarctic; art 22 of the Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, which prohibits agents of the accrediting State from entering the premises of a diplomatic mission without the consent of the head of mission; Art 1 of the Treaty on the Non-Proliferation of Nuclear Weapons, London/Washington/Moscow, 1 July 1968, 729 UNTS 169 by which nuclear-weapon States undertake ‘not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices …’. 20 Marckx v Belgium (App No 6833/74), ECHR, Series, A No 31 (1979), 15 (para 31); see also De Wilde, Ooms et Versyp v Belgium (App Nos 2832/66, 2835/66, 2899/66), ECHR Series A No 15 (1972); Airey v Ireland (App No 6289/73), ECHR, Series A, No 32 (1979), 14 (para 25). 21 See the definition of ‘omission’ in J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 779. 22 Case T 32/93, Ladbroke Racing Ltd v Commission [1994] ECR I-1015, para 35. 23 Mohsen Asgari Nazari v Iran (1994) 30 Iran-US CTR 123. 24 Ibid, 159. 25 See eg, art 1(2) of the Chemical Weapons Convention, Paris 13 January 1993; 1974 UNTS 316, by which the States parties undertake to destroy their chemical weapons; art 4 of the International Convention for the Suppression of the Financing of Terrorism, New York, 9 December 1999; UN Doc A/54/109; 39 ILM 270, by which the States parties undertake to ensure that the offences established by the Convention are punishable under their domestic law. See also the engagement to construct the system of locks at issue in Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, and L-A Sicilianos, ‘La responsabilité de l’État pour absence de prévention et de répression des crimes internationaux’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 1999), 115, 116. 26 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 4. 27 Ibid, 31 (para 63). 28 Ibid, 32 (para 67). See also eg the arbitral award in Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215 which held that a number of omissions by France violated a treaty with New Zealand; the report of the Panel in India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, Report of the Panel, 5 September 1997, WTO Doc WT/DS50/R, para 7.43, which held that India had failed to take the action necessary to implement its treaty obligations; or, in Community law, the condemnation of a State whose Parliament does not transpose a Directive within the time foreseen: Case 39/72 Commission v Italy [1973] ECR 101. 29 Island of Palmas, 4 April 1928, 2 RIAA 829, 839. 30 Corfu Channel, Merits, ICJ Reports 1949, p 4, 23. 31 Application of the Convention for the Prevention and Punishment of the Crime of Genocide, Merits (Bosnia-Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007. 32 Ibid, para 430. 33 B Stern, ‘Responsabilité internationale’, in Répertoire de droit international (2nd edn, Dalloz, Paris, 2004), Vol III, para 62. 34 Difference between New Zealand and France concerning the interpretation or application of

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two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 264 (para 101). 35 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), ICJ Reports 2005, p 168, 280 (para 345(3)). 36 Application of the Convention for the Prevention and Punishment of the Crime of Genocide, Merits (Bosnia-Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 432. 37 Ph Weckel, ‘L’arrêt sur le génocide: le souffle de 1951 n’a pas transporté la Cour’ (2007) 111 RGDIP 305, 327. 38 JB Scott, The Proceedings of the Hague Peace Conferences: The Conference of 1907 (New York, OUP, 1920), Vol 1, 643. 39 ARSIWA, Commentary to art 2, para 4, note 67. 40 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des Cours 415, 501. 41 P Reuter, Droit international public (6th edn, Paris, PUF, 1983), 253. 42 See ARSIWA, Commentary to art 1, para 8. 43 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des Cours 415, 503. 44 ARSIWA, Commentary to art 2, para 4. 45 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 4, 31 (para 63). 46 Cited by D Anzilotti, Cours de droit international (French trans, Paris, Editions Panthéon-Assas, 1999), 502; see also R Ago, ‘Le délit international’ (1939-II) 68 Recueil des Cours 415, 484; L-A Sicilianos, ‘La responsabilité de l’État pour absence de prévention et de répression des crimes internationaux’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 1999), 115, 121. 47 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 270 (para 113). 48 Texaco Overseas Petroleum Co & California Asiatic Oil Co v Libyan Arab Republic (1977) 53 ILR 389, 507–508 (para 109). 49 See also in relation to the subject of restitutio in integrum: R Ago, ‘Le délit international’ (1939II) 68 Recueil des Cours 415, 504–506. 50 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 4, 44 (para 95(3) (a)). 51 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 6, 149 (para 292(12)). 52 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, p 136, 197–198 (para 151); see also ibid, 201–202 (para 163(3)B). 53 Ibid, 198 (para 153). 54 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 6, 32 (para 76); see also ibid, 33 (para 78(3)). 55 Ibid, 31–32 (para 76), citing Factory at Chorzòw, Merits, 1928, PCIJ, Series A, No 17, p 4, 47. 56 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 6, 90 (para 89) (joint separate opinion of Judges Higgins, Kooijmans, & Buergenthal). 57 Cf the contrary views of G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 13 (para 31), 19 (para 54); C Dominicé, ‘Observations sur les droits de l’État victime d’un fait internationalement illicite’, in C Dominicé (ed), L’ordre juridique international entre tradition et innovation (Paris, PUF, 1997), 261, 280–284.

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Part III The Sources of International Responsibility, Ch.25 Source of the Obligation Yumi Nishimura From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Lex specialis

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(p. 365) Chapter 25 Source of the Obligation 1 The source of obligation and the establishment of State responsibility 365 2 The source of obligation and the scope and content of responsibility incurred 367 3 Concluding remarks 368 Further reading 369

1 The source of obligation and the establishment of State responsibility Until relatively recent times, there has been little discussion of the question whether the source of an obligation breached has bearing on the applicable regime of responsibility. For example, if the obligation breached derives from a bilateral or multilateral treaty, a rule of general international law, a general principle of international law, a general principle of law, or a unilateral act, does this difference in source somehow influence the regime of responsibility? Of course it is possible for special self-contained regimes of responsibility for particular types of breach to be developed, in which case the general regime of responsibility will be excluded (the lex specialis principle, see ILC article 55, and Chapter 13 above). But apart from this exception, is there any systematic distinction in international law between breaches of obligations, for example, arising from treaties and those arising in other ways? Some authors mention the point. Thus Brownlie states in the context of the basis of responsibility: … in principle an act or omission which produces a result which is on its face a breach of a legal obligation gives rise to responsibility in international law, whether the obligation rests on treaty, custom, or some other basis.1 On closer examination, however, this question should be understood in two different contexts: the way of establishing international responsibility and the scope and content of the responsibility incurred. The first concerns whether the breach by a State of an international obligation always constitutes an internationally wrongful act, regardless of the origin of that obligation. In this regard, article 12 of the ILC Articles provides: There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

References (p. 366) The ILC preferred the expression ‘breach of an obligation’ to ‘breach of a rule’ or of ‘a norm’. The reason for this choice of terminology, it explained, is that in the context of responsibility what matters is not the existence of a rule or a norm in abstract form but of an obligation in concrete circumstances.2 As far as we extract the breach of an obligation as the basis of responsibility, there is no room to consider the forms in which each obligation is found. As a formulation it is sufficient to say that any breach of obligation, whatever its source, generates responsibility. Thus, what article 12 says is that, irrespective of sources, once an obligation is not complied with, the breach—one of the basic requirements of responsibility—of that obligation is established. In other words, where an internationally wrongful act has occurred, the origin of the obligation does not change that fact. This is a truism; a breach is a breach, whatever the source of the obligation. This at first sight uncontroversial principle has, however, implications for the understanding of the structure of the law of international responsibility. The debate at the Hague Conference of 1930

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demonstrates the point. Article 1 of the Hague Draft stipulated: A State is responsible for any failure on the part of its organs to carry out the international obligations of the State which causes damage to the person or property of a foreigner in the territory of the State.3 Having agreed on this general principle, the point of discussion moved onto the problem of defining the obligation. If the formulation ‘any breach of obligation incurs responsibility’ is adopted as a basic principle of responsibility, the definition of obligation would become crucially important. Some delegates insisted that obligations should be limited to those prescribed in treaties and customary law indisputably established and recognized by all the contracting States. Others were of the view the responsibility should be established on the broader basis, ie, from the breach of general principles.4 From this debate we can see that the formulation ‘every breach of obligation generates responsibility’ does not necessarily exclude discussion about sources of obligation. What made the simple formula found in article 12 sufficient for the ILC is the particular construction of the law of State responsibility taken by it. Because the ILC decided to distinguish between primary and secondary rules and concentrate only on the latter, identifying the particular obligation and breach thereof does not come within the scope of the law of State responsibility proper. The law of State responsibility starts to operate when a breach of an international obligation has been established, while the determination of the existence of a breach is left within the ambit of the interpretation of the primary rule concerned and outside the realm of the secondary rule of State responsibility. Is there then any type of obligation the source of which has a bearing on the establishment of responsibility? Only a few authors take up this point. Further, the jurisprudence does not indicate that the existence of responsibility is decided differently because of the particular origin of an obligation breached. On the contrary, there are many cases where breaches of obligations are characterized as equally wrongful, whether those obligations derived from treaty, customary law or other sources. Thus it is clear that the international jurisprudence does not consider the origin of the obligation breached has any bearing on the characterization of the act of the State constituting the breach as internationally wrongful.

(p. 367) 2 The source of obligation and the scope and content of responsibility incurred The question is whether international law has a single regime of responsibility for all breaches of obligation, irrespective of the origin of an obligation. It has been said that there is no special regime of responsibility in international law according to the source of the obligation. Although there is a possibility that the regime of State responsibility may differ according to the substantive content of an obligation or the particular nature of the legal relationship presupposed by that obligation (eg whether it is an obligation erga omnes or a bilateral obligation), this is not related to the process by which the obligation is created. Despite this, it is sometimes argued that the breach of a treaty obligation should be treated in a manner specific to treaty violations without applying the general rules of State responsibility. The following two cases provide good examples of these arguments and answers given by international courts and tribunals. An attempt to exclude the application of the law of responsibility for a treaty violation was first made by New Zealand in the Rainbow Warrior arbitration. Concerning the breach of a bilateral agreement by France, New Zealand insisted that in the case of a treaty violation only the law of treaties should be applied and preclusion under the law of responsibility should not be admitted. The Tribunal rejected this argument: … the legal consequences of a breach of a treaty, including the determination of the circumstances that may exclude wrongfulness … and the appropriate remedies for breach,

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are subjects that belong to the customary law of State responsibility. The reason is that the general principles of international law concerning State responsibility are equally applicable in the case of breach of treaty obligation, since in the international law field there is no distinction between contractual and tortious responsibility, so that any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and, consequently, to the duty of reparation.5 The International Court’s decision in the case concerning the Gabčíkovo-Nagymaros Project is another example. Slovakia argued, on the same lines as New Zealand in the Rainbow Warrior arbitration, that Hungary could not use a defence of necessity recognized under the law of responsibility to legitimize her treaty violation. The Court rejected this argument, referring to draft article 17 of the draft provisionally adopted by the ILC on first reading. It said: It is moreover well established that, when a State has committed an internationally wrongful act, its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect.6 There are several points to be made here. First, along with the ILC draft article the Court also cited its advisory opinion on Interpretation of Peace Treaties to support its conclusion. Although that opinion confirmed ‘that refusal to fulfil a treaty obligation involves international responsibility’,7 this does not necessarily affirm the principle now under

References (p. 368) examination. (It is possible that the Court referred to the opinion to refute Slovakia’s contention that a breach of treaty obligation is governed not by the law of responsibility but by the law of treaties.) Secondly, although the judgment does not refer to the sources but ‘the nature’ of obligation, the reference to the draft article, which stipulated the irrelevance of the origin of the obligation, seems to signify that the Court had in mind the issue of different sources. Thirdly, the phrase ‘likely to be involved’ might be interpreted as leaving room for the possibility that there are circumstances where an internationally wrongful act does not lead to responsibility because of the particular nature of the obligation. However, in the light of the fact that the Court cited the ILC Articles, which stipulate that every breach of obligation by a State engages responsibility, it is more likely the Court had in mind the possibility of the preclusion of wrongfulness—which was very much in issue in that case.

3 Concluding remarks Although many domestic legal systems distinguish between civil and criminal responsibility, and between contractual and delictual responsibility within the former category, there is no such differentiation in international law. As to the character of international responsibility, different aspects have been emphasized by different authors. Some, emphasizing agreements between States as a basis of international law, argue that the regime of State responsibility is similar to contractual responsibility. Others suggest elements of tort law are present in the law of international responsibility. Sometimes the control of acts in light of social aims is said to be the function of the law of State responsibility. These views are consequent upon the unitary character of the theory of responsibility. This theory, with its high level of abstraction and generality, is sometimes said to suggest the rudimentary character of the law of State responsibility. However, it has its origins in the character of international law itself. For example, in international law the same obligation could be covered both by treaty and customary law or arise from a bilateral or a multilateral treaty. It is also difficult to make a clear distinction between traités-lois and traités-contrats.8 Thus it is impossible to consider that there are different regimes of responsibility in view of the difference in sources of obligations breached. But one point bears mentioning. Even though the

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origin of obligation does not affect the content and scope of responsibility regime, there is a possibility it might be relevant to how we understand the function of the law of responsibility in international law. It is sometimes said that the meaning of the construction which places breach of a primary rule obligation as the basis of responsibility is to make the law of responsibility a tool for realizing the sanction of international law. For if a State which breaches an obligation escapes responsibility, the concept of law itself might seem futile. It is true that through a settlement of the dispute where State responsibility is at issue the violation of the relevant rules is redressed and international legality is restored. However, when the rule in question is ambiguous in its scope or content, the process of determination of illegality and responsibility is not as automatic as is sometimes conceived by those writers who stress the role of the law of State responsibility as a sanctioning tool. In the light of the fact that many international norms are formulated in the (p. 369) form of general and abstract principles, it may be possible for the idea of a sanction to be seen more broadly. A dispute concerning State responsibility might have ‘le rôle en quelque sorte “créateur”’.9 If not the source of obligation itself, the extent to which a certain obligation is structured and concretized has some bearing on the understanding of the function of State responsibility. This is especially the case where an obligation the breach of which generates responsibility is identified through the application of general principles. Further reading DE Bowett, ‘Treaties and State Responsibility’, in Le droit international au service de la paix, de la justice et du développement: mélanges Michel Virally (Paris, Pedone, 1991), 137 J Combacau and D Alland, ‘Primary and Secondary Rules in the Law of State Responsibility: Categorizing International Obligations’ (1985) 16 Netherlands Yearbook of International Law 81 P-M Dupuy, ‘Droit des traités, codification et responsabilité internationale’ (1997) AFDI 7 H Lauterpacht, ‘Delictual Relations between States: State Responsibility’, in E Lauterpacht (ed), International Law: being the Collected Papers of Hersch Lauterpacht, vol 1: The General Works (Cambridge, CUP, 1970), 383 P Reuter ‘La responsabilité internationale: Problèmes choisis’, in Le développement de l’ordre juridique international (Paris, Economica, 1995), 377 S Rosenne, ‘Breach of Treaty in the Codification of the Law of State Responsibility’, in S Rosenne, Essays on International Law and Practice (Leiden, Nijhoff, 2007), 515 P Weckel, ‘Convergence du droit des traités et du droit de la responsabilité internationale à la lumière de l’Arrêt du 25 septembre 1997 de la Cour internationale de Justice relatif au projet Gabcikovo-Nagymaros (Hongrie/Slovaquie)’ (1998) 102 RGDIP 647 P Weil, ‘Droit des traités et droit de la responsabilité’, in El derecho internacional en un mundo en transformacion: Liber amicorum en homenaje al profesor Eduardo Jiménez de Aréchaga, Vol 1 (Fundación de Cultura Universitaria, 1994), 523(p. 370)

Footnotes: 1 I Brownlie, Principles of Public International Law (7th edn, Oxford, OUP, 2008), 436–437. 2 See R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 177, 192 (para 45). 3 LoN Doc. V.Legal.1930.V.17, Doc.C.351(c).M.145(c). 4 Ibid, 32–58. 5 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 251 (para 75). 6 Gabcíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997, p 7, 38 (para 47). 7 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) Advisory Opinion, ICJ Reports 1950, p 221, 228.

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8 Specifically in the context of responsibility Reuter considered it impossible: P Reuter ‘La responsabilité internationale: Problèmes choisis’, in Le développement de l’ordre juridique international (Paris, Economica, 1995), 424. 9 Ibid, 408. See also J Basdevant, ‘Règles généraux du droit de la paix’ (1936) 58 Recueil des cours 471, 665–675.

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Part III The Sources of International Responsibility, Ch.26 Content of the Obligation: Obligations of Means and Obligations Of Result Constantin P Economides From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Diplomatic protection — Responsibility of states — Ordre public

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(p. 371) Chapter 26 Content of the Obligation: Obligations of Means and Obligations Of Result 1 Distinction between international obligations based on the character of the obligation 372 (a) Distinction between obligations based on their origin or source 372 (b) Positive and negative obligations 373 (c) Obligations of prevention and obligations of repression 374 2 Distinction between international obligations based on their scope 374 (a) The traditional meaning of obligations of means/conduct and obligations of result 375 (b) The proposals of Special Rapporteur Ago 375 (c) The silence of the final draft of the ILC 376 (i) The significance of the silence of the ILC 377 (ii) The utility of the distinction 377 (iii) The distribution of obligations of conduct and obligations of result 377 (iv) Evolution of the distinction 379 Conclusion 381 Further reading 381 It is without doubt possible to distinguish several types of international obligations on the basis of their character. The typology is quite rich in this area. The most obvious distinction for the classification of obligations is according to their origin or source. In this respect, one refers to the character of the primary rule containing the obligation in order to identify its nature: conventional, customary, or other.1 A second distinction may be made at the level of the obligation itself and relates to its content, in particular to what extent a State bound by the obligation must do a positive in act order to comply with it, or whether it must refrain from an act? This is the well-known distinction between positive and negative obligations, the latter taking the form of prohibitions. This distinction covers all international obligations. A third, narrower distinction depends on the specific goal of the obligation. It distinguishes between, on the one hand, preventive obligations (and more generally obligations of protection) and, on the other hand, obligations of

References (p. 372) repression. The former aim to prevent particular situations defined by the primary rules, whereas the latter aim to punish the individual authors of acts, and in particular those who commit criminal acts punishable by international criminal law. The present Chapter focuses principally on a fourth distinction, between obligations of conduct or means, and obligations of result. This broad distinction is of great utility in the law of responsibility. It relates essentially to the scope of the obligation. Obligations of means impose on a State the obligation to do the best they can in furtherance of a specific goal, but without the guarantee that this goal will be reached. By contrast, obligations of result require a State to guarantee the achievement of the prescribed result. The following discussion will briefly review the first three distinctions (Section 1), before a more extensive analysis of the fourth distinction (Section 2).

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character of the obligation (a) Distinction between obligations based on their origin or source On the basis of the origin or source of the obligation, international obligations may be divided into five categories: • first, peremptory obligations or obligations of international public order, including all those which stem from peremptory norms of general international law (jus cogens); • second, conventional obligations, being the most numerous. Some of these obligations may take precedence over others, as is specified for example in article 103 of the United Nations Charter; • third, customary obligations, which retain a significant role in international law, despite the impressive development of treaty law. Obligations arising under general principles of international law 2 are associated with customary law obligations and are treated in the same way; • fourth, institutional obligations, which have increasing importance at both the regional and universal level. Although their legal force derives from a treaty, these obligations remain legally independent from the treaty and may be imposed not on member States but rather the organization itself, as a subject of international law; 3 and • fifth, unilateral obligations of States, which are more or less exceptional as a source of law, but which nevertheless have the same effects as other obligations since they are binding on States as a matter of international law. Each source of international law produces its own legal standards or rules, which are usually labelled substantive or primary rules, and which contain binding obligations for States. The obligation itself arises from a norm or rule which itself originates from one of the sources of public international law. The obligations ‘may be owed to another State, to several States, or to the international community as a whole’, depending on the character of the obligation, as set out in ARSIWA article 33.

References (p. 373) From a legal perspective what matters is whether the regime of responsibility, and in particular its consequences, varies according to the character of the breached obligation. This is precisely the case in respect of serious breaches of peremptory obligations deriving from norms of jus cogens: in addition to the effects generated by every internationally wrongful act,4 such breaches also produce particular consequences which extend to all members of the international community.5 These breaches, which harm ‘the vital interests of the international community as a whole … may entail a stricter regime of responsibility than that applied to other internationally wrongful acts’.6 This particular regime of responsibility replaced the regime of ‘international crimes’ foreseen by the famous article 19 of the ILC draft as adopted on first reading. Although the term ‘crime’ was removed from the final draft, the substance of the concept remained unchanged, and was even reinforced. However, in relation to the violation of all other international obligations, a single regime is applicable, the default regime of international responsibility, which covers every internationally wrongful act of the State ‘regardless of [the] origin or character’ of the obligation breached.7 An international obligation may (and relatively frequently does) have several simultaneous characters. For example, a State may assume an obligation to respect the prohibition of the use of force against another State by an unilateral act, when in fact the obligation already exists as an obligation of jus cogens, as a strong conventional obligation (as one of the guiding principles of the UN Charter) and as a customary obligation. In such a case, the applicable regime of responsibility

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can be determined by reference to the highest hierarchical obligation: if the violation is a serious breach of an obligation arising from a peremptory norm of

References (p. 374) general international law, the regime of responsibility applicable to such breaches will be applied. With the exceptions of those peremptory obligations which form part of the international ordre public, the distinction on the basis of the source of the obligation does not provide any indication or guideline as to the content of the obligation, its character or its scope. Rather, questions about the content, character and scope of the obligation can only be answered by reference to the applicable primary rule, which defines the obligation it imposes. As the ILC’s Commentary notes: In determining whether given conduct attributable to a State constitutes a breach of its international obligations, the principal focus will be on the primary obligation concerned. It is this which has to be interpreted and applied to the situation, determining thereby the substance of the conduct required, the standard to be observed, the result to be achieved, etc.8

(b) Positive and negative obligations An elementary distinction separates obligations into two categories: obligations requiring positive acts (for example, the adoption of a law for the implementation of an international obligation in domestic law) and obligations prohibiting acts (for example, the requirement that ‘the diplomatic bag shall not be opened or detained’).9 A further example of a negative obligation is that set out in ARSIWA article 41(2), which provides that in the event of a serious breach of an obligation arising under a peremptory norm of general international law, ‘[n]o State shall recognize as lawful a situation created by [such a breach], nor render aid or assistance in maintaining that situation’. Negative obligations— obligations of abstention—are not common in international law. There are no particular consequences which flow from international responsibility arising under positive or negative obligations: if either is breached, the general law on international responsibility applies with all the consequences which that responsibility entails.

(c) Obligations of prevention and obligations of repression A further distinction distinguishes between obligations of prevention and obligations of repression. Obligations of prevention aim at the avoidance of possible breaches by taking appropriate protective measures. For instance, article 22(2) of the Vienna Convention on Diplomatic Relations imposes an obligation on a receiving State ‘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’.10 Another example is found in the ILC’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities: article 3 imposes an obligation on the State in whose territory or under whose jurisdiction or control the hazardous activities are planned or carried out to ‘take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof ’.11 Obligations of repression are of importance in terms of prevention; for example, they may have as their goal the punishment of individuals guilty of international crimes. Thus, according to a certain number of treaties relating to international criminal law, the State which does not extradite a person suspected of an offence covered by the treaty is bound to bring him to prosecute him within its own criminal justice system.12 Breach of an obligation of prevention may give rise to an obligation of repression. For example, if a receiving State breaches its obligation to protect diplomatic agents against ‘any attack on his person, freedom or dignity’,13 that State may then be bound to bring the person accused of the 14

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attack to justice.14

2 Distinction between international obligations based on their scope As has already been mentioned, the distinction which most clearly reveals the character of an obligation is that between obligations of means or conduct and obligations of result. In this Section, the traditional meaning given to these concepts will first be discussed before examining the new definition proposed by Special Rapporteur Ago, which was accepted by the ILC. The final part will examine and discuss the ILC’s final decision to delete the articles as adopted on first reading which incorporated this distinction.

References

(p. 375) (a) The traditional meaning of obligations of means/conduct and obligations of result The distinction between obligation of conduct or means and obligations of result derives from domestic law, in particular from the civil law systems of continental countries influenced by Roman law. It is a largely unknown concept in common law countries. In domestic law, obligations of conduct or means are those by which the debtor promises to use all possible means and to demonstrate the diligence necessary to perform the contractual obligation, without however committing to performing the obligation or achieving a particular result. The classic example is the doctor who assumes the obligation to do everything possible to cure his patient, but cannot guarantee the patient’s health. Accordingly, a failure to achieve a particular result does not suffice in itself to establish the responsibility of the debtor. The creditor must also prove that the debtor did not use all appropriate means in his attempt to perform the obligation. By contrast, a creditor who undertakes an obligation of result commits himself to provide the agreed result. If he does not, he is automatically presumed to be responsible, unless he is able to exonerate himself by proving that it was impossible for him to perform his obligation due to the occurrence of force majeure. In this respect, the burden of proof lies on the debtor. Thus, obligations of conduct or means are more flexible than obligations of result which are, by definition, strict and rigid. Moreover, the obligations of conduct are less burdensome and easier to execute than obligations of result. Further, in the case of obligations of conduct, the burden of proof is on the creditor, and it is more difficult to establish. Overall, it may be said that obligations of means are favourable to the debtor. The traditional distinction between obligations of conduct and means and obligations of result was accepted in international law; one of the pioneers of this evolution was Paul Reuter.15 In addition, the distinction had been used in practice to ‘measure’ the content, character and scope of the international obligations of States. The ILC stressed that the ‘distinction is of fundamental importance in determining how the breach of an international obligation is committed in any particular instance’.16 Its utility was emphasized by Special Rapporteur James Crawford.17 However, the distinction was not sufficiently developed nor systematized in international law, in contrast to the civil law of continental countries, as was demonstrated by the paucity of international jurisprudence on the subject and the ILC’s apparent hesitation to endorse the distinction.18

(b) The proposals of Special Rapporteur Ago Ago attempted to develop and systematize the distinction between obligations of conduct or means and obligations of result. He proposed four articles on the topic (draft articles 20–23) which were adopted by the ILC on first reading. However, Ago’s new elaboration had the disadvantage of

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radically challenging, for no apparent reason, the traditional understanding of the categories, a factor which was liable to create a certain amount of confusion, and which was, in addition, artificial, not to say occasionally arbitrary. (p. 376) Draft article 20 did not address the breach of every obligation of conduct, but only those which required the adoption of specific conduct by the State. According to that provision, specific conduct was required by the international obligation itself and did not leave any margin of appreciation for the State bound, which had simply to perform the obligation, for instance by adopting specific legislation. The provision thus targeted absolute obligations which, according to the traditional conception, corresponded to the most strict obligations of result. Draft article 21(1) was concerned with breach of international obligations which guaranteed a specific result, but which left the choice of means to the State: this element of free choice constitutes the primary characteristic of this type of obligation. In such cases, if the State, by its chosen means, did not achieve the result required by the international obligation, it would violate its international obligation. In contrast to the traditional distinction, these were obligations of conduct which were arbitrarily interpreted as imposing real obligations of result; draft article 21(1) was open to criticism on that basis. Draft articles 21(2) and 22, both of which concerned obligations of result, were strongly criticized in the literature. The first dealt with correction of an initial breach by a subsequent course of conduct which achieves the result required by the obligation; the second dealt with exhaustion of domestic remedies for the treatment of foreign individuals. Criticism focused on the complicated and artificial character of the rules proposed, in particular the fact that the initial breach constitutes an internationally wrongful act. To permit correction of the initial breach by a subsequent course of conduct would confuse the moment of the commission of the wrongful act with the question of invocation of responsibility. Draft article 23 was devoted to a particular obligation of result, namely the obligation for a State to prevent, by the means of its own choice, the occurrence of a given event. This provision did not concern what would traditionally be categorized as an obligation of result, but rather an obligation of means. Draft article 23 also ignored those obligations generally known as obligations of due diligence, which are not absolute but merely relative and which usually apply in the sphere of prevention. Finally, by transforming all obligations into obligations of result and by completely disregarding obligations of conduct, Ago did not effectively take into account the traditional distinction between these two types of obligations.

(c) The silence of the final draft of the ILC Draft articles 20–23 of the ILC’s articles adopted on first reading were criticized not only in the scholarly literature but also by certain governments (notably France, Germany, and the United Kingdom) on various grounds, in particular, their complexity.19 As a result, in 1999 the Drafting Committee and in 2001, the Commission in plenary,20 decided to accept the Special Rapporteur’s proposal21 to remove the articles from the draft. Accordingly, the articles as adopted make no mention of the distinction between obligations of conduct or means and obligations of result. Nevertheless, two paragraphs of the commentary to article 12 are devoted to it.22 The remainder of this subsection discusses the significance of the silence of the ILC on this distinction, the present utility of the distinction, the proportion

References (p. 377) of international obligations divided between obligations of conduct or means and obligations of result, and other related questions concerning the evolution of the distinction in the law of State responsibility. (i) The significance of the silence of the ILC From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Ago’s distinction having been removed, one might even say disapproved, it is arguable that ARSIWA marked a return to the traditional conception of the distinction between obligations of conduct or means and obligations of result.23 The traditional conception remains dominant, and it is arguable that the reason why Ago’s distinction was set aside is that it was conceived and formulated in a manner which was inconsistent with the traditional conception.24 Moreover, it is impossible for the ILC, by its silence, to renounce the concept of the distinction between obligations of conduct or means and obligations of result. As Combacau observed, while obligations of result are obligations to succeed, obligations of means are only obligations of attempt.25 In reality, obligations of conduct or means derive from the primary rules of international law which remain in force and those rules cannot simply be ignored. (ii) The utility of the distinction What is the practical interest of the distinction for the law of State responsibility? As has already been mentioned, it enables a determination of the exact moment of the violation, which entails the application of the international regime of State responsibility with all of the consequences which that regime entails. In relation to obligations of result, that moment is when the result required by the primary rule cannot be obtained: for example, because the State did not adopt the required law within the prescribed period. For obligations of conduct or means, that moment is the occurrence of the situation prohibited by the primary rule: for example, the attack on an embassy resulting from the fact that the receiving State did not take the appropriate protective measures which therefore rendered the attack possible. In addition, the distinction is useful in relation to establishing the existence of a breach. If the obligation in question is one of result, the proof is relatively easy: the injured State must simply prove that the result required by the obligation has not been obtained. Further, the responsible State, if it wishes to exonerate itself, has the onerous burden of proving that the non-performance of its obligation was due to a circumstance precluding wrongfulness, for example, force majeure. By contrast, the proof of breach of obligations of means or conduct is much more difficult to establish. Taking the example used previously, the injured State must prove the damage sustained by its embassy, the lack of diligence of the responsible State and the causal relation between these two elements. Moreover, another distinctive feature that merits mention is that for obligations of conduct or means, damage is a necessary condition for the occurrence of a wrongful act, whereas for negative obligations of result, damage is not necessarily required. (iii) The distribution of obligations of conduct and obligations of result It is useful to briefly review the characteristic obligations belonging to each of the categories. First, every obligation of conduct or means is an obligation to do, ie a positive obligation; (p. 378) however, that does not imply that every positive obligation is an obligation of conduct or means. On the contrary, many positive obligations are obligations of result. Thus, in relation to an obligation of means, the State may be bound to take positive measures of prevention or protection in order to obtain a particular goal, for example ‘to prevent damage or destruction to State archives which pass to the successor State’.26 The expressions used vary from one treaty to another (‘take all measures’, ‘all appropriate measures to protect’, ‘necessary measures’, ‘effective measures’, ‘appropriate measures’, ‘do everything possible’, ‘do everything in its power’, ‘exercise due diligence’), but their common feature is their general formulation and their lack of precise stipulation of the means to achieve the specified result. In theory, the choice of means is left to the State bound by the obligation. On the other hand, negative obligations or obligations of abstention all belong to the category of obligations of result. Professor Reuter was correct in stating that negative obligations ‘have a content which is more clearly determined than of positive obligations, and consequently, breach thereof is easier to define’.27 It is undoubtedly more certain and more simple to guarantee a specific result by a negative action. For example, a State can easily respect the inviolability of the diplomatic mission by forbidding its agents to enter the mission’s premises without the consent of 28

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the head of the mission,28 or it can also easily respect the inviolability of the diplomatic bag by ordering its competent authorities to refrain from opening or detaining it.29 This is the case for all negative obligations, which have a more or less absolute character. As was mentioned above, the principal characteristic of obligations of conduct or means is their flexibility. A State commits itself to act in a reasonably cautious and diligent manner, by taking all the measures of precaution necessary to avoid a particular harmful event. These are, given the expressions used, obligations of due diligence.30 Thus, positive obligations formulated in a relatively weak way, such as obligations of co-operation, or to exchange information, are generally obligations of means. The same applies to obligations of prevention or of protection in favour of foreign nationals and their possessions, of the official representatives of States, notably diplomatic and consular agents, and the environment.31 These three areas constitute the most significant areas in which obligations of means or conduct are found. It may be recalled that obligations of abstention belong to category of obligations of result, including those arising from peremptory norms of general international law, which occupy the highest rank in the hierarchy of international obligations. All obligations of that type occur in the form of a prohibition: for example, the obligations not to commit the crimes of aggression, genocide, or apartheid, and the obligation not to enslave any person.

References (p. 379) Some international obligations which aim at the protection of human rights also form part of the category of obligations of result. These obligations, which one may regard as being of a legislative nature since they are curiously similar to the provisions of statutes, are usually strict obligations. Examples of such obligations include the following: ‘[t]he right [to life] shall be protected by law …’; 32 ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’; 33 ‘[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law’.34 Further examples may be found in other universal and regional treaties on human rights. Finally, within the category of positive obligations, those obligations which are clearly defined (for example, a State’s obligation to implement treaty provisions in domestic legislation or to perform a concrete action in favour of another State) also belong to the category of obligations of result.35 In the same manner, those obligations which give the obliged State a choice between two options, for instance those mentioned above requiring that persons suspected of certain crimes either be extradited or prosecuted, belong to the category of obligations of result. (iv) Evolution of the distinction The distinction between obligations of means and obligations of result is, in the usual case, relatively clear. However, there may be cases where the situation is not so clear. It is true that obligations of due diligence and of result may vary in practice, in conformity with the primary rules. As a result, there exist weak obligations of conduct or means, for example the obligation of a receiving State ‘to accord to an honorary consular officer such protection as may be required by reason of his official position’.36 By contrast, the obligation of a receiving State in relation to diplomatic agents to take ‘all appropriate steps to prevent any attack on his person, freedom or dignity’37 is strong. Finally, the obligation of the receiving State to protect the premises of the mission, which is a reinforced obligation of means, is even stronger.38 In the same manner, some obligations of result are stronger than others and may even exclude the invocation of force majeure as a circumstance precluding wrongfulness.39 It is evident that in order to be valid, such rules must not conflict with norms of the international ordre public. In the relatively extreme cases in which the primary rule is ambiguous as to the character of the obligation and where the means of interpretation40 do not resolve the issue, recourse may be had to a criterion widely used with success in domestic law and, in particular, French law: the criterion 41

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of the degree of certainty or the criterion of contingency (aléa).41 Accordingly, where the execution of the obligation is certain or almost certain, that is, where it is not subject to risks other than those raised by the possibility of the occurrence of circumstances constituting force majeure, the obligation is to be classified as falling

References (p. 380) within the category of obligations of result. On the other hand, when the execution of the obligation is subject to contingencies, the obligation belongs to the category of the obligations of means. The primary rule does not guarantee the result in such cases, but is aimed at trying to reduce the risks as far as possible.42 However, a classic obligation of means may be treated, by means of interpretation on the basis of other related elements, as a real obligation of result. Thus, an obligation to negotiate (pactum de negotiando), which constitutes an obligation of conduct or means,43 might be transformed in an obligation of result (pactum de contrahendo), ie in an obligation to conclude an agreement. As the arbitral tribunal in the Agreement on German External Debts case held, in its unanimous decision of 26 January 1972: … an agreement to negotiate implies much more than mere willingness to accept the other side’s complete capitulation. For such a result, negotiations are neither necessary nor desirable. We construe the pertinent provisions of the Agreement to mean that, notwithstanding earlier refusals, rejections or denials, the parties undertook to re-examine their positions and to bargain with one another for the purpose of attempting to reach a settlement.44 It is obvious that the law evolves. A strong obligation of conduct or means may be transformed into an obligation of result and, conversely, a relatively weak obligation of result may be transformed into an obligation of conduct or means, although it is more unusual for the latter to occur. Such transformations are more common in domestic legal systems, particularly through the jurisprudence.45 Of course, international law evolves more slowly than domestic law, and the practice on this issue is still extremely sparse and ambiguous.46 For an example of a desirable positive evolution, reference can be made to the obligation of pacific settlement of disputes, which constitutes one of the essential foundations of the international system as framed by the UN Charter. The obligation continues to be treated as a simple obligation of means, so that it is necessary that the parties to the dispute reach an agreement on the means that should be used to resolve it. If they do not, which is common given that there are still States who refuse to go beyond negotiations, the obligation to settle the dispute is not respected. This situation, which rests on the fact that priority is granted to a secondary of free choice of means, rather than to a superior fundamental norm (that is, the obligation of pacific settlement of disputes), is certainly not consistent with the letter and the spirit of the Charter. Thus, it would be preferable if this obligation were to evolve progressively so as to become an obligation of result, ie a pactum de contrahendo, which would compel States unable to settle their disputes through negotiation to conclude an agreement for the settlement of disputes.47

References

(p. 381) Conclusion The distinction between obligations of means and obligations of result is undoubtedly of utility to the international law of State responsibility. It permits a classification of obligations, a better understanding of their content and in particular their scope, and above all, it permits determination of the exact moment at which the breach of the obligation arises: that is, the occurrence of the

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internationally wrongful act and consequently the engagement of State responsibility. It is a shame that the ILC could not derive a greater benefit from the distinction, the advantages of which are clear. However, it is also true that in relation to these concepts, the ILC was confronted with a proposal which could not be accepted, for the reasons set out above, and it was not able, given time constraints, to address the question wholesale for a second time. In any event, although the distinction was not mentioned in ARSIWA, it still exists and remains part of general international law.48 It may be hoped that international practice, in particular judicial and arbitral practice, make the most of the distinction between obligation of conduct or means and obligations of result. Further reading J Combacau, ‘Obligations de résultat et obligations de comportement: quelques questions et pas de réponse’, in P Reuter, Mélanges offerts à Paul Reuter (Paris, Pedone, 1981), 181 P-M Dupuy, ‘Reviewing the Difficulties of Codification: on Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility’ (1999) 10 EJIL 371 P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des États’ (1984-V) 188 Recueil des cours 43 J Salmon, ‘Le fait étatique complexe: une notion contestable’ (1982) 28 AFDI 709 E Wyler, ‘Quelques réflexions sur la réalisation dans le temps du fait internationalement illicite’ (1991) RGDIP 881 J Combacau & D Alland, ‘Primary and Secondary Rules in the Law of State Responsibility: Categorizing International Obligation’ (1985) 16 Netherlands Yearbook of International Law 81(p. 382)

Footnotes: 1 ARSIWA, art 12. 2 Art 38(1)(c), Statute of the International Court of Justice. 3 See C Economidès, ‘Les actes institutionnels internationaux et les sources du droit international’ (1988) 34 AFDI 131. 4 See the provisions of Chapters I and II of Part Two, ARSIWA. 5 ARSIWA, art 41. 6 Commentary to art 12, para 7. 7 ARSIWA, art 12. 8 Commentary to Part One, Chapter III, para 2. 9 Art 27(3), Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95. 10 Ibid, art 22(2). 11 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 148. 12 Art 7, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, 20 February 1977, 1035 UNTS 167. 13 Art 29, Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95. 14 In this regard, see C Economidès, L’inviolabilité et l’immunité de juridiction des agents diplomatiques, y compris celles des fonctionnaires consulaires. Analyse des Conventions de Vienne de 1961 et de 1963 (Athens, Papoulias, 1975), 107ff. 15 P Reuter, Droit international public (Paris, Thémis, 1958), 140ff. 16 Commentary to draft art 20 para 4, ILC Yearbook 1996, Vol II(2), 134. 17 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 91; see also the Commentary to art 12, para 11.

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18 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 60ff. 19 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 56. 20 Report of E Candioti, President of the Drafting Committee, A/CN.4/SR 2605, 6 October 1999. 21 Ibid, paras 52ff. 22 Commentary to art 12, paras 11–12. 23 P-M Dupuy, ‘Reviewing the Difficulties of Codification: On Ago’s Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility’ (1999) 10 EJIL 378. 24 See also J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 89. 25 J Combacau, ‘Obligations de résultat et obligations de comportement: quelques questions et pas de réponse’, in P Reuter, Mélanges offerts à Paul Reuter (Paris, Pedone, 1981), 196. 26 Art 26, Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 7 April 1963, not yet in force, Official Records of the United Nations Conference on Succession of States in Respect of State Property, Archives and Debts, Vienna, 1 March–8 April 1983, Vol II, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, Document A/CONF/117/14. 27 P Reuter, Droit international public (Paris, Thémis, 1958), 140. 28 Art 22(2), Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95. 29 Ibid, art 27(3). 30 R Pisillo-Mazzechi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992) 35 GYIL 9; PS Rao, Second Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law, 1999, A/CN.4/501, 6ff. 31 In relation to this last question, see the Commentary to art 3 of the ILC’s Articles on Prevention of Transboundary Harm from Hazardous Activities, ILC Yearbook 2001, Vol II(2), 148, para 8 which states that ‘an obligation of due diligence as the standard basis for the protection of the environment from harm’. 32 Art 6(1), International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171. 33 Ibid, art 7. 34 Ibid, art 14(2). 35 For other examples, see the Commentary to draft art 20 as adopted on first reading, ILC Yearbook 1996, Vol II(2), 133–135. 36 Art 64, Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261. 37 Art 29, Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95. 38 Ibid, art 22(2), which states that the receiving state is under a ‘special duty’ in this regard. 39 In this regard, see J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 90. 40 See arts 31 to 33, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. 41 See FI Maury, ‘Réflexions sur la distinction entre obligations de moyens et obligations de résultat’ (1998) Revue de la Recherche Juridique 1247. 42 See L-A Sicilianos, ‘La responsabilité de l’État pour absence de prévention et de répression des crimes internationaux’, in H Ascensio, E Decaux & A Pellet (eds), Droit international pénal (Paris, Pedone, 2000), 122. 43 P Reuter, ‘De l’obligation de négocier’, in Il processo internazionale: Studi in onore di Gaetano Morelli (Milan, Giuffré, 1975), 731. 44 Kingdom of Greece v Federal Republic of Germany, Arbitral Tribunal for the Agreement on

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German External Debts, 26 January 1972, 47 ILR 418, 457 (para 71). 45 FI Maury, ‘Réflexions sur la distinction entre obligations de moyens et obligations de résultat’ (1998) Revue de la Recherche Juridique 1247, 1250ff. 46 Cf Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, where the International Court of Justice observed that ‘the parties accepted obligations of conduct, obligations of performance, and obligations of result’: para 135. 47 C Economidès, ‘L’obligation de règlement pacifique des différends internationaux: une norme fondamentale tenue à l’écart’, in B Boutros-Ghali (ed), Amicorum Discipulorumque Liber: paix, développement, démocratie (Brussels, Bruylant, 1998), Vol I, 405ff. 48 ARSIWA, art 56.

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Part III The Sources of International Responsibility, Ch.27 Duration of the Breach Jean Salmon From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Diplomatic protection — Wrongful acts — Diplomatic relations — European Court of Human Rights (ECtHR)

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(p. 383) Chapter 27 Duration of the Breach 1 The instantaneous, or rather the completed, act 384 2 The continuing act 386 3 The international obligation to prevent a given event 390 4 The composite or global act of the State 391 5 The complex act of the State 393 Further reading 395 Under article 2 of the ILC Articles on State Responsibility: There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) … (b) constitutes a breach of an international obligation of the State. What is the moment when—all the constitutive elements of a wrongful act being assembled—the breach begins? When does the breach end? When these moments are determined, the duration of the breach can be defined, as can the time of the perpetration of the wrongful act. The practical consequences of these questions on the implementation of responsibility are numerous. Indeed, the determination of the time of perpetration of the wrongful act may be relevant to determine: • the moment when diplomatic protection can be exercised; • the time when prejudice must be taken into consideration for reparation; • the potential jurisdiction of a court when such jurisdiction is only established for disputes or acts previous or subsequent to a specific date, or which have occurred during a defined period; • the existence or persistence of the national character of a claim at a given time; • the possible application of a statutory limitation period to an action in relation to a determined wrongful act (for example, extinctive prescription); and • the admissibility of an action, if it must be brought within a certain time after the occurrence of the wrongful act. Moreover, what happens when the conduct that constitutes the wrongful act is prolonged and only occurs in part during the time that the obligation of the State is in force?

References (p. 384) The ILC envisaged different categories of acts in this regard: the instantaneous act (or rather the completed act); the continuing act; the international obligation to prevent a given event; the composed (or composite or global act); and the so-called complex act. We will look at each of these in turn.

1 The instantaneous, or rather the completed, act The instantaneous act is fixed at a certain moment in time. It is an act whose existence does not go beyond the point of its accomplishment. Sometimes this is called ‘immediate delict’. The Commission gives the following acts as examples: the act by which a State uses anti-aircraft defence units to shoot down an aircraft lawfully flying over its territory; the torpedo boat of a

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belligerent State sinking a neutral ship; the police of one State killing or wounding the representative of another State.1 One could add the situation where the border of a State is violated by military forces or police which is followed by an immediate retreat by these forces. In such a case, the wrongful act occurs at the moment of the act and does not exist beyond that moment. The instantaneous act occurs when its conditions for existence are fulfilled and at that moment it constitutes a wrongful act. By definition, it ceases to exist at the expiration of the relatively brief time period that is necessary for its accomplishment. However instantaneous it may be, this type of act still requires a certain time of perpetration. This is without doubt the reason why the text of the ILC has avoided the adjective ‘instantaneous’ in its successive versions. In the text of the articles provisionally adopted on first reading a negative formulation was selected (‘act not extending in time’):

Article 24 Moment and duration of the breach of an International obligation by an act of the State not extending in time The breach of an international obligation by an act of the State not extending in time occurs at the moment when that act is performed. The time of commission of the breach does not extend beyond that moment, even if the effects of the act of the State continue subsequently.2 Article 14 as finally adopted also uses a negative formulation:

Article 14 Extension in time of the breach of an international obligation 1 . The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. The new formulation is shorter than the previous one. The two definitions both contrast the instantaneous act and the continuous act and distinguish the instantaneous act with enduring effects from the continuing act. We will discuss later the consequences of this distinction. The concept of the instantaneous or immediate act has often been applied in the international case law. Thus, in Phosphates of Morocco3 the French government had accepted the compulsory jurisdiction of the Court by a declaration of the 25 April 1931, for ‘any disputes that may arise after the ratification … with regard to situations or facts

References (p. 385) subsequent to such ratifications’.4 It was therefore essential to fix the date of the wrongful act. The decision of the Department of Mines which was disputed by the Italian Government was dated 8 January 1925, which means that it was prior to the critical date of the 25 April 1931. In order to circumvent this difficulty, the Italian government maintained that the breach of the international obligation commenced by the decision of 1925 did not become a perfected breach until the occurrence of certain acts after 1931. The Italian government thus opposed the permanent delict to the immediate delict: If internationally wrongful acts are taken as a general category, two different types of delicts can be distinguished. There are breaches of the law of peoples, as for example the insult to the flag of a friendly nation, the torpedoing of a neutral vessel, etc. that have an immediate character. When such a breach is completed, that is to say, when it has become perfected, it is exhausted and does not exist as such any more. On the contrary,

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there are other breaches of international law that are more prolonged in time, so that as soon as they are perfected, in the sense that all constitutive elements are present, they do not cease to exist at this point and continue, identical with themselves, having a permanent character. This is for example the case for a law that is created contrary to the law of the peoples, an abusive seizing of goods, the arrest of a diplomat, etc. The acts of the first category can be classified as immediate international delicts, while the acts in the second category can be given … the name of permanent delicts.5 In this case, the Court considered—as the French government had proposed6 —that as far as there was a violation it consisted of the decision of the Department of Mines of 8 January 1925. This decision constituted: a ‘violation of international law—a definitive act which would, by itself, directly involve international responsibility’.7 The fixing of the wrongful act in time may also be appropriate where a court is not competent to settle disputes after a certain date. In Mariposa Development Company8 the General Claims Commission only had competence to decide claims for loss or harm suffered before the date the ratification instruments of the Claims Convention between the United States and Panama were exchanged (3 October 1931). The Mariposa Development Company had been deprived of its proprietary title by a decision of the Supreme Court of Panama on 20 October 1931. Undoubtedly, this decision was founded on a law dating from 27 December 1928 which permitted the recovery of public goods held by individuals. But the Commission considered that the mere promulgation of the law did not constitute a breach of international law. Only the decision to deprive the company of its property had this effect. As a consequence, the Commission declared that it had no competence over the matter. The terminology of instantaneous act/continuous act was adopted by the International Court in Gabčíkovo-Nagymaros Project: It is as well to distinguish between the actual commission of a wrongful act (whether instantaneous or continuous) and the conduct prior to that act which is of a preparatory character and which ‘does not qualify as a wrongful act’.9

References (p. 386) It was also used by the European Court of Human Rights, which distinguished in Loizidou a ‘continuing situation or an instantaneous act’.10 Nevertheless, one could consider whether the adjective ‘completed’ might not be more apt than the adjective ‘instantaneous’, to contrast it with ‘continuing’. This point will be explained in the following Section.

2 The continuing act The continuing act denotes a single act, constituting a wrongful act, which is prolonged in time. In international practice, the term ‘permanent delict’ has sometimes been used. Since it is a single act, it differs from the composite or global act which will be discussed in the next section. The continuing act may consist of: (a) the maintenance of an illegal situation: • the maintenance in force of a provision that the State is internationally obliged to repeal: ‘[T]he maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life’; 11 • illegal detention of an official foreign personality: ‘The Iranian authorities’ decision to continue the subjection of the premises of the United States Embassy to occupation by militants and of the Embassy staff to detention as hostages, clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna 12

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Conventions’; 12 • illegitimate occupation of part of the territory of another State; • the maintenance of armed contingents on the territory of another State without its consent; • the maintenance of colonial domination by force; or • the illegal blockade of foreign coasts and ports etc. (b) the refusal to carry out an obligation of a continuing character: • the non-adoption of a measure required by the international obligation: The facts of this case establish to the satisfaction of the Court that on 4 November 1979 and thereafter the Iranian authorities have withheld from the Chargé d’affaires and the two members of his staff the necessary protection and facilities to permit them to leave the Ministry in safety. Accordingly it appears to the Court that with respect to these three members of the United States’ mission the Iranian authorities have committed a continuing breach of their obligations under Articles 26 and 29 of the 1961 Vienna Convention on Diplomatic Relations. 13 or • the non-execution of a judgment of an international court etc. Such acts constitute, at the time of they first appearance, a breach of an international obligation, and the time of their perpetration extends over the whole period in which the conduct is pursued and continues not to be in conformity with the requirements of the international obligation. As it was expressed in the ILC’s report in 1976:

References (p. 387) There will be a breach of the obligation with which the act is in conflict in so far as, at least for a certain period, the act of the State and the obligation incumbent on it are contemporaneous, and the breach will, of course, occur during that period only.14 The 1996 first reading articles stress this simultaneity in draft article 18(3): If an act of the State which is not in conformity with what is required of it by an international obligation has a continuing character, there is a breach of that obligation only in respect of the period during which the act continues while the obligation is in force for that State. This article and its paragraph 3—which was incidentally also valid for an instantaneous act which takes some time before it is completed—was fortunately simplified in article 13 as finally adopted:

Article 13 International obligation in force for a State An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs. The European Commission of Human Rights has highlighted the importance of the continuing act in the De Becker case.15 The applicant complained that following a sentence in 1947 he had been the victim of a full denial of his rights, including the right to exercise his profession as a journalist and writer. This denial breached, according to him, the right to the freedom of expression recognized under article 10 of the Convention. The defendant Belgian government objected that the act which was the cause of the situation predated the coming into force of the Convention. But the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Commission held that it could examine the issue if the grievance of the applicant was related to acts that ‘although prior in origin to the date on which the Convention came into force in respect of the respondent Government, might constitute a continuing violation of the Convention extending after that date’.16 The Commission observed that, for the period following the entry into force of the Convention, the applicant was placed in a continuing situation because of which he claimed to be the victim of a breach of his freedom of expression, as guaranteed by article 10 of the Convention, and that the application was consequently admissible in so far as it related to a continuing situation. The European Commission of Human Rights has also applied the concept of the continuing act in relation to the fact that the recognition of the competence of the Commission for individual applications by the United Kingdom was limited to all acts, decisions, facts or events which occurred after 13 January 1966. Where an unlawful ‘continuing’ act has occurred partly before and partly after the critical date, it declared its competence for the second part of the act. This was for example the case in its decision in Courcy v United Kingdom.17 In its decision in Roy and Alice Fletcher v United Kingdom18 the Commission rejected the application on the basis that it did not have competence ratione temporis for

References (p. 388) the part of the act prior to 13 January 1966 and for the absence of the appearance of a violation of rights and freedoms stated in the Convention for the period after the critical date. The European Court of Human Rights has invoked the ‘continuing situation, which still obtains at the present time’ in Papamichalopoulos v Greece19 and in Agrotexim and others v Greece.20 Determining the issue whether a delict has or has not a continuing character plays an important role as far as the obligation of cessation is concerned. Under article 41 of the first reading draft of 1966:

Cessation of wrongful conduct A State whose conduct constitutes an internationally wrongful act having a continuing character is under the obligation to cease that conduct, without prejudice to the responsibility it has already incurred. The text eventually adopted maintained the same idea in a more simple form:

Article 30 Cessation and non-repetition The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) … Thus cessation is no longer applicable to an instantaneous or completed delict, while for a continuous delict it is required as long as it the breach is continuing. In United States Diplomatic and Consular Staff in Tehran the ICJ highlighted that: Paragraphs 1 and 3 of that Article [22 of the 1961 Vienna Convention on Diplomatic Relations] have also been infringed, and continue to be infringed, since they forbid agents of a receiving State to enter the premises of a mission without consent … [T]hey constitute continuing breaches of Article 29 of the same Convention which forbids any arrest or detention of a diplomatic agent … [T]he Iranian authorities are without doubt in continuing breach of the provisions of Articles 25, 26 and 27 of the 1961 Vienna Convention.21 On the other hand, the obligation of cessation is extinguished when the conduct ceases to

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constitute an internationally wrongful act. This was highlighted in the arbitral award in Rainbow Warrior.22 France maintained that ‘[f ]or cessation to take place, there must be illegal behavior of a continuous nature which persists up to the day when the remedy is applied’.23 The Tribunal, having accepted—rightly or not—that the obligation of repatriation had been extinguished on 22 July 1989, at the expiration of a three-year time limit, considered that the conditions to order cessation were no longer fulfilled in the case: Obviously, a breach ceases to have a continuing character as soon as the violated rule ceases to be in force. The recent jurisprudence of the International Court of Justice confirms that an order for

References (p. 389) the cessation or discontinuance of wrongful acts or omissions is only justified in case of continuing breaches of international obligations which are still in force at the time the judicial order is issued. If, on the contrary, the violated primary obligation is no longer in force, naturally an order for the cessation or discontinuance of the wrongful conduct would serve no useful purpose and cannot be issued.24 In reality it may be asked—if the existence of the obligation of cessation appears as the true criterion to distinguish a continuing act from an act which is not continuing— whether it is not preferable to abandon the classification of ‘instantaneous’ in favour of ‘completed’ to characterize an act which is not continuing. A breach which has lasted a considerable time but which has ceased is no longer a continuing act. It is completed. Under these conditions it is difficult to speak of an instantaneous act. The theory of the continuing act serves to facilitate succession in the area of international responsibility, where the successor State, by act or omission, pursues the same breach of international law.25 We have seen that the ILC attempts not to confuse the ‘continuing act’ with the ‘instantaneous act with continuing effects’ or ‘enduring effects’. In this sense, the act of shooting and harming a person at a certain moment in breach of a norm of international law is an instantaneous act. Nevertheless, the harm suffered (suffering, disability) may have a continuing character. On the other hand, a sequestration is a continuing act so long as it lasts. The distinction is difficult. In its 1976 report, the examples given by ILC for instantaneous acts with continuing effects are debatable. The act of confiscation, in the view of the ILC, is realized by an act that constitutes an instantaneous delict, but with enduring effects. It also cites the kidnapping of a person by the organs of a State on the territory of another State. It cannot be said that these two examples are particularly convincing. One comes to different conclusions depending on whether the act of the author or the breached right of the victim is considered. Why can a confiscation not be ended by returning the property in question to the owner? Why can the delict of kidnapping not be ended by liberating the kidnapped person? Another way of apprehending the question is to start from the point of view that the continuous delict is one that can be terminated, in relation to which an action of cessation can be introduced. The ILC, seemingly better informed, mentions in the Commentary to its article 14 that the InterAmerican Court of Human Rights has interpreted the forced or involuntary disappearance as a continuing wrongful act as long as the fate of the victim is not known.26 On the other hand, the question may be more controversial where expropriation is at issue. In Loizidou v Turkey,27 the European Court of Human Rights decided not to consider an expropriation effected by constitutional reform of the Government of Northern Cyprus as an instantaneous act, basing itself not on the characteristics of the act of expropriation itself, but on the inopposability of the acts which emanated from a government which is not recognized. The existence of restitutio in integrum in the modes of reparation does not facilitate the distinction in respect of the obligation of

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cessation either.

References (p. 390) To cover the theory of the continuing act, the ILC included draft article 25(1) in the first reading text:

Moment and duration of the breach of an international obligation by an act of the State extending in time 1 . The breach of an international obligation by an act of the State having a continuing character occurs at the moment when that act begins. Nevertheless, the time of commission of the breach extends over the entire period during which the act continues and remains not in conformity with the international obligation. … The article as finally adopted provides:

Article 14 Extension in time of the breach of an international obligation … 2 . The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation.

3 The international obligation to prevent a given event An obligation to prevent a given event is characterized by the fact that the State must take all reasonable or necessary measures to avoid the occurrence of an exterior event, an act of man or of nature, and as such external to actions of the State. Sometimes this is called ‘event delict’. The degree of vigilance required varies according to the primary obligation and the circumstances of the case. The occurrence of the event is the sine qua non condition for the existence of the breach of the obligation. But there must also exist a direct causal link between the occurrence of the event and the conduct of the State organs. There is only a breach provided that two conditions are fulfilled: occurrence of the event and behaviour of the State which has not been appropriate. In this case, the moment of the realization of the breach coincides with the moment of the occurrence of the event which may have an instantaneous character (for example, an attack against an embassy) or a continuous character (for example, certain pollution). As for the duration of the breach, the time of perpetration may not comprise any period prior to the event which must be prevented. On the other hand, if the event has a continuing character, the duration of the breach extends to the moment of the cessation of the event. Thus, Iran had the obligation to prevent the occupation of the embassy of the United States in Tehran; the time of the perpetration of the breach extended over the entire period in which this occupation was pursued. To cover this case, article 26 of the first reading draft provided:

Moment and duration of the breach of an international obligation to prevent a given event The breach of an international obligation requiring a State to prevent a given event occurs

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when the event begins. Nevertheless, the time of commission of the breach extends over the entire period during which the event continues. (p. 391) This text was only partially modified in the text as adopted:

Article 14 … 3 . The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.

4 The composite or global act of the State In its 1976 report the ILC defined a composite act as ‘an act made up of a series of separate actions or omissions which relate to separate situations but which, taken together, meet the conditions for a breach of a given international obligation’.28 The composite act of the State is thus one which, although not consisting of a single conduct, continues in time: it is constituted of a series of individual acts of the State which follow each other, and which all contribute to the realization of the global act in question. The whole, even if it emanates from different organs, presents homogeneity and breaches a certain norm of international law. An example of this type of situation can be found where the wrongful act consists not so much of an isolated act but of a ‘practice’ or ‘policy’ which is systematic in character. These could be discriminatory practices or commercially restrictive practices. It is only after a whole series of acts that the composed or global act is constituted. It does not exist until that moment. The European Court of Human Rights has defined a practice which is incompatible with the Convention as ‘consist[ing] of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system’.29 The repetition of wrongful acts in the area that interests us can nevertheless be apprehended in two ways. In a first hypothesis, a wrongful act may repeat itself: there are distinct acts which succeed each other and are breaches of the same nature. These are simple repeated acts. These could be a series of violations of the rights of a civil population, or of combatants who are refused the status of prisoners of war, etc. In a second hypothesis, what is wrongful is the whole of the acts which have a global nature, the effect being, if not a change in the character of the breach, at least the conferral of its own identity because of its systematic character. This is an act which is composed of a series of conducts which constitute a unit because of the pursued intention. This act is as such wrongful. To determine the existence of a composite act, a second characteristic, other than the multiplicity of conducts, plays a fundamental role for some authors whose opinion we share: it is the element of intent implied by the notion of policy or plan. ‘It is the intention to harm the victim State, which is brought up to date through the attack on the rights of its nationals, which provides the jurisdiction (ressort) of wrongfulness, and this intention existed at the beginning of the State conduct’.30 James Crawford, Special Rapporteur of the ILC, insisted on the fact that the composite act must be limited to breaches characterized by an aspect of systematic policy. This intentional element necessarily brings isolated cases together in a communal perspective. It is

References (p. 392) not enough that there be ‘a series of actions or omissions in respect of separate cases’.31 For this purpose he cites the example of water quotas which a State is authorized to take from a river. In a situation where the quota is exceeded by different takings which are not linked one to another, then the wrongful act would not be retroactive to the first withdrawal. This position appears From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

to us to be correct. Apart from the case where it is shown that, in the cited example, the excessive withdrawals had a systematic character responding to a deliberate will to breach the treaty engagement, there is no reason to retain the hypothesis of the composed delict in the case of a simple excess of the quantitative limit. Thus, what characterizes the composed delict is, apart from a quantitative aspect, the existence of a motive which unites the whole of the criticized conducts in one determined wrongful act. Once it is determined that the global character of the conduct constitutes a distinct breach, there are three alternatives: • the single items of conduct are lawful: it could be imagined that an isolated act of xenophobia or discrimination could escape an international prohibition while a practice of the same act would be prohibited; • the single items of conduct are lawful and of the same character as the global conduct: this seems to be the case for wrongful conducts that are also incriminated as practices, such as slavery, extermination, deportation, forced disappearances, persecution or conduct that is reprehensible in some other way if committed on a large scale; • the single items of conduct are wrongful and of a different character than the global conduct: this is the case for apartheid, genocide, crimes against humanity, ethnic cleansing, etc—all breaches that treat globally delictual conduct (arbitrary arrests, murder, kidnapping, expulsion, etc) by reference to its aggregate or cumulative character. This notion of ‘globality’ can have various consequences: • the wrongful act falls under the classification of grave breach; • opening up a recourse: UN ECOSOC Resolution 1503 (XLVIII) adopted on 27 May 1970 on Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms envisages the competence of the Human Rights Commission to study or conduct a survey on ‘particular situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission’; 32 • making a claim admissible despite a failure to exhaust local remedies, considering their inefficiency in such a situation. The draft articles on first reading of 1996 contained two provisions relating to the composite act. On the one hand, draft article 18(4) provided: If an act of the State which is not in conformity with what is required of it by an international obligation is composed of a series of actions or omissions in respect of separate cases, there is a breach of that obligation if such an act may be considered to be constituted by the actions or omissions occurring within the period during which the obligation is in force for that State.33

References (p. 393) On the other hand, draft article 25(2) stated: The breach of an international obligation by an act of the State, composed of a series of actions or omissions in respect of separate cases, occurs at the moment when that action or omission of the series is accomplished which establishes the existence of the composite act. Nevertheless, the time of commission of the breach extends over the entire period from the first of the actions or omissions constituting the composite act not in conformity with the international obligation and so long as such actions or omissions are repeated.34 As finally adopted, article 15, entitled ‘Breach consisting of a composite act’ provides: From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

1 . The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful, occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act. 2 . In such a case, the breach extends over the entire period starting with the first of the actions or omissions of the series and lasts for as long as these actions or omissions are repeated and remain not in conformity with the international obligation.

5 The complex act of the State The notion of a complex act or delict was introduced into the theory of responsibility by Ago in Phosphates of Morocco before the Permanent Court of International Justice. Italy, for whom Ago was counsel, had attempted to include all acts previous to the critical date in one whole, aiming to connect them to the acts subsequent to the critical date and thus to bring them within the compulsory jurisdiction of the Court. This ‘cornering of Moroccan phosphates’ is a complex wrongful act, that is at the same time composed of several but different breaches of international law, but that have a more extended scope as a whole, distinct from that of all its constitutive elements … Every one of these single wrongful acts thus pursues the progressive attack of the same treaty rules … The whole of these acts, that are closely linked by a necessary connection, arising from the same resolution, aiming at the same purpose, represents, from a logical and teleological point of view, only one continuing and progressive internationally wrongful act as far as the practical and legal effects are concerned.35 As we have seen above, this argument was rejected by the PCIJ which considered that the decision of the Department of Mines of 1925 was an immediate act. Ago nevertheless maintained his point of view in his course at the Hague Academy in 193936 and as Special Rapporteur of the ILC on international responsibility; he succeeded at first in bringing the ILC to accept the concept of the complex act of the State. From this point of view, a complex act of the State is constituted by a succession of conducts, State act, or omissions which emanate from one or more organs, adopted for a specific case and that, considered as a whole, represent the position of the State in the case in question. The concept of the complex act was linked to a distinction between two types of international obligations: those that a State may only fulfil by using specifically determined means and those that a State may fulfil by freely choosing among a plurality of means which it judges to be the most opportune to achieve a result.37 The ILC saw a

References (p. 394) typical example of a complex act of the State in obligations which require a State to ensure, by means of its choice, a certain result. The State had the power to correct the improper situation that was potentially caused by resorting to new means in order to achieve the internationally required result or an equivalent result at a later stage. When the conduct of the State has created a situation not in conformity with the result required of it by an international obligation, but the obligation allows that this or an equivalent result may nevertheless be achieved by subsequent conduct of the State, there is a breach of the obligation only if the State also fails by its subsequent conduct to achieve the result required of it by that obligation.38 These are some of the examples given by Ago or the ILC: • denial of justice; 39

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• the violation of the freedom of establishment by a subsidiary administrative authority where the conduct is confirmed by a higher authority; • acquittal at all the successive jurisdictional levels of the perpetrators of a crime against the representative of a foreign government; 40 • the case where the structure of the obligation gives the State the possibility to provide a remedy through new means for the effects of an initial conduct which was opposed to the obligation, in order to achieve the result required by the obligation. In the view of the Special Rapporteur the rule of the exhaustion of local remedies, when considered as a substantive rule, illustrates this possibility; • situations where the structure of the obligation gives the State the possibility to realize the obligation, not by assuring the result envisaged by the obligation, but an equivalent result, if the first conduct has become impossible to perform: this is the case where an obligation of customary international law which requires the State to exercise vigilance in order to prevent attacks on the person and property of foreigners allows the State to fulfil its obligation by way of compensation. Another example is article 9(1) of the International Covenant of Civil and Political Rights: ‘No one shall be subjected to arbitrary arrest or detention’, which is completed by article 9(5) which states that ‘[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation’. 41 For acts of this kind the moment of the fulfilment of the violation is not when the initial conduct is adopted by the State organ, but the moment when a conduct makes the achievement by the State of the result required by the obligation definitely impossible. It is not until this moment that all the constituent elements of the complex act are assembled. On first reading, the ILC thus adopted article 25(3) which stated: The breach of an international obligation by a complex act of the State, consisting of a succession of actions or omissions by the same or different organs of the State in respect of the same case, occurs at the moment when the last constituent element of that complex act is accomplished. Nevertheless, the time of commission of the breach extends over the entire period between the action or omission which initiated the breach and that which completed it.42

References (p. 395) As the ILC stated in its 1978 report: The time of commission of the breach must therefore be reckoned from the moment of occurrence of the first State action that created a situation not in conformity with the result required by the obligation, until the moment of the conduct that made that result definitively unattainable.43 The notion of ‘act’ or ‘complex delict’ gave rise to fierce criticism by various governments and in the literature, whether viewed from the angle which distinguishes between obligations of conduct and obligations of result, in its relation to the principle of the exhaustion of local remedies, or with regard to the point of departure of the breach of the obligation.44 Within the limited framework of this Chapter it is not possible to go into the details of all the criticisms. In summary, for the authors mentioned this was a confused, dangerous, and useless notion. Confused for the reason that it rested on a conception of the distinction between obligations of means and obligations of result which was both artificial and unpractical on the one hand; and on the other hand because it resulted in contradictory consequences between the creation of the obligation and the retroactive character of such creation. It was dangerous since situating the date of the arising of the wrongful act to the last act in the chain delayed to that moment the possibility of maintaining that there was an intertemporal breach of the law and this even in the hypotheses where a first result can no From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

longer be obtained by means of an alternative solution! This theory was particularly pernicious for human rights which would have experienced a serious step backwards had it been maintained. The author of the breach could always violate his obligations provided that he compensated for them. In the end this notion turned out to be of no use. It did not even have the function of explaining some inherent contradictions in the concept with respect to the rule of the exhaustion of local remedies as a substantive rule, since it was only a petition of principle. All the other situations that were given as examples can be explained in a more satisfactory way by using uncontroversial concepts, such as the composed or global delict, and simple, alternative and conjunctive obligations. Crawford’s Second Report expressed his scepticism towards this concept.45 In conclusion, following the debates on second reading,46 the idea was abandoned, and the text finally adopted no longer contains reference to the controversial notion of the complex act. Further reading L Boisson de Chazournes & V Gowlland-Debbas (eds), The International System in Quest of Equity and Universality/Lordre juridique international, un système en quête d’équité et d’universalité, Liber amicorum Georges Abi Saab (The Hague, Kluwer, 2001), 305 E Wyler, L’illicite et la condition des personnes privées (Paris, Pedone, 1995) (p. 396) G Perrin, ‘La naissance de la responsabilité internationale et l’épuisement des voies de recours internes dans le projet d’articles de la Commission du droit international’, in Festschrift für R. Bindschedler (Berne, Stämpfli, 1980), 271 J Pauwelyn, ‘The concept of a “continuing violation” of an international obligation: Selected problems’ (1995) 66 BYIL 415 J Salmon, ‘Les obligations quantitatives et l’illicéité’, in Liber amicorum Georges Abi Saab (The Hague, Martinus Nijhoff, 2001), 305 J Salmon, ‘Le fait étatique complexe: une notion contestable’ (1982) 28 AFDI 709 E Wyler, ‘Quelques réflexions sur la réalisation dans le temps du fait internationalement illicite’ (1991) 95 RGDIP 881

Footnotes: 1 Commentary to draft art 24, para 6, Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 1, 87. 2 Report of the ILC, 51st Session, ILC Yearbook 1996, Vol II(2), 61. 3 Phosphates in Morocco, Preliminary Objections, 1938, PCIJ, Series A/B, No 74, p 4, 10. 4 Ibid, 22. 5 Phosphates in Morocco, Written Statements, 1938, PCIJ, Series C, No 84, p 4, 495 (observations and conclusions of the Italian government). 6 See the exposé by M Jules Basdevant, acting for the French government, reproduced in A Kiss, Répertoire de la pratique française en matière de droit international public (Paris, Editions du CRNS, 1962–1963), Vol III, No 896. 7 Phosphates in Morocco, Preliminary Objections, 1938, PCIJ, Series A/B, No 74, p 4, 28. 8 Mariposa Development Company and Others (United States) v Panama, 25 June 1933, 6 RIAA 338. 9 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 54 (para 79). 10 Loizidou v Turkey (App No 15318/89), ECHR Reports 1996-VI, para 40. 11 Dudgeon v United Kingdom (App No 7525/76), ECHR, Series A, No 59 (1981), para 41. 12 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 35 (para 76).

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13 Ibid, 37 (para 78). 14 Commentary to draft art 18, para 21, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 93. 15 De Becker v Belgium (App No 214/56), European Commission of Human Rights, Decision on admissibility, 9 June 1956, (1958–1959) Yearbook of the European Convention on Human Rights 215. 16 Ibid, 232. 17 Courcy v United Kingdom, European Commission of Human Rights, Decision on admissibility, 16 December 1966, (1967) Yearbook of the European Commission of Human Rights 383. 18 Roy and Alice Fletcher v United Kingdom, European Commission on Human Rights (App No 3034/67), Decision on admissibility, 19 December 1967. 19 Papamichalopoulos v Greece (App No 14556/89), ECHR, Series A, No 260-B (1993), para 40. 20 Agrotexim and others v Greece (App No 14807/89), ECHR, Series A, No 330-A (1995) paras 57–58. 21 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 37 (para 77). 22 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215. 23 Ibid, 269 (para 112). 24 Ibid, 264, references omitted. 25 See Affaire relative à la concession des phares de l’empire Ottoman, 24/27 July 1956, 12 RIAA 155, 198. See Chapter 21. 26 ASRSIWA, Commentary to art 14, para 4, citing Blake v Guatemala, Inter-Am Ct HR, Series C, No 36 (19 98), 24 (para 67). 27 Loizidou v Turkey (App No 15318/89), ECHR Reports 1996-VI. 28 Commentary to draft art 18, para 22, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 93. 29 Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 (1978), para 159. 30 E Wyler, L’illicite et la condition des personnes privées (Paris, Pedone, 1995), 57. 31 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 121. 32 United Nations Economic and Social Council, Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms, Resolution 1503 (XLVIII), 27 May 1970, para 5. 33 Report of the ILC, 51st Session, ILC Yearbook 1996, Vol II(2), 60. 34 Ibid, 61. 35 Phosphates of Morocco, Public Sittings and Pleadings, 1938, PCIJ, Series C, No 85, 1234. 36 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 98. 37 See Chapter 26. 38 Draft art 21(2), Report of the ILC, 51st Session, ILC Yearbook 1996, Vol II(2), 60. 39 ILC Yearbook 1977, Vol I, 247 (para 11). 40 Commentary to draft art 25, para 15, Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 94. 41 16 December 1966, 999 UNTS 171. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

42 Report of the ILC, 51st Session, ILC Yearbook 1996, Vol II(2), 61. 43 Commentary to draft art 25, para 17, Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 95. 44 See G Perrin, ‘La naissance de la responsabilité internationale et l’épuisement des voies de recours internes dans le projet d’articles de la Commission du droit international’, in Festschrift für R Bindschedler (Berne, Stämpfli, 1980), 271; J Salmon, ‘Le fait étatique complexe: une notion contestable’ (1982) 28 AFDI 709; E Wyler, L’illicite et la condition des personnes privées (Paris, Pedone, 1995), 90. 45 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 90 and 125. 46 ILC Yearbook 1999, Vol I, 275.

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Part III The Sources of International Responsibility, Ch.28 Relevance of the Intertemporal Law Paul Tavernier From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Vienna Convention on the Law of Treaties — Responsibility of states — Diplomatic relations

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(p. 397) Chapter 28 Relevance of the Intertemporal Law 1 Existence of ‘an international obligation in force for a State’ 398 2 The impact of jus cogens norms 400 3 Some conclusions 401 Further reading 403 The intertemporal law is a notion still misunderstood by some legal scholars, who, referring to the famous dictum of Max Huber in Island of Palmas, limit problems of intertemporal law to the acquisition of territory.1 Others only refer to one of the two rules articulated by the arbitrator, either the first rule which evokes the well-known adage tempus regit actum, or the second rule which spells out the distinction between creating and maintaining a right. The choice to mention one without the other is evidently not neutral. Salmon’s dictionary gives an excellent definition of the intertemporal law as: an ensemble of principles or rules that, within a legal order, specify the conditions of application of norms in time, to determine at which moment a given norm is applicable and, given its evolution, to determine the point in time at which it must be placed to ascertain its meaning.2 Nevertheless, the two examples given in the second part of the sentence seem rather restrictive as opposed to the first part of the same sentence, which was rightly drafted in very general terms. The question of the intertemporal law has provoked interest since the time of the ILC work on the law of treaties. The 1969 Vienna Convention on the Law of Treaties (VCLT)3 contains multiple provisions in this respect: article 4 on the non-retroactivity of the Convention, article 28 on the non-retroactivity of treaties, article 64 on conflicts between treaties and the emergence of a new peremptory norm, and article 71 on the consequences of the nullity of a treaty in conflict with a peremptory norm. Identical provisions can be found in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.4 Similarly, the Institut de droit

References (p. 398) international studied the question of intertemporal law from the perspective of the law of treaties.5 The question of the intertemporal law was evoked again by the ILC in relation to the codification of the law of responsibility, but it did not elicit much discussion and the term ‘intertemporal’ does not appear in ARSIWA. This chapter deals with the influence of intertemporal law in articles 13 and 14. The latter provision concerns the important question of ‘continuing’ breaches and is addressed in Chapter 27. Instead, in the context of the influence of intertemporal law in the field of State responsibility, this chapter will address the questions of the existence of ‘an inter national obligation in force for a State’ (article 13) and of the incidence of jus cogens norms (articles 26, 40, and 41).

1 Existence of ‘an international obligation in force for a State’ Articles 12 and 13 ARSIWA seem to state tautologies. According to article 12: There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character and according to article 13, closely linked to the previous article:

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An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs. The latter provision, according to the ILC Commentary, ‘is but the application in the field of State responsibility of the general principle of intertemporal law, as stated by Judge Huber in another context in the Island of Palmas case’.6 The Commission here is only referring to the first rule of intertemporal law formulated by Huber, that which evokes, as has been mentioned, the longstanding and well-known principle of tempus regit actum. In Island of Palmas this principle concerned the assessment of a territorial sovereignty title. It was subsequently applied by the ILC in the field of the law of treaties to judge the validity of treaties or conventions, or to interpret their provisions. It is in this context that the International Court approached the problem of intertemporal law, notably in the Cameroon/Nigeria7 and in the KasikiliSedudu cases.8 The ARSIWA extend the application of this rule to the field of State responsibility. It could be argued that the law of treaties and the law of responsibility are not branches of international law separated by a watertight barrier. To the contrary, there are numerous points of contact between them, and the responsibility of States is often engaged by the violation of conventional provisions. The International Court confirmed this in the Hostages case9 in relation to the Vienna Convention on Diplomatic Relations.10 The

References (p. 399) judgments of the European Court of Human Rights rest on the premise that breach of the European Convention on Human Rights11 entails the responsibility of the respondent State, which has to ensure adequate reparation for the damage suffered by the applicant. If the State cannot provide this assurance, then the Court can grant an equitable satisfaction.12 For its part, the InterAmerican Court of Human Rights has developed an original jurisprudence concerning reparation. The intertemporal law has been mentioned in the opinions of some of its judges, notably in the opinions of Judge Cançado Trindade. But it is the European Court and Commission which have more frequently and more in detail dealt with the intertemporal law. There is thus no explanation for the very brief mention of their case law in the ILC Commentary. With the accession of numerous new States, mostly from central and eastern Europe, to the Council of Europe and the European Convention on Human Rights, the Strasbourg Court’s recent judgments have frequently dealt with the temporal scope of the responsibility of States. The ILC Commentary, while affirming that ‘international tribunals have applied the principle stated in article 13 in many cases’,13 solely refers to an older case law in addition to the brief mention of the Strasbourg system. The ILC thus quotes decisions of the Anglo-American Mixed Commission of 1853–1855 dealing with the slave trade and the awards by Arbitrator Asser of 1902 between the United States and Russia.14 It adds that ‘State practice also supports this principle’, notably arbitration agreements, and underlines that international writers are of the same opinion.15 From this the Commission draws the conclusion that ‘it is appropriate to apply the intertemporal principle to all international obligations, and article 13 is general in its application’.16 Since State responsibility is engaged solely by a breach of an international obligation in force for that State, the question of the creation of the rule (or of the obligation) and of its extinction becomes relevant. This means that even if the rule (conventional, customary, etc) is not in force anymore, the State continues to be responsible for the conduct contrary to the rule while it was in force. To support this, the Commission quoted the cases of the Northern Cameroons,17 Rainbow Warrior,18 and Certain Phosphate Lands in Nauru.19 The Commentary mentions briefly the case of express retroactivity as well. This possibility has been accepted without difficulty in the law of treaties.20 But the Commission seemed to hesitate to accept it in the field of State responsibility. Article 13 does not hint at it, although according to the Commentary, this provision:

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It is without prejudice to the possibility that a State may agree to compensate for damage caused as a result of conduct which was not at the time a breach of any international obligation in force for that State.21

References (p. 400) The Commission, to justify its silence, affirmed that ‘in fact, cases of the retrospective assumption of responsibility are rare’.22 The Commission gives no examples, although it could have mentioned the famous Alabama arbitration.23 It limits itself to refer to article 55 on special regimes of responsibility (lex specialis). According to the Commission, this provision: is sufficient to deal with any such cases where it may be agreed or decided that responsibility will be assumed retrospectively for conduct which was not a breach of an international obligation at the time it was committed.24 This may be considered an elegant way to evade the problem. Another question seems to have given the ILC pause: what it calls ‘evolutionary interpretation’, generally referred to as ‘progressive’ or ‘evolutive’ interpretation, terminology which is not much more satisfying. The ILC envisages this issue as a restriction of the principle established in article 13, while in truth it is nothing more than a prolongation or a complement of the principle ‘tempus regit actum’. What the Court characterizes as ‘progressive interpretation’ constitutes but a false exception to the principle of non-retroactivity.25 The Commentary mentions the position of the International Court in the 1971 Namibia26 Advisory Opinion and quotes the dictum of the European Court of Human Rights in Tyrer,27 which later became the basis of important jurisprudential developments. It considers—wrongly—that this ‘has nothing to do with the principle that a State can only be held responsible for breach of an obligation which was in force for that State at the time of its conduct’.28 Nevertheless, the ILC has not completely rejected the influence of intertemporal law on the question of jus cogens.

2 The impact of jus cogens norms In the commentary to article 13, the ILC mentions jus cogens or peremptory norms very briefly. The Commission limits itself to recognizing that ‘State responsibility can extend to acts of the utmost seriousness, and the regime of responsibility in such cases will be correspondingly stringent’,29 a statement which is not explicit and would certainly merit further developments. The ILC expressly refers to the case of the emergence of a new peremptory norm of international law as provided for in articles 64 and 71(2) VCLT. The 1996 draft Articles contained more detailed provisions on this matter. Article 18 (whose first paragraph later became article 13) was composed of five paragraphs, the second of which concerned the emergence of a new rule of peremptory international law: However, an act of the State which, at the time when it was performed, was not in conformity with what was required of it by an international obligation in force for that State, ceases to be considered

References (p. 401) an internationally wrongful act if, subsequently, such an act has become compulsory by virtue of a peremptory norm of general international law. France, pursuant to its principled hostility to the concept of jus cogens, expressed its disagreement with this provision, maintaining that a provision imposing an obligation of performance ‘has no place in an article on the intertemporal law’.30 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

The ILC’s first reading Commentary gave a hypothetical example of an international tribunal being called upon to: settle a dispute concerning the international responsibility of a State which, being bound by a treaty to deliver arms to another State, had refused to fulfil its obligation, knowing that the arms were to be used for the perpetration of aggression or genocide or for maintaining by force a policy of apartheid and had done so before the rules of jus cogens outlawing genocide and aggression had been established, thus making the refusal not only lawful, but obligatory.31 The ILC considered these situations to be rare, but also that they could not be excluded. But truly, it concerns situations in which there is uncertainty as to the peremptory norm in force: the old, wellestablished norm or the new norm that has not yet achieved peremptory status. It can be noted that the ILC envisaged only the hypothesis of originally unlawful behaviour which becomes obligatory by virtue of a new peremptory norm, although the opposite situation may also occur, that is, that originally lawful behaviour becomes unlawful by virtue of a new peremptory norm. Special Rapporteur Crawford discussed the necessity to maintain paragraph 2 of article 18, and eventually concluded that it should be eliminated.32 He considered that the problems dealt with in this provision were also dealt with in Chapter V of the first part and in the second part of the text. The Commission followed this recommendation and included in its final project article 26 on respect of peremptory norms and Chapter III of the second part on ‘serious breaches of obligations deriving from peremptory norms of general international law’. This evolution shows a certain reticence, if not embarrassment, on the part of the ILC in relation to the influence of intertemporal law on the law of responsibility.

3 Some conclusions The Articles adopted in 2001, read in conjunction with their official commentary, have the merit to refer, at least implicitly, to the problems related to the intertemporal law. But the ILC, in view of the hesitations of legal scholarship, did not commit itself to address completely the problems of intertemporal law, which is certainly regrettable. A second merit is to extend to the law of responsibility the principal rules of intertemporal law already applied in the law of treaties. But the Articles allow this extension only in a restrictive manner. In particular, they contain no provision on the application in time of the rules established. This is explained by the fact that the ARSIWA are not a draft Convention, and therefore a provision similar to article 4 VCLT is unnecessary. Yet one such provision could have proved useful, for questions arising in relation to State responsibility

References (p. 402) are more difficult to solve than those arising in the law of treaties. In this respect, the adoption by the new Human Rights Council33 and the General Assembly34 of an International Convention for the Protection of All Persons from Enforced Disappearance may be cited as an example. This Convention is certainly remarkable but it does not apply to enforced disappearances which have commenced prior to its entry into force, which considerably reduces its interest and effectiveness. The ILC could have given its draft a wider scope in relation to intertemporal law if it had not limited itself to the first rule applied by Arbitrator Huber in Island of Palmas. It could have made use of all the rules and instruments available on this particular point of law, notably the distinction between retroactivity and immediate effect and the distinction between substantive and procedural rules. Indeed, problems of intertemporal law appear when rules change. It may happen that the change concerns primary rules, but it can also concern secondary rules, which is related, at least partly, to

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the distinction between substantive and procedural rules. In addition, there may be a change in the rule of inter temporal law itself. Although a jus supra jura, the intertemporal law does not constitute a body of timeless or a-temporal rules, fixed and unchangeable: its rules may evolve over time. In addition, the particularity of certain rules has been recalled throughout the work of the ILC, notably human rights rules.35 According to Higgins: The intertemporal principle of international law, as it is commonly understood, does not apply in the interpretation of human rights obligations36 This affirmation reflects a very restrictive understanding of the intertemporal law. In any event, these discussions were not taken up in the commentary. Some analyses could have been further refined. Human rights rules essentially take into account the interests of the victim of the breach (physical or moral). This may privilege the immediate application of new rules and even go back in time, to the detriment of the potential rights of the author of the breach, ie the State. The perspective is different in international criminal law, where the rights of the author of the violation are particularly protected, leading to an extensive interpretation of the principle of nonretroactivity, to the detriment of the rights of the victim.37 It is also advisable to return briefly to the relationship between jus cogens and problems of intertemporal law. The ILC did not envisage the possible conflict between peremptory norms, a problem which has only recently been considered by scholars. This case does not deal with the emergence of a new rule of peremptory law which replaces an older one, but rather with the coexistence of two rules of jus cogens: an older rule which is still in force must be combined with a new rule which has the same binding force. This situation arose in the case of the NATO bombardments in Belgrade, in the context of the Kosovo operations. The bombardments were the subject of cases brought before the International Court and the European Court of Human Rights. The situation raised questions of legality and validity, but also of responsibility. If the prohibition on the use of force is incontestably

References (p. 403) a rule of jus cogens,38 the right or obligation of humanitarian intervention, now referred to as ‘duty to protect’, may also be considered as a peremptory norm. There thus remains ample space for further developments on the influence of intertemporal law in the field of international responsibility. Further reading G Distefano, ‘Fait continu, fait composé et fait complexe dans le droit de la responsabilité’ (2006) 52 AFDI 1 W Karl, ‘The Time Factor in the Law of State Responsibility’, in M Spinedi and B Simma (eds), United Nations Codification of State Responsibility (New York, Oceana, 1987), 95 P Tavernier, ‘Le temps et la Cour européenne des droits de l’Homme’, in Société française pour le droit international, Le droit international et le temps (Paris, Pedone, 2001), 265 P Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public (Problèmes de droit intertemporel ou de droit transitoire) (Paris, LGDJ, 1970)(p. 404)

Footnotes: 1 Island of Palmas (United States v Netherlands), 4 April 1928, 2 RIAA 829, 845. 2 J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant/AUF, 2001). 3 Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. 4 Vienna Convention on the Law of Treaties between States and International Organizations or From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

between International Organizations, 21 March 1986, 25 ILM 543. 5 Institut de Droit International, ‘The Intertemporal Problem in Public International Law’, Resolution of 11 August 1975, Wiesbaden session, 56 Annuaire IDI 530–536. This text uses the term ‘rule’, not ‘treaty’, but the wording implies that the main situation dealt with, if not the only one, is that of conventional rules. See also the Reports of Max Sørensen (1973) 55 Annuaire IDI 1. 6 ARSIWA, Commentary to art 13, para 1. 7 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), ICJ Reports 2002, p 303. 8 Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, p 1045. See P Tavernier, ‘Observations sur le droit intertemporel dans l’affaire de l’Ile de Kasikili/Sedudu (Botswana/Namibie), Cour internationale de Justice, arrêt du 13 décembre 1999’ (2000) 104 RGDIP 429. 9 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3. 10 Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95. 11 213 UNTS 222; ETS No 5. 12 Ibid, art 41. 13 ARSIWA, Commentary to art 13, para 2. 14 See P Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public (Problèmes de droit intertemporel ou de droit transitoire) (Paris, LGDJ, 1970), 135–138: ‘The law applicable to state responsibility’. 15 ARSIWA, Commentary to art 13, para 4, citing: P Tavernier, D Bindschedler-Robert, M Sørensen, TO Elias, and R Higgins. 16 Ibid, para 6. 17 Northern Cameroons (Cameroon v United Kingdom), Preliminary Objections, ICJ Reports 1963, p 15. 18 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 217. 19 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240. 20 See art 28, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. 21 ARSIWA, Commentary to art 13, para 6. 22 Ibid. 23 P Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public (Problèmes de droit intertemporel ou de droit transitoire) (Paris, LGDJ, 1970), 103–104. 24 ARSIWA, Commentary to art 13, para 6. 25 In Dispute regarding navigational and related rights (Costa Rica v Nicaragua), Judgment, 13 July 2009, paras 62ff, the ICJ adopted an evolutionary interpretation of a treaty clause. 26 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16. 27 Tyrer v United Kingdom, ECHR, Series A, No 26 (1978), 15–16. 28 ARSIWA, Commentary to art 13, para 9. 29 Ibid, para 5.

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30 ‘Comments and observations received from Governments’, A/CN.4/488, 49. 31 Commentary to art 18 of the Draft Articles adopted on first reading, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58, para 17. 32 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, 21–23. 33 HRC Res 1/1, 29 June 2006. 34 GA Res 61/177, 20 December 2006. 35 See J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, 18–19. 36 R Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ 501, 517. 37 See art 15, International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171; and art 7 of the European Convention on Human Rights, ETS No 5. 38 Art 2(4), UN Charter, 1 UNTS 16.

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Part III The Sources of International Responsibility, Ch.29 International Crimes of States James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Genocide — Aggression — Apartheid — Wrongful acts — Responsibility of states — Erga omnes obligations — International Court of Justice (ICJ)

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(p. 405) Chapter 29 International Crimes of States 1 Introduction 405 2 International crimes in the ILC’s Draft Articles 406 (a) Historical overview 406 (b) Debate on the consequences of an international crime 408 (c) Substitution of the ‘serious breaches’ regime 409 (d) Subsequent consideration of the issue by the ICJ 411 3 A future for international crimes of States? 413 Further reading 414

1 Introduction The traditional position of international law on the question of international crimes of States was expressed by the Nürnberg Tribunal, which stated that: Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.1 Treaties recognizing or establishing international crimes affirmed the Tribunal’s position. The first of the post-war criminal law conventions, the Genocide Convention, specifi cally provided in article IX for State responsibility with respect to genocide,2 but it was made clear at that time that article IX did not envisage any form of State criminal responsibility.3 Nor have there been any judicial decisions providing for the criminal responsibility of a State as such (as distinct from State officials). Consequently when the International Law Commission introduced the notion of ‘crimes of State’ into the Draft Articles on first reading this proved contentious.

References

(p. 406) 2 International crimes in the ILC’s Draft Articles (a) Historical overview The concept of international crimes was incorporated into the Draft Articles on State Responsibility in 1976, when draft article 19 was provisionally adopted. The distinction between two categories of internationally wrongful acts had its origins in a proposal from Special Rapporteur García Amador in 1956 to distinguish ‘merely wrongful’ from ‘punishable’ acts. ‘Punishable’ acts were defined as acts done by individuals who were organs of the State and acting as such, with the consequence that they could be pursued and punished by States other than their own. The Special Rapporteur’s suggestion that it was appropriate to stress the punitive aspects of reparation in the event of infringement of ‘punishable’ acts—in particular by the payment of ‘punitive’ damages—was not accepted by the ILC (and indeed at no stage—not even at the zenith of article 19’s academic popularity— was there any trace of acceptance by States of the idea of punitive damages).4 Despite this, in debates between 1960 and 1963, the Draft Articles were criticized by the Soviet Union and other Soviet bloc countries on the basis that they failed to codify the principles governing the responsibility of States for violations of fundamental principles of international law: 5 many G77 delegates agreed. In consequence, the ILC set up a Sub-Committee to consider more thoroughly the codification of State responsibi lity. The Sub-Committee recommended that the ILC

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‘give priority to the definition of general rules governing the international responsibility of the State’, while paying ‘careful attention … to the possible repercussions which new developments in international law may have had on responsibility’. The Sub-Committee noted the ‘possible distinction between internationally wrongful acts involving merely a duty to make reparation and those involving the application of sanctions’.6 Between 1967 and 1973 Special Rapporteur Ago substantially developed the Draft Articles. Debates in the ILC emphasized the question of categories distinguishing between wrongful acts, and in particular referred to obligations relating to the maintenance of peace.7 At the close of its 1969 session, it was agreed that a first part of the Draft Articles would establish the conditions for the existence of an internationally wrongful act of a State and that a second part would establish the consequences of that act: (p. 407) To that end, the Commission was in general agreement in recognizing that two factors in particular would guide it in arriving at the required definition: namely, the greater or lesser importance to the international community of the rules giving rise to the obligations violated, and the greater or lesser seriousness of the violation itself.8 In 1973, the ILC adopted article 1 on first reading, which provided: Every internationally wrongful act of a State entails the international responsibility of that State. In its Commentary to draft article 1, the ILC noted that if it failed to distinguish between different categories of internationally wrongful acts, this was only because article 1 was intended to state a basic principle which would be detailed in other articles.9 In particular, Chapter III of the first part of the Draft would deal with the problems of determining distinct categories of breaches of international obligations. The question would then arise whether it was necessary ‘to recognize the existence of a distinction based on the importance to the international community of the obligation involved, and accordingly whether contemporary international law should acknowledge a distinct and more serious category of internationally wrongful acts, which might perhaps be described as international crimes’.10 In 1976, the ILC turned to consider Part III of the Draft Articles. The Special Rapporteur argued for a distinction to be drawn between categories of wrongful acts on the basis of the subject matter of the obligation breached, and specifically with respect to the importance of the obligation breached for the international community. He argued that international law attached special responsibility to the breach of certain obligations deemed to be essential to the safeguarding of fundamental interests of the international community: consequently, the Draft Articles ought to indicate that the breach of such obligations represented a different kind of internationally wrongful act and involved a special responsibility.11 The ILC agreed: draft article 19, which distinguished between ‘international crimes’ and ‘international delicts’, was adopted unanimously.12 It provided: 1 . An act of a State which constitutes a breach of an international obligation is an internationally wrongful act, regardless of the subject-matter of the obligation breached. 2 . An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime. 3 . Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding

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the right of self-determination of peoples, such as that prohibiting the establishment of maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid;

References (p. 408) (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas. 4 . Any internationally wrongful act which is not an international crime in accordance with paragraph 2, constitutes an international delict.

(b) Debate on the consequences of an international crime Although draft article 19 was provisionally adopted in 1976, there was no agreement at that stage on the substantive consequences of the distinction between categories of internationally wrongful acts. It was intended at a later stage to consider more precisely how the responsibility for an international crime differed from the responsibility for an international delict. In its Report on the 1976 Session, the Commission noted: Although the Commission thus recognized conclusively that some wrongs are to be regarded as more serious than others, and hence deserve to be characterized accordingly, it did not feel that the task of specifying the respective régimes of international responsibility applicable to the two kinds of internationally wrongful acts thus distinguished came within the scope of the present article, or indeed of the present chapter. This is a question which the Commission will have to settle when it takes up the problem of the content and the different forms of responsibility.13 The substantive consequences of the distinction between international crimes and international delicts were not formulated for many years—indeed not until 1996, and then only after a difficult debate.14 The Draft Articles on first reading provided that where an internationally wrongful act of a State was an international crime, the following consequences applied in respect of the responsible State. First, restitution was required, even if the burden of providing was restitution was out of all proportion to the benefit gained by the injured State instead of compensation (article 52(2)). Secondly, it was irrelevant that restitution might seriously jeopardize the political independence or economic stability of the responsible State (article 52(a)). Thirdly, it could not be objected that measures by way of satisfaction would ‘impair the dignity’ of the responsible State (article 52(b)). In addition article 53 imposed specific obligations on all States in respect of international crimes. It provided: An international crime committed by a State entails an obligation for every other State: (a) not to recognize as lawful the situation created by the crime; (b) not to render aid or assistance to the State which has committed the crime in maintaining the situation so created; (c) to cooperate with other States in carrying out the obligations under subparagraphs (a) and (b); and (d) to cooperate with other States in the application of measures designed to eliminate the consequences of the crime. There was a marked contrast between the gravity of an international crime of a State, as expressed

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in draft article 19, on the one hand, and the rather limited consequences drawn from such a crime, as expressed in draft articles 52 and 53, on the other. There was

References (p. 409) a further contrast between the strong procedural guarantee associated with countermeasures under Parts Two and Three, and the complete absence of any procedural guarantee associated with international crimes. In 1998 the ILC decided to set article 19 temporarily to one side while it sought to resolve the questions of responsibility raised by such breaches in other ways.15 The 1998 Report summarized the situation in the following terms: Following the debate, and taking into account the comments of the Special Rapporteur, it was noted that no consensus existed on the issue of the treatment of ‘crimes’ and ‘delicts’ in the draft articles, and that more work needed to be done on possible ways of dealing with the substantial questions raised. It was accordingly agreed that: (a) without prejudice to the views of any member of the Commission, draft article 19 would be put to one side for the time being while the Commission proceeded to consider other aspects of Part One; (b) consideration should be given to whether the systematic development in the draft articles of key notions such as obligations (erga omnes), peremptory norms (jus cogens) and a possible category of the most serious breaches of inter national obligation could be sufficient to resolve the issues raised by article 19; (c) this consideration would occur, in the first instance, in the Working Group established on this topic and also in the Special Rapporteur’s second report; and (d) in the event that no consensus was achieved through this process of further consideration and debate, the Commission would return to the questions raised in the first report as to draft article 19, with a view to taking a decision thereon.16 The issue however continued to provoke deeply conflicting positions, both among governments and within the ILC.17 Some governments (eg France, Japan, UK, USA) argued for the deletion of the concept altogether on the basis that the seriousness of the breach of an obligation involves a difference of degree, not kind, and that appropriate account can be taken of gradations of seriousness by other means.18 In their view it would be more appropriate to substitute a clause stating that the Articles were without prejudice to the possible development of stricter forms of responsibility for serious breaches of international law. On the other hand, other governments (eg Austria, the Nordic countries, the Netherlands, Slovakia, Spain) were supportive of its retention; in some cases, strongly so,19 although not all of them were wedded to the terminology.20

(c) Substitution of the ‘serious breaches’ regime In 2000, the Special Rapporteur proposed and the Commission accepted a compromise whereby the concept of international crimes of States would be deleted, but that certain special consequences would be specified as applicable to a serious breach of an obligation owed to the international community as a whole. These consequences included the (p. 410) possibility of ‘aggravated’ damages, as well as certain obligations on the part of third States not to recognize such a breach or its consequences as lawful and to cooperate in its suppression.21 This ‘depenalization’ of State responsibility was generally welcomed, even by former supporters of draft article 19. However the formulation of Part Two, Chapter III embodying the compromise still gave rise to difficulties. In particular the possibility of the ‘payment of damages reflecting the gravity of the breach’ proved controversial. Although there was general agreement that this should not be equated with punitive damages, and despite the fact that the Special Rapporteur continued to press for its inclusion, it was eventually agreed that it provision should be deleted. A second element of the compromise involved the formulation of ‘serious breach of an obligation

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owed to the international community as a whole and essential for the protection of its fundamental interests’. Concern was expressed that the concept of obligations to the international community as a whole was too general, and that some more clearly defined category of underlying obligations should be substituted for it. It was noted that the International Court in articulating the concept of obligations erga omnes in 1970 had been concerned with invocation, not with the status of the norm breached.22 To avoid confusion it was agreed to limit Part Two Chapter III to serious breaches of obligations deriving from and having the status of peremptory norms. Article 40(1) as finally adopted thus reads: This Chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. The notion of peremptory norms is well established in the two Vienna Conventions on the law of treaties,23 and is now widely accepted. In certain circumstances there might be minor breaches of peremptory norms which would not be the concern of Chapter III. Only serious breaches, ie those characterized as involving ‘a gross or systematic failure by the responsible State to fulfil the obligation’ imposed by a peremptory norm are covered; only such breaches thus entail the additional consequences set out in article 41. The ILC did not feel that it was its role to provide a list of peremptory norms; the qualification of a norm as peremptory is left to evolving State practice and decisions of judicial bodies.24 Chapter III of Part Two is a framework for the progressive development, within a narrow compass, of a concept which ought to be broadly acceptable. On the one hand it does not call into question established understandings of the conditions for State responsibility as contained in Part One. On the other hand, it recognizes that there can be egregious breaches of fundamental obligations which require some response by all States. As to individual responses, the obligations imposed by article 41 are not demanding. The most important, that of non-recognition, already reflects general international law.25

References (p. 411) Genocide, aggression, apartheid, and forcible denial of self-determination, for example, all of which are generally accepted as prohibited by peremptory norms of general international law, constitute wrongs which ‘shock the conscience of mankind’.26 It is surely appropriate to reflect this in terms of the consequences attached to their breach. No doubt it is true that other breaches of international law may have particularly serious consequences, depending on the circumstances. The notion of serious breaches of peremptory norms is without prejudice to this possibility, and to that extent the consequences referred to in article 41 are indicative and non-exclusive. The Commission was also asked to give further consideration to aspects of the definition of the consequences of serious breaches as contained in article 42, in order to simplify it and avoid excessively vague formulae. Article 41 was reformulated to a degree, but without further significant changes in substance. In its final form it reads: 1 . States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 41. 2 . No State shall recognize as lawful a situation created by a serious breach within the meaning of article 41, nor render aid or assistance in maintaining that situation. 3 . This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this Chapter applies may entail under international law. In addition it is provided that the articles are without prejudice ‘to any question of the individual responsibility under international law of any person acting on behalf of a State’ (article 58). Thus a

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clear distinction is drawn between the individual responsibility, eg under international criminal law, of a State official for genocide or crimes against humanity, and that of the State itself under the Articles.

(d) Subsequent consideration of the issue by the ICJ In the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice discussed the existence of the consequences for third States as a result of breaches by Israel of the right of self determination and certain obligations under international humanitarian law. The Court reasoned first that the norms in question constituted rights and obligations erga omnes and then held that ‘[g]iven the character and the importance of the rights and obligations involved’, other States were under an obligation not to recognize the illegal situation resulting from the construction of the Wall, and were under an obligation not to render aid and assistance in maintaining the situation thereby created, as well as an obligation ‘while respecting the United Nations Charter and international law to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end’.27 In addition, the Court was of the view that the ‘United Nations, and especially the General Assembly and the Security Council, should

References (p. 412) consider what further action is required to bring an end to the illegal situation resulting from the construction of the wall …’.28 The Court seems to have seen the consequences arising from the breaches of the right to selfdetermination and international humanitarian law as deriving from the erga omnes nature of the norms breached rather than their peremptory character, as is the position expressed under ARSIWA articles 40 and 41. However, the opinion is not entirely clear in this respect; it is also open to the criticism that the erga omnes status of an obligation is not as such an indication of its importance justifying the imposition of obligations on other States in case of serious breach (although there appears to be close correlation between the categories of peremptory norms and obligations erga omnes). Rather is a description of the structural character of the norm, indicating that States generally are able to complain of its breach. The better view would appear to be, then, that the Court’s reference to the ‘character and importance of the rights and obligations involved’ was an elliptical reference to the peremptory character of the norms in question. The issue was thoughtfully discussed by Judge Kooijmans (dissenting on this point). He said: 40 … I must admit that I have considerable difficulty in understanding why a violation of an obligation erga omnes by one State should necessarily lead to an obligation for third States. The nearest I can come to such an explanation is the text of Article 41 of the International Law Commission’s Articles on State Responsibility…. 41 . I will not deal with the tricky question whether obligations erga omnes can be equated with obligations arising under a peremptory norm of general international law. In this respect I refer to the useful commentary of the ILC under the heading of Chapter III of its Articles. For argument’s sake I start from the assumption that the consequences of the violation of such obligations are identical. 42 . Paragraph 1 of Article 41 explicitly refers to a duty to co-operate. As paragraph 3 of the commentary states, ‘What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches’. And paragraph 2 refers to ‘[c]ooperation … in the framework of a competent international organization, in particular the United Nations’. Article 41, paragraph 1 therefore does not refer to individual obligations of third States as a result of a serious breach. What is said there is encompassed in the Court’s finding in operative subparagraph (3)(E) and not in

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subparagraph (3)(D). 43 . Article 41, paragraph 2, however, explicitly mentions the duty not to recognize as lawful a situation created by a serious breach just as operative subparagraph (3)(D) does. In its commentary the ILC refers to unlawful situations which—virtually without exception— take the form of a legal claim, usually to territory. It gives as examples ‘an attempted acquisition of sovereignty over territory through denial of the right of self-determination’, the annexation of Manchuria by Japan and of Kuwait by Iraq, South Africa’s claim to Namibia, the Unilateral Declaration of Independence in Rhodesia and the creation of Bantustans in South Africa. In other words, all examples mentioned refer to situations arising from formal or quasi-formal promulgations intended to have an erga omnes effect. I have no problem with accepting a duty of non-recognition in such cases. 44 . I have great difficulty, however, in understanding what the duty not to recognize an illegal fact involves. What are the individual addresses of this part of operative subparagraph (3)(D) supposed to do in order to comply with this obligation? That question is even more cogent considering that 144 States unequivocally have condemned the construction of the wall as unlawful (resolution ES-10/13), whereas those States which abstained or voted against (with the exception of Israel) did

References (p. 413) not do so because they considered the construction of the wall as legal. The duty not to recognize amounts, therefore, in my view to an obligation without real substance. 45 . That argument does not apply to the second obligation mentioned in Article 41, paragraph 2, namely the obligation not to render aid or assistance in maintaining the situation created by the serious breach. I therefore fully support that part of operative subparagraph (3)(D). Moreover, I would have been in favour of adding in the reasoning or even in the operative part a sentence reminding States of the importance of rendering humanitarian assistance to the victims of the construction of the wall. (The Court included a similar sentence, be it with a different scope, in its Opinion in the Namibia Case, I.C.J. Reports 1971, p. 56, para. 125.)29 By contrast the Court, while making no express reference to articles 40 and 41, effectively relied on them.

3 A future for international crimes of States? The Articles on State Responsibility as finally adopted reflect a compromise of sorts. On the one hand the concept of the criminality of States and the role of sanctions as part of the regime of responsibility are rejected. On the other hand the Articles reflect the idea that some obligations are held to the international community as a whole and not only to individual states, and that grave breaches of those obligations may attract special consequences. To the extent that the notion of ‘international crime’ is intended to reflect a qualitative difference between the breaches of obligations owed to the international community as a whole and obligations owed to one or a few states, the idea is acceptable. But the language of ‘crime’ and ‘delict’ is not merely unnecessary: it is misleading and deceptive. The genuine introduction of criminal offences of states would require major changes. In particular it would be necessary to address issues of due process and dispute settlement: otherwise the language of ‘crime’ degenerates into name-calling, and will tend only to accentuate the power of the powerful, and especially of the permanent members of the Security Council. As a matter of technique, a general code of obligations does not need to embody the penal consequences of criminal acts, and if the term ‘criminal’ is being used in some mysterious, abstract sense, divorced from adequate

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procedures for the determination of criminal responsibility, the term should not be used at all. The International Court has now confirmed this view, unequivocally, in the Bosnian Genocide case.30 That was of course not a criminal proceeding but an interstate claim under the Statute seeking reparation for genocide allegedly committed by or at the instigation or with the complicity of the Respondent State (the former FRY, now reduced to Serbia). One might have imagined that the Court could deal with that issue—difficult enough in law and fact as it was—without considering the issue of State criminality. But the issue of ‘State crimes’ was indirectly relevant in the following way. The principal obligation of States under the Genocide Convention is to prevent and punish genocide committed by individuals (including persons acting in an official capacity). Although the impetus for the Convention was, notoriously, a deliberate campaign of genocide by a State, the drafters of the Convention refrained from saying, in so many words, that States should not commit

References (p. 414) genocide; and Serbia argued that no such obligation could be implied. The Court disagreed: in its view, ‘the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide’,31 and this obligation was encompassed by Article IX of the Convention.32 Against this it was argued that States cannot commit crimes, and that that the Convention contemplated only criminal responsibility for genocide. The Court agreed with the first proposition but not the second: The Court now considers three arguments, advanced by the Respondent which may be seen as contradicting the proposition that the Convention imposes a duty on the Contracting Parties not to commit genocide and the other acts enumerated in Article III. The first is that, as a matter of general principle, international law does not recognize the criminal responsibility of the State, and the Genocide Convention does not provide a vehicle for the imposition of such criminal responsibility. On the matter of principle the Respondent calls attention to the rejection by the ILC of the concept of international crimes when it prepared the final draft of its Articles on State Responsibility, a decision reflecting the strongly negative reactions of a number of States to any such concept. The Applicant accepts that general international law does not recognize the criminal responsibility of States. It contends, on the specific issue, that the obligation for which the Respondent may be held responsible, in the event of breach, in proceedings under Article IX, is simply an obligation arising under international law, in this case the provisions of the Convention. The Court observes that the obligations in question in this case, arising from the terms of the Convention, and the responsibilities of States that would arise from breach of such obligations, are obligations and responsibilities under international law. They are not of a criminal nature. This argument accordingly cannot be accepted.33 Thus by a side-wind the second reading strategy of the ILC on ‘State crimes’ was upheld. Further reading G Abi-Saab, ‘The Uses of Article 19’ (1999) 10 EJIL 339 J Crawford, ‘Revising the Draft Articles on State Responsibility’ (1999) 10 EJIL 435 G Gaja, ‘Should All References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?’ (1999) 10 EJIL 365 N Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000) A Orakhelahvili, Peremptory Norms in International Law (Oxford, OUP, 2006) A Pellet, ‘Can a State Commit a Crime: Definitely, Yes!’ (1999) 10 EJIL 425 PS Rao, ‘International Crimes and State Responsibility’, in M Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden, Martinus Nijhoff, 2005), 63

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CJ Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005) J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989)

References

Footnotes: 1 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, vol 22, 466 (1948). 2 Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, 78 UNTS 277. 3 Sir Gerald Fitzmaurice as co-sponsor of article IX stated that ‘the responsibility envisaged by the joint Belgian and United Kingdom amendment was the international responsibility of States following a violation of the convention. That was civil responsibility, not criminal responsibility’: Official Records of the General Assembly, Sixth Committee, Summary Records, 21 September–10 December 1948, 440. 4 FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 104, 105 (para 2). García-Amador noted: ‘… in deference to the general opinion expressed in the International Law Commission, the Special Rapporteur has excluded from the draft the penal consequences of the non-fulfilment of certain international obligations, even where such consequences might affect the strictly civil responsibility. At least as far as the Special Rapporteur is concerned, this aspect of the question is therefore left pending’. 5 See speeches by the delegations of the USSR (A/C.6/SR.651, paras 9–10 and SR.657, para 31), Roumania (A/C.6/SR.653, paras 9–10), Hungary (A/C.6/SR.654, paras 12–13), Czechoslovakia (A/C.6/SR.655, para 11) the Ukraine (A/C.6/SR.657, para 20), Bulgaria (A/C.6/SR.658, para 33), Albania (A/C.6/SR.662, para 2) and Byelorussia (A/C.6/SR.662, para 13). These criticisms were taken up by other countries in 1961 and 1962: see speeches by the delegations of Poland (A/C.6/SR.725, paras 2 and 7), Chile (A/C.6/SR.737, para 22), Cambodia (A/C.6/SR.740, para 14), Mongolia (A/C.6/SR.742, para 3), Algeria (A/C.6/SR.742, para 13) and Bolivia (A/C.6/SR.746, para 23). See M Spinedi, ‘International Crimes of States: The Legislative History’, in J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989), 7, 12–15. 6 ‘Report of the Sub-Committee on State Responsibility’, ILC Yearbook 1961, Vol II, 228. 7 See Mr Yassen (ILC Yearbook 1969, Vol I, 107), Mr Ramangasoavina (ILC Yearbook 1969, Vol I, 107), Mr Bartoš (ILC Yearbook 1969, Vol I, 112), Mr Ushakov (ILC Yearbook 1969, Vol I, 112–3, 1970, Vol I, 209), Mr Eustathiades (ILC Yearbook 1969, Vol I, 115) and Mr Tabibi (ILC Yearbook 1970, Vol I, 183). 8 ILC Yearbook 1969, Vol I, 241. 9 ILC Yearbook 1973, Vol II, 175. 10 ILC Yearbook 1973, Vol II, 172. 11 See R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 24–54. 12 ILC Yearbook 1976, Vol I, 253. 13 ILC Yearbook 1976, Vol II(2), 117 (para 53). See also ILC Yearbook 1976, Vol I, 250–1. 14 ILC Yearbook 1996, Vol I, 22–31, 178–80, 182–4, 191–3. Between 1976 and 1983, some 80 States indicated their views during discussions of the Sixth Committee of the General Assembly: see J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of

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the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989), 45–46. 15 See the summary of the debate in ILC Yearbook 1998, Vol II(2), 64–77 (paras 241–331). 16 Ibid, 77 (para 331). 17 For full bibliographies, see M Spinedi, ‘Crimes of States: A Bibliography’, in J Weiler, A Cassese, & M Spinedi (eds), International Crimes of States—A Critical Analysis of the International Law Commissions’ Draft Article 19 on State Responsibility (Berlin, Walter de Gruyter, 1989), 339–353; N Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000), 299–314. 18 Comments and Observations received from Governments, A/CN.4/515 and Adds.1 and 2 (2001). See also the Topical Summary of the Discussion held in the Sixth Committee during the fiftyfourth session of the General Assembly (A/CN.4/513 (2001)). 19 See A/CN.4/488, 53–54 (Denmark on behalf of the Nordic countries), 59 (Mongolia); A/CN.4/488/ Add.2, 4–5 (Italy); A/CN.4/492 (Greece). 20 See the careful and balanced remarks of the Czech Republic: A/CN.4/488, 52. 21 See further J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, Add. 4, paras 407–411; for the text of the proposal, ibid, para 412. 22 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Second Phase, ICJ Reports 1970, p 1, 32–33 (paras 33–35). 23 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 53; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986 (not yet in force), art 53. 24 See, however, commentary to art 40, paras 3–5. See also commentary to art 26, para 5. 25 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 54 (para 118); 56 (para 126); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 199–200 (paras 155–159). 26 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15, 23. 27 Legal Consequences of the Construction of a Wall, ICJ Reports 2004, p 136, 200 (para 159). 28 Ibid, 200 (para 160). 29 Ibid, 231–2 (paras 40–45). Cf Judge Higgins (sep op), ibid, 216–217 (paras 37–39). 30 Application of the Convention for the Prevention and Punishment of the Crime of Genocide, Merits (Bosnia-Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007. 31 Ibid, para 166. 32 Ibid, paras 168–169. 33 Ibid, para 170.

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Part III The Sources of International Responsibility, Ch.30 The Character of the Violated Obligation Antonio Cassese From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Erga omnes obligations — Peremptory norms / ius cogens — State practice — Geneva Conventions 1949 — Prisoners of war

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(p. 415) Chapter 30 The Character of the Violated Obligation 1 Article 40(1) of the ILC Articles compared with Ago’s draft article 19 415 2 A three-tiered class of obligations in the ILC Articles 416 3 Erga omnes obligations and obligations deriving from jus cogens norms overlap and indeed coincide 416 4 State practice does not support the distinction between the two sets of consequences drawn by the ILC 418 5 State practice does not support a rigid distinction between two sets of reaction by third States 419 6 Serious breaches of international obligations protecting values fundamental for the whole international community entail in principle the same legal consequences 420 Further reading 420

1 Article 40(1) of the ILC Articles compared with Ago’s draft article 19 Article 40(1) of the ILC Articles on State Responsibility makes Chapter III of Part Two of the Articles applicable to serious breaches by States of ‘an obligation arising under a peremptory norm of general international law’. It follows that the consequences of a serious breach of international law subsequently envisaged in article 41 (namely the obligation (1) to cooperate to bring to end lawfully the breach, (2) to refrain from recognizing the wrongful situation, and (3) to refrain from rendering aid or assistance to the delinquent State) only apply to breaches of those obligations. The Articles are not more restrictive than article 19 of Ago’s draft on State responsibility, which instead adumbrated reactions by States other than the injured party (probably third States, ie States not directly damaged by a wrongful act or even the international organized community) to any serious violation of ‘obligations regarded by the whole international community as essential for the protection of its interests’ (rather than of obligations flowing from peremptory norms).1 These obligations, in Ago’s thinking, seem to embrace both obligations erga omnes (obligations owed to all international subjects and to which

References (p. 416) corresponds a correlative right or claim of any other international subject to demand compliance with the obligation) and obligations imposed by a peremptory norm (ie obligations laid down in an international norm that may not be derogated from by bilateral or multilateral treaty). It would seem that for Ago there existed an overall notion, that of obligations protecting essential interests of the whole international community. These obligations were multifaceted and could be considered from various angles. Seen from the viewpoint of the range of international subjects to which they are addressed and on whom they confer rights and obligations, they can be termed ‘obligations erga omnes’. Seen from the angle of their normative strength, they can be characterized as ‘obligations imposed by jus cogens’ (in that they may not be derogated from through other obligations laid down in treaty provisions). Looked at from the angle of the possible reaction to their serious violation, they can be classifi ed (for Ago) as obligations whose breach may amount to ‘international crimes’ triggering what we could call a collective and public reaction (instead of a bilateral and private one).2 However, since Ago’s draft article 19 did not ever spell out the consequences for third States of the

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serious breaches envisaged in the same article 19, in the end it is impossible to establish to what extent Ago’s notion of ‘obligations protecting essential interests of the international community’ was broader in scope than article 40 as eventually adopted, in respect of international responsibility.

2 A three-tiered class of obligations in the ILC Articles According to the Articles on State Responsibility, in the event of a serious breach of an obligation erga omnes, third States (ie States not directly injured by the breach) may: (1) claim cessation of the wrongful act and assurances and guarantees of non-repetition; (2) claim performance of the obligation of reparation in the interest of the injured State or the beneficiaries of the obligation breached (article 48(2)); as well as (3) take ‘lawful measures’ to ensure cessation of the breach and reparation (article 54). It is clear from the above that the ILC contemplated a three-tiered class of obligations: (1) obligations that are ‘contractual’ in nature, ie synallagmatic obligations; (2) obligations erga omnes; (3) obligations imposed by a peremptory norm. This structure is pyramidal in that the range of lawful reactions by third States to serious breaches of such obligations expands with the passage from one tier to the other: violations of synallagmatic obligations do not entail any third State action; breaches of obligations erga omnes trigger the claims mentioned above; breaches of obligations stemming from peremptory norms bring about those claims plus the three obligations to cooperate or to abstain from doing something, referred to above.

3 Erga omnes obligations and obligations deriving from jus cogens norms overlap and indeed coincide The minimalist approach taken by the ILC may be regarded either as wise or inappropriate, depending on the policy aims one pursues.

References (p. 417) One could hold the view that the approach chosen by the ILC was judicious, for it took into account the existence of divergent and often conflicting views among States and within the ILC, and opted for a compromise that to some extent made it possible for some previously controversial provisions to be accepted. In addition, the ILC’s text could be commended for its clear articulation of the various and distinct consequences of a serious breach of ‘major’ international obligations. In contrast, one could point out that the three-tier structure built by the ILC is both artificial and unworkable, for it does not take into account the almost insurmountable difficulty of establishing whether a customary international norm imposing obligations erga omnes has also turned into a peremptory norm. Various authorities assert that most norms of international humanitarian law possess the nature of jus cogens. Opinions are however divided on the matter.3 It would seem, based on State practice, that the better view is that the two categories inextricably coincide: every peremptory norm imposes obligation erga omnes and, vice-versa, every obligation erga omnes proper is laid down in a peremptory norm. Admittedly, one could try to see whether there exist obligations erga omnes that are not set out in a peremptory norm. For instance, one could attempt to find this distinction in a crucial area of international law—international humanitarian law—based on the assumption that the basic principles and most norms of the four 1949 Geneva Conventions have now become customary law. For example, one can safely say that most principles of humanitarian law (say, the principle of distinction between civilians and combatants, the principle of proportionality, the principle prohibiting weapons causing suffering that is not necessary to achieve the aim of defeating the enemy, or indiscriminate in nature and the principle prohibiting denial of quarter, starvation, or pillage, or the taking of hostages) belong to the category of peremptory norms, for by now they are

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regarded as so crucial as to be unsusceptible to derogation. However, one could perhaps also wonder whether the same view could be taken with regard to the rule (laid down in article 5(2) of the Third Geneva Convention of 1949) whereby in case of doubt as to whether a combatant who has committed a belligerent act and subsequently has been captured by the enemy, is entitled to prisoner of war treatment his status must be established by a ‘competent tribunal’.4 On closer scrutiny it appears that in fact—from the point of view of State responsibility— the distinction between the two categories (erga omnes obligations deriving from customary international rules, and obligations deriving from peremptory norms) is without merit. As noted above, the two categories coincide, at least as far as customary international law is concerned. In would indeed be difficult to pinpoint an obligation

References (p. 418) that is imposed by a customary rule of international law to protect values regarded as fundamental in the international community, and which is derogable through a bilateral or multilateral treaty. Indeed, to contend that an obligation erga omnes may be derogated from would amount to denying its very nature as an obligation designed to protect fundamental values, the respect for which is an interest of the whole international community. It would amount to admitting that two or more States, by concluding an agreement, would be allowed legitimately to infringe on an interest shared by the whole international community. Both the notion of erga omnes and that of jus cogens aim at the same result, that is, to prevent States from freely disposing of, and disregarding, values safeguarded by international customary rules.5 It would therefore seem that the distinction drawn by the ILC between the two categories of obligations at issue is not well founded and in addition is likely to cause confusion and legal uncertainty.

4 State practice does not support the distinction between the two sets of consequences drawn by the ILC However, a more serious objection is possible: the distinction referred to above is not consonant with the current status of international law. State practice shows that third States take collective countermeasures against a delinquent State regardless of whether or not the obligation breached derives from a peremptory norm. What matters to States is that the responsible State has acted contrary to values considered fundamental by the whole international community and hence enshrined in customary rules imposing obligations erga omnes. Thus, in all instances of resort to collective enforcement or multilateral use of force, States have adopted countermeasures against the wrongdoer without placing any emphasis on whether or not the breach at issue involved a violation of a peremptory norm. In many cases States not directly damaged by the wrongful act took coercive measures not involving the use of force against the delinquent State pursuant to a recommendation or a decision by an international body such as the UN Security Council or the General Assembly. Thus, for instance, the Security Council imposed or recommended economic measures against Southern Rhodesia in 1966 on account of its racial policy. In 1980, in keeping with a Security Council resolution against the taking of hostages by Iran, the European Community adopted a decision whereby all contracts concluded with Iran after 4 November 1979 (the beginning of hostage-taking) were to be suspended. The Security Council recommended, or adopted, economic and other sanctions against

References (p. 419) South Africa for its practice of apartheid in 1986 and, more recently against Iraq (1990– 91), the Federal Republic of Yugoslavia (Serbia and Montenegro) (1992), Libya (1992–99), Liberia

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(1993–94), and Haiti (1993). The European Community adopted coercive measures in 1982 against Argentina in relation to the Falklands/Malvinas confl ict, by suspending the import of goods from Argentina for its attack on the island outside any Security Council authorization. Furthermore, the European Community took enforcement measures in 1982 in connection with serious infringements of human rights in Poland. Furthermore, when States have adopted countermeasures against wrongdoers absent any recommendation or decision by an international collective body, this has been done without specifying whether those countermeasures were taken to respond to the breach of an obligation erga omnes or to the breach of an obligation deriving from a peremptory norm. This, for example, happened in 1980–81 after the Soviet intervention in Afghanistan: in 1980 the United States of America applied a host of embargo measures against the Soviet Union. In 1983 the downing by Soviet military aircraft of a civilian Korean airliner was deemed by many States in the Security Council ‘a flagrant violation of the current rules on civilian aviation’, ie rules that protect community values such as the safety and life of civilians. While no resolution relating to this incident was ever adopted by the Security Council, a number of States including Canada, the United States of America, and Japan nevertheless adopted countermeasures against the Soviet Union. More recently, in 1999, faced with the massacres perpetrated by the Federal Republic of Yugoslavia (Serbia and Montenegro) on its own territory and against its own nationals, the member States of NATO reacted by using military force (although this was however done in clear breach of article 2(4) of the UN Charter).

5 State practice does not support a rigid distinction between two sets of reaction by third States It should be added that international practice differs from the scheme of the ILC Articles in another respect: it does not draw a distinction between cases where third States may only claim the cessation of the wrongful act or reparation to the benefit of the victims, on the one hand, and cases where instead, in addition to these claims, third States are also duty-bound to cooperate to bring to an end through lawful means a serious breach as well as to refrain from recognizing the unlawful situation or rendering assistance to the delinquent State. Thus, the distinction between two classes of consequences of a serious breach of an obligation, set out by the ILC, does not seem to be supported by State practice. For instance, when the UN Security Council or the General Assembly have recommended or decided on the non-recognition of illegal situations such as the establishment in 1965 of Southern Rhodesia (in violation of the principle of self-determination), the Turkish occupation of Cyprus in 1974, Israel’s annexation of Eastern Jerusalem (de facto in 1967 and through a formal proclamation in 1980) and of the Golan Heights (de facto in 1981), and so on, most States have complied with these resolutions or decisions without necessarily asking themselves whether they also had other obligations towards the international community with regard to the State bringing about the unlawful situation. Nor have they put forward any of the claims that according to the ILC belong to third States in the event of obligations erga omnes being breached.

References

(p. 420) 6 Serious breaches of international obligations protecting values fundamental for the whole international community entail in principle the same legal consequences In sum, the contention can be made that, under customary international law as borne out by State practice, the same consequences follow from any serious breach of any customary international law obligation designed to protect fundamental values of the international community as a whole;

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that is, of any community obligation having as its correlative position a community right (ie a right belonging to any other State). These consequences encompass a set of powers, rights, or claims of third States (to invoke the aggravated responsibility of the delinquent State by bringing a claim to the notice of that State; to demand cessation of the wrong, if it is continuing, and request assurances and guarantees of nonrepetition; to claim reparation in a form consistent with the nature of the wrong), as well as a host of obligations (not to recognize the unlawful situation created by the breach; not to render assistance to the responsible State in maintaining the situation so created; to cooperate as far as possible to bring the breach to an end). Further reading A Orakhelashvili, Peremptory Norms in International Law (Oxford, OUP, 2006) C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005)

Footnotes: 1 See R Ago, Fifth Report on State Responsibility, ILC Yearbook 1977, Vol II(1), 3, 76–7 (para 8), 97–100 (paras 7–11). 2 For discussion of the Commission’s decision to abandon the concept of State crimes, see Crawford, above Chapter 29. 3 On the various views concerning the relation between jus cogens and obligations erga omnes see C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005), 139– 157. 4 Arguably that provision has acquired customary status, and may not be derogated from. It is submitted that any bilateral or multilateral treaty to the effect that the status of a detained person should be determined, for example, by a military commander, would be null and void, for it would deprive the person at issue of his or her fundamental right to be adjudicated by a court of law. Perhaps one could instead contend that no jus cogens nature attaches to the rule—seemingly imposing erga omnes obligations—whereby prisoners of war must be quartered under conditions as favourable as those for the forces of the detaining Power who are billeted in the same area. This rule, enshrined in art 25(1) of the Third Geneva Conventions of 1949, no doubt imposes an obligation erga omnes. However, is such an obligation vested with the character of a nonderogable obligation? In reality, a better contention would be that that provision has not acquired the status of customary international law, remaining at the stage of treaty law. 5 Things, it would seem, are different with treaty law. There may be international multilateral treaties imposing obligations erga omnes contractantes that do not all possess the same normative value and are therefore not endowed with the same normative strength. By virtue of the treaty itself some provisions can be derogated from, whilst others are non-derogable. If this is the case we are faced with a two-tiered set of obligations: all may be regarded as imposing obligations towards all the other contracting parties, whereas only some of these obligations are absolutely peremptory and therefore may not be derogated from. Take, for instance, the European Convention on Human Rights. One can infer from the fact that art 15 provides that no derogation is possible from some provisions of the Convention, that, among other things, two or more States parties, after applying art 15(3), may enter inter se into an agreement allowing restrictions (warranted by the exigencies set out in art 15) on, for instance, art 8 protecting private and family life), whereas no State party may ever make an agreement with other States parties or third States providing for derogations from art 3 (prohibiting torture).

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Part III The Sources of International Responsibility, Ch.31 The Character of the Breach Paola Gaeta From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Wrongful acts — Responsibility of states — International peace and security — Use of force, threat — Aggression — Armed attack — Peremptory norms / ius cogens

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(p. 421) Chapter 31 The Character of the Breach 1 Introduction 421 2 Seriousness of the breach in Ago’s proposal for international crimes 422 3 Ambiguity of the requirement of a ‘serious’ breach in article 19 423 4 The ‘seriousness’ of the breach in the 2001 Articles 425 Further reading 426

1 Introduction In 2001, when the ILC adopted the final text of the Articles on State Responsibility, it upheld the view that there exists a class of international rules that—if breached—give rise to consequences additional to those of ‘ordinary’ wrongful acts. In so doing it departed in many, but not all, respects from the notion of international crimes, as put forward by the then Special Rapporteur Roberto Ago and as embodied in former article 19 of the Draft Articles, provisionally adopted in 1976. One of the features of this controversial notion that the ILC decided to retain relates to the character of the breach. Currently article 40(1) requires that for the envisaged additional consequences to arise, the obligation breached must not only belong to a particular set of international norms, but also that the breach be serious. The seriousness of the breach was also required by former article 19 for an international crime to occur. After defining this class of wrongful acts in abstract (and circular) terms,1 article 19 offered a few examples, each of them premised on a serious breach of a specific international obligation.2

References (p. 422) In the current article 40(1), however, it seems that the requested seriousness of the offence—while misplaced in former article 19—exceeds the fairly limited additional consequences that the ILC has envisaged for wrongful acts of the utmost international concern.

2 Seriousness of the breach in Ago’s proposal for international crimes The unclear contours of the substantive obligations whose violations, according to Roberto Ago, could have constituted an international crime, were among the controversial aspects of this novel notion. In Ago’s proposal, this class of wrongful acts comprised not only, but above all, the breach ‘of an international obligation established for the purpose of maintaining international peace and security, and in particular the breach by a State of the prohibition of any resort to the threat or use of force against the territorial integrity or political independence of another State’.3 In his view, the notion of international crimes also encompassed ‘the serious breach … of an international obligation established by a norm of general international law accepted and recognized as essential by the international community as a whole’, provided that such international obligation had a particular purpose.4 Clearly, to identify in abstract terms the content of the rules that could have amounted to an international crime, Ago drew inspiration from the notion of jus cogens in article 53 of the 1969 Vienna Convention on the Law of Treaties. The wording chosen by Ago was deliberately different from that used in that article 53. However, as in article 53 of the Vienna Convention, the basic criterion in Ago’s proposed article on international crimes for identifying the set of international obligations at stake was the recognition, by the international community as a whole, of their particular importance. Plainly, a legal notion that is defined by making reference to what an anarchical and disorganized community accepts and recognizes as essential, is inherently loose and uncertain. It was therefore necessary at least to diminish the risk of a catch-all definition

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of international crimes. The drafting expedient used by Ago was to suggest that all international crimes—except for those stemming from a violation of an international obligation for the maintenance of international peace and security, which in his view were inherently grave—must consist in a serious breach of a set of international rules aimed at protecting fundamental interests. This proposal was to a large extent sound. As Ago himself explained, ‘An act of aggression is always an international crime.’ On the other hand, a discriminatory practice or an assault on the free utilization of a resource common to mankind could not be regarded as a true international crime unless the circumstance was of particular gravity, since it is possible to imagine a broad range of hypotheses of differing importance.5 However, one fails to understand why in his proposal every breach—and not only serious ones—of an international obligation aimed at maintaining international peace and security, in particular the obligation to refrain from the threat or use of force, could give rise to an international crime.

References (p. 423) As the ICJ aptly pointed out,6 and other international case law has recently reaffirmed,7 even in this field one can distinguish between violations minoris generis of the obligation not to use force (such as limited armed clashes between two neighbouring States along their borders), and more serious ones, such as the commission of a (large-scale) armed attack. The legal consequences of these two kinds of violations are not the same, at least under customary law, since only an armed attack, ie a serious breach of the ban of the threat or use of force, entails the right to resort to individual and collective self-defence. In sum, it would have been more in line with his proposed article 19 to also provide that only serious breaches of this obligation could constitute an international crime.

3 Ambiguity of the requirement of a ‘serious’ breach in article 19 Be that as it may, in the provisionally adopted draft article 19 the requirement of the seriousness of the offence, which in Ago’s proposal had a convincing raison d’être (but should have been contemplated across the board), was in my view unnecessary and misleading. In the newly worded draft provision on international crimes, it was decided to start with a general definition of this class of wrongful acts and then to give examples of the set of obligations whose violations could give rise to a graver form of State responsibility. In the general definition no reference was made to the seriousness of the offence: it was simply stated (in fairly circular terms8 ) that international crimes result from the breach of international obligations ‘essential for the protection of fundamental interests of the international community’, provided that the international community itself recognizes this breach as an international crime. The need for the breach to be serious then comes out of the blue, as it were, in the list of examples set out in draft article 19(3), according to which international crimes may consist, inter alia, in serious breaches of international obligations protecting four categories of fundamental values: peace and security, selfdetermination of peoples, human rights and human environment. However, the examples of international obligations belonging to each of these categories relate all to rules whose violations can be deemed inherently serious. As a result, the requirement of the ‘seriousness’ of the offence becomes unnecessary, if not obscure and misleading.

References (p. 424) Let us consider the first example mentioned in draft article 19(3)(a). Under this provision, an international crime may result from ‘a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression’ (emphasis added). According to this wording, a breach of the rule prohibiting

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aggression would not constitute an international crime unless the breach was ‘serious’. One may therefore be tempted to believe that not all acts of aggression are inherently serious enough to trigger a more grave form of State responsibility; only some of them would belong to this category, namely those that the international community recognizes as serious. The same applies, mutatis mutandis, to the other examples listed in article 19. Under draft article 19(3)(b) an international crime may result from a ‘serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of a colonial domination’ (emphasis added). This wording implies that not all the cases of establishment or maintenance of a colonial domination constitute an inherently serious violation of the right of self-determination of peoples; only some of them would fall under that class, namely, again those so recognized by the international community. Under draft article 19(3)(c), an international crime may follow from ‘a serious breach on a widespread scale of international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid’, as if there may be non-serious cases of widespread acts of slavery, genocide or apartheid. Finally, draft article 19(3)(d) chose, as an example of an international crime in the field of the protection of human environment, ‘a serious breach … of the international obligation … prohibiting massive pollution of the atmosphere or of the seas’, as if acts of massive pollution may not always be serious enough to give rise to an aggravated form of State responsibility. These problems are easily solved in the Commentary to draft article 19, although without explicit direction from the ILC. To smooth things out, the Commentary simply ignores the unfortunate wording of draft article 19 and takes a different (and more defensible) stand. First, it states that ‘the breach of an obligation of essential importance may not assume proportions sufficient to warrant it being characterized as a crime’. According to the commentary, ‘[t]his can be done only if the seriousness of the breach is established’.9 Following this general assertion, in referring to the examples of draft article 19(3), the ILC never mentions the requirement of the offence’s seriousness. It simply notes that clear-cut examples of international crimes comprise ‘the breach of the obligation prohibiting aggression’, ‘the breach of the obligation prohibiting the establishment or maintenance by force of colonial domination’, ‘a large-scale or systematic practice adopted in contempt of the rights and dignity of the human being’, such as ‘slavery, genocide and apartheid’; and finally ‘a breach of the obligations prohibiting massive pollution of the atmosphere or the seas’. In sum, in the Commentary to draft article 19 the ILC used the requirement of the seriousness of the breach in a way opposite to that set out in the article itself. In the Commentary, the ILC referred to the seriousness of the offence when dealing with the definition of international crimes, ie to specify that these crimes could not result from every breach of an international obligation of essential importance for the international community. The ILC, when then listing particular examples of international (p. 425) crimes, consistently failed to specify that the breach of the corresponding international obligation had to be serious. Arguably, in the commentary the ILC (rightly) considered that—because of the specific content of the international obligations at issue—breaches of them must always be serious.

4 The ‘seriousness’ of the breach in the 2001 Articles In adopting the final text of the Articles the ILC preferred to jettison the notion of ‘international crimes’, but kept the idea that some categories of wrongful acts entail some specifi c consequences. This class of wrongful acts comprises serious breaches of obligations arising under a peremptory norm of general international law. According to article 40(2), violations of these obligations are serious if they involve ‘a gross or systematic failure by the responsible State to fulfil the obligation’. The Commentary to article 40 explains that ‘[t]he word “serious” signifies that a certain order of

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magnitude of violation is necessary in order not to trivialize the breach’, since ‘relatively less serious cases of breach of peremptory norms can be envisaged, and it is necessary to limit the scope of this chapter to the more serious or systematic breaches’.10 Here again, as in Ago’s proposal on international crimes, the seriousness of the breach counterbalances the uncertainties surrounding the class of substantive obligations referred to; in this case, the uncertainties about the identification of jus cogens rules and their content. Nonetheless, most of the examples of jus cogens obligations offered in the Commentary make the requirement of the seriousness of the offence partially unnecessary, as it was in the list of the examples enshrined in former draft article 19. This applies to the prohibition of aggression, and the prohibitions against genocide, racial discrimination and apartheid.11 True, the ILC itself admits that ‘some of the peremptory norms in question, most notably the prohibitions of aggression and genocide, by their very nature require an intentional violation on a large scale’,12 and their breaches are perforce serious. The conclusion is warranted that in the ILC’s view, at least for those two classes of jus cogens norms (ie the rules prohibiting aggression and those banning genocide) the word ‘serious’ was redundant (arguably it is however redundant also for the other abovementioned examples). Be that as it may, at first sight one may perhaps share the attitude of the ILC as regards the need to confine the additional consequences envisaged in Chapter Three of Part Two solely to serious breaches of a comparatively small (but uncertain) number of international obligations. However, the ILC’s attitude would seem excessively cautious if one considers the content of these additional consequences. They consist of three specific legal obligations incumbent upon States facing the commission of serious breaches of jus cogens obligations, namely: (i) the obligation to cooperate to bring an end through lawful means to any of such serious breaches; (ii) the obligation not to recognize as lawful a situation created by a serious breach; and, finally, (iii) the obligation not to render aid or assistance that maintains such a situation. Why do these additional consequences not apply to every breach of a jus cogens obligation? Even assuming that there may exist jus cogens rules whose violations are not inherently serious, why— according to the definition given by article 40(2)—should one exclude the

References (p. 426) applicability of these additional obligations to less serious offences of international obligations which, nonetheless, protect fundamental interests of the international community as a whole? In fact the ILC itself stated, in its commentary to article 40(1), that jus cogens rules are ‘substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values’.13 Why then limit the applicability of the envisaged additional obligations of States other than the wrongdoer to ‘serious’ breaches of these very limited classes of rules? One may be tempted to infer from this approach, that, in the event of a nonserious breach of a jus cogens rule (for example, in the case of a limited use of armed force not amounting to an armed attack) States would be free to recognize as lawful the situation created by the breach and would be allowed to render aid or assistance in maintaining such a situation. The same would apply in other cases of non-serious breaches of jus cogens rules, such as those protecting human rights or the right of people to self-determination. Plainly, this conclusion would be preposterous and inconsistent with the extraordinary importance of the interests protected by all rules of jus cogens. In Ago’s proposal on international crimes, the requirement of the seriousness of the offence was closely intertwined with the idea that, in general international law, there existed a regime of State responsibility different from that applying to ordinary wrongful acts. In his view, the specific regime for international crimes reflected the gravity of the offence; in other words, this regime entailed more serious consequences than those stemming from all other wrongful acts. In contrast, in its final text the ILC abandoned this idea and opted for an ‘additional consequences’ approach. It did not envisage a different regime for the class of more serious wrongful acts but simply enumerated for them some new consequences additional to those already envisaged for all wrongful acts. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

However, on close scrutiny these additional consequences do not amount to very much at all. In addition, arguably at least two of them (ie the obligation of non-recognition and that not to render aid and assistance) should apply regardless of the character of the breach. The overcautious approach of the ILC may easily be explained if one considers that the ILC was eager to finalize the Articles on State Responsibility. It was thus necessary to smooth away any contentious issues. It seems however warranted to wonder whether the word ‘serious’ in article 40(1) was really essential for the adoption of the Articles. Further reading A Orakhelashvili, Peremptory Norms in International Law (Oxford, OUP, 2006) C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005)

References

Footnotes: 1 According to former art 19(2): ‘An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as whole, constitutes an international crime.’ 2 Draft art 19(3) provided: ‘Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid; (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.’ 3 According to Ago, the violation of the obligation to refrain from resorting to force was an ‘indisputable’ example of an international crime: R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 53. 4 Namely: the ‘respect for the principle of equal rights of all peoples and of their right of selfdetermination’; the ‘respect for human rights and fundamental freedoms for all, without distinction based on race, sex, language or religion’; and ‘the conservation and the free enjoyment for everyone of a resource common to all mankind’: ibid, 54. 5 Ibid, 53. 6 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 101 (para 191). 7 In its Partial Award-Jus Ad Bellum, Ethiopia’s claims 1–8, Federal Democratic Republic of Ethiopia v State of Eritrea, 19 December 2005, 135 ILR 479, 485 the Eritrea Ethiopia Claims Commission rightly pointed out that ‘localized border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack’. As regards the armed clashes that occurred in the vicinity of Badme on 6–7 May 1998, on which there were different accounts by the Parties, the Commission found it was not necessary to resolve these differences, since it was clear that ‘these incidents involved geographically limited clashes between small Eritrean and Ethiopian patrols along a remote, unmarked, and disputed border’. In the Commission’s view ‘these relatively minor incidents were not of a magnitude to constitute an armed attack by either State against the other within the meaning of Article 51 of the UN Charter’. Upon this ground, it decided

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that the attack carried out on 12 May 1998 by Eritrean armed forces against the town of Badme and several other border areas could not be justified as lawful self-defence. It constituted instead an unlawful armed attack, for which Eritrea was liable to compensate Ethiopia: ibid, 488–489. 8 For the ILC, however, only ‘[a]t first sight, the text of paragraph 2 [of Article 19] may give an impression of tautology.’ According to the ILC, ‘paragraph 2 of the article under consideration provides that in order to be “objectively” considered as an “international crime”, and as such liable to more severe consequences as a result of responsibility, an international wrongful act must be “subjectively” recognized as a “crime” by the international community as a whole.’ See Commentary to draft art 19, para 61, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 119. 9 Commentary to draft art 19, para 66, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 120. 10 Commentary to art 40, para 7. 11 The other examples are the prohibitions against slavery and the slave trade, and the prohibition against torture. See Commentary to art 40, paras 4–5. 12 Ibid, para 8. 13 Ibid, para 3.

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Part III The Sources of International Responsibility, Ch.32 The Notion of Circumstances Precluding Wrongfulness Sandra Szurek From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Circumstances precluding wrongfulness — Self-defence — Armed forces — Countermeasures — Necessity — Codification — Peremptory norms / ius cogens

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(p. 427) Chapter 32 The Notion of Circumstances Precluding Wrongfulness 1 A heterogeneous content 429 (a) A controversial choice 429 (b) An open choice 431 2 An equivocal notion 432 (a) A divided doctrinal justification 433 (b) A recurring doctrinal challenge 435 Further reading 437 A shield rather than a sword, to use the wording of the ILC,1 the circumstances that the Articles on State Responsibility envisage as precluding the wrongfulness of an act function, according to Crawford, to ‘protect the State against an otherwise well-founded accusation of wrongful conduct’.2 The law of international responsibility has always included, as is the case in domestic law, several ‘excuses’, ‘justifying facts’, and ‘exonerating exceptions’ which, by virtue of the occurrence of certain circumstances, have the effect of preventing the engagement of the responsibility of a legal subject for failing to fulfil its obligations.3 The question of circumstances precluding wrongfulness has been present from the beginning of all codification projects for the law of responsibility. Under the title ‘circumstances under which States can decline their responsibility’,4 the Preparatory Committee of the Conference for the Codification of International Law included in Bases of Discussion 24 and 25 the necessity of self-defence by a State and circumstances justifying the adoption of reprisals against a State. Within the framework of diplomatic protection, Basis of Discussion 19 stated that the ‘provocative attitude’ of the injured person could influence the extent to which the responsibility of a State could be engaged. Basis of Discussion 21 further provided that State responsibility could be excluded in respect of damage caused by (p. 428) a State’s armed forces in the repression of an insurrection, riots or mob violence.5 When he examined the international responsibility of the State for damage caused to aliens, García Amador proposed to retain, under the title ‘exoneration from responsibility and attenuating and aggravating circumstances’, force majeure, necessity, and fault of the victim.6 But the history of the codification of State responsibility reveals an absence of agreement both on the conception of circumstances capable of preventing the implementation of the responsibility of the State and the particular identification of the relevant circumstances. In the first place these circumstances vary from one draft to the next, which may be explained by the limited scope of some drafts which dealt with the specific question of the protection of foreigners. But further the circumstances themselves had different effects: sometimes as circumstances excluding responsibility sometimes as circumstances attenuating responsibility, or even occasionally as ‘excuses’. In approaching this question within Chapter V of Part One of its project on the codifi cation of State responsibility, Ago was inspired by the list of ‘excuses’ established by Fitzmaurice, Special Rapporteur for the Law of Treaties.7 Six circumstances capable of excluding a State’s responsibility were identified: consent; countermeasures; force majeure and fortuitous event; distress; state of necessity; and self-defence. Nearly 20 years later, when Special Rapporteur Crawford addressed this question in his Second Report,8 he made few alterations to this list. With the exception of fortuitous event which no longer appeared in the article relating to force majeure, articles 20 to 25 specified the conditions for the invocation, as circumstances precluding wrongfulness, of consent (article 20), self-defence (article 21), countermeasures (article 22), force majeure (article 23), distress (article 24), and state of necessity (article 25). Under his initiative, article 26 was

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introduced, which provided that none of the specified circumstances would exclude the wrongfulness of an act not in conformity with an obligation arising under a peremptory norm of general international law. Finally, article 27, a ‘without prejudice’ clause, established the ‘consequences of invoking a circumstance precluding wrongfulness’ both in relation to the respect of the obligation and to the question of a possible compensation. For Crawford, Chapter V was ‘one of the permanent contributions of the draft articles and a major contribution to international law’.9 Crawford did not intend to question the work of his predecessor, or to ‘radically change’ it, but rather to clarify and to improve certain aspects.10 That the Chapter would represent a ‘permanent contribution to general international law’11 is supported by the fact that in their observations States did not question the need for this Chapter.12 Subsequent case law has also provided support for the provisions of Chapter V representing customary rules. The ILC’s codification of circumstances precluding wrongfulness represents a successful aspect of the ILC’s Articles. The circumstances in which a State was excused from executing its obligations or exonerated from responsibility for violation thereof had been

References (p. 429) the subject of much debate in doctrine and in practice.13 During the codification of the law of treaties and also the law of responsibility, fears were expressed relating to the subjective character of the determination of the validity of such an excuse, in the absence of compulsory recourse to a court of tribunal to determine its validity. The codification of specific circumstances precluding wrongfulness therefore fulfilled a useful function, confirmed by references in subsequent case law. However, to conclude that the content of Chapter V is the subject of unanimous approval would be an oversimplification. Throughout the years of the work of the ILC, each of the Special Rapporteurs had to overcome the tensions and doubts constantly expressed during the debates. The completion of the Articles has not put an end to these doubts. In practice, self-defence and necessity have been often relied upon: the first to justify armed interventions; and the second to support conduct contrary to international law in face of severe financial crises. These arguments have led to a reopening of the debate in the doctrine. The debate has proceeded essentially along two lines: first, the content of the circumstances precluding wrongfulness; and second, the notion of circumstances precluding wrongfulness itself, the relevance of which is today challenged.

1 A heterogeneous content Through the work of Ago and that of Crawford it is possible to discern a certain continuity, in relation to both the choices made and the issues which were discussed. The list seems heterogeneous, mixing causes foreign to the acts of the State and circumstances which can appear perfectly lawful in themselves. The recurring question of whether certain of the circumstances chosen were rightly placed within a Chapter dealing with circumstances precluding wrongfulness also re-surfaced. But the open character of the choices made does not exclude the possibility of further development.

(a) A controversial choice Without encroaching on the analysis of the different circumstances precluding wrongfulness which will follow, it is now useful to mention that some circumstances gave rise to long debates, in which the members of the ILC expressed doubts and reluctance to accept them, both because they considered that their inclusion represented a danger for the stability of international undertakings and because they strongly doubted that the mentioned circumstances belonged to the proposed category of circumstances precluding wrongfulness.14 The first doubt raised in the ILC can be demonstrated by reference to necessity. In view of the

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abuses to which it gave rise, necessity had been condemned in the past. Within the ILC, it provoked many reservations. However, necessity being a reality in international practice, it was better to enunciate the conditions for its exercise in a particular and specific manner rather than to ignore it.15 The second doubt raised in the ILC can be illustrated (p. 430) by self-defence. The right of self-defence, characterized by article 51 of the UN Charter as ‘inherent’, is considered to be intrinsically lawful. As Crawford recalled in his second report: ‘A State exercising its inherent right of self-defence as referred to in article 51 of the Charter is not, even potentially, in breach of article 2(4)’,16 citing the opinion of the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons, which highlighted the inherent lawfulness of action taken in self-defence.17 After it was first suggested by Ago, the inclusion of self-defence in the list of circumstances precluding wrongfulness was the subject of fierce criticism. If its inclusion was meant only to be a reminder that self-defence does not constitute a breach of the Charter, then Special Rapporteur Crawford considered it better to exclude it from the circumstances precluding wrongfulness. Nevertheless, self-defence was maintained as a circumstance precluding wrongfulness, to the extent that it ‘does not preclude the wrongfulness of conduct vis-à-vis the aggressor State in all cases or with respect to all obligations’.18 The inclusion of consent in Chapter V was also subject to criticism. Crawford noted that the inclusion of this circumstance in article 20 posed two problems. In addition to the fact that consent was simply qualified by the adjective ‘validly’ which was defined in a particularly vague manner,19 a second problem was the distinction between ‘the issue of consent as an element in the application of a rule’ and ‘the issue of consent as a basis for precluding the wrongfulness of conduct inconsistent with the obligation’.20 For these and other reasons the Special Rapporteur argued that consent should not be included in Chapter V and ought to be eliminated.21 On this point, the ILC did not agree with Crawford. However, the view of the Special Rapporteur is supported by more recent academic writing.22 Another major debate concerned countermeasures. For some, countermeasures are a means of execution and have no role to play in the framework of the law of international responsibility.23 At the ILC, the principal question posed concerned the place of countermeasures in the draft, and in this respect the Special Rapporteur was as divided as certain governments were. The maintenance of a provision on countermeasures in Chapter V could be justified by the fact that, in certain cases, countermeasures excluded the wrongfulness of measures taken against a wrongdoing State to induce it to put an end to its conduct and provide reparation. Moreover, according to the Special Rapporteur, the conditions for the recourse to countermeasures could be specified in Part Two of the Articles.24 Despite the doubts expressed, the circumstances precluding wrongfulness adopted by the ILC can be considered as reflecting the main applicable circumstances in general international law.25 The majority of these circumstances, such as consent of the injured

References (p. 431) State, the legitimate exercise of a sanction against a pre-existing unlawful act, selfdefence and necessity, had already been envisaged by Ago in his Hague Academy course,26 and are frequently mentioned in legal scholarship.27 The choice made by the ILC on first reading was not intended to be definitive or exhaustive, but the list was not modified on second reading. However, on second reading the Special Rapporteur posed the question whether other circumstances than those adopted on first reading should be included in Chapter V, since, according to the ILC itself, Chapter V ‘was not to be construed as closing the door’28 on the possibility that in the future other specific or general circumstances be included. Since no negative answer was given to this question, the category of circumstances precluding wrongfulness ought to be considered an open list.

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(b) An open choice Even if it is possible that new circumstances precluding wrongfulness could be included in the future, one cannot envisage that such a situation would occur easily in the future. The final Special Rapporteur encountered opposition in respect of the various proposals of new circumstances precluding wrongfulness which he submitted to the ILC. These included the execution of an obligation in conflict with a peremptory norm of international law (jus cogens); the exception of non-performance (exceptio inadimplenti non est adimplendum), and finally what the Special Rapporteur termed ‘the clean hands’ doctrine. Only the first of these proposals was eventually included in article 26 of the articles adopted by the ILC, in terms different to the approach initially envisaged by Crawford. Taking up a question by Rosenne, who asked whether ‘non-performance of a treaty stipulation which conflicts with a rule of jus cogens … should not be considered a ground [ie a justification] for a breach of that treaty’,29 the Special Rapporteur considered that in situations of conflict, to be distinguished from the situation—rare in practice—where the treaty itself is contrary to a peremptory norm to which Chapter V could not be applied, it was appropriate to make compliance with peremptory norms a circumstance precluding wrongfulness.30 This would entail the adoption of an article 29bis, ‘Compliance with a peremptory norm (jus cogens)’.31 But after the discussion, members of the ILC gave this provision a different application, for it prevents the invocation of a provision of Chapter V to exclude ‘the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law’.32 The examination of the exception of non-performance was also intended to deal with the relationship between the law of treaties and the law of international responsibility. These links had been reserved by the Vienna Convention on the Law of Treaties,33 since article 73 established that all the provisions of the Convention are without prejudice to questions of responsibility. By establishing the exemption of non-performance as a circumstance

References (p. 432) precluding wrongfulness, the Special Rapporteur intended to include an exception recognized in general international law and in the case-law, in the framework of the law of treaties.34 The Vienna Convention does not contain the exception of non performance. Envisaged by Fitzmaurice during its work, the exceptio inadimplenti was not discussed by the ILC and was not retained by Waldock, the final Special Rapporteur on the law of treaties. Crawford favoured the inclusion of a provision ‘to the effect that the wrongfulness of an act of a State is precluded if it has been prevented from acting in conformity with the obligation in question as a direct result of a prior breach of the same or a related international obligation by another State’.35 But article 30bis concerning the ‘Non-compliance caused by prior non-compliance by another State’ does not appear in the final text. Rather, the idea that eventually prevailed, rightly, was that the exceptio inadimplenti contractus was a special characteristic of certain reciprocal or synallagmatic obligations and profoundly differed from circumstances precluding wrongfulness. The inclusion of the clean hands doctrine, a condition of admissibility of claims before courts and tribunals, as a circumstance precluding wrongfulness was also rejected.36 Even if in the framework of diplomatic protection, this theory has been relied on as a ground of inadmissibility of a claim in State responsibility cases,37 two reasons led to its omission from Chapter V: the impossibility to consider it as an institution of general international law38 and the fact that it was a ground for inadmissibility rather than a defence.39 From the ensemble of these works, it may be noted that two essential questions remained unresolved, to which none of the circumstances included in ARSIWA could give a satisfactory answer although they are frequently raised in practice. These questions concern the recourse to the use of force in cases of humanitarian intervention and the old, but always topical, question of the non performance of economic obligations of States for reasons that they argue are

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independent of their will. The debates raised by certain provisions of Chapter V are always liable to resurface, although there has not been much development since the beginning of the 20th century.

2 An equivocal notion The law of international responsibility used expressions such as exclusion of responsibility, justification causes or exonerating excuses to account for the occurrence of circumstances that admittedly prevent the State from performing its obligations. The expression ‘circumstances precluding wrongfulness’ indicates a change in the doctrinal perspective on the foundation of responsibility which was desired by Ago. But, more pragmatic, Crawford seemed not to be sensitive to the theoretical distinctions imposed by Ago: he used expressions such as exclusion of responsibility, justification facts, or even excuses, which would without doubt have been vigorously criticized by his illustrious predecessor.40 Does this (p. 433) terminological hesitation indicate a more profound uneasiness in relation to the notion and the operation of circumstances precluding wrongfulness? This can be observed in the work of commentators which challenges the operation and the notion itself of circumstances precluding wrongfulness.

(a) A divided doctrinal justification The importance of the circumstances which can be invoked to rule out the invocation of the responsibility of a State changes depending on the theory concerning responsibility in which they are included, which also conditions their operation. The circumstances and situations capable of preventing the invocation of responsibility do not operate in the same way where the underlying conception of responsibility is based on the notion of fault, initially subjective and later objective, and where there is a conception of objective responsibility based on the notion of the wrongful act, which now prevail and which follow precisely the work of Ago. When the theory of subjective fault prevailed, the attribution of a wrongful act to the State was conditioned on a culpable intention or negligence on the part of the organs of the State. The absence of responsibility could simply result from the impossibility of proving the ‘subjective fault’. If circumstances independent from the will of the subject occurred, such as force majeure or fortuitous event, they then constituted, in themselves, proof of the absence of fault. In this case, the act or omission could not be committed deliberately or maliciously.41 Therefore responsibility was excluded. The theory of ‘objective fault’ followed that of ‘subjective fault’. By eliminating the requirement of intention in the commission of the wrongful act, the ‘objective’ fault marks the abandonment of the ‘culpable’ psychological link was required between the breach of the subjective right of another subject and the author of the damage. On this theory what matters is only the conduct of State, and there are a number of presumptions applicable: that the State always has the means to prevent and punish wrongful acts and that the State commits a wrongful act when it fails to take the necessary measures. In each theoretical framework, there are no conclusive presumptions. On the one hand, the means that the State has may be appreciated according to what can reasonably be expected from the State. On the other hand, the occurrence of external circumstances can be an excuse, total or partial, for the State’s failure to take the necessary measures according to the means at its disposal. These presumptions fall before exonerating causes or the absolution of fault or responsibility. It must however be remarked that it is not always easy to distinguish, in the case law, between situations in which one or the other of these theories has been applied. Furthermore, neither includes a uniform and coherent conception of the circumstances capable of averting responsibility. Anzilotti’s theory marks the break with the theories of fault and the advent of an ‘objective’ responsibility. The statement according to which ‘the internationally wrongful act is an act contrary to objective international law’ constituted the creed of the positivist (p. 434) voluntarist doctrine of the beginning of the century.42 This objective international law did not exclude rules justifying a

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failure to observe a duty. Anzilotti included among these rules self-defence, necessity, and lawful self-protection. He qualified, for example, a circumstance such as force majeure as a ‘circumstance precluding responsibility’,43 a formula which Ago vigorously contested, maintaining that it made no sense to retain the notion of a wrongful act, but not that of responsibility.44 Ago’s theory seemed to mark the final stage in this evolution. The idea at the origin of the phrase ‘circumstance precluding wrongfulness’ is enunciated in article 1 ARSIWA, which establishes that: ‘every internationally wrongful act of a State entails the international responsibility of that State’. According to article 2, responsibility derives from the possibility to attribute to a subject of the law, in this case the State (subjective element) a failure to comply with an international obligation (objective element). In this scheme of things, nothing would absolve the State of its responsibility when a breach of international law is attributable to it. To the contrary, the absence of responsibility cannot derive but from two causes: the impossibility of attributing the breach of an obligation to a legal subject; or the absence of an internationally wrongful act. It is in this latter respect that circumstances precluding wrongfulness operate: there is no breach where a failure to comply with an obligation is due to a circumstance that excludes the wrongfulness of an act.45 These circumstances allow a distinction between objective responsibility and an absolute responsibility. As expressed by the ILC, the existence of a wrongful act cannot be inferred ‘owing to the presence of a circumstance which stands in the way of such an inference’.46 But the ILC also speaks of a limitation to the scope of the obligation in question, and considers that the essential aspect of these circumstances is to render definitively or temporarily ineffective the relevant obligation. The obligation would be somehow suspended under the effect of a circumstance precluding the wrongfulness of the non-performance, but must be resumed as soon as the obstacle has passed or has been overcome. This is precisely what was underlined, for instance, in the Rainbow Warrior case and in the Gabčíkovo-Nagymaros Project case.47 These circumstances authorize the temporary non-observance of the rule or nonperformance of obligations, but the non-observance or non-performance is no longer acceptable once the reasons which justified it cease to exist. It has not been claimed that the rule or obligation effectively disappears, even temporarily, as has been maintained,48 even in the case of force majeure. If this was the case, one cannot see how the conditions

References (p. 435) of insurmountability could be appreciated. Rather the notion of circumstance precluding wrongfulness is concerned with situations in which the obligation is continuing but responsibility cannot be invoked where certain circumstances exist. The explanation of the operation of the circumstances as an exclusion of wrongfulness, which has often been asserted even as a general principle, remains problematic. Where previously the law of international responsibility allowed a gradation of consequences by admitting a distinction between exonerating and attenuating causes of responsibility, which could also include aggravating causes, the notion of circumstances precluding wrongfulness seems not to allow such a nuanced approach: the application of the specified circumstances cannot lead but to the admission or exclusion of conformity of the acts with international law.

(b) A recurring doctrinal challenge It may thus be understood why Chapter V had been referred to as a ‘monolithic bloc’,49 consistent with the idea that ‘the dogmatic corset imposed by the ILC prevents this inexhaustible subject … to free itself of a rigid and artificial model’.50 These flaws thus justify the search for a specification of the notion and appropriate distinctions within the notion. Special Rapporteur Crawford himself expressed doubts concerning the utility of such a monolithic categorization of circumstances precluding wrongfulness, insofar as all the circumstances in Chapter V cannot be placed on the same level, for they do not apply ‘in the same way or to the 51

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same extent’.51 Also the Special Rapporteur distinguished at least two different categories of circumstances precluding wrongfulness, one of which comprises those circumstances which make the conduct in question positively lawful (comprising self-defence and valid consent). But although there has been much critique of the monolithic categorization of circumstances precluding wrongfulness, there is no general agreement on a suitable reconstruction. Salmon emphasized, for instance, that the preclusion of wrongfulness could operate on the basis that following an external cause ( force majeure, fortuitous event or fault of the victim) there was no breach of international law, or on the basis that the circumstances rendered temporarily or definitively ineffective the relevant obligations (countermeasures, mutual consent, necessity, distress).52 For Dupuy, in the case of countermeasures, it is not the act the unlawfulness of which is erased, but it is rather the conditions of application of responsibility which can be modified or neutralized.53 Legal scholarship has also attempted to challenge completely or partially the notion of circumstances precluding wrongfulness, with differing consequences. Lowe opposed an approach which would relieve the State from complying with its obligation, as he understood the ILC’s approach, and preferred an approach excusing the failure to comply with its obligation. Nevertheless, he did not conclude that the approach (p. 436) adopted by the ILC was completely incorrect. However, since the aim was to introduce acertain flexibility into the field of State responsibility, he thought it preferable to replace Chapter V with a simple provision establishing that the application of the ensemble of provisions was without prejudice to the operation of the rules concerning the circumstances in question.54 However, this approach was not taken by the ILC. More recently, it has been suggested that consent and possibly self-defence should make an act ‘lawful … tout court’; 55 that force majeure and countermeasures be retained as circumstance precluding wrongfulness; 56 and that necessity be re-characterized as a circumstance attenuating or precluding responsibility.57 These proposals are partly based on article 27, which seems to cast a shadow on the coherence of the ensemble of Chapter V. In fact, this provision concerning the consequences of the invocation of a circumstance precluding wrongfulness establishes in paragraph (b) that this invocation is without prejudice ‘to the question of compensation for any material loss caused by the act in question’. Some authors have seen in this provision the reason why the expression ‘circumstance precluding wrongfulness’ was preferable to ‘circumstance precluding responsibility’. According to Salmon, for instance, this choice responded to the concern not to prejudge whether the reparation of the damage could be granted, notwithstanding the presence of the circumstance.58 This is not to be doubted. But there seems to be an evident contradiction between these two ideas.59 Without wanting to impinge on the developments of the question that will be dealt with in other Chapters, some remarks touching upon recent events can be made. The ICSID Tribunal which decided the CMS Gas Transmission case,60 having considered that Argentina had contributed substantially to the financial crisis, held that it could not, precisely because of this fact, avail itself of the state of necessity as established in ARSIWA article 25. But the idea has been put forward that ‘the Tribunal took into account the state of the crisis to minimize the reparation’.61 Similarly, it has been remarked that in the case of Booker v Guyana, Guyana did not ask to be considered as not responsibility for the failure to pay compensation owed following the nationalization, but requested a renegotiation of this compensation, ‘in other words, an attenuation of the consequences of the measures taken’.62 This case law consolidated the idea expressed by some scholars, that these circumstances, or at least some of them such as necessity, would apply rather as circumstances attenuating responsibility and thus the obligation to make reparation incumbent upon States in the event of breach of its obligations, especially in the economic and financial field.

References (p. 437) But other explanations are possible, explanations which do not challenge the unity of the notion of circumstances precluding wrongfulness or their coherence. In the case where it is From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

recognized that a circumstance precludes wrongfulness, maintaining the obligation to pay compensation does not entail that there is some enduring responsibility, but rather that if the act results in an injury, the consequences should not be suffered by a third State. The maintenance of compensation is a measure destined to re-establish an equilibrium between the two States, both equally ‘innocent’. To the contrary, the possible obligation of compensation can function to correct several exceptions. Thus, in the case of necessity, in the absence of elements which do not permit the acceptance of this exception, the diminution of the amount of compensation would serve as a mechanism to counterbalance its operation and permits more flexibility. More generally, the possibility of an enduring obligation to compensate allows, on a case-by-case basis, the incorporation of some flexibility in the notion of circumstances precluding wrongfulness. Chapter V of ARSIWA, a ‘permanent contribution to general international law’,63 does not engender scrupulous respect which can be claimed by other aspects of ARSIWA. To place all the circumstances retained in the Chapter at the same level can be criticized, due to intrinsic contradictions. And yet the codification is believed to have been useful and is only rarely contested. For the first time a range of circumstances is provided for which the State can rely on to respond to an invocation of its responsibility in international law, which is at the same time an element of stability and legal security in a domain not yet characterized by these qualities. By relying on this aspect, as others, of ARSIWA, the case law has confirmed this assessment. To reevaluate substantively the codification, in the absence of a significant reason or incontestable justification, entails a risk of introducing confusion and uncertainty. This is not a plea in favour of immutability. Without doubt it is very tempting to rewrite a chapter of the law of State responsibility in order to add further rigour and obtain perfect coherence. But the doctrinal arguments only rarely prove to be unquestionable or definitive and can further confuse the subject by constantly adding refined distinctions. The future of Chapter V, in its ensemble as in its discrete parts, must be read in the case law, where confirmation or invalidation could be such as to justify a rethinking of it. However, at this point the subject has not yet reached the point where such a rethinking could be justified. Further reading V Lowe, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 EJIL 405 T Christakis, ‘Les “circonstances excluant l’illicéité”: une illusion optique?’, in Droit du pouvoir pouvoir du droit, Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 223 J Crawford & S Olleson, ‘The Exception of Non-performance: Links between the Law of Treaties and the Law of State Responsibility’ (2001) 21 Australian Yearbook of International Law 55 J Salmon, La responsabilité internationale, circonstances excluant l’illicéité (Paris, Pedone, 1987)(p. 438)

Footnotes: 1 Commentary to Part I, Chapter V, para 2. 2 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498/Add.2, 6–7 (para 224). 3 In fact, certain of these circumstances are recognized, often under the same name, in various legal systems. For a comparative study, see: C von Bar, The Common European Law of Torts (Munich, Beck, 2000), 499–592. 4 Bases of Discussion drawn up in 1929 by the Preparatory Committee of the Conference for the Codification of International Law, League of Nations Publications, V Legal, 1929.V.3 (document C.75.M.69.1929.V), 19–159, quoted in FV García Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 223–226. 5 Ibid. 6 FV García Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 203–209.

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7 See G Fitzmaurice, Fourth Report on the Law of Treaties, ILC Yearbook 1959, Vol II, 44–46, and Commentary, 63–70. 8 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498 (Section C, Part I, Chapter V: Circumstances precluding wrongfulness). 9 See ILC Yearbook 1999, Vol I, 137, 2587th meeting, (15 June 1999), (para 4). 10 Ibid, 137 (para 4). 11 Ibid, 143 (para 46). 12 ‘Comments and observations received from Governments’, Doc A/CN.4/488; and cf J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498/Add.2. 13 See the comments by A Pellet in favour of a rigorous conception of the provisions on circumstances precluding wrongfulness with the aim to limit as much as possible their invocation: A Pellet, 2591st meeting, 22 June 1999, ILC Yearbook 1999, Vol I, 172 (para 30). 14 See R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 27–39; R Ago, Addendum to the Eighth Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 13–71. 15 T Christakis, ‘Nécessité n’a pas de loi?’, in La nécessité en droit international—Rapport général, SFDI—Colloque de Grenoble (Paris, Pedone, 2007), 11–63. 16 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498/Add.2, 34 (para 296). 17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 244 (para 38), 263 (para 96). 18 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498/Add.2, 34–35 (para 296). 19 Ibid, 10–11 (para 235). 20 Ibid, 11 (para 236), 14 (para 241). 21 J Crawford, 2587th meeting, 15 June 1999, ILC Yearbook 1999, Vol I, 138–139 (paras 12–14). 22 For recent developments of the theses according to which consent belongs to primary rules and not to secondary rules on responsibility, see T Christakis, ‘Les ‘circonstances excluant l’illicéité’: une illusion optique?’, in Droit du pouvoir pouvoir du droit, Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 223, 244–251. 23 See on this point, see the analysis of J Combacau, ‘La responsabilité internationale de l’Etat’, in J Combacau and S Sur, Droit international public (6th edn, Paris, Montchrestien, 2004), 517ff. 24 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 248). 25 Ibid, para 304. 26 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 415, 533–545. 27 See eg P Guggenheim, Traité de droit international public (Geneva, Georg et Cie SA, 1967), Vol. II, 57 in relation to self-defence and necessity; A Sereni, Diritto internazionale (Milan, Giuffré, 1962), Vol III, 1528ff, where the list initially suggested by Ago can be found. 28 Quoted by J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 304. 29 S Rosenne, Breach of Treaty (Cambridge, Grotius, 1984), 63, quoted by J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 306. 30 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 312. 31 For the text of this proposed provision: ibid, para 356. 32 See Commentary to art 26. 33 1155 UNTS 331. 34 See eg J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 315–319); Diversion of Water from the River Meuse, 1937, PCIJ Series A/B No 70, p 4, 50, 77. See also G.

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Fitzmaurice, Fourth Report on the Law of Treaties, ILC Yearbook 1959, Vol II, 37. 35 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 329. 36 2587th meeting (15 June 1999), ILC Yearbook 1999, Vol I, 142 (para 39). 37 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 330. 38 Ibid, para 334. 39 Ibid, para 332. 40 One cannot but be surprised when reading, at the beginning of Crawford’s Second Report, that when referring to the text of his predecessor, that he considers to be in accordance with ‘the philosophy underlying the draft articles, these “justifications”, “defences”, or “excuses” ’, through which he designates the circumstances precluding wrongfulness, all the expressions categorically rejected by Ago: J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 214. 41 H Lauterpacht, Oppenheim’s International Law (8th edn, London, Longmans, 1955), Vol I, 343. See also, J Salmon, ‘L’intention en matière de responsabilité internationale’, in Le droit international au service de la paix, de la justice et du développement: Mélanges en honneur de Michel Virally (Paris, Pedone, 1991), 413. 42 See D Anzilotti, ‘La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers’ (1906) 13 RGDIP 5–29, 285–309, 14. On this evolution, see S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol I, 293–307. 43 D Anzilotti, Cours de droit international (1st edn, Paris, Librairie du Recueil Sirey, 1929, reprinted, Paris: Panthéon-Assas, 1999), 450ff. 44 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 415, 532–533. 45 And yet this does not mean that the question of fault has not been posed within this framework. See A Gattini, ‘La notion de faute à la lumière du projet de Convention de la commission du droit international sur la responsabilité internationale’ (1992) 3 EJIL 253. 46 Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 106 (para 1). 47 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 251–252 (para 75); Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 63 (para 101). 48 T Christakis, ‘Les circonstances excluant l’illicéité: illusion optique?’, in Droit du pouvoir, Pouvoir du droit—Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 255. 49 T Christakis, ‘Les circonstances excluant l’illicéité: illusion optique?’, in Droit du pouvoir, Pouvoir du droit—Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 225. 50 A Gattini, ‘La notion de faute à la lumière du projet de Convention de la commission du droit international sur la responsabilité internationale’ (1992) 3 EJIL 253, 256. 51 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 228. 52 J Salmon, ‘Les circonstances excluant l’illicéité’, in K Zemanek and J Salmon, La responsabilité internationale (Paris, Pedone, 1988), 89, 92. 53 P-M Dupuy, ‘Le fait générateur de responsabilité internationale des Etats’ (1984-V) 188 Recueil de cours 9, 41. 54 V Lowe, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 EJIL 405, 411. 55 T Christakis, ‘Les circonstances excluant l’illicéité: illusion optique?’, in Droit du pouvoir, Pouvoir du droit—Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 244, 245, and note

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53. 56 Ibid, 251ff. 57 Ibid, 257ff. 58 J Salmon, La responsabilité internationale, circonstances excluant l’illicéité (Paris, Pedone, 1987), 89, 93. 59 For a critical approach and long analyses on this question, see T Christakis, ‘Les circonstances excluant l’illicéité: illusion optique?’, in Droit du pouvoir, Pouvoir du droit—Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 235–244. 60 CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/8), Award of 12 May 2005, 14 ICSID Reports 152. For a commentary see C Leben, ‘L’état de nécessité dans le droit international de l’investissement’ (2005) 3 Cahiers de l’arbitrage 47. 61 B Stern, ‘La nécessité économique et financière’, in La nécessité en droit international— Colloque SFDI Grenoble (Paris, Pedone, 2007), 349, 354. 62 Ibid, 354. 63 See the observations of J Crawford, ILC Yearbook 1999, Vol I, 143 (para 46), 2587th meeting (15 June 1999).

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Part III The Sources of International Responsibility, Ch.33.1 Circumstances Precluding Wrongfulness in the ILC Articles On State Responsibility: Consent Affef Ben Mansour From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Vienna Convention on the Law of Treaties — Circumstances precluding wrongfulness — Reparations — Responsibility of states — Customary international law — General principles of international law — Peremptory norms / ius cogens — Lex specialis — Self-defence — Necessity — Paramilitary groups — Armed attack — Countermeasures — United Nations (UN) — League of Nations

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(p. 439) Chapter 33.1 Circumstances Precluding Wrongfulness in the ILC Articles On State Responsibility: Consent 1 Valid consent 441 (a) Valid consent according to the Vienna Convention on the Law of Treaties 441 (i) Consent not invalidated by fault 441 (ii) Consent attributable to the State on the international level 443 (b) Consent given a priori and within the limits of the will of the State 443 (i) Consent given a priori 443 (ii) Behaviour within the limits of the consent of the State 444 2 The effects of consent 445 (a) Consent precludes the wrongfulness of the act, but the primary norm continues to exist 445 (b) Consent without effect with regard to jus cogens norms 446 Further reading 447 Consent of a victim State is one of the circumstances susceptible to precluding wrongfulness of an act included in the ILC Articles. Article 20 ARSIWA states: valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. That this principle exists can be demonstrated by reference to many examples in practice. It often happens that States consent to another State committing an act which, without consent, would constitute a breach of an international obligation: for example, consent to the exercise of jurisdiction by a State over forces stationed on the territory of another; consent to aid operations; humanitarian assistance; and the arrest and detention of persons on foreign territory. The Commission’s article 20 can be seen as a codification of the customary rule volenti non fit injuria. Although article 20 has not been expressly referred to in any international judicial decisions, some passages of the International Court’s judgment in Armed Activities on the Territory of the Congo1 suggest that the Court proceeded on the implicit

References (p. 440) assumption that, to the extent that consent had been given by the Democratic Republic of the Congo, the presence of Ugandan troops on the territory of the Congo would not have involved a violation of international law for which Uganda could be held responsible.2 These passages support the assertion that article 20 reflects customary international law. Nevertheless, the inclusion of this provision in Chapter V of ARSIWA and the wording of the provision itself was the subject of much debate in the ILC: it was addressed in Ago’s Eighth Report in 19793 as well as in reports by Crawford.4 Two main objections were raised against the inclusion of this article. The first relates to a confusion between the character of the rules relating to circumstances precluding wrongfulness as secondary rules and the character of the primary obligation. Consent is intrinsic to certain norms: the requirement of consent is integrated into the

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primary obligation. An example is the prohibition on civil aircraft flying over the territory of a foreign State without that State’s consent: the consent requirement is integrated into the primary rule.5 Ushakov argued that the intervention of consent modified the norm that prohibited it, and therefore the initial obligation disappeared. It was not that consent excluded the wrongfulness of the act, it was rather that the act itself was not wrongful. So how could consent be a circumstance precluding wrongfulness of an act?6 On the other hand Pellet argued that consent was a circumstance precluding wrongfulness: It was … very difficult to understand the assertion that, when consent operated as a circumstance precluding wrongfulness, it was included in the primary rule. That did not reflect the real situation in law. There were, on the one hand, primary rules which either excluded or did not exclude the possibility of giving consent and, on the other hand, a general rule that, when a State expressed its consent not to apply a rule of positive law, its responsibility did not come into play because the wrongfulness itself was expunged.7 The second objection raised was that consent only operates to waive the injured State’s claim based on responsibility and to reparation.8 Other members of the Commission suggested there was consistent practice supporting the view that consent validly given constituted a circumstance precluding wrongfulness.9 This suggestion was supported by the fact that the article adopted on first reading was not formally opposed by any governments in their observations.10 In the end, Special Rapporteur Ago nevertheless succeeded in including consent as a circumstance precluding wrongfulness. The consent of a State only has limited validity in the situations envisaged by article 20: it does not modify the primary norm, rather it only concerns the non-application of the norm at a given moment.11 The last Special Rapporteur on the subject, Crawford, admitted the existence of an ‘intermediate’ situation—where consent might be validly given in advance but not form part of the primary rule.12 In the absence of (p. 441) a majority in favour of either deletion or retention of the article, the Commission decided to retain it.13 Article 20 as adopted therefore covers situations where the consent is either given in advance, or at the time the wrongful act is committed. Once it had been decided in principle to retain the provision, its wording was the subject of long debate. The concerns of the ILC members mainly revolved around two points that are often discussed in international practice: first, the determination of the definitive existence of the consent itself, and second, whether consent is validly expressed.14 Between ‘consent validly given’15 and ‘consent given by a State in conformity with international law’16 , the ILC members in the end opted for the synthesis of ‘valid consent’. Taking into account the conditions that are implied in the sibylline wording of article 20, the study of this principle can only be presented from a classical perspective, by considering each of the conditions of validity for consent precluding the wrongfulness of behaviour in turn, and then examining the effect of such consent.

1 Valid consent In order to be considered a circumstance precluding wrongfulness, consent must be ‘valid in international law, clearly established, really expressed (which precludes merely presumed consent), internationally attributable to the State and anterior to the commission of the act to which it refers’.17 This expression refers back to multiple criteria of form and content of consent as well as to the time when it is expressed.

(a) Valid consent according to the Vienna Convention on the Law of Treaties The Commission did not specifiy the criteria of validity for State consent; the Commentary to article 20 rather notes that whether consent was validly given ‘is a matter addressed by international law 18

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rules outside the framework of State responsibility’.18 In 1979, the draft Commentary referred to the ‘principles which, according to the Vienna Convention, applied to the determination of the validity of treaties’,19 a real consent which is attributable to the State. (i) Consent not invalidated by fault Valid consent in international law must not be vitiated by faults such as fraud, corruption or coercion.20 For example, consent obtained under threat of an armed intervention will not preclude wrongfulness of the behaviour that is contrary to an international obligation.21 The consent must also be clearly established. The International Court emphasized in Armed Activities on the Territory of the Congo that consent to conduct which would

References (p. 442) otherwise be wrongful must be clearly expressed.22 Consent may be tacit or implicit, but it should not be presumed. The difference is imperceptible. Presumed consent is supposed, not established; in contrast, tacit or implicit consent will not necessarily be formulated but it will be established from conduct. Two examples are often cited as examples of implicit consent which precluded the wrongfulness of an act: Russian Indemnity23 and Savarkar.24 The first decision concerned the obligations of Turkey under a treaty25 to pay Russia an indemnity for damage which it had suffered during the Turco-Russian war. Turkey failed to make payments under an arrangement for instalments. In 1891, the Russian government issued the Turkish government with a notice to pay the capital and interest. However, Russia had not made any reservation as to interest at any time. Russia sought a decision against Turkey for non-payment; the tribunal held that the behaviour of the Russian government constituted implicit consent, which rendered the behaviour of Turkey as concerns interest lawful. In Savarkar, the question was whether the behaviour of a French gendarme could be interpreted as consent of the French State. Although it was not expressly stated, the giving of an authorization for British authorities to arrest Savarkar on French territory was inferred from the conduct of the gendarme, who aided the British authorities in the arrest.26 It was held that the British authorities could legitimately consider his behaviour as consent to act on French territory. These two cases show that one of the criteria is the perception of consent by the State which has committed the act in question. In the latter example, there is no doubt. The British police officers believed in good faith that the French gendarme consented to the arrest of Savarkar. The difference between tacit and presumed consent was explained by Ago by reference to the following example: A small State is suddenly attacked by a great Power, another Power, having learned of this, invades the neutral State to save it from this attack and alleges that it is acting exclusively in the urgent interest of that State, the consent of which it presumes; the circumstances do not permit it to wait until the consent is given expressly.27 This is presumed consent. It has at no time been expressed. But it is supposed that had the State been able to express it, there would have been no doubt that it would have done so. Nevertheless, presumed consent is not valid consent for the purposes of precluding the wrongfulness of the relevant act. As was often pointed out in the ILC debates, the difficulty lies in verifying the validity of consent where there is one weak and one powerful State. Some members of the ILC argued that examples of abuse militated in favour of deletion of the article: for example those committed in Europe during the Second World War or in the Congo in 1960.28 The difficulties flowing from the disparity of power between States occurs in all social relations

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References (p. 443) and cannot be simply resolved by a legal rule. Rather, it is desirable that the criteria for assessing the validity of the consent be clearly defined in order to reduce the possibility for power inequalities between States to play a role in this field. Where the use of State consent is abusive, for example in the case of military occupation, the control of the validity of consent can only be exercised a posteriori. The rule that consent must be previous or concomitant with the unlawful act makes all a priori control of the validity impossible. The difficulty of determining the validity of certain consent is even more apparent when considering whether the State has fulfilled the second condition for its validity. (ii) Consent attributable to the State on the international level The qualification of consent as ‘valid’ implies an additional requirement relating to the author of the consent: that the consent must be attributable to the State on the inter national level. Two elements are necessary. First, the consent must emanate from an organ which expresses, on the international level, the will of the State in the relevant respect. Second, this organ must have the competence to manifest the State’s will in the international order. In respect of this issue, the Commentary also defers to the general rules of international law relating to the expression of the will of the State and to the rules of internal law to which international law may refer.29 However, the question whether consent is attributable to the State is separate from the question whether acts or conduct are attributable to the State for the purposes of engaging that State’s responsibility. The rules on attribution set out in article 4 ARSIWA are not applicable to the determination of consent validly given for the purposes of article 20. While the conduct of a regional authority might be attributable to a State for the purposes of responsibility, pursuant to article 4, the consent of that same regional authority, for example to the entry of foreign forces onto the territory of the State, would not be valid consent for the purposes of article 20. Although a regional authority might be competent to express the will of a State on a certain issue, it is unlikely to be competent to authorize the entry of foreign military to the territory. As the Commentary notes, ‘different officials or agencies may have authority in different contexts, in accordance with the arrangements made by each State and general principles of actual and ostensible authority’.30 The attribution of consent to a State must be considered with regard to the form of consent (written, oral, or implicit) and the authority with which it has been given. The determining factor is not the degree or designation of the organ (high official, regional entity, etc), but rather that the organ has competence to give such consent. For example, the behaviour of the gendarme who aided the British authorities in their arrest of Savarkar on French territory was, in the circumstances, attributable to the State.31 These issues demonstrate that it is difficult to formulate all the conditions for the validity of consent of the State entity in a general rule. Rather they must be judged on a case-by-case basis.

(b) Consent given a priori and within the limits of the will of the State (i) Consent given a priori The consent of a State can constitute a circumstance precluding wrongfulness of an act committed by another State if the consent is prior to or concomitant with the (p. 444) act in question. In practice, it can be given immediately before the act is committed. If consent is given after the relevant act or conduct occurs, this may be a form of waiver or acquiescence, which falls to be determined under article 45 ARSIWA; rather than precluding the wrongfulness of the conduct, it rather excludes the invocation of responsibility by the waiving or acquiescing State. Where consent is given prior to or concomitant with the conduct, it is without prejudice to the question of compensation for any material loss.32

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The requirement of prior or concomitant consent could be seen as a justification for removing the provision on consent from Chapter V. If consent is given prior to the act or conduct, that act or conduct should not be wrongful. The other circumstances in Chapter V operate to exclude the wrongfulness of an act once committed and do not intervene before or at the time of commission to exclude the wrongfulness of the act. For example, force majeure (article 23), defined as an irresistible force or an unforeseen event beyond the control of the State, is taken into account and determined after the commission of the wrongful act and operates to exclude the wrongfulness of the act once committed. In contrast, consent precludes the wrongfulness of an act which would have been wrongful but for the a priori intervention of the consent. However, in reality the distinction is superficial: in the case of force majeure, the constitutive act must be produced before the commission of the otherwise wrongful act. In each of the situations envisaged by Chapter V, the relevant circumstances exists either prior to or simultaneously with the wrongful act or conduct. A countermeasure does not exist in the absence of a previous breach of an obligation; and both distress and force majeure must be justified before the commission of the wrongful act in order to exclude the wrongful character of that act. So, just as with consent, the circumstance which precludes the wrongfulness of the act must occur before or at the same time as that act. The suggestion that consent is not apt for inclusion in Chapter V can therefore be dismissed. (ii) Behaviour within the limits of the consent of the State Article 20 sets out a final condition for the application of the principle: the consent operates to preclude the wrongfulness of ‘given act’, ‘to the extent that the act remains within limits of that consent’. The wrongfulness of the act will only be precluded if it is carried out within the limits of the will of the State. If, for example, a State consents to the overflight of its territory by commercial aircraft of another State, that consent would not operate to preclude the wrongfulness of overflight by military aircraft. Similarly, where consent is given to station foreign troops on the territory of a State, this will only preclude the wrongfulness of that act for the period for which the consent is operative. Beyond this period, the wrongfulness of the act would not be precluded. In Armed Activities on the Territory of the Congo, the Court implicitly affirmed that the wrongfulness of any conduct falling outside the scope of valid consent would not be precluded. In addressing the DRC’s argument that a statement of 28 July 1998 constituted a withdrawal of any consent for Ugandan troops to be present in the DRC’s territory, the Court emphasized the limited character of the consent previously granted: … the consent that had been given to Uganda to place its forces in the DRC, and to engage in military operations, was not an open-ended consent. The DRC accepted that Uganda could act, or

References (p. 445) assist in acting, against rebels on the eastern border and in particular to stop them operating across the common border. Even had consent to the Ugandan military presence extended much beyond the end of July 1998, the parameters of that consent, in terms of geographic location and objectives, would have remained thus restricted.33 Although the Court concluded that the terms of the relevant statement were ambiguous, it noted that ‘no particular formalities would have been required for the DRC to withdraw its consent to the presence of Ugandan troops on its soil’.34

2 The effects of consent Consent given in the terms outlined above thus permits the authorized State to avoid the

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application of the primary norm momentarily. Nevertheless, it cannot have this effect if the primary norm in question is a jus cogens norm.

(a) Consent precludes the wrongfulness of the act, but the primary norm continues to exist The effect of consent under article 20 is strictly limited. It precludes wrongfulness of the particular act for which it has been given, but has no effect on the content or value on the primary norm which is violated. The primary obligation is not repealed by the consent of the State; rather the obligation subsists, although it is temporarily suspended in the particular circumstances. Crawford stated that ‘[n]ormally the rule will continue to apply in future; the obligation has simply been dispensed with in a given case’.35 This apparently simple and clear statement again raises the question of the place of consent in Chapter V. Consent given prior to the act might be construed as an agreement between the States to modify or suspend the norm in question. Put this way, the question of consent relates to the law of treaties and not to the law on responsibility (where the relevant primary norm derives from a treaty). Furthermore, consent is contained in several primary norms. In these circumstances, where State A consents to State B derogating from a norm, State B will simply be complying with the norm, and article 20 is not applicable. However, this article regulates a rare situation where consent is not an element of the norm in question. The Chinese member, Professor He, commented that: in many cases, the consent given by a State before the occurrence of an act amounted to a legalization of the act in international law, while consent given after the commission of the act was tantamount to a waiver of responsibility, but would not prevent responsibility from arising when the act occurred. Thus, neither case constituted a circumstance precluding wrongfulness. However, one could still raise a third possibility that there might be cases where consent might be validly given in advance, but where it was not part of the definition of the obligation. In such a case, consent in article 29 as adopted on first reading could still be applied36 (emphasis added). The better construction is that the consent given by the State does not suspend the norm, but it only rules out its application. In this respect, Crawford sought to distinguish

References (p. 446) article 20 from the case of suspension of a treaty under articles 57 and 65 of the Vienna Convention on the Law of Treaties.37 In the case of the latter, the State consented to the general suspension or abrogation of the rule, whereas in the case of former, the State consented to the non-application of the obligation provided for by the rule in specific circumstances.38 Rather than suspending the norm, consent within the terms of article 20 rules out the application of the norm in a particular instance. The norm continues to exist, and to regulate the relations of the relevant States, but its application is temporarily ruled out. Since the primary norm continues to exist, in the case of multilateral obligations, the consent of a single State does not exclude the wrongfulness of the conduct with regard to all other States to whom the obligation is also owed.39 If the act or conduct breaches the rights of the other States, it will remain wrongful in respect of those States, which may invoke responsibility for that conduct. A final issue discussed in the ILC concerns the effect of consent on the norm in question. Even though it can be exceptionally admitted that the consent of a State rules out the application of a norm in relation to it, this exception does not affect peremptory norms. By definition, such norms do not tolerate any exception.

(b) Consent without effect with regard to jus cogens norms

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Article 26 provides that ‘nothing in this Chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law’. This applies to all the circumstances covered by Part One, Chapter V. This was the subject of extensive discussion in the context of article 20. In its first incarnation, article 20 included a second paragraph which limited the effects of consent where the obligation in question flowed from an imperative norm of public international law. This was included as a supplementary safeguard. However, since a general provision was included in article 26, it was not necessary to retain this second paragraph. That consent has no effect in respect of jus cogens norms can be explained by the very character of those norms. By definition, a peremptory norm is one from which no derogation is permitted. Ago specified in his first version of the draft articles that consent could not rule out the application of a peremptory norm. The problem of this limit lies in the identification of peremptory norms and especially in the application of article 20 to the principle of the prohibition on the use of force. At the time of the Vienna Conference on the law of treaties, many States added the principle of the prohibition of the use of force to the list of norms that they considered peremptory.40 Simma later noted that: With regard to the relationship between consent and peremptory norms, the Special Rapporteur rightly argued that some peremptory norms contained an intrinsic consent element. A comparison of paragraph 2 of article 29 as adopted on first reading with Article 2, paragraph 4, of the Charter of the United Nations showed that that problem had never even been touched on. Paragraph 2 said that paragraph 1 (the fact that consent could be a circumstance precluding wrongfulness) did not apply if the obligation arose out of a peremptory norm of general international law. Article 2,

References (p. 447) paragraph 4, of the Charter was certainly a peremptory norm. And yet everyone recognized that, if a State consented to the military forces of another State marching into its territory, such ‘authorization’ would constitute a derogation from the provisions of paragraph 4.41 The uncertainty about the peremptory character of the prohibition still persists. The practice suggests that it does not have a peremptory character: States may consent to the military intervention of another State or organization on its territory. Abass argued that ‘[while] such obligations as torture, slavery and genocide cannot generally be precluded by consent, it is submitted that the prohibition of the use of force does not invariably fall into this category’.42 Despite the persisting uncertainty about the peremptory character of some international norms, article 26 remains applicable to Part One, Chapter V, and therefore operates with respect to article 20. In the end, consent was retained by the ILC as a circumstance precluding wrongfulness, more because of a desire to avoid discarding a rule already recognized by States than because of its content. Its link with Chapter V and the regime of circumstances precluding wrongfulness remains tenuous. Further reading A Abass, ‘Consent Precluding State Responsibility. A Critical Analysis’ (2004) 53 ICLQ 211 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 415 SP Jagota, ‘State Responsibility: Circumstances Precluding Wrongfulness’ (1984) 16 Netherlands Yearbook of International Law 249 V Lowe, ‘Precluding Wrongfulness or Responsibility? A Plea for Excuses’ (1999) 10 EJIL 405 J Salmon, ‘Les circonstances excluant l’illicéité’, in P Weil (ed), Responsabilité internationale

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(Paris, Pedone, 1987) 89 AN Ronzitti, ‘Use of Force, Jus Cogens and State Consent’, in A Cassese (ed), The Current Legal Regulation of the Use of Force (Dodrecht, Nijhoff, 1986), 147(p. 448)

Footnotes: 1 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168. 2 Ibid, 225 (para 149), 215 (para 113), 212 (para 105), 213 (para 106). 3 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 31. 4 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 230–241. 5 See comments of Crawford, ILC Yearbook 1999, Vol I, 138 (para 12). 6 Ushakov, ILC Yearbook 1979, Vol I, 33–34 (para 3). 7 Pellet, ILC Yearbook 1999, Vol I, 150 (para 33). 8 Ushakov, ILC Yearbook 1979, Vol I, 33 (para 2). 9 Cf especially Pellet, ILC Yearbook 1999, Vol I, 150 (para 33). 10 Cf ‘Comments and observations received from Governments’, A/CN.4/492. 11 Ago, ILC Yearbook 1979, Vol 1, 50, (para 2). 12 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 238, fn 447; Crawford, ILC Yearbook 1999, Vol 1, 151 (para 45). 13 Ibid. 14 See eg the possible consent of Austria to the occupation of its territory by German troops; the implicit consent of Russia in Russian Indemnity, 11 November 1912, 11 RIAA 421. 15 ‘Comments and observations received from Governments’, A/CN.4/488, 79. 16 Ibid, 80. 17 Commentary to draft art 29, para 11, Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 112. 18 Commentary to art. 20, para 4. 19 Ago, ILC Yearbook 1979, Vol I, 33 (para 34). 20 See arts 48–52, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. 21 The international military tribunal at Nuremberg considered that the strong pressure exercised by Germany on Austria to obtain the consent of the authorities to the entering of German troops vitiated the consent given. Under these circumstances, it could not preclude the wrongfulness of the invasion: ILC Yearbook 1979, Vol II(1), 32 (para 32). 22 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168, 211 (para 99). 23 Russian Indemnity, 11 November 1912, 11 RIAA 421. 24 Savarkar, 24 February 1911, 11 RIAA 243. 25 Treaty of Peace, Constantinople, 27 January 1879; 154 CTS 477. 26 11 RIAA 243, 252–255. 27 R Ago, ‘Le délit international’ (1939-II) Recueil des cours 68, 415–554 ‘Un petit Etat est attaqué soudain par une grande Puissance; une autre Puissance, l’apprenant, envahit l’Etat neutre pour le sauvegarder de cette attaque, et allègue qu’elle agit exclusivement dans l’intérêt urgent, de ce dernier, dont elle présume le consentement, les circonstances ne lui permettant pas d’attendre que ce consentement ait été donné de façon expresse’. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

28 ILC Yearbook 1999, Vol 1, 144 (para 57). 29 Commentary to art 20, para 5. 30 Ibid, para 6. 31 Savarkar, 24 February 1911, 11 RIAA 243, 252–255. 32 See art 27 ARSIWA. 33 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 198–199 (para 52). 34 Ibid, 198 (para 51). 35 J Crawford, Second report on State responsibility, 1999, A/CN.4/498, para 231; see also R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours, 415, 534. 36 ILC Yearbook 1999, Vol I, 149 (para 29). 37 22 May 1969, 1155 UNTS 331. 38 J Crawford, ILC Yearbook 1999, Vol 1, 146–147 (para 7). 39 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II, 37 (para 74). 40 United Nations Conference on the Law of Treaties, First Session, 26 March–24 May 1968, A/CONF.39/C.1/SR.52, 294 (para 3). 41 ILC Yearbook 1999, Vol I, 147 (para 13). 42 Ademola Abass, ‘Consent Precluding State Responsibility: A Critical Analysis’ (2004) 53 ICLQ 211, 225.

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Part III The Sources of International Responsibility, Ch.33.3 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: SelfDefence Jean-Marc Thouvenin From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 455) Chapter 33.3 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Self-Defence 1 The place of self-defence in the law of State responsibility for unlawful acts 456 (a) Normative sources of the ‘excuse’ of self-defence 456 (b) The double character of self-defence: subjective right and circumstance precluding wrongfulness 459 (i) The ‘right’ of self-defence 459 (ii) Self-defence as a ‘circumstance precluding wrongfulness’ 460 2 Implementation of the legal framework of the excuse of self-defence 461 (a) The conditions of admissibility of the excuse of self-defence 461 (i) Conformity with the Charter of the United Nations 461 (ii) The character of the victim of the action in self-defence 464 (b) The lawfulness of the measures of self-defence 465 Further reading 467 For a long time, self-defence has been considered as requiring special attention by international scholarship, and particularly in the context of the study of international responsibility of States for internationally wrongful acts. Moreover, before the adoption of the United Nations Charter and the

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conventional recognition of self-defence in its article 51, the questionnaire prepared by the Preparatory Committee for 1930 Hague Codification Conference, acting under the aegis of the League of Nations, invoked self-defence as a case in which the responsibility of a State should be excluded.1 The exonerating character of self-defence appears evident. When a subject of law claims to have acted in self-defence, it is precisely to justify that it cannot be held responsible for the injurious consequences of its acts. Expressing his full agreement with this justification, Special Rapporteur García Amador noted in 1958 that ‘naturally, acts performed by a

References (p. 456) State which come within the terms of Article 51 [of the UN Charter] do not engage that State’s responsibility with regard to the injuries resulting therefrom’.2 However, since natural law is no longer a prevailing doctrine, it is not sufficient for legal reasoning that something appears evident. It is necessary to analyse positive law. But the first step of this task, which is to refer to article 51 of the UN Charter, is clearly insufficient. This famous provision emphasizes that ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. It establishes by treaty the customary law of self-defence, although limiting its exercise, at least for members of the United Nations, to circumstances in which the State invoking self-defence has been the victim of an armed attack. But the provision says nothing about the possible legal relationship between selfdefence and responsibility.3 Silent on the question of responsibility, obscure in its references to natural law, and cautious in limiting self-defence to cases of armed attack, this wording does not affect the general consensus on the positive law character of the excuse of self-defence. In this respect, it must be noted at the outset that self-defence was never excluded from the list of circumstances precluding wrongfulness, as they were identified by Special Rapporteur Crawford.4 Secondly, and most importantly, the ILC Articles contain an article titled ‘self-defence’, which reads as follows: ‘the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of selfdefence taken in conformity with the Charter of the United Nations’.5 The developments which led to the inclusion of self-defence as a ‘circumstance precluding wrongfulness’ by the ILC must be analysed. In addition, the wording of article 21 draws attention to the conditions for the invocation of the defence and the lawfulness of the excuse of self-defence more generally.

1 The place of self-defence in the law of State responsibility for unlawful acts Self-defence finds its place in the law of responsibility on the basis of normative sources which it is convenient to analyse. It will be then asked whether self-defence can be understood as a ‘circumstance’ excluding responsibility and not only as a right.

(a) Normative sources of the ‘excuse’ of self-defence A heated debate opposes two theses in relation to the origin, and in consequence, the content of the law of self-defence. According to the first of these theses, the right of self-defence results from a longstanding custom which was evoked by the ‘father’ of international law, Grotius, according to whom ‘this Right of Self-Defence, arises directly and immediately from the Care of

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References (p. 457) our own Preservation, which Nature recommends to every one’.6 The observable practice in the course of the 19th century, firmly based on the precedent of the famous Caroline incident, served to determine the conditions for the exercise of the right of self-defence in the relations between States as well as its content. The supporters of this thesis, in fact, mention 1842 as the date when the customary right (and also the ‘excuse’) of self-defence crystallized, since it was 1842 when the dispute arising in 1837 was resolved. It involved British forces entering American territory to destroy a vessel which, acting privately, had contributed and would continue to contribute to the Canadian rebellion against the British Crown. There was subsequently an important exchange of notes between the United States and the United Kingdom. In the end, to close the case, the American Secretary of State, Webster, accepted the justification of ‘necessity of self-defence’, in the case ‘preventive’, invoked by his British homologue. It has been recently emphasized that ‘for Anglo-Saxon internationalists, as for the Nuremberg Tribunal and diplomats, [the Caroline affair] is always the locus classicus of the right to self-defence’.7 To justify its position that the ‘right to self-defence’ as it was established in 1842 remains unchanged, this doctrinal approach can most notably rely on the wording of article 51 of the UN Charter.8 The second thesis, maintained by a majority of legal scholars, starts from the idea that self-defence cannot exist at all in a legal system which does not prohibit the recourse to force. In consequence, as underlined by Ago in his Eighth Report on State Responsibility, the notion of self-defence could not emerge and have content in international law as an exonerating cause of responsibility until the moment when the recourse to force in international relations was prohibited.9 The use of force was not prohibited by international law until the Covenant of the League of Nations, which prohibited it at least in part. To research the content of the positive law concerning the exonerating effect of selfdefence therefore requires one to take into account solely the elements which occurred after the Covenant of the League of Nations, elements which confirm that the excuse of self-defence has been widely accepted as such since that time. In brief, to reply to those upholding the first thesis, this approach demonstrates that, if it does not impair the ‘inherent right to selfdefence’, article 51 of the UN Charter does not have the effect of preserving the relevance of the doctrine emerged from the Caroline incident, simply because this doctrine has nothing to do with the aforementioned ‘inherent right of self-defence’. For those upholding the second thesis, if the Caroline incident is not a case of selfdefence, it is instead a case of necessity. This idea rests on fairly solid arguments. In this sense, it can initially be noted that the words used at the time of the Caroline incident in the exchange of correspondence confused the notions, by speaking, for instance, of the

References (p. 458) ‘necessity of self-defence and self-preservation’.10 To interpret these words as firmly laying down the theory of self-defence would therefore seem excessive. Secondly, if one were to keep to the summa divisio between self-defence and necessity, according to which necessity ‘is not dependent on the prior conduct of the injured State’,11 it is clear that the Caroline incident is really a case of necessity, for throughout the affair the United States was not accused of anything by the British. The debate on the correct characterization of the Caroline incident is evidently not a simple academic debate. In fact, by virtue of the positive international law of the second half of the 20th century, the measures covered by self-defence are only ones which entail recourse to the use of force, apart from those authorized by a decision of the Security Council. In contrast, the excuse of necessity does not allow forceful measures: if necessity is a circumstance precluding wrongfulness deriving from the failure to respect certain obligations, it is not an exception to the prohibition contained in article 2(4) of the UN Charter.12 In short, according to the positive international law of

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the second half of the 20th century, the Caroline affair, seen as a case of ‘necessity’, would have engaged British responsibility, for necessity does not excuse the resort to force. Even if the ILC commentary to article 25 concerning necessity only half-heartedly mentions it,13 this opinion is not doubtful. In fact, the argument of necessity put forward by a part of the doctrine to try to give a legal foundation to some of the contemporary uses of force is not the justification relied on by States themselves.14 The most recent cases in which States have resorted to the use of force, in situations comparable to those in which the United Kingdom found itself in 1837, show that if an excuse is to be put forward, States normally rely in an almost instinctive way solely on the argument of self-defence. This suggests that the conviction of States is that self-defence is the only possible excuse for acts of force not authorized by the Security Council. The intervention of the Turkish army in Iraq in February 2008 is a good example. Its object was to pursue members of the PKK group who had engaged in several forcible actions and attacks to the Turkish territory from northern Iraq. The sole justification given by the Turkish Prime Minister following the effective penetration of Turkish forces in Iraqi territory was the ‘right of self-defence’, and the right of Turkey ‘to defend itself ’.15 The Colombian government similarly justified its armed operation of 1 March 2008 in Ecuadorian territory, where it executed some members of the FARC who had taken refuge in Ecuador. Its only ‘excuse’ for the act was self-defence,16 a justification which it promptly abandoned, since Colombia offered real apologies to the government of Ecuador, affirming that this sort of operation would not occur again in the future.17

References (p. 459) But in reality, in a climate marked by the increasing number of situations in which States face acts of terrorist violence perpetrated by ‘private’ groups operating from foreign territories, it must be admitted that the doctrinal controversy persists, since there is a tendency of States to invoke self-defence in cases similar to the Caroline incident. Consequently, the relevant question today is not whether the excuse of self-defence arose in international law with the Caroline incident. In fact, this is not the case: the normative source is certainly customary, but it is a custom existing after the adoption of the Covenant of the League of Nations. The relevant question is rather whether self-defence, as it is understood today by the international community, includes circumstances similar to those which had led to the British attack in 1837, through a sort of ‘stretching’ of self-defence, to use Verhoeven’s expression.18 In other words, if it is futile to maintain that the Caroline affair clarified the actual notion of self-defence, it must be queried whether the actual notion of self-defence includes, at least in part, circumstances a priori coming under a case of necessity. Two concrete questions are thus posed to the legal scholarship of the 21st century: whether self-defence can be ‘preventive’ and whether actions perpetrated by private individuals may qualify as an armed attack pursuant to the United Nations Charter.

(b) The double character of self-defence: subjective right and circumstance precluding wrongfulness Even if its exact limits are difficult to define, the existence of self-defence in international law is not contested. But the question of its character is immediately raised, that is, whether self-defence is a right or a circumstance precluding wrongfulness. This debate was started by Ago, who strongly argued in 1980 that it was ‘wrong to treat self-defence, any more than state of necessity, as a “right”, and hence to speak of a “right of self-defence”’.19 ‘Both “self-defence” and “state of necessity” are expressions that connote a situation or de facto conditions, not a subjective right’.20 The affirmation is not without consequences: if it is a right, self-defence has no place within a list of circumstances precluding wrongfulness, and therefore has no place in the ILC work on State responsibility. But on closer inspection the answer is not as clear as it might first appear, since self-defence is a right and, at the same time, a circumstance precluding wrongfulness. (i) The ‘right’ of self-defence

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Initially, the abrupt point made by Ago is surprising. Of course, in 1920 Anzilotti considered that self-defence was ‘an objectively unlawful act committed to reject an effective and unjust violence’,21 which seems to indicate that Anzilotti did not consider self-defence as a right. But either way, it cannot be doubted that the second half of the 20th century saw the crystallization of a ‘right of self-defence’, by establishing an ensemble of rules of ‘objective’ law concerning the legal regime of self-defence. It is even less doubtful that this ‘objective’ law confers on States a ‘subjective’ right to defend themselves—thus a right to self-defence. But this is not contested by Ago. Rather, he simply discarded the idea that States could hold a subjective right to self-defence which was ‘inherent’ and independent from the ‘objective’ law in force. In fact, Ago could not admit this much, unless he radically challenged his thesis according to which self-defence had no existence in positive (p. 460) international law until the use of force was prohibited. Indeed, if the right of self-defence is an inherent and subjective right, how could it seriously be maintained that it did not exist until after World War I when objective international law established it as an exception to the prohibition on the use of force? The logic behind Ago’s approach was unconvincing. Contemporary doctrine maintains that selfdefence is an ‘inherent’ or ‘inalienable’ right and that it has existed in international law since at least 1919, when ‘objective’ international law prohibited the resort to force.22 It is however important to note that the coexistence of these two incompatible ideas, the first of which weakens the second, opens the way for the resurgence of the theses maintaining that the Caroline incident has something to do with self-defence. However, it must at least be admitted that if the character of the right of self-defence is not ‘inherent’, it is at least ‘fundamental’ and has a solid foundation in positive law. This is not apparent from the somewhat confusing text of the Charter, which suggests in the English version of article 51 that self-defence is an ‘inherent right’ whereas the French version it refers to a ‘natural’ right. But it is apparent in recent case-law, since in 1996 the Inter national Court of Justice clearly evoked the ‘fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake’.23 In so doing, the Court definitively established the ‘fundamental’ right of self-defence of States, not to facilitate its exercise, which was probably Ago’s fear, but rather to affirm its submission to the law—to article 51 of the Charter, to be precise—and thus to contradict the traditional American thesis according to which ‘the survival of States is not a matter of law’.24 (ii) Self-defence as a ‘circumstance precluding wrongfulness’ If self-defence is a ‘right’, it is natural to question whether the invocation of self-defence in the law of responsibility as a circumstance precluding wrongfulness makes sense. The answer should in principle be negative since, as recalled by Pellet,25 the law of responsibility should not be concerned with ‘primary’ rules, which prescribe, authorize or prohibit conduct, but only with ‘secondary’ rules, which deal with the consequences of breaches of primary rules. Now it is clear that self-defence, at least if defined ‘solely by referring to the UN Charter’,26 appears as a primary rule that it is not relevant in a text on responsibility. Further, as Special Rapporteur Crawford pointed out: ‘a State exercising its inherent right of self-defence as referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2(4), and if the only effect of self-defence as a circumstance precluding wrongfulness is so to provide, then it should be deleted’.27 But it is not self-defence as a primary right that the ILC intended to codify, it is rather self-defence as a special ‘circumstance’ precluding wrongfulness. To admit this one must follow the reasoning of the Special Rapporteur, for whom the ‘right’ of self-defence reflected in article 51 of the Charter entails only that the measures adopted pursuant to

References (p. 461) that article would not be considered in breach of the specific prohibition on the use of

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force contained in article 2(4) of the UN Charter. Now, ‘in the course of self-defence, a State may violate other obligations towards the aggressor. For example, it may trespass on its territory, interfere in its internal affairs, disrupt its trade contrary to the provisions of a commercial treaty, etc’.28 Action taken in self-defence may lead its author to breach other obligations. Thus even if the Court could consider in 1986 that ‘the principle of respect for State sovereignty … [is] closely linked’ with the prohibition of the use of force,29 the breach of the first principle is distinct from the breach of the second. Breach of other obligations may not be excused by the sole fact of the existence of a right of self-defence. Of course, the commentary to ARSIWA article 21 explains that a legal regime of war can solve the question of these other obligations by establishing a legal regime having the effect of suspending the application of the majority of the treaties in force between the belligerent States from the moment when the war breaks out.30 But the fact remains that certain actions in self-defence can be carried out by States who are formally at peace. And even where the legal regime of war is not applicable, practice seems to admit that an action in selfdefence can breach conventional obligations other than that contained in article 2(4) of the Charter without giving rise to international responsibility. The position of the parties in the Oil Platforms case is along these lines.31 In this case, it was not maintained that the actions of the US Forces against Iran had led to the suspension of the Treaty of Amity, Economic Relations and Consular Rights between the two States, although the parties admitted that if the United States had been able to prove that it had acted in self-defence, its responsibility for the breach of that treaty would not have been engaged.32 It is thus in respect of the breach of other obligations, notably conventional obligations, that selfdefence must be considered not as a right but rather as a relevant ‘circumstance’, or as a contextual element justifying the preclusion of its unlawfulness. It is in this sense, and only in this sense, that self-defence finds its place in the law of responsibility as a ‘circumstance precluding wrongfulness’.

2 Implementation of the legal framework of the excuse of selfdefence Self-defence cannot have the effect of ‘proclaiming wrongfulness’ unless certain conditions are fulfilled. On the one hand, it is necessary that the excuse be admissible. On the other hand, it is also necessary that the measures taken in self-defence be lawful.

(a) The conditions of admissibility of the excuse of self-defence (i) Conformity with the Charter of the United Nations Article 21 provides that actions in self-defence are excusable only if they are ‘taken in conformity with the Charter of the United Nations’. This means that measures which

References (p. 462) are argued to be lawful as having been taken in self-defence may benefit from this excuse only insofar as they are (or have been) effectively implemented in the exercise of the right of selfdefence and within the limits postulated by that right. In brief, an ‘abuse of selfdefence’ would not be considered as a circumstance precluding wrongfulness. Such an abuse can in reality result from two different situations. In the first situation, it may be that the right of self-defence cannot be claimed, for the conditions of its exercise have not been fulfilled. This may be the case in the absence of an armed attack, or in the case of ‘pre-emption’ of the problem by the Security Counsil. It can be noted in passing that the existence of a previous armed attack has, until now, always been required. The Military and Paramilitary Activities in and against Nicaragua and Oil Platforms cases make this clear. The Court considered that the United

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States could not usefully invoke its right of self-defence to justify actions contrary to Nicaraguan and Iranian interests because of the absence of a qualified prior armed attack against it. One must admit that in Nicararagua the Court adopted a cautious attitude when it precised that ‘the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised. Accordingly the Court expresses no view on that issue’.33 But the Court also stated that: ‘[i]n the case of individual self-defence, the exercise of this right is subject to the State concerned having been the victim of an armed attack’.34 Moreover, the mere fact that neither United State in the Nicaragua or in the Platforms cases, nor Uganda in the Armed Activities on the Territory of the Congo case, claimed a right to self-defence in response to an imminent threat of armed attack testifies that States do not believe in the existence of such a right. There is thus no convincing indication that self-defence could be invoked to justify armed responses to mere threats.35 The second situation concerns the case where, although the right of self-defence may be invoked, and thus the State acting in self-defence has been the victim of an armed attack but the actions it carries out pursuant to its right go beyond what the right itself allows. In fact, it is known that actions in self-defence must comply with the requirements of necessity and proportionality.36 Once more, the Oil Platforms case clarifies the situation, for the Court observed that if it was accepted that the United States had acted in self-defence, the fact that their armed reactions had not complied with the requirements of necessity or proportionality rendered them unfit to fall within the excuse of self-defence.37 It is evident that these requirements of necessity and proportionality can only be assessed on the basis of the circumstances of each case. The same is true for the determination of the existence of an armed attack, a requirement which is central for both individual and collective self-defence. In this respect, third States may only engage in actions of collective self-defence for the benefit of the State victim of an armed attack, if this State requests

References (p. 463) its assistance.38 However, the definition of an ‘armed attack’ is elusive. Moreover, the statement by the Court that ‘there appears now to be general agreement on the nature of the acts which can be treated as constituting armed attacks’39 is unsatisfactory, since there has never been a clear and agreed definition. In these circumstances, if there is no doubt that armed actions of a certain gravity carried out by a State against another can be considered an armed attack, it follows that actions of less gravity may not be armed attacks.40 However, there is no clear answer to several crucial issues. The development of terrorist activities directed against States poses the question of whether armed actions carried out by private groups can be considered as armed attacks. As mentioned before, this recalls the question of whether the actions of the Canadian rebellion immortalized in the Caroline affair would justify, today, action in self-defence. The answers are uncertain. The contrasting opinions reflect the reactions which followed two recent cases of forcible actions in foreign territory, mentioned earlier. At the time of the intervention of the Turkish army in Iraq against PKK activists, the international reactions were at least sympathetic. Although the Secretary-General of the United Nations showed ‘concern’, and others called for ‘restraint’ requesting the government in Ankara not to act ‘disproportionately’, the intervention was not condemned as unlawful. To the contrary, the Colombian intervention in Ecuador against members of FARC, of a much more limited military intensity, was the object of extremely strong and negative reactions by the Organization of American States. But whatever the hesitations, it is more and more common, notably because this is what the Security Council has implicitly done since the attacks on 11 September 2001, to consider that armed action by insurrectional movements, national liberation movements, and even terrorist groups acting from the territory of another sovereign State, can amount to an armed attack when they reach a certain degree of gravity.41 In The Wall Advisory Opinion, while stating that under article 51 of the Charter only armed attack by one State against another justifies self-defence,42 the

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Court implicitly left open the question whether Resolutions 1368 (2001) and 1373 (2001) of the Security Council are pertinent precedents for the contemporary interpretation of the customary notion of

References (p. 464) self-defence that could have developed since 2001.43 The Court also left question unanswered in Armed Activities on the Territory of the Congo.44 (ii) The character of the victim of the action in self-defence It is absolutely clear that the excuse of self-defence may apply in relation to the breach of obligations normally owed to the State author of the armed attack. But it is possible that, during an action in self-defence, a State may breach the rights of other States which are not responsible for the original armed attack. Then the question is whether collateral damage, or more adequately ‘collateral breaches’, are equally covered by the excuse of self-defence. Although posing the quesion, the commentary to article 21 refuses expressly to answer it: ‘article 21 leaves open all issues of the effect of action in self-defence vis-à-vis third States’.45 The Commentary to article 34 adopted on first reading was more eloquent and firm: It should also be noted that action taken in self-defence may injure the interests of a third State. Those interests must obviously be fully protected in such a case. The Commission therefore wishes to point out that the provision in article 34 is not intended to preclude any wrongfulness of, so to speak, indirect injury that might be suffered by a third State in connection with a measure of selfdefence taken against a State which has committed an armed attack.46 Opinion on this issue evolved in the ILC, probably due to Special Rapporteur Crawford. Even if he clearly admitted that the ‘principal’ effect of self-defence is to exclude responsibility in relation to the aggressor State, his concern was to leave open the question whether the effect of precluding wrongfulness would also apply in relation to third States. This caution, he explained, derives from the fact that in the framework of an armed conflict, not only belligerent States, but also neutral States, are affected by the existence of a state of war. As a consequence, ‘[a] State exercising an inherent right of self-defence of a State has certain belligerent rights, even as against neutrals’.47 Thus, in the framework of the jus in bello, the content of which is in some respects controversial, one could find cases where a State acting in self-defence could invoke, in relation to a neutral State, certain rights which it holds by reason of the state of war. In these cases, it should not be considered that self-defence precludes wrongfulness as regards third States, because there is simply no breach. But if one sets aside the Commentary and focuses simply on the text of article 21, which refers only to a ‘lawful measure of self-defence taken in conformity with the Charter of the United Nations’, it would appear that article 51 of the Charter gives a certain answer to the question, by not specifying that self-defence may only be undertaken against the State author of an armed attack. Under Charter law ‘the option of third States’ remains open. It remains so also under ARSIWA article 21. It is thus against the requirements of necessity and proportionality that it must be measured; in each case, if and to what extent

References (p. 465) the wrongfulness of the breach of obligations owed to third States may be precluded by self-defence.

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An effective state of self-defence does not, however, excuse all proportional and necessary measures. It can be considered that certain obligations cannot be bypassed due to the exercise of the right of self-defence, when the instruments establishing these obligations reject this possibility. In this respect, it is not controversial, as underlined by the commentary of the ILC, that the Geneva Conventions of 1949 and Additional Protocol I thereto, as well as customary international humanitarian law that the International Court has deemed ‘intransgressible’,48 establish obligations whose breach cannot be excused, even in cases where the breaching State is acting in selfdefence. This is also the case for certain norms for the protection of human rights. If it is true that States may derogate from their obligations of protection in cases of emergency, which clearly includes cases of armed conflict, the relevant conventions generally specify which of the obligations established in the text are non-derogable.49 These obligations are certainly pre-eminent. But does it follow from the fact that the right to selfdefence is of a customary character and from the adage lex posterior derogat priori that a posterior treaty or custom can derogate from this right? Or is it rather that these obligations are lex specialis and thus derogate from the general rule, which establishes that the state of self-defence precludes unlawfulness? The latter approach seems to be convincing. If the examples mentioned in the previous paragraph are taken, it can be seen that the element which characterizes the rules which do not yield to self-defence is their explicit or implicit rejection of the principle. Another idea could be explored, according to which the right of self-defence would constitute a norm of jus cogens, so that only other norms having the same character could impair its exercise. The question is not without importance, for there are arguments in favour of the jus cogens character of the right to self-defence. First, since self-defence is an exception to the prohibition on the use of force, itself a peremptory norm, it follows that it should have the same character as the prohibition.50 Second, it must be recalled that the International Court has emphasized that this right flows from the ‘fundamental’ right of States to their survival, an adjective that can without doubt be linked to the notion of peremptoriness. But since the Security Council can impair exercise of the right by assuming the re-establishment of international peace and security, it is possible to doubt that selfdefence is of a peremptory character. It would seem difficult to maintain that a right can at the same time be peremptory and lawfully impaired by the action of an international organization. The question is consequently not a simple one and certainly the answer can give rise to debates, as does every question relating to jus cogens. For its part, the Court suggested in Legality of the Threat or Use of Nuclear Weapons that States cannot exercise their right to self-defence in contravention of those obligations that States have adopted and which imposed on them an obligation of ‘total restraint’ during

References (p. 466) an armed conflict. The Court equally held that this is not the case with obligations established in treaties for the protection of the environment.51 By considering that the limits to the exercise of self-defence are obligations imposing ‘total restraint’, the Court could have intended that the only limits were peremptory obligations, which would also mean, by inference, that selfdefence is of a peremptory character. Apparently convinced of the peremptory character of the right of self-defence, and of the principle according to which this right only yields to other norms having the same character, Judge Bedjaoui emphasized the risk that a ‘relentless opposition’ may arise between the ‘fundamental’ right of selfdefence and the ‘intransgressible’ principles of humanitarian law.52 But the hypothesis of such an opposition seems doubtful: the principles of humanitarian law pertain to the jus in bello; they do not a priori clash with the right of self-defence, which pertains to the jus ad bellum. In other words, if it is true that humanitarian law, as other peremptory norms such as those concerning the prohibition on torture or genocide, bind States even in a situation of self-defence, these prohibitions do not infringe the right to self-defence as such; they simply limit its exercise to measures not contrary to

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such prohibitions. There is thus no relentless opposition, save in the case in which self-defence would not be susceptible to be exercised except by taking measures contrary to peremptory norms. But this is a highly theoretical possibility. In this case, and only in this case, the peremptory norms would clash, indirectly, with the right of self-defence. Having said this, supposing that the ‘peremptoriness’ of self-defence is admitted, it remains to determine whether it can be maintained that self-defence can only lose its character as a circumstance precluding wrongfulness when faced with a jus cogens norm. This is however not the case, for there exists an essential distinction between, on the one hand, the right of self-defence, which is a primary rule, and on the other hand, the law of responsibility, which comprises the rules according to which self-defence is a circumstance precluding wrongfulness, a secondary rule. Now, if it is possible to consider that the primary rule is peremptory, this is not necessarily the case for the secondary rule. To the contrary, the ILC specified in its commentary that the circumstances precluding wrongfulness ‘do not annul or terminate the obligation; rather they provide a justification or excuse for non-performance while the circumstance in question subsists’,53 clearly contrary to the effects of peremptory norms, which entail precisely the nullity and termination of inconsistent treaties, as indicated in article 64 of the Vienna Convention on the Law of Treaties.54 It is thus not in the light of the relationship between peremptory norms that the requirement of lawfulness of self-defence measures must be understood. This requirement is rather based on the organization of rules of law on the basis of the lex specialis principle. It is from this idea that the Commentary of the ILC emerges: a State acting in self-defence is ‘totally restrained’ by an international obligation if that obligation is expressed or intended to apply as a definitive constraint even to States in armed conflict.55

References (p. 467) Further reading D Alland, ‘La légitime défense et les contre-mesures dans la codification du droit international de la responsabilité’ (1983) 110 JDI 728 A Cassese, ‘Article 51’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies, commentaire article par article (3rd edn, Paris, Economica, 2005), 1329 T Christakis, ‘Existe-t-il un droit de légitime défense en cas de simple “menace”? Une réponse au ‘Groupe de personnalités de haut niveau de l’ONU’, in J-M Thouvenin & H Slim (eds), Les métamorphoses de la sécurité collective. Droit, pratique et enjeux stratégiques —SFDI, Journée franco-tunisienne (Paris, Pedone 2005), 197 T Christakis & K Bannelier, ‘La légitime défense comme circonstance excluant l’illicite’, in R Kherad (ed), Les légitimes défenses (Paris, LGDJ, 2007), 233 O Corten, Le droit contre la guerre (Paris, Pedone, 2008) M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’Etat (Paris, Pedone, 2006) V Lowe, ‘Precluding wrongfulness or responsibility: a plea for excuses’ (1999) 10 EJIL 405 A Pellet, ‘La responsabilité internationale pour fait internationalement illicite’ (2002) 48 AFDI 1 A Pellet, ‘Remarques sur une révolution inachevée, le projet d’articles de la C.D.I. sur la responsabilité internationale’ (1996) 42 AFDI 7 M Ragazzi (ed), International Responsibility Today. Essays in Memory of Oscar Schachter (Leiden, Brill, 2005) E Roucounas, Institut de droit international, Session of Santiago (2007), 10th Commission, Problèmes actuels du recours à la force en droit international, A, Sous groupe légitime défense, available at L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990)

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J Verhoeven, ‘Les “étirements” de la légitime défense’ (2002) 48 AFDI 49(p. 468)

Footnotes: 1 League of Nations, Conference for the Codification of International Law, Bases of Discussion for the Conference drawn up by the Preparatory Committee, vol III: Responsibility of States for Damage caused in their Territory to the Person or Property of Foreigners (LN document C.75.M.69.1929.V), 127. See also FV García Amador, Third Report on State Responsibility, ILC Yearbook 1958, vol II, 53 (para 15). 2 FV García Amador, Third Report on State Responsibility, ILC Yearbook 1958, vol II, 53 (para 15). 3 On the relationship between the UN Charter and the law of responsibility see M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’Etat (Paris, Pedone, 2006). 4 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 215. See also, Report of the ILC , 51st Session, ILC Yearbook 1999, vol II(2), 80 (para 319). 5 Art 21, ARSIWA. 6 H Grotius, De Iure Bellis ac Pacis, 1646 (R Tuck (ed), Indianapolis, Liberty Fund, 2005), 397 (Book II, Chapter 1, para III). 7 M Wood, ‘Nécessité et légitime défense dans la lutte contre le terrorisme: quelle est la pertinence de l’affaire de la Caroline aujourd’hui?’, in T Christakis (ed), La nécessité en droit international—SFDI, Colloque de Grenoble (Paris, Pedone, 2007), 281, 284. See also T Christakis, ‘Existe-t-il un droit de légitime défense en cas de simple “menace”? Une réponse au ‘Groupe de personnalités de haut niveau de l’ONU’”, in J-M Thouvenin and H Slim (eds), Les métamorphoses de la sécurité collective. Droit, pratique et enjeux stratégiques—SFDI, Journée franco-tunisienne (Paris, Pedone, 2005), 197, 202–203. 8 Among the most famous authors who have maintained this position, cf, notably, R Jennings and A Watts (eds), Oppenheim’s International Law (9th edn, London, Longman, 1992), Vol I, 420. 9 R Ago, Addendum to the Eighth Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 52 (para 83). See also, eg, L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 297; A Cassese, ‘Article 51’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies, Commentaire article par article (3rd edn, Paris, Economica, 2005), 1329ff. 10 See eg the words used by the Minister of Great Britain in Washington, Fox, cited in the Commentary to art 25, para 5. 11 Commentary to art 25, para 2. See also, R Ago, Addendum to the Eighth Report on State Responsibility, ILC Yearbook 1980, vol II(1), 53–54 (para 88). 12 Cf O Corten, ‘La nécessité et le jus ad bellum’, in T Christakis (ed), La nécessité en droit international—SFDI, Colloque de Grenoble (Paris, Pedone, 2007), 144ff. 13 Commentary to art 25, para 21. 14 Cf O Corten, ‘La nécessité et le jus ad bellum’, in T Christakis (ed), La nécessité en droit international—SFDI, Colloque de Grenoble (Paris, Pedone, 2007), 147–148. 15 Communiqué of Agence France de Presse, Tuesday 26 February 2008, ‘Rebelles kurdes: l’Irak condamne l’incursion turque dans le nord du pays’. 16 Communiqué No. 81 of the Ministry of Foreign Affairs of Colombia, Bogotá, 2 March 2008, available at: . 17 Rio Group, Declaration of Santo Domingo, 7 March 2008, paras 3–4, available at: . 18 J Verhoeven, ‘Les “étirements” de la légitime défense’ (2002) 48 AFDI 49–80. 19 R Ago, Addendum to the Eighth Report on State Responsibility, ILC Yearbook 1980, vol II(1), 53

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(para 87). 20 Ibid. 21 D Anzilotti, Cours de droit international (trad Gidel, Paris, Sirey, 1929), vol I, 506. 22 L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 304; and, apparently in the same sense, O Corten, Le droit contre la guerre (Paris, Pedone, 2008), 610, fn 7. 23 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, 263 (para 97). 24 D Acheson, ‘Law and Conflict: Changing Patterns and Contemporary Challenges—Panel: Cuban Quarantine: Implications for the Future: Remarks’ (1963) 57 ASIL Proceedings 13, 14; cf MG Kohen, ‘The Notion of State Survival in International Law’, in L Boisson de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge, CUP, 1999), 293. 25 A Pellet, ‘La responsabilité internationale pour fait internationalement illicite’ (2002) 48 AFDI 1, 6. 26 Ibid. 27 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 296. 28 Ibid, para 297. 29 Military and Paramilitary Activity in and against Nicaragua (Nicaragua v United States of America), Judgment, ICJ Reports 1986, p 14, 111 (para 212). 30 Commentary to art 21, para 2. 31 Cf Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objections, Judgment, ICJ Reports 1996, p 803. 32 Commentary to art 21, para 2, note 331. 33 The same position was adopted by the Court in 2005, in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, para 143. 34 Military and Paramilitary Activity in and against Nicaragua (Nicaragua v United States of America), Judgment, ICJ Reports 1986, p 14, 103 (para 194). 35 Ibid (para 195). See also the separate opinion of Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168, para 11. 36 J-M Thouvenin, ‘Introduction’, in J-M Thouvenin and C Tomuschat (eds), Les nouvelles menaces conte la paix et la sécurité internationales (Paris, Pedone, 2004), 7. 37 Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p 161, 198–199 (paras 76–77). 38 Military and Paramilitary Activity in and against Nicaragua (Nicaragua v United States of America), Judgment, ICJ Reports 1986, p 14, 105 (para 198). In Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168 (para 128), the Court noted that ‘a State may invite another State to assist it in using force in selfdefence’. 39 Military and Paramilitary Activity in and against Nicaragua (Nicaragua v United States of America), Judgment, ICJ Reports 1986, 103 (para 195) 40 Ibid, 101 (para 191). See also Jus ad Bellum Claims, Eritrea/Ethiopia Claims Commission, Ethiopia’s Claims 1–8, Partial Award, 19 December 2005, para 11. On the question of the gravity ‘threshold’ permitting to characterize an armed action as aggression, see the separate opinion of Judge Simma in Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p 161, 331ff.

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41 In this sense, A Cassese, ‘Article 51’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies, commentaire article par article (3rd edn, Paris, Economica, 2005), 1333; E Roucounas, Institut de droit international, Session of Santiago (2007), 10th Commission, ‘Problèmes actuels du recours à la force en droit international, A, Sous groupe légitime défense’, 129ff, available at: . See also the two separate opinions of Judge Kooijmans in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 230 (para 35), and in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168, para 30. See also the separate opinion of Judge Simma in the Congo v Uganda case, paras 9–13. Cf O Corten, Le droit contre la guerre (Paris, Pedone, 2008), 220ff. 42 See the criticisms of this position in the separate opinions of Judge Higgins in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 215, para 33, and of Judge Burgenthal, 242, paras 5–6. 43 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 194 (para 139). 44 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, p 168, para 147. 45 Commentary to art 21, para 5. 46 Commentary to art 34 of the 1996 Draft Provisionally Adopted in First Reading, para 28. It may be noted that the commentary had already been provisionally adopted in 1980: Report of the ILC, 32nd Session, ILC Yearbook 1980, vol II(2), 61 (para 28). 47 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 300. 48 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 257 (para 79). 49 European Convention on Human Rights, art 15, 213 UNTS 222; American Convention on Human Rights, art 27, 1144 UNTS 123. 50 See P Tavernier, ‘L’identification des règles fondamentales, un problème résolu?’, in C Tomuschat and JM Thouvenin (eds), The Fundamental Rules of the International Legal Order (Leiden, Brill, 2006), 1, 17. 51 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 242 (para 30). 52 Separate opinion of Judge Bedjaoui, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 273 (para 22). 53 Commentary to Chapter V, para 2. 54 1155 UNTS 331. 55 Commentary to art 21, para 4.

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Part III The Sources of International Responsibility, Ch.33.4 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Countermeasures Hubert Lesaffre From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 469) Chapter 33.4 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Countermeasures 1 The controversy over countermeasures as a circumstance precluding wrongfulness 470 2 Practice in support of countermeasures as a circumstance precluding wrongfulness 471 Further reading 473 A subject pursues by its own means, without the intervention of an external authority, the protection or performance of what it considers to be its right: this is what private justice consists of.1 Countermeasures form part of the framework of this ‘private justice’, as a peaceful means of inducing a State to comply with its obligations, in contrast to retaliation by force, which is moreover prohibited. Countermeasures are measures adopted by a State in response to a wrongful act committed by another State. As we will see, it is necessary to refine this definition to limit it to measures which are taken in violation of customary or conventional international law. At this stage, it is useful to note that the definition of countermeasures adopted by the ILC corresponds to the definition of non-armed retaliation adopted by the Institut de droit international in 1934.2 Countermeasures have two particular characteristics. First, and in contrast to some other circumstances precluding wrongfulness, they are constituted by a deliberate act contrary to international obligations, taken knowingly and willingly by a State. They are not conditioned on impossibility. Countermeasures may therefore contribute to instability in international relations in

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general and the public order in particular, since they represent action by States which qualify the legal situation of another State and unilaterally attempt to remedy it. Second, countermeasures remove the wrongful character of an act, thereby exonerating the State actor of its international responsibility. At the same time, they form one of the (p. 470) means of triggering international responsibility, imposing an obligation to cease wrongful conduct and provide reparation. For this reason, a chapter is devoted to them in Part Three of ARSIWA on the implementation of international responsibility. The first characteristic of countermeasures has not prevented its recognition as a circum stance precluding wrongfulness. However, the second characteristic posed numerous problems for codification by the ILC. Notwithstanding the scope of the questions raised, only one State, Mexico, opposed their inclusion in ARSIWA in principle. According to Mexico, they should have been excluded because they ‘[do] not seem to accord with internationally recognized principles on the peaceful coexistence of States’.3 Mexico contested less the actual existence of principles on countermeasures than their legitimization by the ILC, given the risks they present. The ILC considered that ‘the elaboration of a balanced regime of countermeasures was … more likely to be of use in controlling excesses than silence’.4 But the recognition of countermeasures as a circumstance precluding wrongfulness resolves fewer questions than it raises. Special Rapporteur Crawford highlighted these difficulties: 5 they will be outlined in Section 1 of this Chapter. However, these difficulties do not prevent codification of an internationally recognized practice in respect of countermeasures, which is examined in Section 2.

1 The controversy over countermeasures as a circumstance precluding wrongfulness It is clear that countermeasures as a circumstance precluding wrongfulness are established by international practice, but the regime applicable to countermeasures is far from wellestablished. The work of the ILC in this respect represents progressive development of the law, rather than mere codification of existing principles. The legality of countermeasures is supported, in broad outline, by the International Court of Justice which established substantive conditions—notably the requirements of proportionality and reversibility—and formal conditions—notably the requirements of prior proof of default and notification—in the Gabčíkovo-Nagymaros Project case.6 Comments from States evidenced disagreement as to the conclusions to be drawn from the judgment in Gabčíkovo-Nagymaros Project for the ILC’s work on countermeasures. Certain States opposed the inclusion of a whole chapter on countermeasures in ARSIWA, on the grounds that it would encourage their use in circumstances where they would be arbitrary and unjustified.7 The majority considered that a single article incorporating ‘the elements on which there was consensus among States’8 would be sufficient. Other States were of the opinion that these uncertainties made a clarification of the countermeasures regime necessary, advocating a separate chapter in ARSIWA. For these States, the Articles could establish an equilibrium between ‘the use of this instrument and the provision of the necessary guarantees against its misuse’.9

References (p. 471) The final Special Rapporteur on State responsibility, James Crawford, proposed three alternative solutions to the ILC: first, abolishing the chapter on countermeasures and introducing a single article within the chapter on circumstances precluding wrongfulness; second, retaining only the chapter on conditions for recourse to countermeasures; and third, retaining the draft as it stood, with some improvements.10 Although these proposals appear merely formal, they reveal a fundamental question about the degree of acceptability of countermeasures in inter-state relations, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

including concerns about legal instability and a lack of balance between powerful and weak States. The more detailed and precise the provisions on countermeasures, the more difficult it would be to have recourse to countermeasures. Conversely, the more vague the provisions, the more space given to States to manoeuvre in respect of countermeasures. A concern to avoid frequent recourse to countermeasures in general and to limit risks of arbitrariness in particular caused the Commission to retain both an article establishing countermeasures as a circumstance precluding wrongfulness (article 22) and a chapter setting out conditions for taking countermeasures (Chapter III of Part Three).

2 Practice in support of countermeasures as a circumstance precluding wrongfulness The possibility that a State could act in a way which would have been wrongful had it not been in response to an act which was itself wrongful was recognized in very early arbitral jurisprudence in the Naulilaa case11 and the Cysne case12 In Naulilaa, the arbitral tribunal stated: The first condition—sine qua non—of the right to exercise reprisals is a motive created by a preceding act which is contrary to the law of nations.13 Subsequently, the Institut de droit international defined retaliation as: coercive measures, which derogate from the law of nations, decided and taken by a State, following unlawful acts committed against it by another State and having the purpose to impose to the latter, through an injury, respect for the law.14 It is in this sense that the term ‘countermeasure’ is used today, indicating an act with two characteristics: that it is a violation of one or more conventional or customary rules of international law, and that it constitutes a wrongful act itself. The hallmark of countermeasures is their ‘intrinsic’ wrongfulness.15 They may be distinguished from acts of retaliation, which are ‘acts, certainly hostile, but perfectly lawful in themselves … [which] can be performed not only against an unlawful act but also in the

References (p. 472) occasion of a lawful act considered hostile’.16 If the term countermeasure is preferred to ‘reprisals’, that is for legal as well as sociological reasons, the punitive and belligerent connotations of reprisals being too strongly anchored in the history of international relations. In that regard, according to Arangio-Ruiz: [t]he reasons which may make other terms preferable [to reprisals] are either their greater generality (this is particularly the case of ‘measures’ or ‘countermeasures’) or the frequent association of acts of reprisal with the notion of measures involving the use of force.17 In the same way, the term ‘sanction’ is no longer used to indicate unilateral actions of States. The ILC rejected the formulation ‘the legitimate application of a sanction’ proposed by Ago,18 preferring ‘to reserve this term for decisions of international organizations, and in particular, those of the United Nations’.19 In recognizing that the wrongfulness of an act can be precluded if it is the response to a preceding wrongful act,20 ARSIWA codifies pre-existing general international law. In formulating this as a ‘countermeasure’, the ILC has confirmed the formulation of the arbitral tribunal in Air Service Agreement, which held that: Under the rules of present-day international law, and unless the contrary results from

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special obligations arising under particular treaties … [a] State is entitled … to affirm its rights through ‘countermeasures’.21 For its part, the International Court of Justice has recognized the character of countermeasures as circumstances precluding wrongfulness in United States Diplomatic and Consular Staff in Tehran,22 Military and Paramilitary Activities in and against Nicaragua,23 and particularly in Gabčíkovo-Nagymaros Project, in which it declared: it now has to determine whether such wrongfulness [the adoption of variant C of the dam by Czechoslovakia] may be precluded on the ground that the measure so adopted was in response to Hungary’s prior failure to comply with its obligations under international law …24 Other tribunals and organizations have used the term ‘countermeasure’ in the same way as the ILC. This is the case namely in the Appellate Body of the World Trade Organization, which has held that ‘rules of general international law on state responsibility require that countermeasures in response to breaches by States of their international obligations be proportionate to such breaches’, considering that article 51 ‘sets out a recognized principle of customary international law’.25 In a general manner, the Appellate Body has stated that,

References (p. 473) ‘relevant principles under international law, reflected in the Articles on State Responsibility, support the proposition that countermeasures may continue until such time as the responsible State has ceased the wrongful act by fully complying with its obligations’.26 In 2007, a NAFTA Tribunal affirmed that article 22 ARSIWA reflected customary international law. In Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v United Mexican States, Mexico argued that the imposition of a tax on high fructose corn syrup was a lawful countermeasure in response to previous breaches by the United States of NAFTA in relation to the access of Mexican-produced sugar to the United States market, and for its failure to make use of the dispute resolution procedure contained in Chapter 20 of NAFTA in relation to the dispute as to those obligations.27 The Tribunal rejected Mexico’s argument, finding that the imposition of the tax in question could not be justified as a valid countermeasure. In its discussion of customary international law on countermeasures, the Tribunal stated: The Tribunal takes as an authoritative statement of customary international law on countermeasures the position of the International Court of Justice, as confirmed by the ILC Articles. Article 22 provides that ‘the wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure …’.28 More recently, two other NAFTA Tribunals dealing with the sweeteners dispute have affirmed that the principle incorporated in article 22 ARSIWA reflects customary international law, while disagreeing on the availability of countermeasures in the context of Chapter 11 of NAFTA.29 It is thus accepted in modern international law that countermeasures constitute circumstances precluding wrongfulness of an act. Countermeasures preclude the wrongfulness of the act and not only the responsibility of the actor. Further reading D Alland, ‘International Responsibility and Sanctions: Self-Defence and Countermeasures in the ILC Codification of Rules Governing International Responsibility’, in M Spinedi & B Simma (eds), United Nations Codification of State Responsibility (New York, Oceana, 1987), 143 D Alland, Justice privée et ordre juridique international. Etude théorique des contre-

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mesures en droit international public (Paris, Pedone, 1994) SP Jagota, ‘State Responsibility: Circumstances Precluding Wrongfulness’ (1985) 16 NYIL 249 C Leben, ‘Les contre-mesures interétatiques et les réactions à l’illicite dans la société internationale’ (1982) 28 AFDI 9 L-A Sicilianos, Les réactions décentralisées à l’illicite. Des contre-mesures à la légitime défense (Paris, LGDJ, 1990)

References (p. 474)

Footnotes: 1 D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 1. 2 Institut de droit international, ‘Régime des représailles en temps de paix’ (Paris, 19 October 1934), (1934) 38 Annuaire IDI 710. 3 Comments and observations received from governments, A/CN.4/488, 25 March 1998, 83. 4 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 53 (para 308). 5 Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 8 (paras 28–32). 6 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 52ff (paras 83ff). 7 See more precisely the comments of Japan, the United Kingdom and the United States in ‘Comments and observations received from Governments’, A/CN.4/515, 19 March 2001, 74–77. 8 Comment of Japan, ibid, 75. 9 Comment of the Netherlands, ibid, 75. 10 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 60. 11 Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa ( ‘Naulilaa’) (Portugal v Germany), 31 July 1928, 2 RIAA 1011. 12 Responsibility of Germany for acts committed subsequent to 31 July 1914 and before Portugal entered into the war (‘Cysne’) (Portugal v Germany), 30 June 1930, 2 RIAA 1035. 13 Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa ( ‘Naulilaa’) (Portugal v Germany), 31 July 1928, 2 RIAA 1011, 1027. 14 Institut de droit international, ‘Régime des représailles en temps de paix’ (Paris, 19 October 1934), (1934) 38 Annuaire IDI 710. 15 D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 133. 16 L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 7. 17 G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, 12 (para 25). 18 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, 46 (para 99). 19 Ch Leben, ‘Les contre-mesures inter-étatiques et les réactions à l’illicite dans la société internationale’ (1982) 28 AFDI 11; see also the debates within the ILC in relation to draft art 30, ILC Yearbook 1979, Vol I, 54–58 (1544th meeting) and 58–63 (1545th) meeting. 20 See the text of draft art 30 adopted on first reading: ILC Yearbook 1980, Vol II (2), 26–63. 21 Air Service Agreement of 27 March 1946 between the United States of America and France (1978) 18 RIAA 417, 443 (para 81). 22 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 27–

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28 (para 53). 23 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 127 (para 248). 24 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 55 (para 82). 25 United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, Report of the Appellate Body of 15 February 2002, WTO Doc WT/DS202/AB/R, para 259. 26 United States—Continued Suspension of Obligations in the EC—Hormones Dispute, Report of the Appellate Body of 16 October 2008, WTO Doc WT/DS320/AB/R, para 382. 27 Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v United Mexican States (ICSID Case No ARB(AF)/04/05), Award of 21 November 2007, paras 106, 111. 28 Ibid, paras 124–125. 29 Corn Products International Inc v United Mexican States, Decision on Responsibility (ICSID Case No ARB(AF)/04/01), Award of 15 January 2008, para 145; Cargill Inc v United Mexican States, Award (ICSID Case No ARB(AF)/05/02), Award of 18 September 2009, paras 420–430.

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Part III The Sources of International Responsibility, Ch.33.5 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Force Majeure Sandra Szurek From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 475) Chapter 33.5 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Force Majeure 1 The characteristics of the situation of force majeure 476 (a) Abandonment of the distinction between fortuitous event and force majeure 476 (b) Constitutive elements of force majeure: unpredictability, irresistibility, and externality 477 2 The consequences of force majeure 477 (a) Limitation of force majeure to material impossibility of performance 478 (b) Exclusion of economic impossibility of performance 479 Further reading 480 Since Roman law, with its principle of ad impossibilia nemo tenetur, force majeure has been a classic cause of exoneration from responsibility in most domestic legal systems. Recognized as a general principle of law by the Court of Justice of the European Community,1 force majeure occupies an important place in the field of international commerce and State contracts.2 In the framework of its work on the law of treaties the ILC had already addressed the question of force majeure. Underlining the relationship between the notion of impossibility of performance and force majeure, the ILC considered that these were two notions operating in distinct fields. Thus, impossibility of performance—a stricter form of force majeure—was retained in article 61 of the Vienna Convention on the Law of Treaties as a cause of suspension or termination of a treaty as a 3

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legal act.3 In relation to force majeure, the ILC included it, with all other questions relating to responsibility, in article 73 of the Convention.4

References (p. 476) Its retention on second reading in the framework of the law of State responsibility as a circumstance precluding wrongfulness in article 23 is not surprising; indeed Special Rapporteur Crawford seemed to consider it as a general principle of law.5 The meaning retained by the ILC responds to a traditional and strict conception of force majeure both in respect of its characteristics and its consequences.

1 The characteristics of the situation of force majeure Although he eventually abandoned the notion of fortuitous event which Ago had coupled with force majeure, Crawford essentially took up the classical conception of force majeure characterized by externality, unpredictability, and irresistibility.

(a) Abandonment of the distinction between fortuitous event and force majeure Ago had recognized fortuitous event in the specific situation where ‘it is impossible for the author of the conduct attributable to the State to realize that its conduct is not in conformity with the international obligation’.6 A fortuitous event thus responded to the specific hypothesis of the impossibility of knowing or realizing the commission of an internationally wrongful act. Such an understanding did not correspond either to the use in the French language, or to that of several legal systems and seemed rather unique to the Special Rapporteur.7 Legal scholarship was not convinced of the relevance of the distinction and the several attempts made in domestic laws were also inconclusive.8 Following the view of the Special Rapporteur, it could be considered that there is a fortuitous event when the author does not will the commission of an unlawful act (but is ignorant of it) and there is force majeure when the will of the author is powerless to prevent the act.9 A typical example of fortuitous event is the case of the pilot who, due to fog, violates the aerial space of a State without noticing it. In the rare occasions in which international case law has expressly referred to the notion of fortuitous event, the meaning given to this notion is not the one preferred by Ago. Arbitrators have characterized as fortuitous certain events simply to avoid drawing consequences as to the responsibilities in question.10 In other cases, fortuitous event served to characterize situations where the injury is the haphazard, accidental result of occurrence of two or more factors which the parties could not foresee would occur and cause injury.11 Certain governments doubted the meaning of fortuitous event used in this way and doubted the relevance of the distinction, which was very unclear and not much used

References (p. 477) in practice.12 The ILC thus excluded any express mention of this notion, which seems justified.

(b) Constitutive elements of force majeure: unpredictability, irresistibility, and externality Pursuant to article 23(1) force majeure consists in ‘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’. The notion of irresistible force leads to the idea of

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coercion which the State could not oppose or overcome. If an event is to qualify as the origin of a situation of force majeure, it must be external to the State and must have been unforeseeable. In both cases, the situation must escape the control of the State and must have rendered the performance of the obligation in question materially impossible.13 Traditionally, force majeure includes ‘natural or physical events’ and ‘human intervention’. Although the latter can be a priori considered as force majeure, in all cases the State must prove the irresistible, unpredictable and external character of the event. This is the case for earthquakes, floods, and drought.14 According to their geographical situation, certain States are more frequently confronted with these natural events, particularly where they are not habitual and foreseeable. All depends on the exceptional character of the event, on the State obligations in question, and the means at the disposal of the State. Force majeure can also result from human intervention. In this case, the ILC gave the classical example of the State that has lost control over a part of its territory following an insurrection or due to the devastation of an area by military operations carried out by a third State.15 Arbitral case law of the 19th century and the beginning of the 20th century is rich with examples of cases in which the unpredictability of attacks by rebels was the basis on which the responsibility of the territorial State for injury to foreigners was rejected. Force majeure was also invoked following the Islamic Iranian Revolution of 1979. In the case of Gould Marketing Inc, Chamber 2 of the Iran-US Claims Tribunal held that: By ‘force majeure’ we mean social and economic forces beyond the power of the state to control through the exercise of due diligence. Injuries caused by the operation at such forces are therefore not attributable to the state for purposes of its responding for damages.16 But it can also result from the concurrence of two elements. One can think of the case where a State would be unable to help foreigners in a region devastated by a natural catastrophe, because it is occupied by rebel forces which the State is not capable of removing. This situation could be admitted as a case of force majeure if the State proves the presence of the three characteristics required.

2 The consequences of force majeure In all the legal systems which admit it, force majeure is defined by the material impossibility of performance which it entails. But States have often attempted to include within the

References (p. 478) concept of force majeure economic impossibility for the performance of their obligations, an attempt which has regularly been rejected.

(a) Limitation of force majeure to material impossibility of performance Two conditions have reinforced the rigour with which the material impossibility of performance is assessed. On the one hand is the necessary existence of a causal link between the event and its consequence; on the other hand, the absence of contribution by the State to the situation of impossibility. But the condition of material impossibility also poses the question of the moment at which it entails the exclusion of the wrongfulness of the State conduct. The causal link is that which can be established between a fact ‘owed to force majeure’ and the resulting material impossibility to perform the obligation. It is constituted in part by the characteristics of the event and in part by the conduct of the State which relies on it; it must be adequate to the exigencies of the situation.

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The second condition is envisaged in article 23(2)(a). It establishes that paragraph 1 is not applicable in the case where ‘the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it’. In the Commentary, the ILC quotes the case of Libyan Arab Foreign Investment Company v Republic of Burundi in which force majeure was rejected, for the impossibility had resulted from a unilateral decision of Burundi and not the result of ‘an irresistible force or an unforeseen external event beyond the control of Burundi’.17 The Iran-US Claims Tribunal has emphasized this condition.18 There is here an analogy with article 61 of the Vienna Convention. But it is necessary that the situation of force majeure be ‘due’ to the conduct of the State which invokes it. In other words, its role in the occurrence of force majeure must have been determinative.19 This does not exclude the possibility that force majeure could be invoked in situations where the State could have, unknowingly, contributed to the occurrence of the situation of material impossibility ‘by something which, in hindsight, might have been done differently but which was done in good faith and did not itself make the event any less unforeseen’.20 It is not always easy to determine the temporal scope of application of force majeure. The occurrence of a particular event is not sufficient in itself. It seems logical to consider that it is also necessary that the State has taken stops to overcome the event without success. This assessment could be more flexible when it concerns a general situation with which the State is confronted. Thus, in the case of the Iranian Revolution, the Iran-US Claims Tribunal considered that the conditions of force majeure were fulfilled as of December 1978: By December 1978, strikes, riots and other civil strife in the course of The Islamic Revolution had created classic force majeure conditions at least in Iran’s major cities.21

References (p. 479) But the same Tribunal refused to determine at which moment the event of force majeure ended and considered that the question had to be determined on a case-by-case basis.22 Force majeure does not entail, in principle, any consequences for the existence of the obligations, which must resume from the moment the circumstances which gave rise to their non-performance cease. If, following the occurrence of an event of force majeure, it is more difficult for the State to comply with its obligations, this circumstance could entail leniency in respect of the time-limit for the resumption of the obligations, but it could never lead to the extinction of the primary obligation.23

(b) Exclusion of economic impossibility of performance In internal law, without being identical, different institutions allow responses to economic perturbations that can have an impact on certain obligations. The théorie de l’imprévision in French law, the doctrine of frustration in English law, and hardship clauses in the law of international contracts function to permit the adaptation of obligations to the occurrence of certain situations which, without rendering the performance of the obligation impossible, render them very onerous and modify in a sufficiently serious form the performance of the obligations.24 The impossibility of compliance with international obligations following a serious economic crisis or due to a lack of financial means or availability was frequently claimed by States in the past. In the case of the Russian Indemnity,25 decided by an arbitral tribunal, or in Serbian Loans and Brazilian Loans, decided by the Permanent Court of International Justice,26 States claimed that the performance of their obligations risked being self-destructive and they were facing a material impossibility of performance. The different jurisdictions considered only that the States were facing difficulties which, however extreme they may have seemed to those facing them, were not really material impossibilities, and did not rise to the level of force majeure. Although this traditional position was confirmed by the ILC, it is not clear that the final Special

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Rapporteur agreed with such a rigorous point of view. Indeed, he emphasized that despite its character, the degree of difficulty associated with force majeure as a circumstance precluding wrongfulness was nevertheless less than that required by article 61 of the Vienna Convention to terminate a treaty due to impossibility of performance.27 In Gabčíkovo-Nagymaros Project, quoted in support of this position, the International Court of Justice did not reject this possibility, considering that it had been admitted that the impossibility to make certain payments due to serious financial difficulties could

References (p. 480) exclude the wrongfulness of the non-performance of conventional obligations by one party, while in the framework of the law of treaties, as it recalled, such circumstances could not constitute a cause of termination or suspension of the conventional engagement.28 For reasons of legal security, only a narrow concept of force majeure is adopted in international law. In this sense, the Arbitral Tribunal in Sempra Energy International v Republic of Argentina has reaffirmed that force majeure does not extend to situations of political or economic crisis if their effects are not such as to render performance of the obligation in question impossible but merely to render it more difficult.29 However, other rules which permit such situations to be taken into account would be of great utility for the legal security of inter-State relations.30 Further reading J Salmon, ‘La force majeure et le cas fortuit’, in La responsabilité internationale (Paris, Pedone, 1987), 88 S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996)

References

Footnotes: 1 Case No 145/85, Denkavit Belgie NV v Belgium [1987] ECR 565. 2 For a comparative analysis on this point, see S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol I, 65–112. 3 23 May 1969, 1155 UNTS 331. 4 On the relationship between force majeure and impossibility of performance see: S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol I, 170–205; P Bodeau-Livinec, ‘L’article 61 de la Convention de Vienne’, in O Corten & P Klein (eds), Les Conventions de Vienne sur le droit des traités, Commentaire article par article (Brussels, Bruylant, 2006), Vol III. 5 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 258. 6 1569th meeting, ILC Yearbook 1979, Vol I, 184. 7 See 1571st meeting, ILC Yearbook 1979, Vol I, 200 (para 28) (P Reuter). 8 See eg J Salmon, ‘La force majeure et le cas fortuit’, in La responsabilité internationale (Paris, Pedone, 1987), 88, 103. 9 S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II PanthéonAssas, 1996), Vol I, 532. 10 J Salmon, ‘La force majeure et le cas fortuit’, in La responsabilité internationale (Paris, Pedone, 1987), 88, 114. Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (‘Naulilaa’) (Germany/Portugal), 31 July 1928, 2 RIAA 1011, 1025,

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is an illustration of this. 11 See eg Andresen (Germany/Mexico), 1930, in M Whiteman, Damages in International Law (Washington, US Government Printing Office, 1937), Vol I, 217; Chattanooga, ibid, 221. On these two cases, see S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol I, 530–535. 12 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 255. 13 See Commentary to art 23. 14 Classic examples are included ibid, para 3. 15 Ibid, para 3. 16 Gould Marketing, Inc v Ministry of National Defence of Iran, Interlocutory Award No ITL 24-492, 27 July 1983, 3 Iran-US CTR 147, 153. See also, P Daillier, A Moutiers-Lopet, A Robert, & D Müller, ‘Tribunal Irano-Américain de Réclamations, Chronique’ (2002) 48 AFDI 450. 17 Libyan Arab Foreign Investment Company v Republic of Burundi (1994) 96 ILR 279, 318 (para. 55), quoted in Commentary to art 23, para 9. 18 Gould Marketing, Inc v Ministry of National Defence of Iran, Interlocutory Award No ITL 24-492, 27 July 1983, 3 Iran-US CTR 147, 153, which specifies that force majeure precludes wrongfulness ‘unless the existence of these conditions is attributable to the fault of the Respondent party’. 19 Commentary to art 23, para 9. 20 Ibid, para 9. 21 Anaconda-Iran, Inc v The Government of the Islamic Republic of Iran, et al, Interlocutory Award No ITL 65-167-3, 10 December 1986, 13 Iran-US CTR 199, 213. 22 Ibid, 213. See also P Daillier, A Moutiers-Lopet, A Robert, & D Müller, ‘Tribunal Irano-Américain de Réclamations, Chronique’ (2002) 48 AFDI 452. 23 The situation may be different in the framework of contracts between the State and private individuals. Thus, when the events ‘make performance definitely impossible or impossible for a long period’, the Tribunal faced with this question affirmed that ‘force majeure as a cause of full or partial suspension or termination of contract, is a general principle of law which applies even when the contract is silent’, a statement which seems contestable. See Mobil Oil Iran, Inc, et al, Partial Award No 311-74/76/81/150-3, 14 July 1987, 16 Iran-US CTR 38. See, for other references, P Daillier, A Moutiers-Lopet, A Robert, & D Müller, ‘Tribunal Irano-Américain de Réclamations, Chronique’ (2002) 48 AFDI 453. But in other cases the Tribunal has not admitted that force majeure justified per se the termination of the contract (ibid, 454 for other examples). 24 For a comparative law analysis, see S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol I, 21–112. 25 Russian Indemnity (Russia/Turkey), 11 November 1912, 11 RIAA 421, 443. 26 Serbian Loans, PCIJ, 1929, Series A, No 20, p 4, 39–40; Brazilian Loans, 1929, PCIJ, Series A, No 21, p 93, 120. 27 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 257). 28 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 63 (para 102). 29 Sempra Energy International v Argentine Republic (ICSID Case No ARB/02/16), Award of 28 September 2007, para 246; see also Enron Corporation and Ponderosa Assets LP v Argentine Republic (ICSID Case No ARB/01/3), Award of 22 May 2007, para 217; cf however, Autopista Concesionada de Venezuela CA v Bolivarian Republic of Venezuela (ICSID Case No ARB/00/5), Award of 23 September 2003. 30 On necessity, see Chapter 33.7.

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Part III The Sources of International Responsibility, Ch.33.6 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Distress Sandra Szurek From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 481) Chapter 33.6 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Distress 1 The autonomy of the notion of distress 482 (a) The conditions for the invocation of distress 482 (b) Distress, force majeure, and necessity 483 2 A wide conception of distress: the reservations 484 (a) The classical cases of distress 484 (b) Distress and elementary considerations of humanity 486 (i) Distress and intervention for the protection of nationals 486 (ii) Distress and humanitarian assistance 487 Further reading 489 Initially included in article 32 of the draft adopted on first reading by the ILC, following its introduction in Chapter V ARSIWA by Ago, distress was taken up again by Crawford in article 24. The notion draws, on the one hand, on force majeure and on the other hand, necessity. The proximity between necessity and distress has even led certain authors to criticize the distinction between them.1 Another view was expressed by Sørensen, who objected to the existence of a general principle authorizing the excuse of necessity but recognized the existence of rules aiming to protect the fundamental rights of the human person in case of distress.2 But although legal scholarship is divided on this issue, positive law confirms the autonomy of the notion.

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This reason would suffice to justify retaining distress as a circumstance precluding wrongfulness. But its function seems to render it particularly adequate to respond, beyond the usual cases where it is invoked, to situations of a particular gravity to which international law has not yet found a satisfactory answer. This would suppose, however, overcoming the fierce opposition to the relatively narrow conception of distress adopted by the ILC.

References

(p. 482) 1 The autonomy of the notion of distress The conditions for the invocation of distress show the proximity of this notion to force majeure and the state of necessity, without however allowing distress to be incorporated into either of these other two circumstances.

(a) The conditions for the invocation of distress Pursuant to article 24(1), distress is a circumstance which a State may claim if the author of a wrongful act which could be attributed to it could not but breach an international obligation, in a situation of distress, in order to save the author’s own life of the lives of persons entrusted to his care. This provision defines the situation in which the subject of the obligation must find itself rather than describing the characteristics of the situation of distress. These characteristics may be deduced from the negative conditions of article 24(2): they consist of two elements, one material and the other psychological. The material element results on the one hand from the existence of a grave and imminent peril weighing on the life of physical persons, and on the other hand from the ‘reasonable’ absence of means to act in a way other than contrary to an international obligation. In its initial version, which reflected the most rigorous possible notion of distress, without doubt excessively so, draft article 32(1) provided that it was concerned with situations of ‘extreme distress’. But this expression was opposed by the members of the ILC. While to some the reference to ‘extreme’ distress ought to have been maintained because of its psychological value,3 for others this excessive rigour was unnecessary.4 This requirement was rightly considered excessive by Crawford. He argued for the elimination of the word ‘extreme’ because ‘it should not be open to a State to argue that, although life was at stake in a situation of unavoidable distress, nonetheless the situation was not sufficiently “extreme” ’.5 Distress cannot preclude the wrongfulness of an act of a State which is in violation of its international obligations unless the conduct of the agent or the individual which is attributed to the State fulfils two conditions, set out in article 24(2). Establishing exceptions to the principle of preclusion of wrongfulness established in paragraph 1, the second paragraph of article 24 prevents claiming a situation of distress when distress is due, solely or in conjunction with other factors, to ‘the conduct of the State invoking it’ or when the wrongful act ‘is likely to create a comparable or greater peril’. These two conditions were drawn from the conditions for force majeure and necessity, which evidences the connection which exists between distress and these two other circumstances. The psychological element is found in the fact that the author was reasonably justifi ed in believing that there was no other means to save the lives in question but to breach international law. For the more rigorous members of the ILC, distress need only maintain a material element and the psychological element was not necessary: the author of the wrongful act had to be judged on the basis of the facts and not its intentions.6 One could not speak of intention in this sort of situation, other than the intention to save oneself or save the persons entrusted to one’s care. But distress necessarily supposes that the author

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References (p. 483) must assess the gravity of a situation and the risk that the situation entails for his life and the lives of those under his care. This assessment will lead him to adopt, possibly, a conduct contrary to the obligation, if all other means are unavailable. The Special Rapporteur did not consider that the threat to life had to be ‘apparent and have some basis in fact’, but it was sufficient that the agent ‘reasonably believed that the danger existed’, underlining that ‘in cases of genuine distress’ there may be no time to proceed to a satisfactory examination, either for lack of time or personnel.7 This criterion aims to establish a balance between the choice of the means to act and the need to act contrary to obligations in an exceptional situation.

(b) Distress, force majeure, and necessity The same circumstances, like a tempest or fog, may be at the origin of distress and force majeure. But while force majeure will occur in cases where these factual circumstances render the performance of the obligation materially impossible, in the case of distress, these circumstances place the subject of the obligation in the situation of having no other real choice than to breach an obligation to save himself or persons entrusted to his care. Thus, the circumstances may be the same as those in force majeure, but the situation in which the subject of the obligation finds himself will be comparable to that of necessity. Distress distinguishes itself from force majeure and is even more similar to necessity because the wrongful conduct adopted is not involuntary, even if, as recognized by the Commission ‘the choice is effectively nullified’,8 since the agent or the individual are concerned with saving his own life or those of persons who he has the burden to protect in a situation of peril. To exclude the idea that distress concerns a form of impossibility to act in any other way, it has often been argued that the conduct of the subject was voluntary, suggesting that there was no impossibility. However, an act may be voluntary or free in circumstances where it is impossible to act in another way, since the impossibility relates to the absence of other means (except the sacrifice of lives for the respect of the law, something that no domestic legal system requires of any of its subjects). The objective of distress also distinguishes it from the state of necessity. The underlying protected interest is not the same. While in case of distress, relating to a person or agent whose conduct can be attributed to the State, ‘the interest concerned is the immediate one of saving people’s lives, irrespective of their nationality’,9 in cases of necessity the State is confronted with a choice between the respect for its international engagements and the safeguard of a legitimate interest. Thus it is not the case that distress is a circumstance closer to necessity than force majeure.10 But as is the case for the other circumstances, distress does not necessarily preclude an obligation to pay compensation to the State to which the obligation was due. A situation posited by Crawford may be taken as example. It concerns ‘a vessel in distress of weather and already damaged which puts into a foreign port in order to save the lives of the crew’, which upon entering the port causes damage to the port installations arising, for (p. 484) instance, from fuel oil leaking from a ruptured tank.11 It may be that the vessel is under an obligation to repair the damage it caused, the idea being that ‘an innocent third State is not expected to bear alone any actual losses arising from the invocation of distress or necessity’.12 However, the other reason put forward by the Special Rapporteur is surprising: the imposition of an obligation of reparation ‘may facilitate reliance on distress as a basis for saving lives, which must be in the general interest’.13 Distress precluding wrongfulness does not entail itself any obligation of reparation for the non-performance of the obligation, even if it can be conceived that for equitable reasons or to prevent the third innocent State bearing the unjust burden compensation may possibly be due. But if this remark is understood as a condition aimed at facilitating the recognition of distress, it also raises two questions. First, it might be that distress, as codified, is really an expression of progressive development of

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international law. But to establish that the function of an obligation to pay compensation is to reinforce a circumstance precluding wrongfulness is at least peculiar, just as it is peculiar to be able to retain such an obligation. Second and to the contrary, if retention of this obligation entails leaving the door open to a widening of the notion of distress ‘in the general interest’, this measure could be then considered as a measure of legal policy on the part of the codifiers, which requires confirmation by subsequent practice.

2 A wide conception of distress: the reservations Two different understandings of distress may be found in the comments of governments. A first approach responds to a rigorous understanding of distress, so that the notion is not abused.14 Some governments went so far as to question its admission.15 To the contrary, other governments criticized the limitation of distress to saving ‘the lives of other persons entrusted to the … care’ of the State. For the United Kingdom, distress had to be replaced by an explicit recognition of emergency humanitarian action.16 Equally favourable to a more liberal understanding of distress was Japan, which considered that this circumstance should allow the protection of vital interests of the person other than his life, in particular his economic interests.17 If distress is recognized in certain specific cases which constitute the classical cases of its occurrence, it is open to question whether it is susceptible of a wider meaning, in the name of ‘elementary considerations of humanity’, in relation to which this circumstance may appear particularly relevant.

(a) The classical cases of distress Distress is a notion familiar in conventional international law, particularly in the framework of the law of the sea. The 1958 Geneva Convention on the Territorial Sea and Contiguous Zone establishes in article 14(3), for instance, that ‘[p]assage includes stopping

References (p. 485) and anchoring, but only insofar as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress’.18 Similar provisions may be found in the UN Convention on the Law of the Sea in articles 18(2), 39(1)(c), 98, and 109.19 Although the term is not expressly included, the idea of distress is also used in article 5 of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.20 Several conventions also authorize physical persons to adopt conduct contrary to what is prescribed by certain obligations when their performance threatens human lives. The entry into the territory of a State of vessels or aircraft, following bad weather, mechanical failures or navigation difficulties has regularly been admitted as distress, even if there has been some variation in the terminology employed.21 This was the case in the Alliance case, in 1903, between the United States and Venezuela.22 In the Hoff case between the United States and Mexico in 1929, the Commission seized with the dispute was required to assess the ‘degree of necessity’ which could have constrained a vessel to seek refuge in a foreign port. The Commission considered that it was not necessary for a vessel to find itself in a situation where it ‘is dashed helplessly on the shore or against rocks before a claim of distress can properly be invoked in its behalf ’.23 The Commission held that ‘if a captain delayed seeking refuge until his ship was wrecked, obviously he would not be using his best judgment with a view to the preservation of the ship, the cargo and the lives of people on board’.24 Finally, the Commission underlined that ‘the fact that [the vessel] may be able to come into port under its own power can obviously not be cited as conclusive evidence that the plea is unjustifiable’,25 which shows the connection of distress with force majeure and necessity, but also the relative assessment which can be made of the element of impossibility.

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Often a State may object to the circumstances alleged to have caused the situation of distress, without distress being questioned in principle.26 An example may be quoted concerning an incident between the United Kingdom and Iceland. The United Kingdom justified the fact that vessels of the British Navy had entered Icelandic territorial waters, while trying to seek ‘shelter from severe weather, as they have the right to do under customary international law’.27 Although Iceland suspected that the vessels intended to cause an incident, it recognized that if the British vessels had really found themselves in a situation of distress, they could have entered Icelandic territorial waters. It is therefore on

References (p. 486) the underlying facts of the situation that the positions of States often diverge, and not on the principle of distress as a circumstance precluding wrongfulness, which is only rarely contested by States. Both the UN Convention on the Law of the Sea and cases brought before the International Tribunal for the Law of the Sea evidence that the notion of distress may also cover other situations, for example under article 73 of the Convention. Thus in the Juno Trader case, the International Tribunal for the Law of the Sea underlined that ‘[t]he obligation of prompt release of vessels and crews includes elementary considerations of humanity’.28 In a case between Russia and Japan, Japan relied on the situation of the crew of the Japanese vessel, the Tomimaru, from a humanitarian point of view, in relation to the failure of Russia to respect the obligation of prompt release at the moment when a reasonable security has been paid.29 It highlighted the ‘particular distress of the crew who had to stay in a foreign country, in a freezing climate, far from their loved ones at this traditional season’.30 It can be questioned whether Japan was not specifically considering this type of situation when it put forward the idea that distress can apply to a person’s economic interests, which, without other specifications, would constitute an excessive extension of distress to the extent that it would be completely unlimited. But it is clear that the failure to perform the State’s obligation to release promptly is not a wrongful act (for which a State incurs responsibility) if the life of the crew or of certain of its members is in danger.

(b) Distress and elementary considerations of humanity Between the end of Ago’s work and the resumption of work on this subject by Crawford, the Rainbow Warrior31 case threw new light on the notion of distress and showed that this circumstance could be understood in a wider sense than the one initially retained by the ILC. But can it be expanded to cases of intervention to protect nationals abroad or humanitarian intervention, as certain States claim? (i) Distress and intervention for the protection of nationals A certain tolerance may be observed in international practice in respect of humanitarian interventions to which States have sometimes had recourse when their nationals or the nationals of ‘friendly’ States face a real danger against their lives in situations of serious unrest in the territory of another State. It can be considered that this intervention, aiming exclusively at the removal of the nationals with the purpose of sheltering the nationals from a serious an imminent or known peril, is implicitly justified by the idea of distress.32 In a different situation, the Rainbow Warrior case between France and New Zealand raised the question whether a threat to life could give rise to a situation of distress: was a specific danger for the life of the agent or persons under his care necessary, or was a serious

References (p. 487) risk to their health enough? France had acknowledged its responsibility for the destruction From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

in the port of Auckland, by two of its agents, of the Rainbow Warrior, a Greenpeace vessel, causing the death of, among others, a Portuguese photographer. Within the framework of the agreement between New Zealand and France for the settlement of the dispute between these States, France had agreed that its agents, found guilty by the New Zealand courts, would serve their sentences in the isle of Hao. France was accused of having breached the terms of the agreement for repatriating its agents to the metropolitan territory before the end of their sentence and for having considered the agreement to be null and void.33 France invoked in its defence several circumstances precluding the wrongfulness of its conduct, invoking distress in relation to the physical health of its agents. The Tribunal unanimously admitted that ‘the circumstances of distress in a case of extreme urgency involving elementary humanitarian considerations affecting the acting organs of the State’ were in principle admissible.34 The Tribunal also unanimously admitted that distress was applicable where a serious risk existed for the health of Major Mafart which could have put his life in danger.35 If an extension of the situation of distress to this type of case can be admitted, it must also be admitted that the difficulty will then be to determine the threshold below which the situation is no longer one of distress. Special Rapporteur Crawford favoured the stricter meaning of distress, considering that it was not necessary to extend the situation of distress beyond the case where there was an evident threat to life.36 This opinion was supported by certain members of the Commission, who feared opening the concept to abuse.37 If the fundamental criterion of the threshold of admissibility of distress is that of the existence of a threat to life, which can be considered as a strict but relatively well defined criterion, it can be queried whether an expansion of the scope of application of the notion of distress to cases of humanitarian assistance is possible. (ii) Distress and humanitarian assistance The application of distress to humanitarian assistance seems to have been categorically excluded by both the Special Rapporteur and the ILC. Distress should not be extended in any event ‘into the general field of humanitarian intervention’,38 a point of view strongly supported by the Commission.39 Worried that humanitarian intervention might breach their sovereignty and might be a pretext to interfere in their internal affairs, a number of States were not ready to admit any circumstance capable of precluding the wrongfulness of an intervention in their territory, against their will, even if certain populations were in danger. (p. 488) Despite these positions, this question can be asked whether distress ought to apply where a State refuses entry for rescuers into their territory. If, in particular following a natural catastrophe which can be considered as a situation of force majeure, these populations find themselves in a situation of grave peril for their life unless humanitarian aid is delivered, can it be argued that the situation of distress may justify the entry of rescuers against the will of the territorial State? This type of situation, although not precisely framed this way, was addressed by the ILC throughout its work on responsibility. Special Rapporteur Crawford considered that these circumstances were less a situation of distress than they were a situation of necessity, and included them in the examination of necessity.40 Although the United Kingdom argued that necessity should be eliminated from the draft it was particularly in favour of the extension of distress to humanitarian intervention.41 If one returns the fundamental distinction, clearly established by Ago, between distress and necessity it can be seen that necessity may be invoked to protect a vital interest of the State and distress to protect individuals. Humanitarian intervention borrows from both these circumstances, without the application of either of the circumstances satisfactorily covering this hypothesis. In fact, if it can be considered that populations are in a situation of distress, the States which wish to intervene do so in the interest of the population and that of the international community. The question of the relationship which must exist between individuals in a situation of distress and the organ or agent of the State was envisaged by the ILC. The question was whether it was necessary for a special link to bind the individuals to the agent. By opting not to require any link,

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distress was evidently susceptible of a broader scope. But it was not considered sensible to extend the application of the situation of distress to individuals other than those entrusted to the care of the State, through its agents. The Special Rapporteur considered, in fact, that if other persons were involved, this notion would not deal with a situation of compulsion, but rather of moral choice, which was not the object of this provision.42 The responses given to the question of humanitarian intervention are in fact subordinated to the question whether humanitarian intervention allows recourse to force, a question which the Commission did not address. It can be asked whether a solution to this question of fundamental importance could be found in the emerging concept of responsibility to protect. The responsibility to protect was put forward by the Evans-Sahnoun report of the International Commission on Intervention and State Sovereignty (ICISS).43 The responsibility to protect consists of the idea that it is the duty of every State to protect its own population against certain crimes, but that in certain cases where the territorial State is unwilling or unable to comply with this duty, it is the international community’s duty to do so. The question of the use of force will be left to one side.44 But it can be (p. 489) considered that the jus cogens character of the right to life could justify an intervention. The distress of populations could then be considered as the justifying fact which precludes the wrongfulness of the intervening States.45 Certain situations plead for an extension of the notion of distress. The earthquake in Burma in May 2008 and the refusal of the Burmese government to allow rescuers to reach the victims is the most recent and most crucial example.46 Whether one speaks of a crime against humanity, as the French Minister of Foreign Affairs did, or of an intolerable situation, as did the government of the United Kingdom, the attitude of the Burmese authorities could also raise questions of State responsibility. In this type of situation, distress is one of the questions raised. The ILC preferred to be cautious, and followed positive law which provided for ‘a narrow but historically recognized case of distress involving, in particular, ships and aircraft’.47 Thus, the situation of distress currently incorporates, apart from cases where the life of the agent is at risk, cases where there exists a threat to the lives of persons who are in a special relationship of protection with the author of the wrongful act. This shocking discrepancy can be criticized, although it is without doubt inevitable: it is left to practice, and possibly to case law, to bring about an evolution in which necessity must no longer be proved. Further reading J Salmon, ‘Faut-il codifier l’état de nécessité en droit international?’, in Etudes de droit international en l’honneur du juge Manfred Lachs (The Hague, Martinus Nijhoff, 1984) M Sørensen, Manual of International Law (New York, St Martin Press, 1968) S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996)(p. 490)

Footnotes: 1 J Salmon, ‘Faut-il codifier l’état de nécessité en droit international?’, in Etudes de droit international en l’honneur du juge Manfred Lachs (The Hague, Martinus Nijhoff, 1984), 235. 2 M Sørensen, Manual of International Law (New York, St Martin Press, 1968), 220. 3 J Kateka, 2591st meeting (22 June 1999), ILC Yearbook 1999, Vol I, 171 (para 22). 4 M Rosenstock, 2591th meeting (22 June 1999), ILC Yearbook 1999, Vol I, 171–172 (para 24). 5 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 274. 6 M Kamto, 2592nd meeting (23 June 1999), ILC Yearbook 1999, Vol I, 179 (para 31). 7 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 271. 8 Commentary to art 24, para 1.

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9 Ibid. 10 As held by Special Rapporteur Crawford: see J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 344. This circumstance rather takes from both of the others, as mentioned earlier. For further discussion of the comparison between force majeure, distress, and state of necessity see S Szurek, La force majeure en droit international (doctoral thesis, Université Paris II Panthéon-Assas, 1996), Vol II, 540, 559–567. 11 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 344. 12 Ibid, para 346. 13 Ibid, para 344. 14 See the position of France, ‘Comments and observations received from Governments’, 1998, A/CN.4/488, 86–87, quoted by J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 267. 15 Mongolia, ‘Comments and observations received from Governments’, 1998, A/CN.4/488, 86. 16 United Kingdom, ibid, 86–87. 17 Japan, ILC, ‘Comments and observations received from Governments’, 1999, A/CN.4/492, 12. 18 Convention on the Territorial Sea and Contiguous Zone, Geneva, 29 April 1958, 516 UNTS 205. 19 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3. 20 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 13 November 1972, 1046 UNTS 120. 21 See the examples given in ‘“Force majeure” and “fortuitous event” as circumstances precluding wrongfulness: survey of State practice, international judicial decisions and doctrine— Study prepared by the Secretariat’, ILC Yearbook 1978, Vol II(1), 61, 102–103 (paras 141–142), 125 (para 252). 22 Alliance, 1903–1905, 9 RIAA 140. 23 Kate A Hoff, Administratrix of the Estate of Samuel B Allison, Deceased (USA) v United Mexican States, 2 April 1929, 4 RIAA 444, 447. 24 Ibid, 447. 25 Ibid, 447. 26 See the exchange of notes between the United States and the Republic of Yugoslavia, following the flight of American aircraft over Yugoslav airspace without authorization due to a situation of distress. United States of America, 15 September 1946, 15 DSB 502. See also ‘“Force majeure” and “fortuitous event” as circumstances precluding wrongfulness: survey of State practice, international judicial decisions and doctrine—Study prepared by the Secretariat’, ILC Yearbook 1978, Vol II(1), 61, 103 (para 145). 27 ‘“Force majeure” and “fortuitous event” as circumstances precluding wrongfulness: survey of State practice, international judicial decisions and doctrine—Study prepared by the Secretariat’, ILC Yearbook 1978, Vol II(1), 102 (para 136). 28 ITLOS, The ‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, 18 December 2004, 128 ILR 267, 290 (para 77). 29 The ‘Tomimaru’ Case (Japan v Russian Federation), Prompt Release, Public Sitting, 21 July 2007. 30 New Year, equivalent to Christmas for the Japanese: ibid, 4. 31 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

32 This unilateral removal of nationals must not be confused with humanitarian intervention for charitable purposes. For an explanation of this distinction and its application in practice, see M Bettati, Le droit d’ingérence. Mutation de l’ordre international (Paris, Odile Jacob, 1996), 204–205, 207–212. 33 On this case, see, notably, G Appolis, ‘Le règlement de l’affaire du Rainbow Warrior’ (1987) 91 RGDIP 9; R Pinto, ‘L’affaire du Rainbow Warrior: à propos de la sentence du 30 avril 1990, Nouvelle-Zélande c/France’ (1990) 117 JDI 841. 34 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 254–255 (para 78). 35 For a summary of the Tribunal’s pertinent discussion on this question, see J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, paras 269–271. 36 Ibid, para 274. 37 J Kateka, 2591st meeting (22 June 1999), ILC Yearbook 1999, Vol I, 171 (para 22). 38 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 272. 39 See intervention of M Kamto, for whom the situation of distress should not apply other than to ships and aircraft and ‘on no account should it be possible to invoke it to justify a humanitarian intervention’, 2592nd meeting (23 June 1999), ILC Yearbook 1999, Vol I, 179 (para 30). 40 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 272. 41 ILC, 2587th meeting (15 June 1999), ILC Yearbook 1999, Vol I, 140 (para 25), which is not necessarily contradictory, as the Special Rapporteur thought: ibid, 140 (para 26). 42 J Crawford, 2592nd meeting (23 June 1999), ILC Yearbook 1999, Vol I, 180 (para 40). 43 In general, on this question see SFDI, La responsabilité de protéger—colloque de Nanterre (Paris, Pedone, 2008). 44 See ‘Table ronde: La communauté internationale et les réactions coercitives: responsabilité de protéger et principe de l’interdiction du recours à la force’, in SFDI, La responsabilité de protéger— colloque de Nanterre (Paris, Pedone, 2008), 295. 45 On the application of the responsibility to protect in cases of natural catastrophe, see: ‘Responsabilité de protéger et catastrophes naturelles: l’émergence d’un régime?—Atelier I’, in SFDI, La responsabilité de protéger—colloque de Nanterre (Paris, Pedone, 2008), 149. 46 See G Evans, ‘Facing up to our Responsibilities’, The Guardian, 12 May 2008. 47 J Crawford, Second Report on State Responsibility, 1999, A/CN.4./498, para 272.

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Part III The Sources of International Responsibility, Ch.33.7 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity Sarah Heathcote From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 491) Chapter 33.7 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity 1 Controversies 492 2 The ILC’s domestication of necessity 494 (a) Necessity and other circumstances precluding wrongfulness 495 (b) Content of the exception 496 3 Concluding remarks: some recent necessity cases 499 Further reading 501 Necessity, previously called ‘state of necessity’ by the ILC, refers to situations where the sole means by which a State, or possibly the international community as a whole, can safeguard an essential interest threatened by a grave and imminent peril, is temporarily not to respect an international obligation protecting an interest of lesser value.1 The interest being thus protected might be one of the State alone, or perhaps, one of the international community as a whole.2 Elevating necessity to the rank of a circumstance precluding wrongfulness, a State, or several States acting together unilaterally, can address an urgent situation which at the time the act in necessity is taken, had not been foreseen by the law. The effect of such a defence is to avoid an overly rigid application of the law in circumstances where there are conflicting values. Whilst the definition of necessity is generally constant both in the literature and in State practice, it is also abstract: neither the ends to be safeguarded by an act in necessity, nor the means by which that act may be effected, are indicated by the rule, except to underline the relative importance of the values at stake. It is also a highly subjective defence, since its application, which is necessarily unilateral, results from a deliberate choice (unlike force majeure) and requires a balancing of the intrinsic values in conflict. The necessity exception thus poses a potential threat to legal stability, a threat which has in the past given rise to abuse. Necessity is indeed, controversial (Section 1). In its codification work, the ILC made it workable only by including it as an exceptional rule and submitting it to very strict conditions of application (Section 2).

References

(p. 492) 1 Controversies Necessity is controversial firstly because of the abuses that have been committed in its name. This has led to some confusion between necessity as a temporary exception, which allows for the management of unforeseen crises; and necessity as a simple authoritative pheno menon of an ethical or political nature. It is in the latter sense that a purported rule of necessity, which would render an unlawful act lawful in the name of protection of vital interests, has served in the past as a pretext for achieving power-political ends in disregard of the prin ciple of sovereign equality of States. Necessity was thus invoked to justify the annexations of Krakow by Austria in 1846; of Rome by Italy in 1870; of Bosnia-Herzegovina by Austria-Hungary in 1908; of Ethiopia by Italy in 1936; as well as the occupation of Belgium and Luxemburg in 1914 by Germany; of Korea by Japan during the Russian-Japanese war; of Denmark, Norway, the Netherlands, Belgium, and Luxemburg 3

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by Germany; and of Yugoslavia and Greece by Italy, during the Second World War.3 A second controversy relates to the rule’s foundation or the policy arguments used to support it. In his consideration of the concept, Grotius favoured the defence based on Roman law, and others, extrapolating on his thoughts, would promote it as a so-called subjective right, placing it in the framework of a supposed larger natural right, deemed fundamental or inherent, to selfpreservation.4 Faced with such a right, all other rules of law were said to yield. A second school of thought with origins in the ideas of Fichte and Hegel affirmed that a situation of necessity was simply outside the grasp of the law, expressed in the maxim ‘necessity knows no law’,5 as stated by the German chancellor in 1914, when the Reich violated Belgian and Luxembourgian neutrality at the outbreak of the First World War. In an attempt to anchor necessity in positive law, Anzilotti argued that a defence based on necessity was inherent in all rules of law, because no State would consent to be subjected to an impeding rule in such situations.6 However, all these views ultimately lead to the suggestion that sovereignty is a subjective right (rejected in the case of the SS Wimbledon,7 amongst others). Consequently the effect of the above reasoning is to undermine the binding character of international law: to confuse necessity in the sense of a political, moral, or other imperative with what the ILC claims is merely an exception of necessity that, far from being a subjective right, simply permits, under certain circumstances, the temporary non-execution of an international obligation. Without seeking to premise a defence of necessity on these deductive considerations, they nonetheless have some resonance with modern arguments which attempt to explain why necessity should have a place in the legal order. One such argument sees the principle as an expression of equity, which requires that rules of law not be too rigidly applied: summum jus, summa injuria.8 Put differently, while giving priority to particular urgent circumstances, prompting a response in the spirit of the law, though contrary to the explicit terms of a particular rule, the veil formed by the rules ought to be lifted to

References (p. 493) appreciate the intrinsic values behind the conflict. Here an association with natural law is apparent and this has often been symbolically articulated by reference to the ancient ‘plank of Carneades’ scenario. Nonetheless, since the 19th century, necessity has generally been approached from a utilitarian angle, modern discourse emphasizing its link with the proportionality principle, including that principle placed in its social context; namely, reasonableness. A third controversy is whether such an exception has crossed the normativity threshold, either by being confirmed by State practice and opinio juris and thus constituting a rule of customary international law, or by amounting to a general principle within the meaning of article 38(1)(c) of the Statute of the International Court of Justice. As yet, no general conventional provision anchors the rule. An analysis of the case law reveals that the necessity defence, subjected to strict conditions, has in principle been accepted by a growing number of cases, even though it has not been upheld on the facts in any of them. This was the case in The Neptune,9 Russian Indemnity,10 GabčíkovoNagymaros Project,11 the MV Saiga,12 the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,13 and the decision of an ICSID tribunal in CMS Gas Transmission v Argentina, subsequently criticized in a decision on annulment.14 Some diplomatic incidents might initially suggest that States admit the defence. Thus in the Caroline incident of 1837, British armed forces intervened on American territory to destroy a vessel transporting material and recruits for Canadian insurgents. After diplomatic exchanges, the British and the Americans reached an agreement that when faced with a situation of ‘legitimate necessity that is instant, overwhelming and leaving no choice of means, and no moment for deliberation’, such an intervention would be temporarily admissible. But even so, the Americans expected and demanded an apology from the British, thereby suggesting that such a defence did little if anything to remove the wrongfulness of the act itself.15 In the Russian Sea Fur Seals incident, Russia promulgated a provisional decree in 1893 which prohibited sea lion hunting on the high seas off the Russian coast ‘as a precautionary measure’ to prevent the extinction of the species, but significantly those States most affected by the decree, the United States and the United Kingdom, protested the Russian measure.16 In the Torrey Canyon incident (1967), a Liberian oil tanker that was breaking up on the high seas, was bombarded to limit oil pollution damage threatening the Cornish coast.17 No State protested the British action: but was this because of indifference or was it a legally motivated, and hence a legally relevant, silence? Without doubt, the French Nachfolger

References (p. 494) judgment,18 where the facts were very similar to those in Torrey Canyon, presents the most convincing example of the application of the necessity exception. In that case, there were protests against the French destruction of wreckage off its coastline (though on the high seas), but a French court, in its decision of 23 October 1987, approved the French reaction in terms invariably associated with necessity, albeit without expressly invoking that plea.19 Whether necessity is a general principle of law in the sense of being both present in the various legal systems and transposable to the international level is a difficult question as ILC Special Rapporteur Ago, who introduced necessity to the ILC, himself admitted.20 Globally, and contrary to what one may think, its presence in civil law legal systems is only relatively recent; even more surprising, it appears in the common law, though, has only recently been accepted in regard to

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criminal matters. Nonetheless its configuration varies: for example, in the English criminal law, it protects a subjective right, such as life,21 rather than an otherwise unprotected ‘interest’ which is the case internationally. Moreover, in such circumstances, it is only accepted as an excuse; meaning that the actor is forgiven although the act remains unlawful.22 The latter is difficult to reconcile with the structure of necessity as it would apply in international law, which as a circumstance precluding the wrongfulness of an act renders the act lawful, rather than merely excusing the actor.23 Another problem of transposability is the lack of compulsory jurisdiction at the international level which would ‘objectivize’ through impartial adjudication any invocation of the necessity plea. Necessity is located at the crossroad between law and non-law; it engages issues of formal legality against notions of justice. By requiring that in situations of exceptional urgency, the priority lies with the most important value among those in conflict, rather than referring to issues of form (coverage by a rule or not), an exception of necessity tends to raise questions about the character and function of international law. But this intellectual difficulty need not prevent the existence in positive law of a rule allowing a necessity defence. For a long time, neither practice nor cases resolved the matter convincingly. The ILC nevertheless chose to domesticate the notion to make it less susceptible of abuse—a task for which it shortly thereafter received high judicial support, first in the Gabcìkovo-Nagymaros case and subsequently in the Wall Advisory Opinion.

2 The ILC’s domestication of necessity The ILC only places necessity at a minimum threshold of legal acceptability. Like the other circumstances precluding wrongfulness, it is implicit that by invoking it, the author of the act places itself on the terrain of wrongfulness in the event that the defence does not apply.24 The defence will only persist as long as the situation of necessity itself persists and the invocation of necessity as a circumstance precluding wrongfulness is without prejudice

References (p. 495) to the question of compensation for material damage.25 Moreover, necessity cannot be invoked unless a series of cumulative conditions are met. Article 25 ARSIWA provides: Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: 1 . (a) is the only means for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2 . In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity. Article 25 is a somewhat enlarged version of draft article 33 adopted by the ILC on first reading in 1996 and which was considered in 1997 by the International Court as a reliable transcription of customary law.26 The substantive amendments made to former draft article 33 are: that the defence might be invoked to safeguard an essential interest of the international community as a whole and not merely as traditionally conceived, to safeguard a State’s own individual interest; and that the possibility of invoking the defence can be excluded both by a customary or a conventional norm (and not only by the latter). A formal change is that, the stipulation according to which it is not possible to invoke the defence where it would result in a violation of a jus cogens norm, has been moved to article 26, which is applicable to article 25 as it is to the other circumstances precluding wrongfulness set out in Chapter V of the Articles.

(a) Necessity and other circumstances precluding wrongfulness The ILC has taken care to distinguish necessity from other circumstances precluding wrongfulness. Older cases sometimes assimilated necessity with force majeure.27 In the case of force majeure, respecting the obligation is absolutely impossible, whereas in the case of necessity, the impossibility is relative: a choice is made between suffering the grave and imminent peril and violating an obligation protecting an interest of lesser importance. The Commentary to article 23 indicates that in cases of force majeure there is no ‘element of free choice’,28 but also notes that ‘[c]ertain situations of duress or coercion involving force imposed on the State may also amount to force majeure’.29 In categorizing the latter as force majeure, the ILC has narrowed the notion of necessity, making the distinction harder to apply. Whilst also a situation of relative impossibility, distress can be distinguished from necessity by reference to the character of the threatened interest. In a situation of distress, the threat is to human life.30 In contrast, in a case of necessity, the threat is to an essential interest of the State or potentially (for this is considered progressive development) to one of the international community as a whole. Nonetheless, where the survival of a State’s population is at stake, the ILC categorizes the situation as necessity.

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There is of course a resemblance between self-defence and necessity, as is made apparent by the fact that writers sometimes cite the Caroline incident in the context of

References (p. 496) self-defence (even though there was no prohibition on the use of force at the time of the incident) and sometimes in the context of necessity. Moreover, what are today termed countermeasures have, on occasion, historically been termed acts of necessity.31 This reveals how necessity might be considered a material source or extra-legal blueprint of all legal defences at the level of primary rules. However, for the ILC, necessity is presented as an external circumstance precluding wrongfulness in the sense that it has no connection with a prior wrongful act of the injured State, unlike self-defence and counter-measures which are internal in that they are each a response to a prior wrongful act of the injured State.

(b) Content of the exception The conditions for the application of necessity are strict and can be divided into two categories. The first category relates to the balancing of conflicting interests at stake (article 25(1)) and the second category consists of conditions of absolute preclusion of the possibility of invoking the defence (article 25(2)). Article 25(1) includes four constitutive elements of necessity: (1) an essential interest; (2) threatened by a grave and imminent peril; (3) there being only a single means by which the State can safeguard the interest (and which absent the defence, would constitute unlawful means); and (4) while exercising those means, the interest which is to be disregarded and which is ordinarily protected by the law, must be of lesser value than that being safeguarded in necessity. In its customary law definition of necessity, the ICJ included the condition specified in article 25(2)(b) that the State invoking necessity cannot have contributed to the occurrence of the situation of necessity.32 It is significant that the State invoking necessity is not the sole judge of the question whether these conditions are met,33 which would implicate control a posteriori by a third party.34 If this is indeed a condition, it entails compulsory adjudication for the defence to be made out—or that the injured State accept the act, in which case one is dealing either with consent or a waiver of responsibility, depending on when acceptance is given, and not necessity. What constitutes an essential interest is not a fixed category and is not limited to safeguarding the very survival of the State itself. It includes, notably, the preservation of the natural environment or the ecological equilibrium,35 the economic survival of the State, and the maintenance of the food supply of the population.36 However, the ILC has stressed that necessity must be distinguished from a purported ‘fundamental right of State survival’, somewhat surprisingly raised by the ICJ in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons.37 Far from being a subjective right, necessity is

References (p. 497) nothing more than a fact which can be invoked to justify the temporary non-conformity of an act with an international obligation. Consistent with this distinction, Ferrari Bravo, representative of Italy in the Sixth Committee in 1980, suggested that a State should never be able to invoke necessity to safeguard its political system or to protect its territorial or military interests.38 Other States have expressed similar doubts with respect to the subjective character of the notion of an essential interest.39 The difficulty lies in finding the limits to a State’s discretion to characterize interests as ‘essential’. At first sight, this characterization appears to lie within the State’s domestic jurisdiction, but limits, such as good faith, also play a role. Arguably, there needs to be a certain social consensus amongst the international community—an opinio necessitatis, if not an opinio juris necessitatis (or there would be no need for the necessity defence)—that the interest to be protected in is indeed ‘essential’. If this is correct, one can better understand why necessity situations are so susceptible of prompting subsequent changes in the law, or otherwise stated, why necessity is the material source of rules of exception (such as self-defence) par excellence. According to article 25, the essential interest that is to be protected may belong to a plurality of States or even to the international community as a whole. This is implied in article 25(1)(a), and stated explicitly in the Commentary.40 The feeling in the Commission was that this aspect of article 25 was progressive development, but was justified particularly in respect of jus cogens norms.41 It should be noted that an ‘essential interest’ for the purposes of article 25 is broader than the concept of ‘fundamental interest’ for the purposes of article 40, the latter being limited to peremptory norms. Although an essential interest may embrace an interest protected by a peremptory norm, this is not necessarily the case as essential interests are a broader category. Finally, whatever the status of necessity in this community oriented aspect, it cannot be used as a legal basis for an actio popularis.42 The second constitutive element of necessity is the presence of a grave and imminent peril which threatens the essential interest. The word peril evokes the notion of risk as opposed to damage which has already materialized.43 Necessity thus serves as a preventative mechanism, to manage crises which if not averted, will lead to grave harm. But can it go further, to include the precautionary principle? The answer lies in the interpretation of the word ‘imminent’, which qualifies the condition of peril. On the one hand, the Commentary to article 25 indicates that it is not sufficient that the peril be ‘merely apprehended or contingent’.44 Indeed, the International Court has been stricter, stating that although a peril may only materialize in the long term, it must nevertheless, at the time necessity is invoked, be certain and inevitable.45 This would appear to

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exclude applying the precautionary principle in relation to necessity because the precautionary principle relates to risks that, although certainly grave, are no more than possibilities and are as yet unproven. On the other hand, and in support of a larger scope of the necessity defence, the Commentary to article 25 notes that what is required for a successful necessity plea is that ‘the peril is clearly established on the basis of the evidence reasonably available at the

References (p. 498) time’.46 Moreover, both the Commentary47 and Special Rapporteur Crawford’s Third Report48 note that there may in cases of necessity be a measure of scientific uncertainty in assessing whether there is a peril, whether it is grave and imminent and whether the act proposed is the only one available in the circumstances. Thus the existence of a measure of scientific uncertainty need not preclude necessity. In this context, it is interesting to note that under French law, necessity has been invoked for acts taken on the basis of the precautionary principle in relation to the destruction of GMOs and indeed this plea was upheld by the domestic courts.49 The act in question must also constitute the only means of safeguarding the threatened essential interest. The Commentary to article 25 notes that a plea of necessity is excluded ‘if there are other (otherwise lawful) means available, even if they may be more costly or less convenient’.50 Further, the act must not ‘seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole’.51 From a contextual reading it emerges not only that an essential interest must not be impaired, but also that the interest sought to be safeguarded must be of greater importance than the interest which is temporarily disregarded. Article 25(2) specifies conditions under which a plea of necessity is absolutely excluded. According to article 25(2)(a), the defence cannot be invoked when the international obligation which is to be disregarded on grounds of necessity excludes the possibility of invoking necessity, and this regardless of the source of that rule. Such an exclusion may be explicit in the primary rule (which would be rare) or implicit, either because the primary norm contains a lex specialis, or because its interpretation does not leave room for the defence. In the Wall Advisory Opinion, the International Court drew attention to the existence of exceptions within both humanitarian and human rights law for situations of necessity,52 thereby implying that the application of necessity in the sense of the rule in article 25 would be excluded, without however arriving at this conclusion. The ILC Commentary goes further, correctly specifying that military necessity cannot be invoked except insofar as it is specifically envisaged by international humanitarian law.53 In relation to the jus ad bellum, the Commentary notes that States have invoked necessity to justify forcible action, in particular where there is a claim to humanitarian intervention. However, the ILC does not express a view as to whether such measures may be covered by the rule in article 25, as, consistently with article 25(2)(a), this is to be ascertained through a proper inter pretation of the rule contained in article 2(4) of the Charter.54 It is interesting that in its 1980 Report, the ILC had left open the possibility that certain acts implying a use of force could be justified by necessity, namely ‘certain actions by States in the territory of other States which, although they may sometimes be of a coercive nature, serve only limited intentions and purposes bearing no relation to the purposes

References (p. 499) characteristic of a true act of aggression’.55 The ILC nonetheless considered that States rarely relied upon necessity to justify humanitarian intervention,56 citing as State practice Belgium in respect of interventions in Congo in 1960 and 1964, and in respect of Kosovo in 1999; 57 and the United Kingdom also in respect of Kosovo in 1999 before the Security Council.58 The determination of this matter is however beyond the scope of article 25, although arguably that article as cast by the ILC, coupled with article 26, goes further to excluding than including it within the scope of the defence.59 Finally, article 25(2)(b) stipulates that the defence cannot be invoked if the State has contributed to the occurrence of the situation of necessity. This contribution must be ‘suffi ciently substantial and not merely incidental or peripheral’.60 Jean Salmon has queried whether this might entail an absurd result if, for example, necessity could not be invoked to safeguard the life of the population because the State itself contributed to the situation.61 Certain authors remain critical of article 25. For Kohen, it is a desperate argument raised by jurists who are otherwise unable to find a justification for wrongful conduct.62 Salmon undertakes a thorough analysis of the vague character of the defence.63 More generally, however, arguments for and against the plea tend very often to be founded on extra-legal considerations.

3 Concluding remarks: some recent necessity cases By way of conclusion one can note three principal cases in which necessity has been raised. In Gabcìkovo-Nagymaros Project, the question was whether Hungary could suspend and then abandon the construction of a system of dams on the Danube provided for in a treaty in force between it and Slovakia (as a successor State to Czechoslovakia). The International Court concluded that safeguarding the environment was indeed an essential interest, but on the facts, held that the requirements of the defence were not met. Hungary had contributed to the occurrence of the necessity situation; 64 there were other means of averting the risk of environmental damage; 65 and the peril was not imminent.66 If in this case the ICJ affirmed the customary status of necessity, it also reinforced its exceptional character.

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In the Wall Advisory Opinion, the International Court itself raised the exception to reaffirm necessity’s customary character, without applying it to the circumstances at hand:

References (p. 500) construction of the wall was not the only means at Israel’s disposal to safeguard its essential interests.67 As a result, the Court did not need to express any conclusion as to whether the defence was excluded by the primary norms relating to international humanitarian law and human rights law, although the exclusion of necessity on that ground seems rather obvious. Moreover, the Court did not address the fact that the interest which would be sacrificed—the right of Palestinians to self-determination—was of a peremptory character, which automatically excludes the possibility of invoking necessity and should have made it unnecessary for the Court to enter into other considerations.68 In CMS Gas Transmission v Argentina, an ICSID Tribunal affirmed in its 2005 award the customary character of the principle as codified by article 25 ASRIWA, but on the facts rejected Argentina’s necessity plea raised on the grounds of its financial crisis of the late 1990s–2001. For the Tribunal, Argentina’s measures to suspend its obligations were neither temporary, nor the sole means at its disposal to avert the crisis—other means existed even if they were more onerous. Moreover, the Tribunal found that Argentina had contributed to the onset of the crisis.69 It is interesting that after having examined necessity as a circumstance precluding wrongfulness and thus at the level of secondary rules, the Tribunal then considered a primary rule cast broadly in necessity’s image, the ‘Emergency Clause’ in article XI of the 1991 US—Argentina Bilateral Investment Treaty (BIT). It proceeded to interpret that Clause in the light of article 25 ASRIWA’s conditions, an approach which would be criticized by the ad hoc Committee on Annulment, convened to consider the 2005 award. The Committee considered this approach to be a ‘manifest error of law’, as the two rules were substantively different.70 Not only did they differ in content, they also operated differently: 71 the Annulment Committee pointed out that if the conditions of the Emergency Clause had been made out there would be no breach of the BIT; whereas necessity went to the question of wrongfulness and of a circumstance precluding responsibility.72 Had it been operating as a court of appeal, the Annulment Committee would have annulled the award on this ground.73 Finally, one can note that having rejected the applicability of necessity and the Emergency Clause, the Tribunal nonetheless considered that ‘whilst not excusing liability or precluding wrongfulness from the legal point of view they [the consequences of the crisis] ought nevertheless to be considered by the Tribunal when determining compensation’.74 This the Tribunal did (thereby applying necessity as an excuse) and somewhat curiously, it did so on the basis of article 27 ARSIWA. As the Annulment Committee pointed out, article 27 is a saving clause, not a stipulation, and in any event, the Tribunal had rejected necessity on the facts and consequently reparation was necessarily for an internationally wrongful act.75

References (p. 501) A number of other cases have been brought against Argentina before ICSID tribunals in respect of the same financial crisis, with discordant results. Of particular interest is the LG&E Award, which appears to accept that the conditions of necessity were met on the facts, although the Tribunal concludes that: ‘Whilst this analysis concerning Article 25 of the Draft Articles on State Responsibility alone does not establish Argentina’s defence, it supports the Tribunal’s analysis with regard to the meaning of Article XI’s requirements [that is, the requirements under the BIT] that the measures implemented by Argentina had to have been necessary either for the maintenance of public order or the protection of its own essential security interests.’76 Perhaps these ICSID cases reveal that a primary rule of ‘financial necessity’ is emerging. If so, this is not the secondary rule of necessity codified by article 25 ASRIWA, but does reveal the latter’s role de lege ferenda of propelling new rules of exception over the normativity threshold. Further reading D Anzilotti, ‘La responsabilité internationale des États à raison des dommages soufferts par des étrangers’ (1906) 10 RGDIP 285 J Barboza, ‘Necessity (Revisited) in International Law’, in Makarczyk J (ed), Essays in Honour of Manfred Lachs (The Hague, Martinus Nijhoff, 1984), 27 R Boed, ‘State of Necessity as a Justification for Internationally Wrongful Conduct’ (2000) 3 Yale Human Rights and Development Law Journal 1 E Cannizzaro, Il principio della proporzionalità nell’ordinamento internazionale (Milan, Giuffré, 2000) O Corten, L’utilisation du ‘raisonnable’ par le juge international (Brussels, Bruylant, 1997) P Foriers, De l’état de nécessité en droit pénal (Bruxelles, Bruylant, 1951) MG Kohen, ‘L’Emploi de la force et la crise du Kosovo: vers un nouveau désordre juridique international’, in Ch-A Morand (ed), La crise des Balkans de 1999 (Brussles, Bruylant, 2000), 129 MG Kohen, ‘State Survival and International Law’, in L Boisson de Chazournes & P Sands (eds), Nuclear Weapons the International Court of Justice (Cambridge, CUP, 1999), 293 S Heathcote ‘State of Necessity and International Law’, Thèse, Université de Genève, 2005 S Maljean-Dubois, ‘L’arrêt rendu par la Cour internationale de Justice le 25 septembre 1997 en l’affaire Gabcìkovo-Nagymaros (Hongrie/Slovaquie)’ (1997) 43 AFDI 286 F Ouguergouz, ‘L’absence de clause de dérogation dans certains traités relatifs aux droits

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de l’homme: les réponses du droit international general’ (1994) 98 RGDIP 289 P Pilittu, Lo stato di necessità nel diritto internazionale (Perugia, Libreria editrice universitaria, 1981) G Politakis, Modern Aspects of the Laws of Naval Warfare and Maritime Neutrality (London, Kegan Paul International, 1998) BC Rodick, The Doctrine of Necessity in International Law (New York, Columbia University Press, 1928) E Roucounas, ‘L’urgence et le droit international’, in Le droit international et le temps, Colloque de Paris de la SFDI 2000 (Paris, Pedone, 2001), 201 J Salmon ‘Faut-il codifier l’état de nécessité en droit international’, in J Makarczyk (ed), Essays in Honour of Manfred Lachs (The Hague, Martinus Nijhoff, 1984) 235 P Weiden ‘Necessity in International Law’ (1939) 21 Transactions of the Grotius Society 105

References (p. 502)

Footnotes: 1 Art 25 ARSIWA. 2 In respect of international organizations acting in order to safeguard community interests, see Report of ILC, 57th Session, 2006, A/61/10, 272–275. 3 J Salmon ‘Faut-il codifier l’état de nécessité en droit international’, in J Makarczyk (ed), Essays in Honour of Manfred Lachs (The Hague, Martinus Nijhoff, 1984), 243. 4 For a summary of the various authors’ views, see S Heathcote ‘State of Necessity and International Law’, Thesis, Université de Genève, 2005), 308–355. 5 ‘Nécessité n’a point de loi’ or ‘Not kennt kein Gebot.’ 6 D Anzilotti, ‘La responsabilité internationale des États à raison des dommages soufferts par des étrangers’ (19 09) RGDIP 285, 304. 7 SS Wimbledon, 1923, PCIJ, Series A, No 1, p 4, 22. 8 R Ago, Addendum to the Eighth Report on State Responsibility; ILC Yearbook 1980, Vol II(1), 13, 51; ILC Yearbook 1980, Vol II(2), 49–50. 9 The Neptune, reproduced in A de Lapradelle and A Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), Vol I, 139. 10 Russian Indemnity (Russia/Turkey), 11 November 1912, 12 RIAA 44. 11 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7. 12 MV Saiga (No 2), (Saint Vincent and the Grenadines v Guinea), International Tribunal for the Law of the Sea (1999) 38 ILM 1323. 13 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136. 14 CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/8), Award, 12 May 2005, 14 ICSID Reports 152. See further below for a discussion of the decision on annulment: CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/08), Decision on application for annulment, 25 September 2007, 14 ICSID Reports 251. 15 29 BFSP 1129. 16 Chasse aux phoques au large de la côte russe (1893) in H La Fontaine, Pasicrisie internationale, 1794–1900 (The Hague, Martinus Nijhoff, 1997), 426; 1 IELR 43. 17 Torrey Canyon, in Ch Rousseau, ‘Chronique des faits internationaux’ (1997) 4 RGDIP 1092. 18 Société Nachfolger Navigation Co Ltd (1988) 104 Revue de droit international public et de la science politique 851. 19 Ibid. 20 R Ago, Addendum to the Eighth Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 13, 18–19 (para 11). 21 In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (Court of Appeal of England and Wales). 22 R v Perka [1984] 2 SCR 232 (Supreme Court of Canada). 23 See further S Heathcote ‘Est-ce que l’état de nécessité est un principe de droit international coutumier?’ (2007) RBDI 53, 87–88. 24 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 40 (para 48). 25 Art 27 ARSIWA. 26 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 41 (para 52). 27 See eg Russian Indemnity (Russia/Turkey), 11 November 1912, 12 RIAA 421. 28 ARSIWA, Commentary to art 23, para 1. 29 Ibid, para 3. 30 Art 24, ARSIWA.

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31 Thus in 1927 in response to a question whether the Swiss government could impose taxes on aliens whose governments had levied inequitable taxes on Swiss nationals, the Swiss Département politique replied inter alia that ‘reprisals are justified only on the basis of state of necessity; they require the failure of all other means of settlement of the dispute’: Répertoire suisse de droit international public, vol III, 1785 at 1787, para 8.57. See on this opinion O Elegab, The Legality of Non-Forcible Counter-measures in International Law (Oxford, Clarendon Press, 1988), 29. 32 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 41 (para 52). 33 Ibid, 40 (para 51). 34 ILC Yearbook. 1996, Vol II(2), 45–46. 35 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 41 (para 53). 36 R Ago, Addendum to the Eighth Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 13, 50 (para 78). 37 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226; see also the critique of M Kohen, ‘The Notion of State Survival in International Law’, in L Boisson de Chazournes & P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge, CUP, 1999), 293–314. 38 (1980–1981) 5 Italian Yearbook of International Law 286. 39 For example, A/CN.4/351/Add.2, 7 April 1982, 2; for the British position see ‘Comments and observations of governments’, A/CN.4/515 19 March 2001, 32–33. 40 ARSIWA, Commentary to art 25, para 16. 41 Ibid, para 18. 42 See S Heathcote, ‘State of Necessity and International Law’, Thèse, Université de Genève, 2005. 43 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 41–42 (para 54). 44 ARSIWA, Commentary to art 25, para 16. 45 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 42 (para 54). 46 ARSIWA, Commentary to art 25, para 16. 47 Ibid. 48 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498 paras 288–289. 49 Decision of the correctional tribunal of Versailles, 12 January 2006, reported by C Lienhard, Journal des accidents et catastrophes available at: (accessed 19 September 2009). 50 ARSIWA, Commentary to art 25, para 15. 51 Art 25(1)(b), ARSIWA. 52 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 192–193 (paras 136 and 137). 53 ARSIWA, Commentary to art 25, para 21. 54 Ibid. 55 Report of the ILC, 32nd Session, ILC Yearboook 1980, Vol II(1), 1, 43 (para 23). 56 Ibid, 45. 57 Legality of Use of Force (Serbia and Montenegro v Belgium), Oral Pleading of Mr Ergec for Belgium, 10 May 1999, CR 99/15, 7. 58 S/PV3988, 24 March 1999, 12. 59 Moreover any interpretation of the Corfu Channel as supporting ‘forcible necessity’ is to be rejected; the reduction in reparations owed by the United Kingdom (UK) was due to Albania’s contribution to the injury, not to a purported UK entitlement to ground Operation Retail on necessity: Corfu Channel, Merits, ICJ Reports 1949, p 4, 35. 60 ARSIWA, Commentary to art 25, para 20. 61 J Salmon ‘Faut-il codifier l’état de nécessité en droit international’, in J Makarczyk (ed), Essays in Honour of Manfred Lachs (The Hague, Martinus Nijhoff, 1984), 243, 270. 62 MG Kohen, ‘L’Emploi de la force et la crise du Kosovo: vers un nouveau désordre juridique international’, in Ch-A Morand (ed), La crise des Balkans de 1999 (Brussels, Bruylant, 2000), 149. See also S Heathcote, ‘State of Necessity and International Law’, Thèse, Université de Genève, 2005. 63 J Salmon ‘Faut-il codifier l’état de nécessité en droit international’, in J Makarczyk (ed), Essays in Honour of Manfred Lachs (The Hague, Martinus Nijhoff, 1984), 243, 264. 64 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 45–46 (para 57). 65 Ibid, 44–45 (para 56). 66 Ibid, 43, 44 (paras 55 and 56); see also 45 (para 57). See also S Maljean-Dubois, ‘L’arrêt rendu par la Cour internationale de Justice le 25 septembre 1997 en l’affaire Gabcìkovo-Nagymaros (Hongrie/Slovaquie)’ (1997) 43 AFDI 286. 67 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

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Advisory Opinion, ICJ Reports 2004, p 136, 194–195 (para 140). 68 See art 26 ARSIWA and, less obviously, the discussion above in respect of art 25(1)(b) ARSIWA. 69 CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/08), Award of 12 May 2005, 14 ICSID Reports 152, 212–213 (paras 322–329). 70 CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/08), Decision on application for annulment of 25 September 2007, 14 ICSID Reports 251, 333–334 (paras 130– 131). 71 Ibid, 334 (para 131). 72 Ibid (paras 133–134). 73 Ibid (para 135). 74 CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/08), Award of 12 May 2005, 14 ICSID Reports 152, 217–218 (para 356). 75 CMS Gas Transmission Company v Argentine Republic (ICSID Case No ARB/01/08), Decision on application for annulment of 25 September 2007, 14 ICSID Reports 251, 277–278 (paras 144– 149). 76 LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentine Republic (ICSID Case No ARB/02/1), Decision on Liability of 3 October 2006, para 258.

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Part III The Sources of International Responsibility, Ch.34 The Concept of Liability in The Absence of an Internationally Wrongful Act Michel Montjoie From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Reparations — Attribution — Customary international law — Codification

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(p. 503) Chapter 34 The Concept of Liability in The Absence of an Internationally Wrongful Act 1 The utility of a specific regime: objective liability 504 (a) History 504 (b) The aim of objective liability 504 (c) The scope of application of objective liability 505 2 The search for a customary legal regime of objective liability 506 (a) The interest of a legal regime 506 (b) The difficulties of establishing such a regime 507 (c) The principles of a regime of objective liability 508 (i) Harm 508 (ii) Reparation 509 (iii) Causation 509 (iv) Defences 509 (v) Attribution 510 (vi) The place of prevention in objective liability 511 (d) The domain of treaty-based regimes 511 3 Conclusions 512 Further reading 513 Although the legal regime and mechanisms for State responsibility for internationally wrongful acts are well-established (in practice by international case law and in theory by academic writings as well as the work of the ILC), the notion of a regime of (State) responsibility in the absence of an internationally wrongful act is far from clear: indeed, the very existence of this liability is disputed, at least as a customary principle. Commentators have employed the terms ‘liability without fault’, ‘liability for risk’, ‘objective liability’, ‘causal liability’, ‘strict liability’, ‘absolute liability’, and ‘liability sine delicto’. These different terms are not always synonymous but nonetheless they all corre spond to a concept of liability without breach. Each of these terms is best adapted to a particular context, but the term ‘objective liability’ will be used in the present Chapter, as a generic term.

(p. 504) 1 The utility of a specific regime: objective liability (a) History Around the end of the 19th century, it first became apparent that activities not prohibited by domestic law could, nonetheless, cause injury to persons and/or property in the absence of fault by the author of the act. Technological expansion, especially in the latter half of the 20th century, caused this problem to appear on the international level. Domestic legal systems developed regimes of liability without fault, but these were not sufficiently homogenous to support a general principle of law. Although technological advances enabled considerable economic progress, it created activities capable of increasing damage. These activities could have been prohibited, but this prohibition would have stifled economic expansion which is beneficial to humanity as a whole. At the beginning of the industrial revolution, society accepted this risk, partly because the injuries were From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

not catastrophic, though they might be significant. The presence of a risk of transboundary harm has led to reflection at the international level as to liability in the absence of either breach by the State providing the framework for the activity (which is generally the case for dangerous activities) or breach by the operator. This reflection has focussed on two issues: prevention in order to avoid (or reduce) injury and reparation in case of injury. The utility of codifying principles of customary international law, insofar as they establish a customary regime of international liability in the absence of a wrongful act, was clear. Commentators were divided, however, as to the character of such a regime. Certain commentators, such as Jenks in 1966, appealed for a regime of objective liability in the case of high-risk activities (ultra-hazardous activities); 1 while others, such as Dupuy in 1976, envisaged only a limited use of this liability, purely by treaty.2 For his part, within the ILC, Special Rapporteur Ago proposed, in 1970, to distinguish responsibility for a wrongful act from that ‘arising out of the performance of certain lawful activities’.3 Under this guise the subject of ‘International liability for injurious consequences arising out of activities not prohibited by international law’ was placed on the ILC’s programme of work in 1978.4 While not referring exclusively to the ILC’s work on international liability for injurious consequences arising out of activities not prohibited by international law,5 the present Chapter will take into account the detailed reflections carried out within the ILC since the creation of a Working Group on the subject in 1978.6

(b) The aim of objective liability The aim of objective liability is to put in place mechanisms which prevent a situation where victims have no recourse to compensation for injury. Since the activity which causes the injury is not prohibited, one cannot contemplate sanctions (which might prohibit the (p. 505) activity) or countermeasures. There remains the possibility of reparation, which will most often be constituted by compensation, although in the case of environmental harm the priority (albeit rarely possible) is restoration. The objective, therefore, is to define rules of reparation. For this it is necessary that an obligation to compensate exist. Compensation must not become, under the pretext that the activity is not prohibited, a substitute for prevention and mitigation of damage.7 The rules of objective liability cannot, therefore, be separated from rules of prevention. The theoretical structure of a complete legal regime of objective liability would, therefore, consist of a body of obligations of prevention and of reparation. The existence of a specific regime of liability for injurious consequences arising from activities not prohibited by international law does not imply an abandonment of responsibility for internationally wrongful acts for those same activities. The regime of State responsibility for internationally wrongful acts can be defined as the entirety of the ‘secondary’ rules determining the legal consequences of a violation of the obligations established by the ‘primary’ rules. The liability arising out of activities not prohibited by international law would constitute special primary rules. In 1987 the ILC considered that: [c]ontrary to State responsibility, international liability rules were primary rules, for they established an obligation and came into play not when the obligation had been violated but when the condition that triggered that same obligation had arisen,8 viz the harm caused. It is evident, however, that a State’s failure to respect the rules surrounding these activities brings into play the mechanism of secondary rules of international State responsibility for wrongful acts. The two regimes are not conflicting, but rather they are complementary.

(c) The scope of application of objective liability Although attempts have been made within the ILC to take injury resulting from commercial or

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financial activities into account, it currently seems that the scope of objective liability which is capable of giving rise to a general regime only concerns injury arising from physical activities.9 The ILC Draft Articles, adopted in 2001,10 on the sub-topic ‘Prevention of Transboundary Harm from Hazardous Activities’, in the context of the topic ‘International liability for injurious consequences arising out of acts not prohibited by international law’, are explicit with regard to the ‘physical’ nature of harms taken into account. Article 1 states, ‘The present articles apply to activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences’.11 The 2004 ‘Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities’ adopted the same formulation.12 However, although the 2006 draft on the same topic, adopted by the Commission, does not refer to it explicitly, the commentary to Principle 1 confirms this limitation.13

References (p. 506) On the other hand, in the event that a State were to promise to make reparation for any transboundary harm that it might cause, it would seem more logical to conceive this as a regime of objective liability exclusively for transboundary harms arising from dangerous activities. There exist two types of dangerous activities: first, those which risk causing accidents (hazardous activities) and, second, those with harmful effects (harmful activities). The regime of objective liability sought must take into account these two types of activity. Hazardous activities can take several forms. They may be classified according to the probability of the accident or the intensity of the harm. The establishment of a list of these risky activities, envisaged by the ILC, was not retained by the Sixth Committee.14 Such a list is not realistic because, on the one hand, it would be difficult to make it exhaustive, and on the other, it would need to be open to constant evolution because activities may lose their ‘hazardous’ character or become hazardous, given new scientific discoveries. Activities of the second type are those which create transboundary harm by cumulative effect. The most representative example is that of watercourses polluted by industrial activities below upper thresholds but which create, by cumulative effect significant harm in a third-party country ‘downstream’. The classification of these activities as not prohibited by international law is at times disputed, and some treaty-based regimes have prohibited them. If these two types of activity justify the existence of a regime of objective liability, it is for the first category, that of activities presenting some risk of accidents, that this regime appears most necessary: ‘[it] is, in effect, because the risk is statistically certain and catastrophic in its consequences that the problem of liability for activities not prohibited is of fundamental importance in international law’.15 It remains the case, however, that the risk does not bring about the obligation to make reparation; rather it is the harm that brings that obligation into existence. The risk is taken into account by way of prevention.

2 The search for a customary legal regime of objective liability (a) The interest of a legal regime The mechanism of responsibility for internationally wrongful acts has two notable consequences: first, the obligation on the State responsible to cease the wrongful conduct, in order to bring an end to the violation of the international obligation which caused the injury; 16 and second, the potential for the State responsible to discharge itself of its responsibility by involving of circumstances precluding the wrongfulness.17 These two consequences are not satisfactory in circumstances where the activities themselves are not prohibited: cessation is not desirable because, in general, the activity plays a part in the economic development of a country which it is proper to promote in the spirit of progress; and the

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possibility of invoking defences as justifications, which preclude reparation, is contrary to the goal of objective liability: ‘[objective liability] presents the advantages of avoiding qualifying as wrongful the conduct of a State and of adapting itself

References (p. 507) well to the objectives sought of prevention and reparation through the institution of legal liability in general’.18

(b) The difficulties of establishing such a regime Despite the interest, and even the utility, of a general regime of liability for injurious consequences arising out of activities not prohibited by international law—and in spite of numerous initiatives, notably those of the ILC—this regime does not yet exist because of numerous difficulties which have prevented general acceptance of such rules, essentially linked to conflicts of interest and the complexity of the subject. These difficulties are numerous, but they are not all of the same intensity. They include: • the existence of a due-diligence rule in general international law and the application of the adage ‘sic utere tuo ut alienum non laedas’ mean that ‘the shadow of wrongfulness hangs permanently over the activities not prohibited’. 19 The Island of Palmas, 20 Trail Smelter, 21 Corfu Channel, 22 and Lake Lanoux 23 cases sometimes considered representative of a regime of objective liability, are in fact further examples of responsibility for wrongful acts; 24 • the disparate practice of States makes it impossible to derive customary rules; 25 • the environmental domain seemed favourable to privileging objective liability because of the economic and geographical scale of damage to the environment requiring reparation: international environment law seemed to be thus the driving force behind the progressive development, in the absence of codification, of this form of liability. However, it has given rise to overly-general principles and to many heterogeneous treaties, with numerous obligations which restrict the scope of objective liability in favour of responsibility for wrongful acts. The uncertainty of generalized principles is emphasized by the fact that the majority of these treaties exclude liability from their scope of application (for example, the Convention on Long-range Transboundary Air Pollution, 26 which excludes State liability for damage in a footnote to article 8), or do not even raise the question (for example, the Convention on Environmental Impact Assessment in a Transboundary Context 27 ). It nonetheless remains the case that international environment law, though it has not engendered a regime of substantive law, has at least raised awareness of the utility of principles of objective liability derived from provisions of soft law; • the impossible search for a single regime for activities undoubtedly causing injury (harmful activities) and for risky activities (hazardous activities), including also very dangerous activities (ultra-hazardous activities) ‘which imply a risk of serious harm, on an international scale, which cannot be eliminated by the exercise of even the most attentive

References (p. 508) care’, 28 obscures the more immediate possibility of establishing regimes specific to these very dangerous activities, for which there seem to be a greater convergence of domestic law from which to derive an international regime; • having to take prevention into account in a complete regime of objective liability, a diffi culty arises as to the scope of application of this liability. Prevention only concerns risky activities and not those with definite harmful effect. In its Draft Articles of 1996, which tackle the two questions of prevention and liability, the ILC took this difficulty into account by 29

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specifying that obligations of prevention concern only risky activities 29 among the activities that were dealt with by the draft articles. 30 The first article of the 2001 draft, concerning only prevention, limits its application to risky activities (since the title of the draft concerns dangerous activities, it could also have concerned activities with noxious effects, considering that the term ‘dangerous activities’ is not defined). The 2006 draft dealing with the distribution of losses concerns the same area of application with a different formulation— the term ‘hazardous activity’ is defined as ‘an activity which involves a risk of causing significant harm’. 31 There is thus coherence between the two drafts, but the 2006 draft leaves aside the reparation of harms arising from noxious activities. All these considerations demonstrate the difficulty of establishing a complete regime of objective liability.

(c) The principles of a regime of objective liability A certain number of principles can be derived from discussion in the literature and from the ILC’s work on objective liability. (i) Harm Whereas international State responsibility is triggered by an internationally wrongful act, independent of any reference to harm,32 objective liability can only be incurred if there is harm. But is this any type of harm, or are there applicable criteria? On the one hand the harm must be actual. Losses owing to a potential harm do not appear to trigger objective liability, but, in reality, this is not evident because the first draft of the ar ticle 1 proposed by the Special Rapporteur in his Second Report indicated: ‘These articles apply when: (a) activities undertaken within the territory or jurisdiction of a State give rise, beyond the territory of that State, to actual or potential loss or injury to another State or its nationals’.33 However, in his Third Report, the Special Rapporteur made clear that the concept of ‘potentiality’ of loss or injury was not justified.34 This latter stance is adopted less and less often in treaties: for example, in the domain of nuclear liability the cost of preventative measures, taken in the face of an imminent risk of a harm which does not finally occur, was excluded from the first texts but today falls within the scope of the treaty-based regime.35 On the other hand, it seems logical that only ‘significant’ harm can be taken into account. The use of standard-setting in international environment law, which sets limits

References (p. 509) on pollution, could justify this. Although the principle appears to be established, there remains the problem of the determination of the threshold, or, more precisely, of one or several thresholds. Academic commentators and the ILC have advanced several sometimes uncoordinated ideas. The separation of the work of the Commission between prevention and liability strictly speaking had led to the idea of a first threshold for obligations of prevention and a second, higher, threshold for the reparation of harms, notably catastrophic harms, which could constitute a complement to the desired automatic operation of objective liability. This was eventually not retained. Fixing one (or, at most, two) thresholds, indispensable for the establishment of a customary regime, cannot take into account the technical arrangements specific to each industrial field, once again rendering such a regime more improbable, if not impossible, even if limited to catastrophic harm. (ii) Reparation Full compensation of harm does not appear to be a rule of objective liability. The notion of equilibrium between the interests present means that compensation can be only partial. In 1987 the

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ILC specified: [w]hile the purpose of reparation in State responsibility was in principle to restore the legal condition that had existed prior to the commission of the wrongful act, compensation under the present topic was determined by reference to a number of factors and might or might not be equivalent to the actual damage suffered.36 This approach was maintained in the Draft Articles of 1996.37 Nevertheless, if the reference to ‘adequate compensation’ in principles 3 and 4 of the 2006 draft does not imply integral reparation, it seems, following the commentaries to these principles, that the notion of an equilibrium of interests is no longer put forward and that integral reparation is normally envisaged.38 In the domain of treaty-based objective liability, limitation of compensation was considered as complementing the elimination of the burden of proof. But this limitation has disappeared in the recent texts.39 (iii) Causation Objective liability, even in its fullest sense, is not unlimited: the existence of harm does not suffice; there must be a causal link between the harm and the activity that caused it. But this link is sometimes difficult to prove, notably when there is a plurality of origins: for example, in the case of pollution of rivers or the atmosphere by cumulative effect. Within the work of the ILC certain views were expressed in favour of a ‘presumption of a reasonable causal link’.40 (iv) Defences The defence of supervening event, present in domestic legal systems, results in a partial or total exemption from the obligation to make reparation on the part of the author of the harm. The principal causation defences are act of God, action of a third party, or action of the victim. (p. 510) The transposition of causation defences from domestic legal systems to the domain of international objective liability poses difficulties.41 At a theoretical level, one could argue that there can be no defences because in objective liability it is the harm (and it alone) which triggers the liability of the author. The term ‘absolute liability’, employed by academic commentators, would signify the total absence of defences. But although a general regime of objective liability does not yet exist, it seems that some defences exist in favour of the author of the harm. On the other hand, these defences exist explicitly in treaty-based regimes. They generally concern the existence of an armed conflict, in the broad sense (a type of action of a third party); of an exceptional natural catastrophe (a type of frustration); of negligence of the party asking for reparation; or of an action of a third party. But the current tendency in the drafting of treaties is towards a reduction of the number of available defences.42 (v) Attribution A necessary condition for the attribution of a harm to a State in the context of objective liability is proof that the activity which has caused the harm falls within the jurisdiction or under its control (the attribution is, then, ‘territorial’); in contrast to the attribution of responsibility for internationally wrongful acts, which rests upon the attribution of conduct to a State, subject to several conditions.43 But the activities discussed in the present chapter are, for the most part, carried out by private persons. Even if certain of these highly technological activities play a privileged role in the rapid development of a State—or, sometimes, are even carried out by the State itself— this consideration does not permit the automatic attribution of State liability. In the context of the search for a general regime of objective liability the question arises ‘whether one could attribute to the State an activity liable to cause technological or industrial harms simply because these harms would be catastrophic’44 . No positive response has yet been given.

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The ILC’s response to this question has evolved. First, it gave a positive response to the question, without even limiting attribution to the single case of catastrophic harm, as shown in article 3 (Attribution) of the Draft Articles presented by the Special Rapporteur in 1988,45 the title of which became ‘Assignment of obligations’ in 1989 in order to distinguish it from State responsibility for internationally wrongful acts: 46 but this automatic attribution to the State disappears in article 5 (Liability) of the Draft Articles of 1996.47 The ‘Draft principles on the allocation of transboundary harm arising out of hazardous activities’, adopted by the ILC in 200648 seem to abandon objective State liability and shift it to the operator.49 In the domain of treaty-based regimes, this question has been resolved by the channelling of liability, by which the signatory States designate who will assume the burden of reparation. This will generally be the operator of the installation that carries out the activity. (p. 511) (vi) The place of prevention in objective liability Prevention (one of the fundamental principles of international environment law) is the centrepiece of objective liability as set out above.50 But this represents only one aspect of it: the other aspect, of utmost importance, being reparation. But the value of prevention recognized in custom (not only in the domain of the environment) entails the non-respect of a obligation of prevention on the part of the State which constitutes a wrongful act, for which international responsibility arises, rather than objective liability. Objective liability can, therefore, only be conceived where there is no violation of an obligation of prevention. The Draft Articles on Prevention of Transboundary Harm From Hazardous Activities adopted by the ILC in 200151 is a useful text, but only constitutes a codification of existing international law52 and does not contribute to the elaboration of a regime of objective liability.

(d) The domain of treaty-based regimes The difficulties encountered and the uncertain character of the specific principles mean that it has not been possible to establish a general text in response to concerns of States or of their nationals. The only practical legal way forward is, therefore, by treaty, based on the will of States to resolve a specific problem. These treaties have a character which is either universal, regional or bilateral. The majority of treaties establish rules of liability channelling liability to the operator of the activity (a term which is identified in each convention) or to the polluter, which is not always the operator.53 At most, a State intervenes only by a system substituting it for the operator, either in the case of shortcomings in the operator’s guarantees, or in order to increase the cap on the amount of compensation to be paid by the operator.54 The only treaty instituting objective State liability is the Convention on International Liability for Damage Caused by Space Objects.55 With regard to the notion of a threshold of damage below which liability will not be incurred, treatybased regimes do not adopt a single position. Article 8 (exemptions) of the European Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment,56 provides in paragraph (d) that the operator shall not be liable for damage which he proves ‘was caused by pollution at tolerable levels under local relevant circumstances’. This provision can be interpreted as referring to a threshold of damage.57 On the other hand, the majority of treaties concerning liability for harm make no mention of a threshold, so these treaties may be considered as applying no matter the intensity of the damage.58 The only references to a threshold figure in the latest revisions of treaties concerning nuclear liability concern measures relating to harm to the environment.59

References (p. 512) Treaty-based regimes do not in general contribute to a complete regime of objective From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

liability which incorporates both prevention and reparation, since objective liability to make reparation becomes a substitute for a neglected obligation of prevention. Treatybased regimes are also of limited value because they only bind State parties, and the number of parties to treaties of universal application remains low.

3 Conclusions The concept of objective liability now seems to be accepted in international law (having existed in domestic law for a long time), but the establishment of a general regime is still a long way off. Two conflicting tendencies conspire to prevent the establishment of such a regime. First, treaty-based regimes have adopted the principle of reparation for harm arising out of an activity not prohibited by international law. The multiplicity of treaties based on this principle could establish it as custom. Similarly, for certain commentators, the development of the method of ex gratia payments militates in favour of a general rule of reparation.60 However, in the majority of examples of ex gratia compensation, the harm was manifestly due to the violation of an international obligation.61 Other commentators dispute that this kind of practice can contribute to a general rule.62 In the domain of ultra-hazardous activities the more consensual acceptance of objective liability has led Barboza, citing the report of the Brutland Commission, to admit that this generalized acceptance could engender a general principle of law recognized by civilized nations, which, according to article 38(1)(c) of the Statute of the ICJ, constitutes a source of international law.63 But on the other hand, States have avoided establishing rules of prevention (inevitably linked to rules of reparation) because of the possibility that it might lead to an obligation to make unlimited reparation of all harm caused by activities not prohibited by international law. For this reason, States are not prepared to accept a general text on rules of prevention, such as the one adopted by the ILC in 2001, and therefore the adoption of a complete regime of objective liability seems unlikely. More generally, ‘[b]ecause the injurious activities in question are paradigmatically hazardous, governments do not want to prejudge now by their conduct grievances that, tomorrow, perhaps, one could well direct at them’.64 Unfortunately it seems that the general principles of objective liability derived from the work of several international organizations, and especially the works of the ILC, will remain at the level of recommendations. Their utility in public international law is not, however, negligible.

References (p. 513) Further reading J Barboza, ‘International Liability for the Injurious Consequences of Acts not Prohibited by International Law and Protection of the Environment’ (1994-III) 247 Recueil des cours 301 J Barboza, ‘La responsabilité “causale” à la Commission du droit international’ (1988) 34 AFDI 513 A Boyle, ‘State Responsibility and International Liability for Injurious Consequences of Acts not Prohibited by International Law: a Necessary Distinction?’ (1990) 39 ICLQ 1 Ph Cahier, ‘Le problème de la responsabilité pour risque en droit international’, in IUHEI, Les relations internationales dans un monde en mutation (Leiden, Sijthoff, 1977) 409 CG Caubet, ‘Le droit international en quête d’une responsabilité pour les dommages résultant d’activités qu’il n’interdit pas’ (1983) 29 AFDI 99 P-M Dupuy, ‘L’Etat et la réparation des dommages catastrophiques’, in F Francioni et al (eds), International Responsibility for Environmental Harm (Dordrecht, Nijhoff, 1991), 125 P-M Dupuy, ‘A propos des mésaventures de la responsabilité internationale des Etats dans ses rapports avec le protection internationale de l’environnement’, in Mélanges Alexandre Kiss (Frison-Roche, 1998), 269

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P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976) G Handl, ‘State Liability for Accidental Transnational Environmental Damage by Private Persons’ (1980) 74 AJIL 525 CW Jenks, ‘Liability for Ultra Hazardous Activities in International Law’ (1966) 117 Recueil des cours 105 JM Kelson, ‘State Responsibility and the Abnormally Dangerous Activity’ (1972) 13 Harvard ILJ 197 A Kiss, ‘La réparation pour atteinte à l’environnement’, in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 225 R Lefeber, Transboundary Environmental Interference and the Origin of State Liability (The Hague, Kluwer Law International, 1996) DB Magraw, ‘Transboundary Harm: the International Law Commission’s Study of International Liability’ (1986) 80 AJIL 305 P Sturma, ‘La responsabilité en dehors de l’illicite en droit international économique’ (1993) 19 Polish YBIL 91 C Tomuschat, ‘International Liabiility for Injurious Consequences Arising out of Acts not Prohibited by International Law’, in F Francioni et al (eds), International Responsibility for Environmental Harm (Dordrecht, Nijhoff, 1991), 37(p. 514)

Footnotes: 1 CW Jenks, ‘Liability for Ultra-Hazardous Activities in International Law’ (1966) 117 Recueil des cours 176. 2 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 256. 3 R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 178, para 6. 4 Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 150, para 177. 5 See Chapter 10. 6 Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 6, para 9. 7 RQ Quentin-Baxter, Second report on international liability for injurious consequences arising out of acts not prohibited by international law ‘[Compensation] should not be allowed to become a tariff for causing avoidable harm’, ILC Yearbook 1981, Vol II(1), 103, 123 (para 91). 8 ILC Yearbook 1987, Vol II(2), 43, para 146. 9 A/CN.4/510, 2000, 9, para 15. 10 Report of the ILC, 53rd Session, 2001, A/56/10, 369, para 91. 11 Ibid, 371. 12 Report of the ILC, 56th Session, 2004, A/59/10, 153 (para 175). 13 Report of the ILC, 58th Session, 2006, A/61/10, Principle 1, Commentary 4, 117. 14 A/CN.4/437, 1991, 79, para 26. 15 CG Caubet, ‘Le droit international en quête d’une responsabilité pour les dommages résultant d’activités qu’il n’interdit pas’ (1983) AFDI 99, 105. 16 Art 30, ARSIWA. 17 Part One, Chapter V, ARSIWA. 18 J Barboza, ‘La responsabilité “causale” à la Commission du droit international’ (1988) AFDI 513, 516, para 14. 19 CG Caubet, ‘Le droit international en quête d’une responsabilité pour les dommages résultant

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d’activités qu’il n’interdit pas’ (1983) AFDI 99, 107. 20 (1928) 2 RIAA 829. 21 (1941) 3 RIAA 907. 22 ICJ Reports 1949, p 4. 23 (1957) 12 RIAA 281. 24 See notably P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 189. 25 See the study carried out by the Secretariat of the ILC, A/CN.4/384 (1984). 26 13 November 1979, 18 ILM 1442. 27 25 February 1991, 30 ILM 800. 28 CW Jenks, ‘Liability for Ultra Hazardous Activities in International Law’ (1996) 117 Recueil des cours 10 5, 195. 29 ILC Yearbook 1996, Vol II(2), Annex I, 118. 30 Ibid, 103. 31 A/61/10, 107 (emphasis added). 32 Art 1 and 2, ARSIWA. 33 RO Quintin-Baxter, Second Report on International Liability, ILC Yearbook 1981, Vol II(1), 103, 123, para 93. 34 RO Quintin-Baxter, Third Report on International Liability, ILC Yearbook 1982, Vol II(1), 51, 59, para 35. 35 See Chapter 60. 36 ILC Yearbook 1987, Vol II(2), 43, para 146. 37 Art 21 (Nature and extent of compensation or other relief ), Report of the ILC, 48th Session, 1996, A/51/10, 130–131. 38 A/61/10, 140–166. 39 See Chapter 60 for the example of nuclear harm. 40 A/CN.4/540, 2004, 9. 41 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 249–255. 42 See Chapter 60 for the nuclear domain. 43 Part One, Chapter II, ARSIWA. 44 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 236. 45 J Barboza, Fourth Report on International Liability, ILC yearbook 1988, Vol II (2), 251, 254 (para 17) and 261 (para 60). 46 J Barboza, Fifth Report on International Liability, ILC yearbook 1989, Vol II (2), 131, 133 (para 16) and 137 (paras 35–37). 47 ILC Yearbook 1996, Vol II(2), Annex I, 111. 48 Report of the ILC, 58th Session, 2006, A/ 61/10, Chapter V, 101. 49 Ibid, Principle 4. 50 See Chapter 36 for the content of obligations of prevention. 51 Report of the ILC, 53rd Session, 2001, A/56/10, Chapter V, 366–436.

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52 P Birnie, A Boyle, & C Redgwell, International Law and the Environment (2nd edn, Oxford, OUP, 2009), 189–190. 53 On the polluter-pays principle see Chapter 56. 54 See eg the treaties concerning nuclear energy, discussed in Chapter 60. 55 29 November 1971, 961 UNTS 187. See Chapter 59. 56 21 June 1993, ETS No 150. 57 J Barboza, ‘International Liability for the Injurious Consequences of Acts not Prohibited by International Law and Protection of the Environment’ (1994) 247 Recueil des cours 301, 379. 58 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 221. 59 See Chapter 60. 60 CG Caubet, ‘Le droit international en quête d’une responsabilité pour les dommages résultant d’activités qu’il n’interdit pas’ (1983) 29 AFDI 116. 61 For example, the 1954 Fukuryu Maru case: see R Lefeber, Transboundary Environmezntal Interference and the Origin of State Liability (The Hague, Kluwer, 1996), 166–168. 62 See P Birnie, A Boyle, & C Redgwell, International Law and the Environment (2nd edn, Oxford, OUP, 2009), 179. 63 See J Barboza, ‘International Liability for the Injurious Consequences of Acts not Prohibited by International Law and Protection of the Environment’ (1994-III) 247 Recueil des cours 301, 346–347. 64 P-M Dupuy, ‘L’Etat et la réparation des dommages catastrophiques’, in F Francioni et al (eds), International Responsibility for Environmental Harm (Dordrecht, Nijhoff, 1991) 125, 142.

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Part III The Sources of International Responsibility, Ch.35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law Philippe Guttinger From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — State succession — Development — Organization for Economic Cooperation and Development (OECD)

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(p. 515) Chapter 35 Allocation of Responsibility for Harmful Consequences of Acts not Prohibited by International Law It is possible for damage—whether to persons, to property or to the environment—to occur within the territory of a State, or in a zone outside national jurisdiction, as the result of activities which take place under the authority of another State. Is the liability of that second State engaged in the absence of any wrongful act, and in particular, in the absence of any failure to comply with the obligations of prevention incumbent upon it under international law? A priori, the existence of so-called ‘significant’ damage, in the sense in which that term has been used by the International Law Commission (ie as referring to damage which is ‘something more than “detectable” but need not be at the level of “serious” or “substantial” ’),1 should lead to compensation for the victims. However, the work of the International Law Commission, started in 1978, was long and laborious, involving a succession of three Special Rapporteurs (Quetin-Baxter, Barbosa, and Rao).2 In fact, as was emphasized by the Institut de Droit International in its resolution on Responsibility and Liability under International Law for Environmental Damage,3 it is necessary to distinguish between two different ways of understanding the actor which bears responsibility: liability of the State; and liability of the operators of the activity in question. According to the Institut de Droit International, which at the time referred simply to ‘liability’ (in the French text, ‘responsabilité pour simple prejudice’),4 this type of responsibility is ‘most appropriate in case of ultra-hazardous activities, and activities entailing risk or having other similar characteristics’.5 Self-evidently, the compilation of an exhaustive list of such activities poses difficulties: what of, for example, the deliberate sowing of genetically modified seeds? However, the attribution of their harmful consequences to the State in question may be justified on the basis of two considerations. On the one hand, such activities contribute to the State’s

References (p. 516) economic development. On the other, it might be said that the damage caused ‘expresses in itself a manifestation of a breach by the State of its international obligations of control and supervision’.6 Nevertheless, as a matter of customary international law, there exists no general principle providing for the responsibility of the State in the absence of an internationally wrongful act, and this is so even if the damage caused is of an environmental nature. Such a principle would run counter to the customary rule according to which the actions of a person or group of persons which does not act on behalf of a State are not attributable to it. Further, the treaty precedents are very few in number and are limited to dealing with two types of activities (activities in space and civil nuclear energy), the development of which would have been hindered in the absence of a rigorous regime of responsibility. These treaties, concluded at a time when environmental considerations had made little mark on international law, nevertheless have the merit of illustrating, for the benefit of the negotiators of future treaties relating to other activities, two possible ways of engaging the liability of States for any damage (or, at the least, for any ‘significant’ damage) caused outside their territory in the absence of an internationally wrongful act. The first mechanism involves engaging the exclusive liability of the State. The 1971 Convention on the International Liability for Damage Caused by Space Objects,7 involves an assumption of responsibility: the launching State, both where it is itself the operator and where its territory or its equipment have been used in the launch, exclusively assumes the consequences of damage caused by a space object on the surface of the earth or to aircraft in flight. The Convention even goes so far as to require, in the case of a launch by an international organization, that the State

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must accept joint and several responsibility with the organization if the agreed compensation is not paid to the victim within six months. The second mechanism is the incurring of the responsibility of the State based on the idea of ‘State relay’. For example, under the 1963 Brussels Supplementary Convention8 additional to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy,9 adopted under the auspices of the OECD, the liability of the State on the territory of which the nuclear installation which has caused damage is located replaces that of the operator above and beyond the level of compensation guaranteed by the operator. Further, the Brussels Convention even provides for a certain degree of joint liability of all the States parties to the Convention to the extent that they are required to contribute to funds for the grant of supplementary compensation. That approach is taken up by the 1997 Convention on Supplementary Compensation,10 additional to the 1963 Vienna Convention on Civil Liability,11 concluded under the auspices of the IAEA.

References (p. 517) This second method, which is rightly classified by some authors as ‘deferred liability’,12 had real potential to be applied more generally, although this in fact never occurred. Despite the multiplication of incidents causing accidental harm to the environment, it is now probably unrealistic to envisage an extension of these treaty-based mechanisms to other areas of environmental harm. In that regard, it is sufficient to have regard to the evolution of the work of the ILC on liability following the provisional adoption in 1996 of a complete set of draft articles,13 or to the text which emerged out of the negotiations in relation to reparation for environmental damage caused in Antarctica in the context of the 1991 Madrid Protocol to the Antarctic Treaty.14 Although there is consensus on the extreme ecological fragility of the Antarctic region, the debate was extremely heated.15 Annex VI to the Madrid Protocol, which was finally approved in June 2005 by the 28th Consultative Meeting, is limited to liability incurred for a failure to take preventative measures in relation to environmental emergencies and above all, only envisages the objective liability of an ‘Operator’ of one of the Parties. In this regard, the notion of Operator is defined as meaning ‘any natural or juridical person, whether governmental or nongovernmental, which organises activities to be carried out in the Antarctic Treaty area’, and therefore covers State operators.16 The impossibility of establishing new treaties relating to the international liability of States in the absence of an internationally wrongful act is hardly surprising if one recalls the timid reaction of those States affected by the radioactive cloud released from the Chernobyl power station in 1986 or those affected by the consequences of the Sandoz factory accident in Basel. None of them tried to invoke the liability of the USSR or Switzerland, respectively. Further, as a matter of international practice, the only possible approach is attempting to invoke the civil liability of those responsible for the damage; this mechanism, already utilized in relation to damage caused by nuclear activities, ultimately derives from the 1969 Convention on Civil Liability for Oil Pollution Damage,17 concluded following the oil spill resulting from the shipwreck of the Torrey Canyon in 1967.18 As a result, the most recent treaty in this regard, the Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters,19 concluded in 2003 within the framework of the UN Economic Commission for Europe, provides for the liability of the operator of the activity in question. More generally, this practice has become systemic. Although a more complex mechanism for determining the party responsible was established in the particular case of

References (p. 518) damage caused by activities covered by the Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal,20 which may result in the liability of the producer, the exporter, the importer or the disposer of the

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waste, nevertheless, its drafters retained the same logic. Accordingly, they denied any possibility of attributing the conduct causing damage to the State in which the transboundary movement of waste originated. The imposition of liability on the operator can be explained by the concern during the 1960s and 1970s to place victims in the best position to claim and obtain prompt and effective compensation. As a result, it is understandable that the economic sectors in question had some influence on the modalities of the imposition of liability, for instance as regards the inclusion of defences and, in particular, the fixing of a ceiling for the maximum amount of compensation payable. However, the imposition of liability on operators now finds a theoretical justification in the Polluter-Pays principle, as contained in Principle 16 of the Rio Declaration, which provides: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. In that regard, it may be noted that the ILC cited Principle 16 in the preamble to the 2006 Draft Principles, and had no hesitation in qualifiying it as an ‘essential component’ underpinning the draft.21 With ‘its title which is similar to a slogan and the clearness of the logic that underpins it’ this principle ‘easily collects adhesion’.22 Of course, this adhesion comes from the victims and public opinion and, above all, from States that are concerned that their international responsibility should not be engaged other than within the traditional confines of the secondary rules on State responsibility which form part of customary international law. Accordingly, even though initially conceived by the OECD in order to determine which party had to bear the cost of preventative measures and of the fight against pollution,23 the success of its remedial function is cemented with every new catastrophe. The preamble to the 2003 Kiel Protocol refers to the Polluter-Pays principle as being a ‘general principle of international environmental law’. Further, in a relatively small number of treaties, the import of the Polluter-Pays is implemented in a particular audacious manner manifested by the refusal to permit an arbitrary cap on the amount of compensation; in what constitutes, to date, a unique example, the drafters of the 1993 Lugano Convention24 renounced any ceiling on damages. In other treaties a minimum level of compensation

References (p. 519) has been fixed.25 Further, the 2004 Protocol to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy not only constitutes a strict application of the Polluter-Pays principle, but is also particularly innovative insofar as it provides for the civil responsibility of the operator even where an accident is caused by a natural disaster. Nevertheless, the Polluter-Pays principle is incapable on its own of responding to the risk of the insolvency of the operator or an insufficiency of its bank guarantee, the possibility that it might prove impossible to identify the operator in question, or the possible existence of some defence negating liability.26 Such problems have not been ignored; for example, the Institut de droit international proposed in 1997, albeit in cautious terms, the possibility of the complementary liability of the State. Further, in proposals made in March 1990, Special Rapporteur Barboza suggested that the ILC should resort to the liability of the State where the polluter is incapable of compensating the damage entirely or where the operator cannot be identified.27 Is recourse to State intervention the best way forward? In Principle 7 of the Draft Principles adopted on second reading in 2006, the ILC encouraged States to include joint compensation funds in future international agreements relating to ‘particular categories of hazardous activities’. It is envisaged

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that such funds would be financed with ‘industry and/or State funds to provide supplementary compensation in the event that the financial resources of the operator, including financial security measures, are insufficient to cover the damage suffered as a result of an incident’.28 In this regard, the International Oil Pollution Compensation (IOPC) funds have been in operation for some time. Originally created pursuant to the 1971 Brussels Convention29 adopted in order to complement the 1969 Convention on Civil Liability for Oil Pollution Damage which had been adopted two years earlier, the funds have as their aim to remedy the insufficiencies of the civil liability regime governing carriers, who benefit from limitation of liability. Insofar as contributions to the funds are required from cargo owners, ie petrol companies, its existence has been made easier due to the vitality of the market for transport of petroleum products by sea. However, the IOPC funds are exceptional; the drafters of the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (the HNS Convention)30 took a far more controversial route. Although creating a fund, State parties are authorized to assume liability themselves for the contributions payable under the Convention by receivers of substances covered by the Convention. That hardly constitutes a strict interpretation of the Polluter-Pays principle.

References (p. 520) Further reading J-P Beurier and A Kiss, Droit international de l’environnement (Paris, Pedone, 2000) W Chao, La pollution du fait des hydrocarbures (Paris, Pedone, 1994) P-M Dupuy, Le responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1977) N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999) J-F Dobelle, ‘Bilan des travaux du groupe Wolfrum sur le régime de la responsabilité en cas de dommages causés à l’environnement dans l’Antarctique’ (1997) 44 AFDI 716 JG Lammers, ‘International Responsability and Liability for Damage caused by Environmental Interferences’ (2000) 31/1 Environmental Policy and Law 50; (2000) 31/2 Environmental Policy and Law, 94 A Rest, ‘International Environmental Liability in the Drafts of the UN International Law Commission and the UN/ECE Task Force’ (1992) 22/1 Environmental Policy and Law 31 J Salmon, ‘La 68ème session de l’Institut de Droit international, Strasbourg, 1997’ (1997) 39 AFDI 1187 H Smets, ‘Le principe pollueur—payeur, un principe économique érigé en principe de droit de l’environnement’ (1993) 97 RGDIP 339

Footnotes: 1 Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Commentary to Principle 2, para 2; Report of the ILC, 58th Session, 2006, A/61/10, 123. 2 For a summary of the Commission’s work, see in particular PS Rao, First Report on the Legal Regime for Allocation of Loss in Case of Transboundary Harm Arising out of Hazardous Activities, Report of the ILC, 55th Session, 2003, A/CN.4/531 (2003). 3 Article 5, Institut de Droit International, Resolution on ‘Responsibility and Liability under International Law for Environmental Damage‘, Strasbourg Session, 4 September 1997, available at . 4 Ibid.

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5 Ibid, art 4. 6 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1977), 243. 7 961 UNTS 187. 8 Brussels Convention Supplementary to the Convention on Third Party Liability in the Field of Nuclear Energy, 31 January 1963, 1041 UNTS 358. 9 Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960, 956 UNTS 251. 10 Convention on Supplementary Compensation for Nuclear Damage, Vienna 29 September 1997. 11 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265. 12 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1977), 99 (‘responsabilité différée’). 13 ‘Report of the Working Group on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law’, Report of the ILC, 48th Session, Annex I, ILC Yearbook 1996, Vol II(2), 100–132. 14 Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991 (1991) 30 ILM 1455. 15 J-F Dobelle, ‘Bilan des travaux du groupe Wolfrum sur le régime de la responsabilité en cas de dommages causés à l’environnement dans l’Antarctique’ (1997) 44 AFDI 716. 16 Art 2(c), Annex VI (Liability arising from environmental emergencies), Protocol on Environmental Protection to the Antarctic Treaty, Madrid, 4 October 1991. 17 International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 973 UNTS 3. 18 JG Lammers, ‘International Responsability and Liability for Damage caused by Environmental Interferences’ (2000) 31/1 Environmental Policy and Law 50 and (2000) 31/2 Environmental Policy and Law 94. 19 Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, Doc MP.WAT/2003/1, CP.TEIA/2003/3. 20 Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999, UN Doc UNEP/CHW.5/29. 21 Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Commentary to the Preamble, para 2, Report of the ILC, 58th Session, 2006, A/61/10, 115. 22 N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 104. 23 See especially H Smets, ‘Le principe pollueur-payeur, un principe économique érigé en principe de droit de l’environnement’ (1993) 97 RGDIP 339. 24 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993 (1993) 32 ILM 1228. 25 See Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, 10 December 1999, UN Doc UNEP/CHW.5/29; the 1997 Protocol to the 1963 Vienna Convention on Civil Liability for Nuclear Damage, and the 2004 Protocol to the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy. 26 A Rest, ‘International Environmental Liability in the Drafts of the UN International Law

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Commission and the UN/ECE Task Force’ (1992) 22/1 Environmental Policy and Law 31. 27 Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, draft Principle 7(1), Report of the ILC, 58th Session, 2006, A/61/10, 110. 28 Ibid, Draft Principle 7(2). 29 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Brussels, 18 December 1971, 1110 UNTS 57. 30 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 3 May 1996, IMO Doc LEG/CONF.10/8/2, 35 ILM 1406, art 23.

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Part III The Sources of International Responsibility, Ch.36 Obligations of Prevention and the Precautionary Principle Gerhard Hafner, Isabelle Buffard From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Diplomatic relations — Customary international law — Precautionary principle — World Trade Organization (WTO) Dispute Settlement Body

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(p. 521) Chapter 36 Obligations of Prevention and the Precautionary Principle 1 Obligations of prevention in international law 522 (a) Obligations of prevention in the framework of State responsibility for internationally wrongful acts 522 (b) Obligations of prevention in the framework of activities not prohibited by international law 523 (c) Challenges and insufficiencies of the regimes of prevention 525 2 The precautionary approach and precautionary principle in international law: the absence of scientific certainty 526 (a) Origins of the legal concept of precaution 526 (i) Origins at the domestic level 526 (ii) Origins at the international level 527 (b) Formulation in international environmental law instruments 527 (i) Universal instruments 527 (ii) European law 528 (iii) Comparison of the texts: common points 528 (c) Legal status of the precautionary principle 530 3 Conclusion 532 Further reading 533 The obligation to prevent a certain event forms part of the special category of international obligations, namely obligations of result. It is not clear whether this obligation is a primary or secondary rule of international law. This was the reason why the ILC, in its debates on the international responsibility of States, doubted whether such an obligation should be taken into account at all in the context of a codification of secondary rules of international law. This also explains why obligations of prevention were given reduced attention in the second reading of the Articles on State Responsibility by the ILC. Article 14(3) establishes that an international obligation of prevention of a given event is breached when the event occurs and that this breach may constitute a continuing violation insofar as the event continues and remains not in conformity with that obligation. At the same time, the emergence of obligations to take preventive measures can be observed especially in the field of environmental law. These obligations are to be qualified as obligations of conduct. The ILC made an attempt to formulate obligations of prevention

References (p. 522) in the framework of a regime of international liability for injurious consequences arising out of acts not prohibited by international law. The critique of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities1 reflects the ambiguities of the codification of what was termed, for some time, responsibility for risk. The development of a precautionary approach or principle in international environmental law seems to be a reaction to the insufficiency of the different regimes of prevention. For example,

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while obligations to take measures of prevention exist only when the damage is foreseeable, the precautionary principle can be invoked even in the case of scientific uncertainty as to the possibility of harm. Yet questions concerning the legal nature of the precautionary principle and the relationship of this principle to obligations of prevention in international law are far from clear.

1 Obligations of prevention in international law (a) Obligations of prevention in the framework of State responsibility for internationally wrongful acts Obligations of prevention or obligations to prevent the occurrence of a given event in the framework of State responsibility for internationally wrongful acts correspond to obligations of result. This is the reason why their breach occurs at the moment when the event occurs and may constitute a continuing breach to which, inter alia, an obligation of cessation corresponds. In the ILC work concerning the responsibility of States for internationally wrongful acts, neither the distinction made on first reading between obligations of conduct and obligations of result2 nor draft article 23 concerning obligations of prevention3 were retained on second reading. In fact, these provisions do not really belong to secondary rules regarding State responsibility because they concern the scope and meaning of primary rules.4 Certain elements of draft article 23 adopted on first reading are however taken up in the commentary to ARSIWA article 12 on the existence of a breach of an international obligation, which in referring to the character of the obligation indirectly reflects the distinction between obligations of conduct and obligations of result.5 Moreover, article 14(3), establishing that ‘the breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation’, takes up the essential idea of draft article 23 on the ‘breach of an international obligation to prevent a given event’, and especially draft article 26 adopted on first reading which concerned the ‘moment and duration of the breach of an international obligation to prevent a given event’.6

References (p. 523) Concerning the examples of obligations of prevention, it must be emphasized that in the field of the law of diplomatic relations, the special obligation of the receiving State to take all appropriate measures 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, does not correspond to the obligations of prevention envisaged in article 14(3). Accordingly the interpretation given to article 22(2) of the Vienna Convention on Diplomatic Relations7 in the commentary to draft article 23 adopted on first reading8 was with good reason criticized during the Second Reading of the text. The breach of such an obligation, the importance of which was highlighted by the International Court in the Tehran Hostages case,9 exists even if the event to be prevented, (that is, the ‘intrusion, damage or disturbance) has not yet occurred and may never occur’.10 The obligation to prevent transboundary damage caused by air pollution contained in the Trail Smelter case is a relevant example of an obligation of prevention addressed by ARSIWA article 14(3),11 as is article 5 of the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, according to which ‘a neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory’; 12 it includes for example the obligation to prevent the movement of troops or convoys of either munitions of war or supplies across the territory of a neutral Power. Article 14(3) focuses on the temporal dimension of the breach of the obligation of prevention of a

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given event. It is a due diligence obligation, requiring States to take all reasonable or necessary measures to avoid the occurrence of a given act, which is not a guarantee that the event will not occur. Thus the breach of an obligation of prevention occurs only if the event occurs. Moreover, the breach may constitute a continuing wrongful act, on condition that the breach only continues if the State is bound by the obligation for the period throughout which the event continues and remains not in conformity with the State’s international obligations.13 Finally, article 3 of the resolution of the Institut de Droit international on ‘Responsibility and Liability under International Law for Environmental Damage’14 may be quoted, insofar as it maintains that ‘when due diligence is utilized as a test for engaging responsibility it is appropriate that it be measured in accordance with objective standards relating to the conduct to be expected from a good government and detached from subjectivity’, a matter which was not addressed by the ILC.

(b) Obligations of prevention in the framework of activities not prohibited by international law Contrary to the obligations of prevention in the framework of State responsibility for internationally wrongful acts under ARSIWA article 14(3), where the nature of such obligations of result as primary or secondary rules of international law is not entirely clear, the obligations to take measures of prevention in the field of activities not prohibited by

References (p. 524) international law are without doubt primary rules of international law,15 imposing an obligation of conduct.16 These obligations have developed in particular in the field of environmental law,17 on the basis of the principle of the use of territory without causing harm to others (sic utere tuo ut alienum non laedas).18 Since they are obligations of conduct, the breach of obligations to take measures of prevention for the protection of the environment may also occur in the absence of any damage to the environment. If the two regimes of prevention discussed here may overlap, then the second regime should seek to identify the concrete measures which States have to take in order to protect the environment and public health, independently from the occurrence of damage to the environment but also when such harm occurs. It is in this sense that the ILC, within its work on international liability for injurious consequences arising out of acts not prohibited by international law, adopted the draft Articles on Prevention of Transboundary Harm from Hazardous Activities.19 The scope of application of these draft articles is subject to several limitations. First, it applies only to transboundary situations. Second, it concerns only hazardous activities or substances not prohibited by international law, which must involve a known risk of damage. Pursuant to article 3 of the draft, States must take measures to prevent transboundary damage, which clearly confirms that it concerns obligations of conduct. The appropriate measures to be taken must prevent the damage or reduce the risk of its occurrence as much as possible. As for the content of the obligations, the essential elements are the following: 20 the State of origin must undertake a risk assessment of the pertinent activity through procedures including any environmental impact assessment (article 7 on risk assessment); and if the assessment in question reveals a risk of causing significant transboundary damage, there is an obligation to notify the risk and the assessment to the interested authorities (article 8 on notification and information). These rules are the only obligations envisaged in this project which seem to be clearly identifiable as customary international law.21 Another obligation which may be considered part of customary international law is the obligation of the State of origin to take into account the objections of the interested parties, which can be found in article 9 of the draft on consultations on preventive measures, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

References (p. 525) corresponding to the general obligation to negotiate in international law22 and to solve international disputes by peaceful means. In addition, the draft refers to a new tendency concerning information and participation of the public in the decision-making process, including access to judicial procedures, expressed in articles 13 and 15.23 This participation of the public, originally provided for in principle 10 of the Rio Declaration, can now be found in a certain number of international texts concerning environmental law.24

(c) Challenges and the insufficiencies of the regimes of prevention Current human activities which lead to the multiplication and diversification of environmental risk cannot be managed in a completely satisfactory way through the existing regimes of prevention. Three central causes for this phenomenon can be identified: the intensification of activities having an impact on the environment; the increase of their qualitative and quantitative impact on the environment; and the absence of exact knowledge of the physical and technological phenomena of the environment. The extent of the damage, the speed of technological developments, and the intensity of the use of the environment all increase the probability of irreversible damages unacceptable to society. The most efficient way to deal with these problems would be to prohibit certain activities which may have a prejudicial effect on the environment and public health. But despite the threat for future generations, in a great number of cases the prohibition of these activities is not acceptable for economic reasons. The point is to distinguish and find a balance between economic interests, scientific uncertainty and risk. The idea of precaution is aimed at managing scientific uncertainty. Thus, if numerous interacting natural phenomena are still insufficiently known and even escape human knowledge, at least partially, it follows from principle 15 of the Rio Declaration that ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.25 Precaution is thus a third facet which comes into play when there is no obligation of prevention and in the absence of known risk, the regime of measures of prevention is not applicable. The legal regime of precaution, as far as it exists, is aimed at adjusting the insuffi ciencies of the regimes of prevention. The diversity of these regimes in international law reflects a complex reality which entails a necessary flexibility. Thus the relationship between the regime of obligations of prevention in the law of State responsibility and that of obligations to take measures of prevention illustrates the possible transformation of secondary rules into primary rules, depending on their function. In the same vein, the boundary between lawful and unlawful activities is evolving. In fact, since scientific uncertainty is

References (p. 526) a momentary situation which can evolve in one direction or the other, an activity may in the future turn out to be devoid of any significant risks, whereas an uncertain risk may in the future become certain.26 It is therefore necessary to keep in mind that these developments may justify a change in the legal regime of an activity, which may even lead to the prohibition of the activity itself.

2 The precautionary approach and precautionary principle in international law: the absence of scientific certainty (a) Origins of the legal concept of precaution

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The idea of precaution is in reality relatively old and not limited to environmental law. Since the beginning of the 20th century, some international humanitarian law texts have mentioned the necessity to take ‘every possible’ or ‘all due’ precautions in order to anticipate all possible damage and avoid unnecessary suffering.27 However, it is in the domain of the environment where this principle has reached its full potential. Since the end of the 1960s, the international community has realized that human activities may have harmful effects on the environment and that it is necessary to react at a global level. This awareness materialized through the Stockholm Declaration of 16 June 1972, which affirms in its first principle that: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.28 This important text, which triggered a genuine dialogue between States on the necessity of reconciling economic growth and the protection of the environment to ensure the wellbeing of peoples, established the context in which the concept of precaution eventually developed. (i) Origins at the domestic level The legal formulation of the precautionary principle has its origin in national legislation and only occurred later in the international sphere. German law is commonly considered as the first to have referred to this concept in an explicit way, in the 1970s, under the name Vorsorgeprinzip.29 The precautionary principle was put in place to justify the application of policy regulations concerning nuclear plants, acid rain and pollution in the North Sea. It would allow action in the presence of possible threats of irreversible damage to the environment, even if such threats could not be confirmed through scientific knowledge.

References (p. 527) But the principle was later included in other national legal systems under the impulse of international law. For example, France adopted the Law Barnier No 95-101 in 1995,30 and eventually recognized the constitutional value of the principle by annexing the Environmental Charter of 2004 to the Constitution of 1958.31 (ii) Origins at the international level At the international level some texts have referred to the concept of precaution since the mid1980s. The concept of precaution mentioned in the preamble to the Vienna Convention for the Protection of the Ozone Layer of 198532 was included in the Brundtland report published on 10 March 198733 and in the preamble to the Montreal Protocol on Substances that Deplete the Ozone Layer of 1987,34 and in an even more explicit form in the London Declaration of 1987.35 The London Declaration established that: in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence.

(b) Formulation in international environmental law instruments (i) Universal instruments It was only in the 1990s that the precautionary principle was firmly established in an elaborated version on the international plane. In contrast to the Stockholm Declaration on the Human

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Environment of 1972, which did not include the principle, the Rio Declaration of 1992, obviously based on the Ministerial Declaration of Bergen of 16 May 1990,36 marks an essential stage in the more precise formulation of the precautionary principle in its Principle 15.37 At the time, the principle was subject to rapid development and was endorsed in numerous international instruments, such as the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa; 38 the Helsinki Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes; 39 the United Nations Framework

References (p. 528) Convention on Climate Change; 40 the Convention on Biological Diversity; 41 and the WTO Agreement on the Application of Sanitary and Phytosanitary Measures.42 The precautionary principle was further developed in the field of the law of the sea, as illustrated by the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean; 43 the OSPAR Convention for the Protection of the Marine Environment of the NorthEast Atlantic; 44 and the United Nations Fish Stocks Agreement.45 Subsequent texts concerning the environment almost systematically repeat the precautionary principle, as evidenced by the Cartagena Protocol on Biosafety,46 and the Stockholm Convention on Persistent Organic Pollutants.47 (ii) European law The precautionary principle is firmly anchored in European law. It was explicitly introduced in primary law through article 130R of the Maastricht Treaty.48 It can also be found in the Treaty of Amsterdam; 49 the Treaty of Nice; 50 and the Lisbon Treaty.51 The European Commission also established, at the request of the Council, guidelines concerning the application of the precautionary principle,52 whose directions were further confirmed by the Council.53 (iii) Comparison of the texts: common points These international instruments are not based on a uniform concept of precaution. The different formulations impede the identification of a concrete content that is universally applicable.54 Only certain common elements may be derived from these texts: 55 • In the context of international relations, the principle is applied only to transboundary situations, as are obligations to take measures of prevention. • Scientific uncertainty is unquestionably the essential condition of its application and constitutes the characteristic of the precautionary principle, which distinguishes it from the obligation to take measures of prevention. It applies when there is significant

References (p. 529) scientific uncertainty concerning the causality, scope, probability, and nature of the damage, while the certainty of the occurrence of harmful effects entails the adoption of measures of prevention. • This principle must not be understood as a ‘rule of abstention’, which would engender a society in which every economic or technological activity would be prohibited and systematically blocked. 56 To the contrary, uncertainty must lead to the adoption of specific actions. It includes an obligation of continuous assessment that allows for the determination of a threat (similar to that within the regime of measures of prevention), for the rationalization of the risk and the elimination even of the simplest speculations by using the best scientific means in existence. It is necessary to: From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

assess the reality of the risk, adopt the solutions which can reduce it, compare the scenarios, decide on action, engage in research that can dissipate the uncertainty, follow the situation, adapt the measures and revise the decisions as often as necessary. 57 • The adoption of precautionary measures is required if the potential damage may reach a certain level of gravity and is potentially irreversible. If all the risks cannot be eliminated, they must be reduced to an acceptable level so as to permit the continuation of activities, the advantages of which could be important. • In this sense, the principle undeniably obtains an economic dimension, pursuant to which it is necessary to find a balance between the cost of the precautionary measures, the possible damage and the profits derived from the activities. The economic dimension entails a distinction of the obligations, as was already established in principle 15 of the Rio Declaration: ‘the precautionary approach shall be widely applied by States according to their capabilities’. In other words, the precautionary principle must be implemented proportionally to the capacity of States; in consequence, the application of precautionary measures depends on the human, financial, economic, and technical resources for the assessment of the risk by States. • The principle may entail the shifting of the burden of proof. 58 New Zealand in the Nuclear Tests case maintained ‘that by virtue of the adoption into environmental law of the “Precautionary Principle”, the burden of proof fell on a State wishing to engage in potentially damaging environmental conduct to show in advance that its activities would not cause contamination’. 59 Similarly, it would be for the person responsible for an activity to demonstrate, before obtaining authorization to engage in the activity, that there will be no damage. 60 While the idea of the shifting of the burden of proof is largely admitted in doctrine, it must be pointed out that in the view of some authors it contradicts the objectives of sustainable development, the field within which the precautionary principle is embedded. It would be almost impossible for the person engaging in an activity to produce this negative evidence (probatio diabolica). Instead

References (p. 530) of the total reversal of the burden of proof, it would be better to adopt a more nuanced rule, reconciling the respect for the environment, the health of consumers, and technological progress. 61

(c) Legal status of the precautionary principle Insofar as it is incorporated in international treaties, the binding character of the precautionary principle at the international level cannot be contested.62 But the question remains whether the inclusion of the principle in various international instruments indicates the existence of a universal principle of customary international law. Doctrine is largely divided in this respect. There are arguments in favour and against its existence as a rule of customary international law. The main reasons for the denial of the existence of the precautionary principle as a legal principle are mainly linked to the absence of a unanimous and generally applicable formulation, the difference in the legal character of the instruments containing the principle, and the place in the instruments where the principle is referred to (notably, in the preambles).63 Terminological problems related to the undifferentiated use of the terms ‘approach’64 or ‘principle’65 also contribute to this uncertainty.66 Likewise, it is argued that the absence in practice of a uniform application of the principle demonstrates the non-existence of a customary binding precautionary principle.67 Moreover, the principle is said not to be a real guiding principle of positive law but should rather be considered as an interpretative principle, in the light of 68

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which States’ engagements should be undertaken.68 Some take the view that precaution is, in its current state, a moral and political principle included in international and internal law texts, on its way to becoming a general principle of law.69 Still others are of the opinion that the precautionary principle is only in the process of crystallization as a customary norm, but that this process could be concluded very soon.70

References (p. 531) On the other hand, there are authors who consider that the presence of the precautionary principle in numerous international texts testifies to its character as a rule customary international law.71 The principle which has developed in the context of the Rio Declaration and the conventions on Climate Change and Biodiversity is said to have received sufficiently broad support to warrant the conclusion that it now constitutes a principle of customary law.72 Similarly, according to others, it is a general principle of international environmental law having the character of an international customary rule of universal scope, for all the conditions required for the existence of such a rule would now be met.73 In relation to case law, the Court of Justice of the European Communities is required to apply the precautionary principle by virtue of its inclusion in the relevant treaties.74 Apart from this exception, international courts and tribunals have been hesitant to recognize real legal content to the principle, despite its inclusion in numerous international instruments. Even if the principle has been pleaded on several occasions by the parties before international tribunals,75 there is as yet no international decision unequivocally recognizing the existence of this principle as a rule of international customary law. In 1995, in the Nuclear Tests case, despite New Zealand’s request that the Court adjudge and declare that France had to conduct an environmental impact assessment before undertaking nuclear testing and demonstrate that the testing did not entail risks for the environment,76 the Court did not make any pronouncement on the precautionary principle.77 The Court was once again confronted with the principle in 1997, in the Gabčíkovo-Nagymaros Project case between Hungary and Slovakia concerning a project for hydroelectric facilities on the Danube. In this case, the Court admitted the existence of a precautionary principle in the framework of a bilateral treaty, but it did not apply the principle, for it considered that responsibility could not be engaged unless there was certainty that an imminent peril would occur.78 The most significant progress on the universal level materialized in the order issued by the International Tribunal on the Law of the Sea in the Southern Bluefin Tuna case. In this order, the Tribunal requested the parties to adopt effective conservation measures to prevent serious harm being caused to the stock of southern bluefin tuna, irrespective of the scientific uncertainty relating to the measures to be taken to conserve the stock.79 Notwithstanding the fact that the tribunal avoided the use of the term ‘precautionary

References (p. 532) principle’, the reference to the obligation to act ‘with prudence and caution’ was interpreted by Judges Treves and Shearer as reflecting a precautionary approach.80 But in 2001, when Ireland requested the application of the precautionary principle in the MOX Plant case, this same Tribunal abstained from directly applying the principle, and decided that ‘prudence and caution require that Ireland and the United Kingdom cooperate in exchanging information concerning risks or effects of the operation of the MOX plant and in devising ways to deal with them, as appropriate’.81 The European Court of Human Rights is the only international court to have invoked the existence of a precautionary principle in international law,82 which requires the State in case of serious risks of harm to take reasonable and adequate preventive measures, even in there is no certainty regarding the probability of causation.83

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Several references have been made to the precautionary principle in the framework of the WTO, notably in a case opposing Canada and the United States, on the one hand, and the European Communities, on the other.84 The European Communities refused to authorize the import of hormone-treated meats, justifying this measure by the precautionary principle, a customary rule of international law or at least a general principle of law. But the WTO dispute settlement body did not pronounce on the legal status of the precautionary principle in international law.85 This practice of various international tribunals confirms that to this day it cannot be said without doubt that there exists an international customary law rule imposing on States an obligation to apply the precautionary principle.

3 Conclusion In contemporary international law, obligations of prevention, obligations to take preventive measures, and precaution, and their mutual relationship are of a particularly complex character, because of their placement in different legal contexts. On the one hand they concern a matter located within the general framework of the law of State responsibility for internationally wrongful acts, and on the other hand, they concern attempts to oblige States to take preventive and precautionary measures for protecting common goods of humanity, such as environment and human health, in the framework of activities not

References (p. 533) prohibited by international law. Therefore, they are a matter of both secondary and primary rules. It is especially the latter kind of rules, the measures of prevention and precaution, which have recently been the subject of development, in respect of which the influence of economic considerations cannot be under-estimated. The issue becomes more complex due to the existence of treaties establishing specific regimes for specific activities, such that it is not yet possible to speak of a uniform legal regime which is universally applicable. In any event, the relevant criterion to distinguish prevention from precaution is surely that of the proven risk against scientific uncertainty. Nevertheless, some customary obligations to take measures of prevention can already be identified, such as the obligations of risk assessment, notification and information to the interested States. Moreover, it is generally accepted that the precautionary principle is in a process of crystallization and it appears that it is only a matter of time before a customary rule to this effect is established, even though this will not occur without raising numerous questions regarding the regime relating to such a principle. Further reading N Ashford, ‘The Legacy of the Precautionary Principle in US Law: The Rise of Cost Benefit Analysis and Risk Assessment as Undermining Factors in Health, Safety and Environmental Protection’, in N de Sadeleer (ed), Implementation the Precautionary Principle: Approaches from the Nordic Countries, the EU and the United States (London, Earthscan, 2007), 352 L Boisson de Chazournes, ‘Precaution in International Law: Reflection on its Composite Nature’, in TM Ndiaye and R Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, Liber Amicorum Judge Thomas A. Mensah (Leiden, Nijhoff, 2007), 21 L Butti, The Precautionary Principle in Environmental Law (Milan, Giuffrè, 2007) C Caubet, ‘Le droit international enquête d’une responsabilité pour les dommages résultant d’activités qu’il n’interdit pas’ (1983) 29 AFDI 99 J Cazala, Le principe de précaution en droit international (Paris, Anthemis, 2006) J Cazala, ‘Principe de précaution et procédure devant le juge international’, in C Leben and J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 151 J Cheyne, ‘Gateways to the Precautionary Principle in WTO Law’ (2007) 19 Journal of

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Environmental Law 155 P-M Dupuy, ‘Le principe de précaution, règle émergente du droit international général’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 95 P-M Dupuy, La responsabilité des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976) C Dominicé, ‘International Responsibility and Liability: Comments on the Commission’s Approach’, in United Nations (ed), The International Law Commission Fifty Years After: An Evaluation (New York, United Nations, 2000), 30 C Dominicé, ‘Le principe de prévention en droit international de l’environnement’ (1998) ZEuS 329 J Dutheil de la Rochère, ‘Le principe de précaution dans la jurisprudence communautaire’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 193 F Ewald, Ch Gollier, & N de Sadeleer, Le principe de précaution (Paris, PUF, 2008) O Godard, ‘Le principe de précaution’, Projet, No 261, March 2000, available at:

(p. 534) L González Vaqué, L Ehring, & C Jacquet, ‘Le principe de précaution dans la législation communautaire et nationale relative à la protection de la santé’ (1999) RMUE 79 G Hafner, ‘Le contexte particulier de la responsabilité dans le droit international de l’environnement’, in P Weil, P-M Dupuy, & C Leben (eds), Droit International 5 (Paris, Pedone, 2001), 7 CW Jenks, ‘Liability for hazardous activities in international law’ (1966-I) 17 Recueil des cours 99 C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002) G Loibl, ‘The precautionary principle in international law’, in E Freytag, T Jakl, G Loibl, & M Wittmann (eds), The Role of Precaution in Chemicals Policy (Vienna, Favorita papers of the Diplomatic Academy of Vienna, 2002), 13 L Lucchini, ‘Le principe de précaution en droit international de l’environnement: ombres plus que lumières’ (1999) 45 AFDI 710 C Magee, ‘Using Chevron as a Guide: Allowing for the Precautionary Principle in WTO Practices’ (2009) 21 Georgetown International Environmental Law Review, 615 G Marceau, ‘Le principe de précaution et les règles de l’Organisation mondiale du commerce (OMC)’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 131 P Martin-Bidou, ‘Le principe de précaution en droit international de l’environnement’ (1999) 103 RGDIP 631 A Trouche, ‘Le principe de précaution entre unité et diversité: étude comparative des systèmes communautaire et O.M.C.’ (2008) Cahiers de droit européen 279 A Trouwborst, Precautionary Rights and Duties of States (Leiden, Martinus Nijhoff, 2006) A Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague, Kluwer Law International, 2002) J Verhoeven, ‘Principe de précaution, droit international et relations internationales : quelques remarques’ (2002) 3 AFRI 250 K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed), Responsabilité internationale (Paris, Pedone, 1987), 3

Footnotes: 1 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 146–148. Noted by the General Assembly in GA Res 62/68, 6 December 2007.

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2 See draft arts 20 and 21, in Report of the ILC, 29th Session, ILC Yearbook 1977, Vol II(2), 11–30. 3 Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–87. 4 See J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 81–92. For the ILC decision to eliminate all provisions on the issue: Report of the ILC, 51st Session, 1999, A/54/10, 59–61 (paras 14 5–172). 5 Commentary to art 12, paras 11–12. 6 ARSIWA, art 14(3) is a fusion of art 24 on the ‘moment and duration of the breach of an international obligation by an act of the State not extending in time’ and art 25(1) on the ‘moment and duration of the breach of an international obligation by an act of the State extending in time’ and art 26. For the text of these articles see: Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–97. 7 500 UNTS 95. 8 Report of the ILC, 30th Session, ILC Yearbook 1978, Vol II(2), 81–82 (para 3). 9 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 30 (para 61). 10 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 86. 11 Trail Smelter (United States, Canada) (1941), 3 RIAA 1905; see also the Commentary to art 14, para 14. 12 2 AJIL Supp 117. 13 Commentary to art 14, para 14. 14 Responsibility and Liability under International Law for Environmental Damage, Institut de Droit international, Strasbourg Session 1997, available at . 15 On the distinction between the primary norms on liability and the secondary norms on international responsibility see C Dominicé, ‘International Responsibility and Liability: Comments on the Commission’s Approach’, in United Nations (ed), The International Law Commission Fifty Years After: An Evaluation (New York, United Nations, 2000), 30, 32–33. 16 On these types of obligations, see C-W Jenks, ‘Liability for Hazardous Activities in International Law’ (1966-I) 117 Recueil des cours 99; C Caubet, ‘Le droit international enquête d’une responsabilité pour les dommages résultant d’activités qu’il n’interdit pas’ (1983) 29 AFDI 99; K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed), Responsabilité internationale (Parism, Pédone, 1987), 3. 17 See C Dominicé, ‘Le principe de prévention en droit international de l’environnement’ (1998–3) ZEuS 329. 18 See P-M Dupuy, La responsabilité des Etats pour les dommages d’origine technologique et industrielle (Paris, Pédone, 1976), 30–36. 19 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 146–148. Noted by the General Assembly in GA Res 62/68, 8 January 2008. 20 Cf especially art 13 of the resolution of the Institut de Droit International on the Responsibility and Liability under International Law for Environmental Damage, Strasbourg Session, 1997. 21 See the numerous conventional references to these obligations as well as the State practice recalled in the commentary to the two articles in question, in Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 153–155 and 157–160. 22 See North Sea Continental Shelf cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v the Netherlands), Judgment, ICJ Reports 1969, p 3, 46–48 (paras 85–87). 23 See para 5 of the Commentary to both arts 13 and 15 of the draft Articles on Prevention of

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Transboundary Harm from Hazardous Activities, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2) 165, 167–168. For an example in judicial practice of the different obligations including information and participation of the public and its access to judicial procedures, see in particular Tatar v Romania (App No 67021/01), ECHR, Judgment, 27 January 2009, paras 88 and 112–124. 24 See in particular the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 38 ILM 517. 25 United Nations Conference on Environment and Development: Rio Declaration on Environment and Development (1992) 31 ILM 874. See G Hafner, ‘Le contexte particulier de la responsabilité dans le droit international de l’environnement’, in P Weil, P-M Dupuy, and C Leben (eds), Droit International 5 (Paris, Pedone, 2001), 7, 31. 26 P Kouralski and G Viney, Le principe de précaution—Rapport au Premier ministre, 15 October 1999, 11, available at ; published source: La Documentation française 2000 (Paris, Editions Odile Jacob). 27 Hague Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines, 18 October 1907, arts 3–4; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, arts 88, 127, 137. 28 Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), (1972) 11 ILM 1416. 29 EF Gollier and N de Sadeleer, Le principe de précaution (Paris, PUF, 2008), 6ff; L González Vaqué, L Ehring, and C Jacquet, ‘Le principe de précaution dans la législation communautaire et nationale relative à la protection de la santé’ (1999–1) RMUE 79, 85. 30 Loi Barnier No 95-101, 2 February 1995, from which the current article L 110-1 of the Environmental Code derives. For a recent codification in Italy (art 301 of the Italian Environment Code) see L Butti, The Precautionary Principle in Environmental Law (Milan, Giuffrè, 2007), 24, 28. As to the application of this principle in US legislation and court practice see in particular N Ashford, ‘The Legacy of the Precautionary Principle in US Law: The Rise of Cost Benefit Analysis and Risk Assessment as Undermining Factors in Health, Safety and Environmental Protection’, in N de Sadeleer (ed), Implementation the Precautionary Principle: Approaches from the Nordic Countries, the EU and the United States (London, Earthscan, 2006), 352–378. 31 Art 5 of the Environmental Charter of 2004 concerns the principle of precaution. 32 1513 UNTS 324. 33 ‘Our Common Future’, UNGA Doc A/42/427, 4 August 1987, Annex I. 34 1931 UNTS 423. 35 Second International Conference on the Protection of the North Sea (London Declaration) 1987 (1988) 27 ILM 835, VII, XI. 36 Bergen Declaration on Sustainable Development in the ECE Region, 16 May 1990, A/CONF.151/ PC/10, reprinted in (1990) 1 Yearbook Int’l Envtl L 430 (para 7). 37 G Loibl, ‘The precautionary principle in international law’, in E Freytag, T Jakl, G Loibl, & M Wittmann (eds), The Role of Precaution in Chemicals Policy (Vienna, Favorita papers of the Diplomatic Academy of Vienna, 2002), 13, 14. 38 (1991) 30 ILM 773, art 4(3)(f ). 39 (1992) 31 ILM 1312, art 2(5)(a). 40 (1992) 1771 UNTS 107, art 3(3). 41 (1992) 1760 UNTS 79, preamble para 9. 42 1867 UNTS 493, art 5(7).

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43 (1976) 15 ILM 290, art 4(3)(a). 44 (1993) 32 ILM 1069, art 2(2)(a). 45 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 (1996) 34 ILM 1542, art 6. 46 4 December (2000) 2226 UNTS 257, preamble, arts 1, 10(6), 11(8). 47 (2001) 40 ILM 532, preamble, arts 1, 8(7) and 8(9), Annex C part V(B). 48 (1992) 31 ILM 247. 49 (1998) 37 ILM 56, art 174(2). 50 2001 OJ (C80) 1. 51 2007 OJ (C306) 1, art 191(2). 52 Communication of the Commission, 2 February 2000, on the precautionary principle, COM (2000) 1 final (not published in the official journal). Available at: . 53 Resolution of the Council on the precautionary principle, in Conclusions of the Presidency, Nice European Council Meeting, 7–9 December 2000, Annex 3, available at: . 54 L Lucchini, ‘Le principe de précaution en droit international de l’environnement: ombres plus que lumières’ (1999) 45 AFDI 710, 716–721. 55 See also A Trouwborst, Precautionary Rights and Duties of States (Leiden, Martinus Nijhoff, 2006), 37–158 and L Boisson de Chazournes, ‘Precaution in International Law: Reflection on its Composite Nature’, in TM Ndiaye and R Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, Liber Amicorum Judge Thomas A Mensah (Leiden, Nijhoff, 2007), 21, 21– 24. 56 O Godard, ‘Le principe de précaution’, Projet No 261, March 2000, available at: . 57 P Kouralski and G Viney, Le principe de précaution—Rapport au Premier ministre, 15 October 1999, 5, available at ; published source: La Documentation française 2000 (Paris, Editions Odile Jacob). 58 See a discussion of the question, for example, in PW Birnie, AE Boyle, & C Redgwell, International Law and the Environment (Oxford, OUP, 2009), 158–159, 164. 59 See Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case, ICJ Reports 1995, 288, 298 (para 34). 60 P Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 273. 61 J Cazala, ‘Principe de précaution et procédure devant le juge international’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 151, 160–178. 62 J Verhoeven, ‘Principe de précaution, droit international et relations internationales : quelques remarques’ (2002) 3 AFRI 250, 258–260. 63 See eg L Boisson de Chazournes, ‘Precaution in International Law: Reflection on its Composite Nature’, in TM Ndiaye & R Wolfrum (eds) Law of the Sea, Environmental Law and Settlement of Disputes, Liber Amicorum Judge Thomas A Mensah (Leiden, Nijhoff, 2007), 21–34, 25. 64 See eg Principle 15, Rio Declaration on Environment and Development (1992) 31 ILM 874, or the 2000 Protocol of Cartagena, 2226 UNTS 257.

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65 See the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), Paris, 22 September 1992, 32 ILM 1069. 66 L Lucchini, ‘Le principe de précaution en droit international de l’environnement: ombres plus que lumières’ (1999) 45 AFDI 710, 716–721. 67 M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 19. 68 P Martin-Bidou, ‘Le principe de précaution en droit international de l’environnement’ (1999) 3 RGDIP 631, 661. See also PW Birnie, AE Boyle & C Redgwell, International Law and the Environment (Oxford, OUP, 2009), 164. 69 O Godard, ‘Le principe de précaution’ Projet No 261, March 2000, available at: . 70 P-M Dupuy, ‘Le principe de précaution, règle émergente du droit international général’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 95, 108. 71 G-J Martin, ‘Apparition et définition du principe de précaution’ (2000) 239 Petites Affiches 7, 9. 72 P Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 279. 73 See, especially, A Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague, Kluwer Law International, 2002), 260–286. 74 J Dutheil de la Rochère, ‘Le principe de précaution dans la jurisprudence communautaire’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 193, 195–201. 75 Cf P Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 273–279. See also Pulp Mills on the River Uruguay (Argentina v Uruguay), pending before the ICJ. 76 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, ICJ Reports 1995, p 288, 290–291 (para 6). 77 See P Sands, ‘L’affaire des Essais nucléaires II (Nouvelle-Zélande c. France): Contribution de l’instance au droit international de l’environnement’ (1997) 101 RGDIP 447, 470–473. 78 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 41–42 (para 54). See M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 20ff. 79 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures, ITLOS, Cases No 3–4, 27 August 1999, 117 ILR 148, 163–164 (paras 77–79). See M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 10ff. 80 See Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures, ITLOS, Cases No 3–4, 27 August 1999, 117 ILR 148, 179 (Separate Opinion of Judge Treves, para 8), 186–187 (Separate Opinion of Judge Shearer). 81 The MOX Plant Case (Ireland v United Kingdom), Provisional Measures, ITLOS, Case No 10, 3 December 2001, 126 ILR 259, 277 (para 84). See M Fitzmaurice, Contemporary Issues in International Environmental Law (Northampton, Edward Elgar Publishing, 2009), 10ff. 82 Tatar v Romania (App No 67021/01), ECHR, Judgment, 27 January 2009, paras 109 and 120. 83 Ibid, para 107. 84 EC—Hormones, WTO Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/ DS48/AB/R, 16 January 1998, paras 121–124; See also EC—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 September 2006, Panel Report (Part III), 339–341 (paras 7.88–7.89). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

85 See M Iynedjian, ‘Le principe de précaution en droit international public’ (2000) 3 RDISPD 247, 255; G Marceau, ‘Le principe de précaution et les règles de l’Organisation mondiale du commerce (OMC)’, in C Leben & J Verhoeven (eds), Le principe de précaution. Aspects de droit international et communautaire (Paris, Editions Panthéon-Assas, 2002), 131, 134–136; J Cheyne, ‘Gateways to the Precautionary Principle in WTO Law’ (2007) 19 Journal of Environmental Law 155; C Magee, ‘Using Chevron as a Guide: Allowing for the Precautionary Principle in WTO Practices’ (2009) 21 Georgetown International Environmental Law Review 615.

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Part IV The Content of International Responsibility, Ch.37 Overview of Part Two of the Articles on State Responsibility Rosalyn Higgins From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Lex specialis — Opinio juris — State practice — Responsibility of states — Wrongful acts — Reparations — Consular relations — Vienna Convention on the Law of Treaties

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(p. 537) Chapter 37 Overview of Part Two of the Articles on State Responsibility It is stated at the outset to Part Two of the ILC’s Commentary to ARSIWA that: Whereas Part One of the articles defines the general conditions necessary for State Responsibility to arise, Part Two deals with the legal consequences for the responsible State.1 These consequences are described as giving rise to a ‘new legal relationship which arises upon the commission by a State of an internationally wrongful act’.2 This marks the arrival point along the road set out for the Commission by Roberto Ago during the period 1973–9. His point of departure was that the legal concept of consequences for wrongfulness can usefully be looked at in abstracto. This task is admirably carried out, without a total abandonment of the alternative idea that consequences arise out of the wrong itself and the legal action thereon. It is thus explained that while these provisions deal with the legal consequences for a responsible State: It is true that a State may face legal consequences of conduct which is internationally wrongful outside the sphere of State responsibility. For example, a material breach of a treaty may give an injured State the right to terminate or suspend the treaty in whole or in part.3 Several interesting problems arise from this legal truth. The first is to know whether the remedies envisaged in the substantive law governing the primary relations are themselves lex specialis. For example, may a treaty be terminated or suspended only through application of the substantive rules governing the law of treaties; or may the State responsibility rules on non-wrongfulness of conduct (for example, a state of necessity) also excuse termination or suspension of a treaty? Can the law of responsibility effectively enlarge the substantive lex specialis relating to treaties? Indeed, what is the relationship between a lawful termination or suspension and one that is excused as not being wrongful? These questions, very much in play in the Gabcíkovo-Nagymaros case,4 received no clear answer from either the Court (because of the way in which it read the technical evidence in that case) or the ILC. The reader will find the study of Part Two of the Article both essential reading and an invaluable resource. But he or she should not expect that the Articles, or even the Commentary, will provide answers to every difficult contemporary problem in the law of State responsibility.

References (p. 538) The relationship between State responsibility law (and what is contained in Part Two) and remedies perceived as arising as of specific primary obligations, was very much in focus in the LaGrand case.5 The United States insisted that, because in that case the jurisdiction of the Court was based on the Vienna Convention on Consular Relations, it could not have jurisdiction to order assurances and guarantees, which fall within the law of State responsibility rather than within treaty law. The Court rejected such a conceptual distinction, holding that: a dispute regarding the appropriate remedies for the violation of the Convention alleged by Germany is a dispute that arises out of the interpretation or application of the Convention and is thus within the Court’s jurisdiction. Where jurisdiction exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the Court to consider the remedies a party has requested for the breach of the obligation.6

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If the jurisdictional point was answered, the substantive point remained. By what test is it determined whether a primary obligation carries with it its own required consequence for responsibility for violation, thus precluding a tribunal from fashioning its own remedy within the framework of what is laid out in Part Two of the ILC Articles? The United States suggested that the test was to look at the practice under the primary obligation concerned to see what the parties intended. In its view, so far as concerned the Vienna Convention on Consular Relations, the usual practice was said to be simply an apology after violation.7 This approach leads one to comment on the sampling technique for deployment of evidence of violations and remedies: unless the character of the violation of the norm is explained in each and every case with some precision, it cannot be seen exactly what type of violation of the primary obligation is occasioning which remedy. The length of time that passed before notification, and its relationship to the trial process—and, indeed, whether a person detained without notification was or was not released before trial—are all relevant variables. Moreover, the examples of apology in the indicated practice under the Vienna Convention on Consular Relations were not examples arising in situations comparable to the situation of the LaGrands. As the Court said, in some circumstances an apology might indeed suffice to provide reparation for the injury caused by a violation of the primary obligation. But: an apology is not sufficient in this case, as it would not be in other cases where foreign nationals have not been advised without delay of their rights under Article 36, paragraph 1, of the Vienna Convention and have been subjected to prolonged detention or sentenced to severe penalties.8 The Court thus saw no remedy required as the sole remedy by virtue of the primary obligation itself. It saw rather a primary obligation under a treaty and a remedy which it, having competence over the entirety of the problem, was free to fashion to meet the particular exigencies. Naturally, that distinction would have to be exercised within the parameters of remedies that were cognizable under the law of State responsibility.

References (p. 539) In fact, because of its substantive findings in the case, the Court had to fashion a remedy for a violation of the rights of Germany and a remedy for a violation of the individual rights it found were held by the LaGrands by virtue of article 36 of the Vienna Convention. It fashioned remedies that were both efficacious in terms of meeting the purpose of article 36 and non-intrusive so far as United States criminal law was concerned.9 It went through much the same exercise again in the Avena case.10 Some aspects of consequences of responsibility already represent a well developed subject matter, while others are of recent vintage, owing much of their status as new norms to the very work of the ILC. Compensation (article 36) and countermeasures (articles 49–53) provide models of these two possibilities. The case law in which orders of compensation have arisen are voluminous in number, the literature vast. The real-life issues that arise relating to compensation are many and complex. Article 36 of the ILC Articles itself side-steps virtually all of these, leaving them unanswered. Paragraph 2 simply provides that ‘the compensation shall cover any financially assessable damage including loss of profits insofar as it is established’. Some of the many issues that are begged by this bland formula do find mention in the Commentary. Others do not. The practitioner in this field gets little from this article or the accompanying pages—the counsel preparing legal argument or the arbitrator addressing one of the myriad of problematic issues when drafting the compensation part of his or her award will look elsewhere for guidance. Article 36(2) will serve simply as a point of departure, a rule that will be recited before turning to the real problems in this field. By contrast, the law on countermeasures is deployed in some considerable detail in the governing articles and the accompanying Commentary. These will still be (together with

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earlier drafts and discussions in the ILC) the essential place for scholars and practitioners to go for guidance on the subject. This leads inevitably to a sense of unevenness for the reader who is interested in the entirety of Part Two. This unevenness in utility flows inexorably from the fundamental decision to deal separately with each and every possible consequence of a breach giving rise to responsibility, coupled with the different stages of development of the corpus of law on the alternative consequences. The Commission has at all times eschewed embarking upon the substantive content of obligations, the breach of which could cause responsibility. But the reality is that some consequences of breach have developed into vast bodies of substantive law, generating their own norms. If a State takes the property of a foreigner unlawfully, compensation is due (and perhaps, in the eyes of some, and in particular circumstances, restitution also). In the Avena case, Mexico sought ‘restitution’ for violations of article 36 of the Vienna Convention on Consular Relations in the form of annulment of the conviction and sentence. It claimed that this met the restituto in integrum entitlement enunciated in the Chorzów Factory case.11 Further, Mexico claimed annulment of illegal acts was the normal remedy. In that regard, it cited the judgment of the Court in the Arrest Warrant case12 in which the Court ordered the cancellation of the arrest warrant issued by the Belgian judiciary. But, the Court explained, the two cases were not the same: However, [in the Arrest Warrant] case, the question of the legality under international law of the act of issuing the arrest warrant against the Congolese Minister for Foreign Affairs by the Belgian

References (p. 540) judicial authorities was itself the subject-matter of the dispute. Since the Court found that act to be in violation of international law relating to immunity, the proper legal consequence was for the Court to order the cancellation of the arrest warrant in question. By contrast, in the present [Avena] case, it is not the convictions and sentences of the Mexican nationals which are to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them.13 It was therefore not to be presumed that partial or total annulment of conviction or sentence was the appropriate remedy. Inter-State disagreements about the compensation methods employed in the event (or about which there should have been restitution) constitute disagreements on substantive law. The expropriating State whose compensation is being challenged may be violating a secondary rule, but the fall-out may not feel so different from a violation of a primary rule. Indeed, as the LaGrand case has shown, even international litigation may follow from a dispute over remedies. By contrast, no one suggests that the mitigation rule could even be considered comparable to a primary rule of State responsibility. The mitigation rule has no status even as a consequence of a breach of primary obligation. Article 31 does not itself make any mention of the question of mitigation of damages. It is left to the Commentary, which deals with it as a question affecting the scope of reparation. The Special Rapporteur correctly observes that: Although often expressed in terms of a ‘duty to mitigate’, this is not a legal obligation which itself gives rise to responsibility. It is rather that a failure to mitigate by the injured party may preclude recovery to that extent.14 The Commentary cites ‘in this sense’ the finding of the Court in the Gabcikovo-Nagymaros case that while the principle of mitigation ‘might thus provide a basis for the calculation of damages, it 15

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could not, on the other hand, justify an otherwise wrongful act’.15 However, it would seem that here the Court was making a slightly different point from that which is cited. While implicitly approving the principle of mitigation as articulated by Slovakia, which it had cited immediately before (and which is also reproduced in the Commentary), the Court was stating that measures taken to mitigate could not be those which themselves were wrongful in terms of the legal relationship between the parties. Put differently, wrongfulness in State responsibility is not precluded by the act in question being in mitigation of damages potentially due from the other party for a prior breach of an obligation. Each student of Part Two will find a treasure trove on particular points of interest that may engage him or her. Naturally, Chapter III on ‘Serious breaches of obligations under peremptory norms of general international law’ has attracted a very widespread interest, and presented considerable difficulties for the successful conclusion of these Articles. This writer, however, will allow herself some observations on a different element. Writing with colleagues on the completion of the Second Reading of the Articles, the Special Rapporteur had some pointed observations to make on assurances and guarantees

References (p. 541) of non-repetition.16 The reader is reminded that in the first reading of the Articles, these were included as a form of reparation. But on second reading, and bearing in mind the valuable comments of the earlier Special Rapporteur Arangio-Ruiz on the complexity of classifying assurances and guarantees,17 they were treated as more relevant to cessation than to reparation. As Special Rapporteur Crawford put it in his Third Report: Whereas reparation is concerned with the past, with restoration of the status quo ante, cessation and assurances and guarantees are concerned essentially with the future.18 The matter of assurances came before the International Court very shortly before the adoption of Articles on Second Reading. In its Application in the LaGrand case, Germany asked that ‘the United States should provide Germany with a guarantee of non-repetition of the illegal acts’.19 What was in the Application formulated as a guarantee was in Germany’s fourth submission termed ‘an assurance that [the United States] will not repeat its unlawful acts …’. Elsewhere, Germany referred to ‘assurances and guarantees of nonrepetition …’.20 No particular distinction was made in the oral pleadings. It has been pointed out that while the French text at paragraph 124 of the judgment ‘hardly decides the point’—that is, whether assurances or guarantees are an aspect of reparation—‘the English text is studiously neutral’.21 The Court had to come back to this question in the Avena case. In its eighth submission, Mexico asked the Court to adjudge and declare: that the [United States] shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36, paragraph 1, and to ensure compliance with Article 36, paragraph 2.’ The view of Mexico was that the failure of the United States authorities, and the continuing examples of violations of article 36, paragraph 1, of the Vienna Convention on Consular Relations, together made such remedies necessary. The Court, while acknowledging there were a substantial number of cases of non-compliance with Consular Convention obligations, nonetheless noted that the United States had been making considerable efforts, through particular programmes, to implement the obligations incumbent upon it under article 36(1), and, further, that it did not perceive a general pattern of violation. Moreover, an assurance of non-repetition would not be ordered, for the same reasons as already indicated in the LaGrand case—namely, that ‘no State 22

23

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could give such a guarantee’.22 The requests for these remedies were therefore denied.23

References (p. 542) It would seem that neither LaGrand/Avena nor the adopted final Articles of the ILC fully resolve all the difficulties associated with assurances and guarantees. So far as their status is concerned, Arangio-Ruiz, in his Second Report on State Responsibility relied on eight examples.24 In several examples States demanded that incidents be not repeated (US/Spain 1889; 25 Dogger Bank, UK/Russia 1904; 26 China/Indonesia 1966; 27 Switzerland/Jordan, Syria, Lebanon 196928 ). But the Special Rapporteur gave no information as to how these demands were received, and thus it seems less than certain that these examples show State practice with the necessary opinio juris. It is striking that the majority of examples relate to violations of diplomatic immunities and protection of embassies: it is entirely appropriate for an offending Government to promise that it would properly protect an embassy in the future.29 Evidence of the existence of such a remedy more generally is harder to come by. The Vracaritch case, cited by Special Rapporteur Arangio-Ruiz, in which the German Minister of Justice apologized for an isolated incident of inappropriate arrest and said that it had ‘taken the necessary measures to ensure that such a case does not occur again’,30 comes nearest. Special Rapporteur Crawford, in initially reformulating the guarantee against nonrepetition, cited only two examples. The first of these, the Torres Ramírez case of the Human Rights Committee, does nothing to establish the existence of a general obligation of guarantee of non-repetition. Calls by the Human Rights Committee to parties who had violated a Covenant provision ‘to take steps to ensure that similar violations do not occur in the future’ rest for their legitimacy on the specific under takings as to remedies by States parties to the Covenant in article 2(3) thereof.31 As for the second example, upon reading it the mention of a guarantee of non-repetition is not easily discernible.32 Germany, while arguing that a State is entitled to full reparation, added: some doubts exist, however, as to whether the injured State has, under customary international law, the right to ‘guarantees of non-repetition’ … To impose an obligation to guarantee non-repetition in all cases would certainly go beyond what State practice deems appropriate.33 The concept of guarantees of non-repetition, when introduced by Special Rapporteur Arangio-Ruiz, met with some scepticism by States. The Czech Republic had some substantive suggestions to make about further refinement of the concept.34 Mongolia stated the provision was ‘highly important’35 and Uzbekistan proposed that article 46 ‘should stipulate what form of assurances the injured State is entitled to obtain’.36 (This remark

References (p. 543) had a particular pertinence in the context of the LaGrand case where it was less than certain whether a ‘guarantee’ was being sought over and above the demand by Germany that there be no procedural impediment to raising a violation of article 36 in US criminal appeal proceedings.) In contrast, States largely stayed silent on the draft proposals reformulated by the ILC during the Second Reading. In LaGrand, Germany informed the Court that guarantees of non-repetition, once ‘adopted by the ILC, [were] quickly followed by State practice’.37 But it is doubtful whether the examples cited to support this proposition in fact do so. The fact that in the Gabcikovo-Nagymaros judgment the Court dealt with future performance is not to the point, because that case concerned a claim by one State that the treaty obligations were terminated, freeing it from performance. The United States did not suggest either that the Consular Convention was terminated, or that it was free not to

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perform the obligations thereunder. The examples from human rights jurisprudence equally do not assist: naturally, ‘friendly settlements’ have to be on the basis that the human right is acknowledged as a continuing obligation. As for the cited Inter-American Court judgments, in the Castillo Petruzzi case (and also in the earlier Suárez-Rosero case) the Court did call for ‘such measures as may be necessary’ to be adopted by the respondent States as would ensure that the violations were not repeated.38 But this was expressly stated to be on the basis of obligations undertaken under articles 1(1) and (2) of the American Convention on Human Rights, to adopt necessary provisions under domestic law. Nor are examples of preventive injunctions39 in domestic legal practice to be equated to guarantees given by one party as to future compliance with legal obligations to the other party. In the Articles as adopted, the question of assurances and guarantees was ultimately located in Part Two, under the heading of Cessation and Non-Repetition. The Commentary states that ‘there are several reasons for treating cessation as more than simply a function of the duty to comply with the primary obligation’ and also notes that sometimes it may seem almost indistinguishable from restitution.40 The practical problems associated with the characteristics of assurances and guarantees also merit mention. As the Special Rapporteur notes, these remedies have the ‘characteristics of being future-looking’ and concerned with ‘other potential breaches’.41 This raises, it seems to me, major evidentiary problems for a court, which is told not that a specific violation of an ‘obligation’ is continuing, but rather that a breach has occurred in the past and it is highly likely more such breaches will occur. But what evidence is suffi cient to show this? From whom should it emanate? By when, in the timetable of the litigation, should it be produced and to what tests of examination should it be subjected? Must it relate to the nationals of the applicant State in the case in issue? And can all of this be ‘piggy-backed’ on to the initial case in which the applicant claims an unsatisfied violation against itself and its national? The problems of jurisdiction, of quality of evidence and of sound administration of judicial proceedings, suggest to this writer that assurances and guarantees should be approached with the greatest caution.

References (p. 544) Wherever the reader’s particular interests lie when turning to these Articles, and whatever viewpoint may be held on a particular topic, it cannot be doubted that a major milestone in international law has now been passed. This remarkable study has been brought to a conclusion which, as its reception by the General Assembly has shown, is at once intensely scholarly and also acceptable to States generally. All concerned are to be warmly congratulated on what has been a prodigiously difficult undertaking.

Footnotes: 1 Commentary to Part Two, para 1. 2 Ibid. 3 Ibid. 4 Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997. 5 LaGrand (Germany v United States), ICJ Reports 2001, p 466. 6 Ibid, 485 (para 48). See also Factory at Chorzów, Jurisdiction, 1925, PCIJ Reports, Series A, No 9, p 4, 22. 7 At the same time, the United States contended that the remedy of apology was ‘political and not legal’. Assurances of non-repetition, in the view of the United States, were ‘exceptional even as a non-legal undertaking in State practice …’: LaGrand (Germany v United States), ICJ Reports 2001, p 466, 509 (para 119). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

8 Ibid, 512 (para 123). 9 Ibid, 516 (para 128(7)). 10 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12. 11 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. 12 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3. 13 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 60 (para 123). 14 Commentary to art 31, para 11. 15 Ibid, citing Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 55 (para 85). 16 J Crawford, J Peel, & S Olleson, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’ (2001) 12 EJIL 963, 985. 17 ILC Yearbook 1989, Vol II(1), 42–44. 18 J Crawford, Third Report on State Responsibility, 2000, A/CN4/507, 26. 19 LaGrand (Germany v United States), ICJ Reports 2001, p 466, 472 (para 10). 20 Ibid, 509 (para 118). 21 J Crawford, J Peel, & S Olleson, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’ (2001) 12 EJIL 963, 987. In LaGrand (Germany v United States), ICJ Reports 2001, p 466, 513 (para 124), the Court said, referring to detailed data put before it by the United States, ‘the commitment expressed by the United States … must be regarded as meeting Germany’s request for a general assurance of non-repetition’. 22 LaGrand (Germany v United States), ICJ Reports 2001, p 466, 512–513 (para 124). 23 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 69 (para 150). 24 ILC Yearbook 1989, Vol II(1), 45. 25 JB Moore, A Digest of International Law Vol II (Washington, Government Printing Office, 1906), 907–908, cited in ILC Yearbook 1989, Vol II(1), 44–5 (para 156). 26 Martens, 33 NRG (2d) 642, cited ILC Yearbook 1989, Vol II(1), 44–5 (para 156). 27 (1996) 70 RGDIP 1013, cited ILC Yearbook 1989, Vol II(1), 44–5 (para 156). 28 Cited ILC Yearbook 1989, Vol II(1), 44 (para 155). 29 USA/USSR 1964, in (1965) 71 RGDIP 162, cited ILC Yearbook 1989, Vol II(1), 44–5 (para 156). 30 (1962) 66 RGDIP 376–7, cited ILC Yearbook 1989, Vol II(1), 44–5 (para 156). 31 Human Rights Committee,Torres Ramírez v Uruguay, Communication No 4/1977, A/35/40,125, 23 July 1980, para 19, cited in J Crawford, Third Report on State Responsibility, 2000, A/CN4/507, para 55, fn 97. 32 USA ss 301-310 Trade Act 1974, Panel Report 22 December 1999, WTO Doc WT/DS 152/R, cited in J Crawford, Third Report on State Responsibility, 2000, A/CN4/507, para 55, fn 97. 33 ‘Comments and Observations Received from Governments’, A/CN.4/488, 25 March 1998, A/CN.4/488, 25 March 1998, 131–132. 34 Ibid, 145–146. 35 Ibid, 146. 36 Ibid. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

37 CR 2000/27, 32. 38 Castillo Petruzzi v Peru (Merits, Reparations and Costs), Inter-Am Ct HR, Series C, No 52 (1999), para 222. See also Suárez-Rosero v Ecuador (Merits) Inter-Am Ct HR, Series C, No 35 (1997), Para 106. 39 CR 2000/27, 33. 40 Commentary to art 30, paras 6–7. 41 Ibid, para 9.

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Part IV The Content of International Responsibility, Ch.38 The Obligation of Cessation Olivier Corten From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Reparations — Circumstances precluding wrongfulness — General principles of international law

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(p. 545) Chapter 38 The Obligation of Cessation 1 A general principle of respect of the rule of law 545 2 A limited scope of application to cases of continuing unlawful acts 547 3 Legal regime of the obligation of cessation 548 Further reading 549 Pursuant to article 30 of the Articles on State Responsibility, entitled ‘Cessation and non-repetition’: The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances sorequire. The general principle underlying this provision is respect for the rule of law. However, the application of the rule is subject to certain specific conditions and entails certain legal consequences.

1 A general principle of respect of the rule of law The obligation of cessation of wrongful acts is an essential obligation: it is impossible to conceive of a legal order which does not impose on every author of a breach the obligation to cease that breach. For example, a State which occupies another State without valid legal justification is bound to immediately end the occupation. In this sense, and unlike the other provisions concerning reparation, cessation of the unlawful act is in the interest of a wider community of States, and not only of the injured State. As the ILC noted in the Commentary to article 30, cessation has the function of: [putting] an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule. The responsible State’s obligation of cessation thus protects both the interests of the injured State or States and the interests of the international community as a whole in the preservation of, and reliance on, the rule of law.1

References (p. 546) Thus conceived, the obligation of cessation is really a formulation of the principle pacta sunt servanda: it is an expression of the fact that States must respect their international obligations. There is an interesting debate between those who maintain that the obligation of cessation is a primary obligation (for it merely reaffirms the obligation to respect an existing rule)2 and those who consider the obligation to be a secondary rule (insofar as it is conceived as the consequence of the breach of a primary rule).3 In 1993 the ILC noted that ‘cessation is situated, so to speak, in between the two categories of rules’.4 The Commentary to article 30 justifies the inclusion of the obligation among the articles on consequences of internationally wrongful acts in the following terms: There are several reasons for treating cessation as more than simply a function of the duty to comply with the primary obligation. First, the question of cessation only arises in the event of a breach. What must then occur depends not only on the interpretation of the primary obligation but also on the secondary rules relating to remedies, and it is appropriate that they are dealt with, at least in general terms, in articles concerning the

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consequences of an internationally wrongful act. Secondly, continuing wrongful acts are a common feature of cases involving State responsibility and are specifically dealt with in article 14. There is a need to spell out the consequences of such acts in Part Two.5 In my opinion, the sole rigorous and logical characterization of the obligation of cessation is that it is a secondary rule, since (as the Commentary notes) by definition it only arises when a primary rule has been breached and it is indisputably ‘concerned with determining the legal consequences of failure to fulfill obligations established by the “primary” rules’.6 This does not preclude an alternative description of cessation as the expression of a primary rule: that regarding the nonviolation of obligations.7 But the expression of the principle through an obligation of cessation (and not through an obligation of respect) implies its placement within the regime established by secondary rules. Whatever the characterization given to cessation, it is undeniable that the obligation of cessation is a part of general international law insofar as it is a customary rule, and it may even be considered a general principle of law. In addition, cessation often appears in the practice of numerous States and international organizations, recalling the obligation to put an end to unlawful continuing acts.8 Case law has also affirmed the principle: several judgments have required States responsible for unlawful acts to cease continuing violations of the primary rule.9

References

(p. 547) 2 A limited scope of application to cases of continuing unlawful acts For the obligation of cessation to be applicable, an internationally unlawful act for which a State is responsible must exist. ARSIWA article 30 refers to the general rules governing State responsibility in relation both to the existence of an unlawful act and its attribution to a State. It is necessary to recall that an internationally wrongful act can consist in an act (for example, the passing of a law incompatible with the State’s international obligations) or an omission (for example, the failure to adopt a law as required by international law).10 Furthermore, for the obligation of cessation to be applicable, is necessary that the violation occurred at a time when the primary obligation was in force for the responsible State, and that the primary obligation remains in force at the time cessation is sought.11 This will not be the case where the responsible State is no longer bound by the rule (conventional or not) or if the rule is no longer in force at the time when cessation is sought, because it has been extinguished, suspended, or made temporarily inapplicable by virtue of a circumstance precluding wrongfulness.12 In other words, the obligation of cessation arises at the moment when the breach is complete and logically terminates at the same time the breach is terminated, although it may arise again if the breach is resumed. For instance, a State which fails to honour an international debt will not be under an obligation of cessation (and thus, an obligation of payment) throughout the period where it can validly invoke a situation of temporary state of necessity which provisionally makes the rule nonapplicable. This requirement is implicit in the words used in article 30(a): ‘if it is continuing’. The Commentary to article 30 also notes that the obligation of cessation might apply to ‘situations where a State has violated an obligation on a series of occasions, implying the possibility of further repetitions’.13 ‘Composite acts’, defined in article 15 ARSIWA as a ‘series of actions or omissions defined in aggregate as wrongful’14 may give rise to an obligation of cessation. For example, an obligation of cessation might apply in the case of an administrative practice consisting of an aggregate of discriminatory acts, even if those acts might not be continuous. It is in this sense that the requests of human rights supervisory bodies to cease human rights violations must be understood.15 The only condition is that at the moment when cessation is sought the aggregate of acts (or omissions)

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must constitute an unlawful act. Apprehension of the occurrence of a further act which transforms previous acts into an wrongful act cannot support an obligation of cessation. In the case of denial of justice, for instance, the obligation of cessation (which can entail a review of the conclusions of a judgment) supposes by definition that the denial of justice has already been committed: failing a final judgment, it is possible to remind the State of the necessity to comply with its international obligations, but there can be no existing obligation of cessation, since there is no internationally wrongful act until the denial of justice has been perfected.

References (p. 548) It is also possible that a single act can be viewed as part of continuing conduct which is wrongful. It is in this sense that the bombings and military attacks not accompanied by territorial occupation carried out during the war in Kosovo in 1999 were considered by the International Court of Justice. The Court clearly considered NATO’s military action as a single wrongful act, specifically indicating that the bombings in question had ‘been conducted continuously’.16 In these circumstances, the obligation of cessation might effectively apply to a single act which forms part of continuing conduct which is unlawful.

3 Legal regime of the obligation of cessation By virtue of the general principle pacta sunt servanda, the obligation to cease the unlawful act entails respect for the primary obligation that is being violated. The consequences of this obligation must therefore be determined by reference to the content of the obligation being breached.17 Cessation may then take the form of an action (to abrogate or adopt a law pursuant to international law) or an omission (not to bomb, occupy, or discriminate in breach of an international obligation).18 In this context, it is notable that the general function of the obligation of cessation, that of assuring respect for the rule of law, justifies that certain States which are not injured by the breach are entitled to claim—and even demand—its respect.19 The obligation of cessation can be distinguished from other secondary obligations like restitution in kind, even if both obligations apply to similar factual situations (for example, the release of hostages or withdrawal of occupying troops). Cessation, unlike restitution, is always possible: ‘None of the difficulties which may hinder or prevent restitution in kind are such as to affect the obligation to cease the wrongful conduct’.20 It simply could not be a matter of ‘cessation by equivalent’, insofar as the payment of compensation to justify a continuing breach of international law would constitute a limitation that ‘would call into question the binding force of the primary rules themselves and endanger the validity, certainty, and effectiveness of international legal relations’.21 In law, a State must and can always put an end to a continuing breach. If it cannot materially do so, it is either because it cannot be held responsible for a wrongful act: for example, the State no longer controls the person who is committing the unlawful act (in which case, the unlawful act can no longer be attributed to the State) or because it can claim a situation of force majeure (in which case there is no unlawful act because of the application of a circumstance precluding wrongfulness). This distinction between cessation and restitution can be explained by reference to the very basis of each of them: while the consequences of past acts cannot always be erased (which is the objective of restitutio in integrum), it is always possible to take action in relation to future events (which are the

References (p. 549) only acts envisaged in the obligation of cessation).22 In this context, the Commission has insisted on more practical differences:

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Cessation is often the main focus of the controversy produced by conduct in breach of an inter national obligation. It is frequently demanded not only by States but also by the organs of international organizations such as the General Assembly and Security Council in the face of serious breaches of international law. By contrast, reparation, important though it is in many cases, may not be the central issue in a dispute between States as to questions of responsibility.23 This confirms that, although it can give rise to theoretical complex controversies, the obligation of cessation only expresses a very simple principle: the obligation to respect the rule of law. Further reading C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489 C Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, in P Weil (ed), Droit international II (Paris, Pedone, 1982), 27 K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed) Responsabilité internationale (Paris, Pedone, 1988), 65(p. 550)

Footnotes: 1 Commentary to art 30, para 5. 2 See: G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 5, 13 (para 31); C Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, in P Weil (ed), Droit international II (Paris, Pedone, 1982), 27. 3 See K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed) Responsabilité internationale (Paris, Pedone, 1988), 65. 4 Commentary to draft art 6, para 4, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 55. 5 Commentary to art 30, para 6. 6 According to the definition of secondary rules adopted by the ILC: see Report of the ILC, 25th Session, ILC Yearbook 1973, Vol II, 169 (para 40); Report of the ILC, 27th Session, ILC Yearbook 1975, Vol II, 55 (para 35). See also J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 755. 7 Riphagen considered that the obligation represents ‘two sides of one and the same coin’: W Riphagen, Second Report on State Responsibility, ILC Yearbook 1981, Vol II(1), 87 (para 68). 8 See eg SC Res 660, 2 August 1990 and SC Res 1304, 16 June 2000 aiming, respectively, to put an end to the occupation of Kuwait by Iraq and of certain areas of the Democratic Republic of the Congo by foreign armed forces. 9 United States Diplomatic and Consular Staff in Tehran (United States of America v Islamic Republic of Iran), ICJ Reports 1980, p 3, 44–45 (para 95(3)); Military and Paramilitary Activity in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 149 (para 292(12)). 10 Commentary to draft art 6, para 10, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 56. 11 Commentary to draft art 6, para 13, ibid, 57. 12 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 269–271 (paras 113–114). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

13 Commentary to art 30, para 3. 14 In the Commentary to art 15, para 1, the ILC evokes the case of ‘continuing breaches’. 15 C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489. 16 Legality of Use of Force (Serbia and Montenegro v Belgium), Provisional Measures, ICJ Reports 1999, p 124, 134 (para 28). 17 C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489, 486. 18 As the Tribunal in Rainbow Warrior stated: difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 269–271 (paras 113–114). 19 See ARSIWA art 48(2) and Commentary. 20 Commentary to draft art 6, para 6, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 56. 21 Ibid. 22 C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489, 487. 23 Commentary to art 30, para 4.

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Part IV The Content of International Responsibility, Ch.39 Assurances and Guarantees of Non-Repetition Sandrine Barbier From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Reparations — Opinio juris — Peremptory norms / ius cogens — Vienna Convention on the Law of Treaties

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(p. 551) Chapter 39 Assurances and Guarantees of NonRepetition 1 Guarantees of non-repetition as the legal consequence of internationally wrongful acts 552 (a) The obligation of the responsible State to offer guarantees of non-repetition 552 (b) An autonomous consequence of the internationally wrongful act 555 2 The legal regime of guarantees of non-repetition 557 (a) Circumstances requiring an offer of guarantees of non-repetition 557 (b) The form of guarantees of non-repetition 559 Further reading 561 The Articles on State Responsibility establish assurances and guarantees of non-repetition as a consequence of internationally wrongful acts. According to article 30(b) ‘the State responsible for the internationally wrongful act is under an obligation … to offer appropriate assurances and guarantees of non-repetition, if circumstances so require’. According to the Commission, assurances and guarantees of non-repetition are distinguishable from the other two consequences of the wrongful act—reparation and cessation of continuing breaches—in that they aim at preventing the commission by the responsible State of analogous breaches and they thus are exclusively concerned with the future. Having regard to this specific function, guarantees of non-repetition do not constitute a systematic consequence of the internationally wrongful act; rather they have an exceptional character. The recognition of assurances and guarantees as a specific consequence of an internationally wrongful act is essentially the product of the ILC work on State responsibility. Assurances and guarantees of non-repetition appeared for the first time in the work of the ILC at the suggestion of Special Rapporteur Riphagen.1 The subsequent Special Rapporteurs, Arangio-Ruiz and Crawford, both maintained that assurances and guarantees of non-repetition should be included as a consequence of internationally wrongful acts, and their reports contributed to a better understanding of this notion.2

References (p. 552) On 27 June 2001, in the LaGrand case, the International Court of Justice granted guarantees of non-repetition for the first time. This was recorded in the dispositif as follows: this commitment [undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1(b), of the Convention] must be regarded as meeting the Federal Republic of Germany’s request for a general assurance of non-repetition3 and: should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1(b), of the Convention having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.4 In granting Germany’s request for guarantees of non-repetition, the Court’s judgment could be

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interpreted as a ratification of the work of the ILC. It is however necessary to highlight that the Court did not make any reference to the work of the ILC and did not include any specification concerning the legal foundation and the legal regime of guarantees of non-repetition. No further clarification has been given in any of the Court’s subsequent decisions. Such clarification would have been useful: certain questions persist as to the basis of guarantees of non-repetition in international law and the content of the principle itself as a legal consequence of an internationally wrongful act.

1 Guarantees of non-repetition as the legal consequence of internationally wrongful acts Considering guarantees of non-repetition as a consequence of the internationally wrongful act raises a series of preliminary questions. The first question concerns the principle itself, namely whether there exists in general international law an obligation for the responsible State to offer guarantees of non-repetition. The second question concerns the legal foundation of guarantees of non-repetition, specifically whether they constitute a form of reparation or an autonomous consequence of the internationally wrongful act.

(a) The obligation of the responsible State to offer guarantees of nonrepetition Article 30 ARSIWA establishes guarantees of non-repetition in terms of an obligation of the responsible State and not as a right of the injured State, in the same way that ARSIWA addresses reparation and cessation of the continuous unlawful act. But unlike the other consequences of internationally wrongful acts, the existence in general international law of an obligation to provide guarantees of non-repetition on the part of the responsible State can be doubted. This scepticism is evidenced in the work of the ILC itself.5 Special Rapporteur Crawford advocated for example ‘a modest version’ of the article on guarantees

References (p. 553) of non-repetition, which used non-mandatory wording.6 In their comments and observations, some States also expressed doubt in relation to the customary character of the obligation to offer guarantees of non-repetition.7 It must be noted that, for a long time, guarantees of non-repetition played only a marginal role, such that if precedents existed, international practice did not permit it to be concluded with certainty that there existed in general international law an obligation on the responsible State to offer guarantees of non-repetition. In their reports, Special Rapporteurs Arangio-Ruiz and Crawford quote very few examples, and those which are quoted are mostly related to very old diplomatic practice of the 19th and the beginning of the 20th centuries, such as the Dogger Bank8 incident between Great Britain and Russia in 1904 and the Doane case9 between the United States and Spain in 1886.10 More fundamentally, the majority of these examples concern requests on the part of the injured State to the responsible State to offer guarantees of non-repetition. The Special Rapporteurs also fail to mention whether the responsible States acceded to these requests. Among the rare pertinent examples, that is, cases where the responsible State agreed to or was required to adopt measures in order to avoid repetition of the wrongful act in the future, reference can be made to the Declaration of 1961 of the Minister of Justice of Federal Germany in relation to the Vracaritch case and the Award of 11 March 1941 in the Trail Smelter arbitration.11 Nevertheless, even if it can be considered that a certain practice has been established, these examples fail to establish the presence of an opinio juris of States in support of an obligation to offer such guarantees. It is difficult to determine whether, in these rare cases, a promise of the responsible State constituted a political or moral undertaking or a legal undertaking; and whether the undertaking was motivated only by ‘considerations of courtesy, convenience or tradition’ or ‘by any sense of legal duty’.12

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Given the state of international practice in this field, it is clear that in adopting a provision on guarantees of non-repetition as a consequence of internationally wrongful acts, the ILC engaged more in progressive development of international law than in codification of customary law, as already acknowledged by Special Rapporteur Arangio-Ruiz.13 But the question is whether, as a consequence of the work of the ILC and the development of recent international practice, the obligation of the responsible State to offer guarantees of non-repetition in certain circumstances has become a customary rule. This phenomenon would not be new. If the ILC uses practice and case law to elaborate its drafts—the Drafting Committee even deferred the analysis of the provision on guarantees of non-repetition until the judgment in LaGrand—it is manifest that its work influences State practice. Several elements can be invoked to support the emergence of an obligation on the responsible State to offer the injured State guarantees of non-repetition. First, the support

References (p. 554) given by the majority of the ILC members and, most importantly, of States to the wording of article 30(b), and thus, to the mandatory character of the guarantees of non-repetition must be mentioned.14 Indeed, the vast majority of States did not comment in relation to guarantees of nonrepetition. Their silence can reasonably be interpreted as agreement in principle, or at least an absence of disagreement. Other States expressed very favourable opinions on this provision.15 Only the United States vigorously objected to the inclusion of a provision on guarantees of nonrepetition, arguing that ‘assurances and guarantees of non-repetition cannot be formulated as legal obligations, have no place in the draft articles on State responsibility’ and that they reflect ‘neither customary international law nor State practice’.16 Surely, the imminence of the judgment in LaGrand had some influence in respect of this statement. The LaGrand case constituted a major step towards the recognition of the mandatory character of guarantees of non-repetition. The judgment of the Court is open to criticism for its brevity—perhaps a sign of the Court’s caution in addressing the issue—but it must be noted that the Court was unanimous in its treatment of guarantees of non-repetition (the dissenting opinion of Judge Oda did not deal with this aspect of the case), and further that the Court upheld Germany’s claim to obtain guarantees of non-repetition and took note of the obligation of the United States to take the necessary measures in case of breach of the Vienna Convention on Consular Relations.17 Moreover, although the Court pronounced on guarantees of non-repetition for the first time in LaGrand, it had been argued in earlier cases that guarantees of non-repetition were a consequence of an unlawful act: by Hungary and Slovakia in Gabcíkovo-Nagymaros Project; 18 and by Spain in Fisheries Jurisdiction, on the basis that Canada was bound to give Spain guarantees of non-repetition by virtue of ‘the principles drawn from customary law as stated by’ the ILC.19 After the judgment in LaGrand, the Court was once more seized with claims requesting guarantees of non-repetition of internationally wrongful acts. That this has become a habit of States making claims is to be regretted. In three cases, the Court considered that such a request could not be upheld.20 In two other cases, the Court held that the requests had been satisfied by the commitments undertaken by the respondent States to abide by their obligations.21 In these five cases, the Court did not question the right of the injured State to obtain guarantees of nonrepetition, nor the obligation of the responsible State to offer such assurances. In Cameroon v Nigeria the Court explicitly recognized, invoking the

References (p. 555) LaGrand precedent, that such a request was admissible.22 Nevertheless, it appears that the Court was somewhat reluctant to recognize guarantees of non-repetition as a consequence of

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an internationally wrongful act. The Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory constitutes another example of this reluctance.23 In fact the Court did not respond to the allegation according to which Israel would have the obligation to give assurances and guarantees of non-repetition, although it noted that the allegation had been made.24 Finally, in Certain Questions of Mutual Assistance in Criminal Matters the Court did not even bother to pronounce on the request for specific guarantees of non-repetition made by Djibouti.25 If an indisputable conclusion on the customary character of guarantees of non-repetition cannot be deduced from the case law of the International Court, it remains that the requests submitted to it tend to demonstrate that States increasingly subscribe to the idea that the responsible State is under an obligation to give guarantees of non-repetition. In this respect, the undertaking of the Turkish Government to adopt specific measures to limit breaches of the European Convention of Human Rights in the future,26 and especially article 3 on inhuman or degrading treatment, can also be mentioned.27 Apart from bilateral inter-State relations, the practice of international supervisory bodies, in particular in the field of human rights, seems to also offer some support for the existence of an obligation on the responsible State to offer guarantees of non-repetition. For instance, the Human Rights Committee frequently reminds the State author of a breach of the International Covenant of Civil and Political Rights28 that the State party is under an obligation to ‘take effective measures to ensure that similar violations do not reoccur in the future’.29 Even if caution is in order, it can without doubt be considered that guarantees of nonrepetition are now part of the legal consequences of an internationally wrongful act.30

(b) An autonomous consequence of the internationally wrongful act The ILC Articles on State Responsibility distinguish guarantees of non-repetition from reparation and cessation of a continuing breach, the two other consequences of an internationally wrongful act. The recognition of this autonomy is nevertheless fragile. The work of the ILC reflects the persistent hesitations on the legal foundation of guarantees of non-repetition. Traditionally guarantees are considered as a form of reparation. For Special Rapporteurs Riphagen and Arangio-Ruiz, guarantees of non-repetition are a form

References (p. 556) of satisfaction. The inclusion of guarantees in a separate article31 marked the separation of satisfaction and guarantees of non-repetition on the basis that the latter ‘perform a distinct and autonomous function. Unlike other forms of reparation which seek to reestablish a past state of affairs, they are future-oriented. They thus have a preventive rather than remedial function’.32 The ‘sui generis’ character of assurances and guarantees of non-repetition33 led the ILC, during second reading, to cease treating them as a form of reparation and to link them to cessation of the wrongful act. This link was justified by the fact that the two notions are ‘closely and logically related’,34 for they constitute ‘two conditions for ensuring that the legal relationship impaired by the breach had been restored’.35 The relationship between cessation of the wrongful act and guarantees of non-repetition is reinforced by the definition given by the ILC of continuing breaches, constituted either by the extension in time of the breach or by the existence of a risk of repetition of the breach.36 If these two consequences of a wrongful act can be considered linked by this fact, they must nevertheless be clearly distinguished. While cessation purports to re-establish the initial legal relationship, guarantees of non-repetition are aimed at the future respect of the obligation breached and they are required when ‘mere restoration of the pre-existing situation does not protect [the injured State] satisfactorily’ even if the responsible State is relieved of its obligation to make reparation.37

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Despite the rationalizing effort of the ILC on the prospective and preventive character of guarantees of non-repetition, as opposed to the retrospective and compensatory character of reparation, the relationship between guarantees of non-repetition and satisfaction remains ambiguous. Guarantees of non-repetition, in fact, can constitute an ‘appropriate form of satisfaction’, pursuant to article 37(2) ARSIWA.38 At the same time, ‘assurances or guarantees of non-repetition may be sought by way of satisfaction (eg the repeal of the legislation which allowed the breach to occur) and there is thus some overlap between the two in practice’.39 It is useful to observe that the case law of the International Court does not add much. The judgments rendered in LaGrand, Avena, and Armed Activities on the Territory of the Congo do not specify whether the Court intended to treat guarantees of non-repetition as an autonomous consequence of an internationally wrongful act. These judgments do not confirm or invalidate the autonomy of guarantees of non-repetition since the Court answered the claim in terms corresponding to the formulation put forward by the State, without itself taking a stand on the issue. The question remains whether the guarantees are a form of satisfaction or an autonomous consequence of the wrongful act. It would seem that, under the influence of the ILC’s work and as evidenced by their regulation in a separate article, the tendency is to treat guarantees of nonrepetition as an autonomous consequence, rather than as a form of reparation. And yet the question of their character does not only have theoretical

References (p. 557) implications; it has direct effects in respect of the extent of the rights of the State invoking the responsibility of another State. According to article 48(2)(a), guarantees of nonrepetition may be requested, in its own name, by any State other than the injured State. In contrast, under article 48(2)(b) a State other than the injured State can request the performance of the obligation of reparation only in the interest of the injured State. Even if there exists in international law a general obligation of the responsible State, distinct from the obligation of reparation, to offer guarantees of non-repetition, it is difficult to appreciate the exact scope of such an obligation, since the legal regime of guarantees of non-repetition is characterized by uncertainties.

2 The legal regime of guarantees of non-repetition A notion largely neglected by legal doctrine, the legal regime of guarantees of non-repetition was not the subject of any real analysis until the work of the ILC on State responsibility. The work of the Commission has not revealed all the aspects of this regime. Nonetheless, it brings out its dominant characteristics, notably its flexibility and exceptional character. These characteristics relate both to the circumstances which require an offer of guarantees of non-repetition and the form that the guarantees may take.

(a) Circumstances requiring an offer of guarantees of non-repetition Article 30(b) establishes that the responsible State is under an obligation to offer guarantees of non-repetition ‘if circumstances so require’. Thus, unlike reparation or cessation, guarantees of non-repetition do not constitute an automatic or systematic consequence of a wrongful act. The ILC has in fact underlined the exceptional character of guarantees.40 It is in this sense that the expression ‘if circumstances so require’ must be understood: it replaced the expression ‘where appropriate’, which was considered by the ILC to be too liberal.41 The ILC justified its relatively strict approach to guarantees of non-repetition by reference to past abusive or excessive claims made by States requesting guarantees of nonrepetition with outrageous demands, although it did not cite any examples.42 The work of the ILC is not lengthy in its treatment of the elements to take into consideration to

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determine whether the circumstances demand that the responsible State offer guarantees of nonrepetition. Nevertheless, three factors seem to emerge: the risk of repetition, the seriousness of the breach, and the character of the obligation breached.43 It is not specified in the commentary to article 30 whether the conditions are cumulative or alternative. The probability of repetition of the internationally wrongful act undoubtedly constitutes an essential condition, in that it is the raison d’être of this consequence. In the light of the ILC debates, the seriousness of the breach also constitutes an important element to take into account. The rationale of guarantees of non-repetition supposes without doubt that the guarantees be due in case of a particularly serious breach, even if the risk of repetition appears to be minimal.44 Guarantees of non-repetition, inasmuch as they may entail a

References (p. 558) ‘new undertaking over and above the initial undertaking that had been breached’,45 must arguably be limited to cases of serious and recurring breaches of international law. The reference to the character of the obligation breached is relevant to this inquiry. It is relevant to note that guarantees of non-repetition do not constitute a specific consequence of serious breaches of obligations arising under a peremptory norm of general international law, pursuant to article 40. But due to the character of peremptory norms they are bound to be required in such circumstances. In LaGrand the International Court did not articulate any general observation concerning the regime of guarantees of non-repetition; nor did the Court do so in any subsequent decisions. Hence the Court did not elaborate on the circumstances entailing the obligation on the responsible State to offer said guarantees. But the criteria offered by the ILC are implicit in the decision in LaGrand, and certainly influenced the Court’s decision. The risk of repetition of the wrongful act, in that case the breach by the United States of its obligation of consular notification, eventually materialized, as evidenced by the executions of Breard and Faulder. In addition, the Court expressly mentioned in the dispositif that the German nationals had been condemned to a serious sentence, evidencing that it took into account the seriousness of the damage.46 In this respect, it is worth noting that more than the seriousness of the breach invoked by the ILC, it was the seriousness of the damage that was determinative. Moreover, it is important to note that in LaGrand the Court considered that, in the circumstances, ‘an apology [by the United States would not be] sufficient in this case’ if analogous breaches were to happen again.47 This observation could mean that the Court considers the unavailability and/or the insufficiency of other consequences of the wrongful act, in particular reparation, constitute one of the circumstances to take into account to determine the necessity of guarantees of non-repetition. Moreover, this seems to have been the reasoning of the Court when refusing the request for specific assurances and guarantees of non-repetition made by Bosnia-Herzegovina: the Court considered that its declaration concerning the obligation by Serbia to take effective measures to comply with its obligation to cooperate constituted adequate satisfaction and that it ‘therefore [did] not consider that this is a case in which a direction for guarantees of non-repetition would be appropriate’.48 The Court took a similar approach in its 2009 decision in Costa Rica v Nicaragua.49 The circumstances in which the responsible State is required to offer guarantees of nonrepetition remain largely vague. The silence of article 30(b) implies that the grant of the guarantees requires a case-by-case analysis. If the circumstances are met the responsible State is required, according to article 30(b), to ‘offer’ guarantees of non-repetition. The choice of the verb ‘offer’ and not ‘give’ or ‘provide’ entails some ambiguity. ‘Offer’ is a verb susceptible of various meanings. Strictly speaking, it might suggest that the obligation of the responsible State is limited to proposing assurances but not to providing them. But taking account of the ILC work and practice, it seems that the choice of this verb rather suggests that the offer of guarantees of non-repetition must be accepted by the injured

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References (p. 559) State, or that it must be at least acceptable to the injured State. Furthermore, this interpretation is reinforced by the case law of the International Court, which has concluded in several cases that the undertaking of the responsible State must be considered as ‘satisfying’ the request of the injured State to obtain guarantees of non-repetition.50 In any event, the practice reveals that despite the obligation incumbent upon it, the responsible State rarely takes the initiative to offer guarantees of non-repetition and that it adopts such measures only at the request of the injured State. In addition to the requirement of special circumstances, guarantees of non-repetition must be, according to the ILC, ‘adequate’. This adjective may be interpreted in two ways. It can mean, on the one hand, that the guarantees must be strictly necessary in the circumstances. This interpretation clearly communicates the desire of the ILC to reduce recourse to guarantees of nonrepetition. On the other hand, the adjective can also be understood as requiring the guarantees both to constitute a suitable and effective response and to achieve their purpose, that is, the avoidance of the repetition of the wrongful act. The ‘adequate’ character of the guarantees leads thus to the question of their form.

(b) The form of guarantees of non-repetition The form that guarantees of non-repetition must take is not specified in article 30(b). The Special Rapporteurs undertook a survey of the different forms of guarantees of nonrepetition, while emphasizing that the practice was not uniform. Two major categories of guarantees can nevertheless be distinguished: general and specific guarantees. In respect of general guarantees, the injured State requests ‘safeguards against the repetition of the wrongful act without any specification’51 as to the means of implementation. In respect of specific guarantees, the injured State requests the responsible State to ‘adopt specific measures or act in certain ways considered to be apt to avoid repetition’: 52 for example, requests to give specific instructions to its agents, to adopt a certain line of conduct, and even to adopt or to abrogate certain legislative provisions. The latter type remains a rare case in inter-State relations; on the contrary, it has been developed in the framework of international bodies for the supervision of treaty-based human rights.53 In LaGrand, the International Court considered that Germany had made a request for both general and specific guarantees of non-repetition. Concerning the first, the Court considered that the general request was satisfied by the ‘commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1(b)’ of the Vienna Convention on Consular Relations.54 The United States had implemented a vast programme destined to ensure that

References (p. 560) its competent authorities respect article 36 of the Vienna Convention.55 In relation to the specific request, the Court concluded that, if despite the general commitment of the United States, German nationals were in the future: sentenced to severe penalties, without their rights under Article 36, paragraph 1(b), of the Convention having been respected, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.56 Despite the specificity of the wording of the obligation, the Court recalled that the ‘choice of means’ belongs to the responsible State.57 Equally, the Court underlined that the United States was not in a position to provide absolute assurance that a breach would not occur again in the future.58

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In LaGrand, the Court did not explicitly indicate that the obligation of review and reconsideration of the guilty verdicts and of the sentences constituted for the United States an obligation following from guarantees of non-repetition. But, since the Court established this obligation in response to Germany’s request for guarantees of non-repetition, it can be deduced that the foundation of the obligation of review and reconsideration is the responsible State’s obligation to give guarantees of non-repetition. LaGrand arguably constitutes thus the illustration that guarantees of non-repetition can entail a ‘new undertaking over and above the initial undertaking that had been breached’.59 In fact, the United States remained bound by its obligations under article 36 of the Vienna Convention on Consular Relations—the original undertaking—and was also under the obligation to ensure the review and reconsideration of the guilty verdicts and of the sentences, in case of breach of article 36 of the Vienna Convention, as a guarantee of non-repetition—the new undertaking. Thus, the obligation to offer guarantees of non-repetition, a secondary obligation resulting from State responsibility, can give rise, where appropriate, to a new obligation for the responsible State, constituted by the content of the measures taken to avoid the repetition of the unlawful act, and whose breach is susceptible to engage its responsibility. This analysis does not seem to have been followed by the Court in Avena, thus creating certain confusion about the notion of guarantees of non-repetition. In fact, in Avena, the Court concluded that: by not permitting the review and reconsideration, in the light of the rights set forth in the Convention, of the conviction and sentences … the United States of America breached the obligations incumbent upon it under Article 36, paragraph 2, of the Convention.60 Thus, the Court seems to have considered that the obligation of review and reconsideration did not constitute a new undertaking on the United States by virtue of guarantees of non-repetition, and in any case had only been provided to Germany, in accordance with the relative effect of res judicata,61 but that it arose from article 36(2) of the Vienna Convention on Consular Relations. In effect, through an interpretation of article 36(2)

References (p. 561) which is open to question, the Court denied any link between the obligation to review and reconsider and the guarantee of non-repetition, further blurring the understanding of this consequence of the unlawful act. A last question concerns the character of the undertaking of the responsible State. If by virtue of article 30(b) ARSIWA, the responsible State has an obligation, in certain circumstances, to offer guarantees of non-repetition, its offer may have very little mandatory force, for the offered guarantees may range from ‘extraordinarily rigorous arrangements to mere promises or undertakings in different cases’.62 The use of the expression ‘assurances and guarantees of nonrepetition’ in the ARSIWA is intended to reflect this variety. Assurances would be ‘normally given verbally, while guarantees of non-repetition involve something more—for example, preventive measures to be taken by the responsible State’.63 The Court did not adopt this distinction in LaGrand. It uses, in a constant manner, the term ‘assurances’ when dealing with the adoption by the United States of preventive measures specially conceived to avoid the repetition of the unlawful act. This raises the question whether Germany obtained guarantees or only assurances64 and whether the choice of either word by the Court is irrelevant or deliberate. The answer cannot be found in the Court’s judgments. The future case law of the Court, and more generally international practice, will possibly help to dissipate this semantic hesitation. The international law regime of guarantees of non-repetition as a specific consequence of the wrongful act appears filled with uncertainties. Precisely for this reason, the ILC worded the provision on guarantees of non-repetition very flexibly. However, the questions raised justify cautious treatment of guarantees. The recognition of this obligation on the responsible State seemed to evidence some progressive development in international law. In fact, as emphasized by Dupuy,

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‘the interest in the “guarantee of non-repetition of unlawful acts” highlights the fundamental function of responsibility in the maintenance, restoration and guarantee of respect of international legality’.65 Further reading L Dubin, ‘Les garanties de non-répétition à l’aune des affaires LaGrand et Avena: la révolution n’aura pas lieu’ (2005) 109 RGDIP 859 G Palmisano, ‘Les garanties de non-répétition entre codification et réalisation juridictionnelle du droit: à propos de l’affaire LaGrand’ (2002) 106 RGDIP 753 CJ Tams, ‘Recognizing Guarantees and Assurances of Non-Repetition: LaGrand and the Law of State Responsibility’ (2002) 27 Yale JIL 441

References (p. 562)

Footnotes: 1 Art 4(3), W Riphagen, Second Report on State Responsibility, ILC Yearbook 1981, Vol. II(1), 1, 101; art 6(1)(d), W Riphagen, Sixth Report on State Responsibility, ILC Yearbook 1985, Vol II(1), 4, 8. 2 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 42–47; J Crawford, Third Report on State Responsibility, 1999, A/CN.4/507, 24–27. 3 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 514 (para 127), 516 (para 12 8(6)). 4 Ibid (para 128(7)). 5 See eg Report of the ILC, 52nd Session, A/55/10, ILC Yearbook 2000, Vol II(2), 26 (para 88). 6 J Crawford, Third Report on State Responsibility, 1999, A/CN.4/507, 26 (paras 58–59). 7 See observation by Germany, A/CN.4/488, 103. 8 F de Martens, Nouveau recueil général de traités, Vol 33, 642, or Dogger Bank Case, United Kingdom v Russia (1905) Scott Hague Court Rep 403. 9 JB Moore, A Digest of International Law Vol VI (Washington, Government Printing Office, 1906), 345–346. 10 See G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 44– 46 (paras 155–159). 11 Ibid, 44–45 (para 156), 45–46 (para 158). 12 North Sea Continental Shelf (Germany v Denmark/the Netherlands), ICJ Reports 1969, p 3, 44 (para 77). 13 Summary records of the meetings of the 45th Session, 2123rd meeting, 19 July 1993, ILC Yearbook 1993, Vol I, 164 (para 29). 14 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol. II(2), 29 (para 110). 15 See eg comments by Mongolia and the Czech Republic, A/CN.4/488, 113. 16 Comments and observations received from Governments, A/CN.4/515, 36. 17 596 UNTS 261. See LaGrand (Germany v United States of America), ICJ Reports 2001, p. 466, 514 (para 127). 18 Gabcíkovo-Nagymaros Project, ICJ Reports 1997, p 7, 74–75 (paras 127, 129). 19 Fisheries Jurisdiction (Spain v United Kingdom), Jurisdiction of the Court, Judgment, ICJ From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Reports 1998, p 432; See the oral pleading of JA Pastor Ridruejo, CR 98/9, 9 June 1998, 14 (para 9); and A Remiro Brotóns, ibid, 44–45 (paras 31–32). 20 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p 303, 452 (para 318); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia), Judgment, 26 February 2007, 166–167 (para 466); Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, 13 July 2009, 50 (para 150). 21 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 70 (para 153(10)); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 256 (para 257). 22 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p 303, 452 (para 318). 23 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136. 24 Ibid, 196ff. 25 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 4 June 2008, 8, para 17 (point 8), 10, para 17 (point 11). During the oral hearings France maintained that the request of Djibouti reflected a ‘worrying abuse of the concept of guarantees of nonrepetition’, CR 2008/5, 25 January 2008, 53 (para 17). 26 213 UNTS 221. 27 See Denmark v Turkey (App No 34382/97), ECHR Reports 2000-IV. 28 99 UNTS 171. 29 Human Rights Committe, Ratiani v Georgia, Communication No 975/2001, CCPR/C/84/D/975/2001, 4 August 2005, para 13; Platonov v Russia, Communication No 1218/2003, CCPR/C/85/D/1218/2003, 16 November 2005, para 9; Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v Sri Lanka, Communication No. 1249/2004, CCPR/C/85/D/1249/2004, 18 November 2005, para 9. 30 See G Palmisano, ‘Les garanties de non-répétition entre codification et réalisation juridictionnelle du droit: à propos de l’affaire LaGrand’ (2002) 106 RGDIP 753, 781. 31 Art 10bis of the 1993 draft, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 54; and art 46 of the 1996 draft, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 63. 32 Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 81–82 (para 1). 33 Ibid, 83 (para 5). 34 Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-fifth session prepared by the Secretariat, A/CN.4/513, 15 February 2001, 15 (para 55). 35 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 24 (para 77). See also Commentary to art 30, para 1. 36 Commentary to art 30, paras 2–3. 37 Ibid, para 9; Report of ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 82 (para 2). 38 Commentary to art 37, para 5. 39 Commentary to art 30, para 11. 40 Commentary to art 30, para 13. 41 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 26 (para 91). 42 Commentary to art 30, para 13. 43 Topical summary of the discussion held in the Sixth Committee of the General Assembly during

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its fifty-fifth session prepared by the Secretariat, A/CN.4/513, 15 February 2001, 15 (para 57). 44 Ibid. 45 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 26 (para 87). 46 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 512 (para 123), 516 (para 128.7). 47 Ibid, 512 (para 123), 513 (para 125). 48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia), Judgment, 26 February 2007, 167 (para 466). 49 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, 13 July 2009, 50 (para 150). 50 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 516 (para 128.7); Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 73 (para 153.10); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, 81 (para 257). 51 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 44 (para 154). 52 Ibid, 45 (para 158). 53 See eg Human Rights Commitee: Blazek et al v Czech Republic, Communication No 857/1999, CCPR/C/72/D/857/1999, 12 July 2001, para 7; Fijalkowska v Poland, Communication No 1061/2002, CCPR/C/84/D/1061/2002, 4 August 2005, para 10; Jeong-Eun Lee v Republic of Korea, Communication No 1119/2002, CCPR/C/84/D/1119/2002, 23 August 2005, para 9; Inter-American Court of Human Rights: Castillo Petruzzi et al v Peru, Inter-Am Ct HR, Series C, No 52, (1999) para 222. 54 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 513 (para 124), 516 (para 128 (6)). 55 Ibid, 512 (para 123). 56 Ibid, 516 (para 128.7). 57 Ibid, 513–514 (para 125). 58 Ibid, 513 (para 124). 59 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 26 (para 87). 60 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 72 (para 153.8). 61 See Declaration of President Guillaume, LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 517. 62 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 24 (para 77). 63 Commentary to art 30, para 12. 64 P Weckel, ‘Chronique de jurisprudence internationale’ (2001) 105 RGDIP 788, 773. 65 P-M Dupuy, ‘Responsabilité et légalité’, in SFDI, La responsabilité dans le système international (Paris, Pedone, 1991), 295.

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Part IV The Content of International Responsibility, Ch.40 The Obligation to Make Reparation Brigitte Stern From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Diplomatic protection — Erga omnes obligations — Codification — Customary international law — Sovereignty — Arbitration — Arbitral agreements — Arbitral tribunal

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(p. 563) Chapter 40 The Obligation to Make Reparation 1 Affirmation of the reparation principle 563 2 Reparation in the Articles on State Responsibility 565 (a) The principles 565 (i) The content of the obligation to make reparation 565 (ii) The beneficiary of the obligation to make reparation 567 (b) The undiscoverable difference between injury and damage 569 (c) The ghost of causation 569 Further reading 570 A new legal relationship arises on the commission of an internationally wrongful act attributable to a State. Where a State has been recognized as the author of an internationally wrongful act— whether the conduct consists of an act or an omission—it is not contested that the State has an obligation to make reparation for the injury caused by its conduct. This is not unique to international law. As in all legal systems, the notion of responsibility implies the substitution of a primary obligation by a secondary or subsidiary obligation, which is to make reparation for the consequences of the breach. This subsidiary character of international responsibility has been emphasized on many occasions: according to Roberto Ago: the rules relating to State responsibility are complementary to other substantive rules of international law—to those giving rise to the legal obligations which States may be led to violate.1 Similarly, Paul Reuter stressed that: ‘one of the dominant characteristics of responsibility is its nonautonomous character’.2

1 Affirmation of the reparation principle The basic idea that breach of a primary obligation gives rise on the part of the responsible State to a secondary obligation to make reparation for the injury caused was clearly affirmed by the Permanent Court of International Justice in the Factory at Chorzów case, where it stated:

References (p. 564) It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.3 In a subsequent judgment given in the same case, the Court reaffirmed this fundamental principle: ‘[I]t is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.’4 Having said this, the Court gave a concrete expression to this principle, when it rendered its decision on the extent of the obligation to make reparation: The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of

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arbitral tribunals—is that reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it—such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.5 The Dictionnaire Basdevant is consistent with these principles: it defines the notion of reparation as the performance that has to be executed in favour of a State or an international organization to compensate the loss suffered. It consists of the restoration of the state of affairs that existed prior to the wrongful act (restitutio in integrum) or the payment of a pecuniary indemnity.6 More recently, the Dictionnaire Salmon has taken the same approach: it states that ‘in its more general meaning, reparation leads to the restoration of the state of affairs prior to the occurrence of the loss by either putting things back as they were or by compensating the loss suffered’.7 The reparation should in principle ‘erase’, insofar as possible—because irreversible situations do occur—the wrongful act and restore the state of affairs that existed prior to it. Today, things are not so simple, as is indicated by the Dictionnaire Salmon: following the work of the ILC, many commentators now consider the responsibility of States for internationally wrongful acts as a complex situation created by a breach, which generates a body of rights in favour of the victim and of obligations owed by the wrongdoer, of which the obligation to make reparation is one.8 The new relations which result from an internationally wrongful act of a State include, as is stated in Articles on State Responsibility, obligations additional to the one to make reparation. A first ‘consequence’—which, it appears to us, is only the continuation of the situation anterior to the breach as opposed to one of its consequences—is that the existence of the internationally wrongful act does not affect as such the continued primary duty of the responsible State.9 A second consequence is that the State is under an obligation to cease the internationally wrongful act, as long as it is continuing, and, following

References (p. 565) progressive developments introduced by the ILC, to ‘offer appropriate assurances and guarantees of non-repetition if circumstances so require’.10 Finally, the main consequence is the obligation to make full reparation.11 As has been discussed in Chapter 17, this split of the notion of responsibility into different obligations could have been avoided had the ILC focused on the concept of legal injury, but this is not the place to reconsider this question: the following discussion focuses solely on the obligation to make reparation of moral and material injury, as enunciated by the ILC.

2 Reparation in the Articles on State Responsibility (a) The principles (i) The content of the obligation to make reparation Article 31 states the well-established principle relating to the obligation to make reparation for the consequences of an internationally wrongful act. Entitled ‘Reparation’, it reads as follows: 1 . The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

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2 . Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. These two paragraphs more or less demonstrate that there are two points of view: the first paragraph is drafted so that the focus is on the obligations of the responsible State, whereas the second paragraph deals with the extent of the rights of the injured State. The obligation to make full reparation is affirmed, even if this affirmation of the obligation to make full reparation is relatively succinct.12 The text of draft article 42 adopted in first reading in 1996 was far more comprehensive:

Article 42 Reparation 1 . The injured State is entitled to obtain from the State which has committed an internationally wrongful act full reparation in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition, either singly or in combination. 2 . In the determination of reparation, account shall be taken of the negligence or the wilful act or omission of

References (p. 566) (a) the injured State; or (b) a national of that State on whose behalf the claim is brought. 3 . In no case shall reparation result in depriving the population of a State of its own means of subsistence. 4 . The State which has committed the internationally wrongful act may not invoke the provisions of its internal law as justification for the failure to provide reparation.’13 Whilst the text of 1996 was more detailed, it was also more heteroclite, since in addition to affirming the principle of full reparation, it dealt with, on the one hand, the modalities of this reparation, and on the other hand, particular and limited aspects of the question of the causal link—in the case of a contribution to the injury—as well as two other aspects: the limits of reparation and the impossibility of invoking domestic law in order to avoid making full reparation. In relation to the limits on reparation, the 1996 draft was innovative as it proposed a principle according to which the reparation could not result in depriving the people of a responsible State of its means of subsistence. It is clear that this limitation was introduced as a result of the justified concerns arising out of the humanitarian situation in Iraq following the UN embargo imposed in 1990. While the principle was justified, certain members of the ILC advocated a principle according to which the limitations on reparation should equally not deprive the population of the victim State of its means of subsistence! The subsequent political debate led to the removal of this limitation in the final articles. However, it is interesting to note that in its recent Final Damages Awards, the Eritrea-Ethiopia Claims Commission noted that article 1(2) of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which applied to both States, provided that ‘[i]n no case may a people be deprived of its means of subsistence’.14 The Commission stated that it considered whether it was necessary to cap the amount of compensation due to ensure that the financial burden on the State would not be so excessive as to compromise its ability to meet its people’s basic needs; but ultimately held that it need not decide the claims on that basis.15 Reliance upon domestic law by a State in order to avoid full reparation is of course excluded; but neither is it permissible in order to avoid the other ‘legal consequences’ of an internationally wrongful act: the ILC therefore elected to enunciate this principle in a general form in article 32. 16

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The modalities of reparation can be diverse and it is not necessary to comment on them here.16 By way of summary, the primary form of reparation is restitution but the obligation to make reparation can also take the form of compensation or a measure of satisfaction. These three forms of reparation may be used separately or may be combined to make full reparation of the loss suffered.17 It should be noted that while adopting the principle of full reparation, the ILC has introduced limitations so as to avoid disproportionality. More precisely, whatever the chosen modality of reparation, it should be proportionate to the loss: restitution should

References (p. 567) not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation; 18 compensation should be limited to the injury actually suffered as a result of the internationally wrongful act and with a sufficient causal link (implicitly provided for in article 31); and satisfaction ‘shall not be out of proportion to the injury and may not take a form humiliating to the responsible State’.19 (ii) The beneficiary of the obligation to make reparation Article 33(1) states: The obligations of the responsible State set out in this Part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and the circumstances of the breach. In the introductory Commentary to Chapter III of Part Two, which deals with ‘Serious breaches of obligations under peremptory norms of general international law’, the ILC states that ‘all States are entitled to invoke responsibility for breaches of obligations to the international community as a whole’.20 Nevertheless, while some of the consequences of a breach can be invoked by diverse actors, the obligation to make reparation can only benefit the injured State, and also perhaps private individuals protected by the primary obligation which has been breached, this latter possibility having been introduced in the text due to concern for the protection of human rights.21 On closer consideration, one can note that the obligation to make full reparation may only be invoked by—or possibly for—the ‘injured State’. The definition of injured State is laborious. The Articles distinguish between three categories of injured States. First, a State is injured when an obligation which is owed to it individually is breached: 22 the Commentary explains this by indicating that while this situation arises under a bilateral treaty, it can also arise under a multilateral treaty such as the Vienra Convention on Diplomatic Relations, which in effect establishes a bundle of bilateral obligations (even if this does not exclude that all States parties have a legal interest with regard to diplomatic immunities).23 Second, a State is injured if it is specially affected by an obligation owed to a group of States or to the international community as a whole.24 The Commentary discusses collective obligations and gives as an example the case of pollution of the high seas in breach of the UN Convention on the Law of the Sea, breach of which may particularly affect one State, although all States have a legal interest in the application of the Convention.25 It is not clear why the ILC drew a distinction between these two situations, as in both cases there may be a State specially injured and other States whose legal interest is affected: it appears that there is no practical utility in the distinction. Third and finally, a State is injured if it is party to a multilateral treaty or bound by a customary rule which includes integral or

References

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(p. 568) interdependent obligations: in these circumstances the breach of such an obligation ‘is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation’.26 More simply, this provision refers to obligations whose breach has an impact on all the States to which this obligation is owed: the Commentary gives as an example a disarmament treaty.27 A ‘State other than the injured State’ may only insist on the performance of the obligation to make full reparation in the interest of the injured State or of the beneficiaries of the obligation breached.28 An interesting point can be made here. In the Commentary to article 48, the ILC specifies why the formula ‘State other than the injured State’ is used rather than ‘State with a legal interest’. According to the ILC: Although the Court [in Barcelona Traction] noted that ‘all States can be held to have a legal interest in’ the fulfilment of these rights, article 48 refrains from qualifying the position of the States identifi ed in article 48, for example by referring to them as ‘interested States’. The term ‘legal interest’ would not permit a distinction between articles 42 and 48, as injured States in the sense of article 42 also have legal interests.29 It seems that this is a confirmation of the criticisms previously discussed (in Chapter 17) of the uncertain character of the distinction between the two categories of States, which results from the refusal to take into account the notion of a legal injury. If the States mentioned in article 48 do not have a legal interest and if they are not even interested States, we can question what gives them a cause of action? In any case, the right of action of a State other than the injured State arises from the breach of an obligation owed in the collective interest of a group of States (erga omnes partes obligations) or the international community as a whole (erga omnes obligations).30 The difference between an injured State and a State which only has a legal interest—or in the words eventually chosen by the ILC, a State other than the injured State—is that the former can insist on the fulfilment of all aspects of international responsibility, including the taking of countermeasures, whereas the latter can only claim the reinstatement of the breached legal order, that is, cessation of the breach and possibly guarantees of nonrepetition, and—but this hypothesis appears quite theoretical—seek reparation in the name of the injured State if the latter cannot or does not want to do so, or the individual beneficiaries of the obligation.31 Further, States other than the injured State have no right to take countermeasures. If, as the ICJ has rightly stated in Barcelona Traction, ‘all States can be held to have a legal interest’ in case of breaches of erga omnes obligations,32 it would have been more coherent to consider, as the ILC did in its 1996 draft, that in this case all States are injured States and that they may, by invoking the injury suffered, claim reparation of the breach, and thus seek the reinstatement of the lawful situation. In the Articles as adopted, it is not clear where the right of action of the States other than the injured States originates. The idea of creating a right to reparation—a right to obtain the reinstatement of the breached legal order—for all States on the commission of an international crime33 —or to use the concept ultimately accepted, on the serious breach of an obligation arising

References (p. 569) from an imperative norm of general international law—is not a bad idea in itself, as it enables, in the framework of the traditional mechanism of responsibility, to institute a control of legality of the legal order. The real problem comes from the possibility of taking countermeasures: it was certainly not desirable to make this available to a wide range of States. It would however have been sufficient to provide that a legal injury does not give rise to a right to take countermeasures. This is indeed the solution reached by the Articles since the breach of an erga omnes obligation

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towards a State other than an injured State essentially enables the other State, although on an unspecified basis, to claim the reinstatement of the legal order and nothing else; the obligation to make reparation only concerns the injured State even if it can be requested on its behalf by a State which is not injured (articles 42 and 48); and countermeasures may only be taken by the injured State (article 49).

(b) The undiscoverable difference between injury and damage The ILC’s text, stating that ‘injury includes any damage, whether material or moral’34 seems to indicate a distinction between two concepts: injury and damage. But is there really a difference between the two? The report of the Drafting Committee is not illuminating as it is stated that: [t]here had been some discussion as to whether there was any distinction between the terms ‘injury’ and ‘damage’. Some members of the Drafting Committee had held the view that there was a difference between the two terms, but had not agreed what that difference was. The Committee had finally decided to define injury as consisting of any damage.35 La Palice could not have said it better. We therefore believe that there is no difference between the two terms. Some clarifications are however possible in relation to the substance of injury and damage. On this point, the debates which took place within the drafting Committee are informative. They state that: The reference to ‘moral’ damage in addition to ‘material’ damage was meant to allow a broad interpretation of the word ‘injury’. ‘Moral’ damage could be taken to include not only pain and suffering, but also the broader notion of injury, which some might call ‘legal injury’ suffered by States.36 Nevertheless, despite this affirmation with which we can only agree, as has been indicated in Chapter 17 the notion of legal injury as such was not taken into account by the ILC.

(c) The ghost of causation While the determination of compensable loss is at the heart of the question of responsibility and is of crucial importance, the most that can be said is that the ILC is particularly silent on causation. The only assertion is that the injury can only be repaired if it is ‘caused by the internationally wrongful act’.37 Nothing more. It is therefore left to States and

References (p. 570) judges to give some content to the causal link which is necessary for international responsibility to arise. The ILC justified the fact that the issue of causal link has not been dealt with by saying that ‘[t]he need for a causal link was usually stated in primary rules’.38 Nevertheless, it is clear that this is not the case and that, even if in certain cases the primary rule gives rise to some causal link problems, it cannot be the same causation as the one which arises when the primary rule is breached. It is regrettable that the ILC did not clarify the difficult issues relating to the causal link. Supplementary information, although non-exhaustive, is given at article 39 entitled ‘Contribution to the injury’ which states that: [i]n the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought. It is not clear why only the contribution to the injury of the injured State or any person in relation to

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whom reparation is sought is taken into account. In order to examine the causal link properly, it would have been necessary to take into account the possible contribution to the injury of all actions which do not constitute wrongful acts, such as a legal act committed by the State which has committed a wrongful act, force majeure, or the action of a third party State which contributes to the final injury.39 Moreover, article 39 gives rise to another problem. Not all actions or omissions of a State or injured individuals are taken into account: only actions or omissions which are wilful or negligent are taken into account.40 The idea of fault is introduced here, even though it has no role in the theory of international responsibility, to determine the quantum of damages. We believe that only the existence or non-existence of the causal link should be relevant. Further reading A Bissonnette, La satisfaction comme mode de réparation en droit international (Thèse, Genève, 1952) B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973) C Dominicé, ‘De la réparation constructive du préjudice immatériel souffert par un État’, in C Dominicé (ed), L’ordre juridique international entre tradition et innovation. Recueil d’études (Paris, PUF, 1997), 354 P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” de l’illicite’ (1983) RGDIP 505 B Graefrath, ‘Responsibility and Damages Caused, Relationship between Responsibility and Damages’ (1984-III) 185 Recueil des cours 9 CD Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1987) M Iovane, La riparazione nella teoria e nella prassi dell’illecito internatzionale (Giuffré, Milan, 1990)

References (p. 571) C McCarthy, ‘Reparation for Gross Violations of Human Rights Law and International Humanitarian Law at the International Court of Justice’, in C Ferstman, M Goetz & A Stephens (eds), Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making (Leiden, Martinus Nijhoff, 2009), 283 J Personnaz, La réparation du préjudice en droit international public (Paris, Sirey, 1939) R Pisillo Mazzeschi, ‘La riparazione per violazione dei diritti umani nel diritto internazionale e nella Convenzione Europea’ (1998) 53 La Comunità Internazionale 215 A Randelzhofer & C Tomuschat (eds), State Responsibility and the Individual. Reparation in Instances of Grave Violations of Human Rights (The Hague, Nijhoff, 1999) L Reitzer, La réparation comme conséquence de l’acte illicite en droit international (Paris, Sirey, 1938) G Salvioli, ‘La responsabilité des Etats et la fixation des dommages et intérêts par les tribunaux internationaux’ (1929-III) 28 Recueil des cours 231 D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford, Clarendon Press, 2007) D Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ (2002) 96 AJIL 833 B Starck, ‘La pluralité des causes de dommages et la responsabilité civile (La vie brève d’une fausse équation: causalité partielle = responsabilité partielle)’ (1970) I JCP 2339(p. 572)

Footnotes: 1 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol. II(1), 219 (para 61).

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2 P Reuter, ‘Principes généraux du droit international public’ (1961-II) 103 Recueil des Cours 595. 3 Factory at Chorzów, Jurisdiction, 1927, PCIJ Reports, Series A, No 9, p 4, 21. 4 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. 5 Ibid, 47. 6 Dictionnaire de la terminologie du droit international (Paris, Sirey, 1960), 528. 7 Dictionnaire de droit international public (Brussels, Bruylant/AUF, 2001), 975. 8 Ibid, 999. 9 ARSIWA, art 29. 10 Ibid, art 30. 11 Ibid, art 31. 12 The ICJ affirmed the obligation to make full reparation (citing article 31) in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 460. See also Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 31–32 (para 76); Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 59 (para 119); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 257 (para 259); Reports and Recommendations made by the Panel of Commissioners concerning Part Three of the Third Instalment of ‘F3’ Claims, 18 December 2003 (UN Doc S/AC.26/2003/15), para 220(c); ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006, para 484; CME Czech Republic BV v Czech Republic, Partial Award of 13 September 2001, para 616; LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Award on Damages of 25 July 2007, para 31. 13 ILC Yearbook 1996, Vol II(2). 14 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3. 15 Eritrea-Ethiopia Claims Commission, Final Damages Award, Eritrea’s Damages Claim, 17 August 2009, 6–7 (paras 19–23); Eritrea-Ethiopia Claims Commission, Final Damages Award, Ethiopia’s Damages Claim, 17 August 2009, 6–7 (paras 19–23). 16 See below, Chapters 41–42. 17 ARSIWA, art 34. 18 Ibid, art 35(b). 19 Ibid, art 37(3). 20 Commentary to Part Two, Chapter III, para 7. 21 On responsibility in relation to human rights, see below, Chapters 51.1–51.4. In his separate opinion in Armed Activities on the Territory of the Congo, Judge Simma suggested that Uganda’s second counterclaim should have been considered by the Court on the basis that Uganda had standing to raise claims relating to international human rights and international humanitarian law even if the victims were not Ugandan nationals: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, Separate Opinion of Judge Simma, p 334 at 348–349 (para 37). 22 ARSIWA, art 42(a). 23 Commentary to art 42, para 6. 24 ARSIWA, art 42(b)(i).

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25 Commentary to art 42, para 12. 26 ARSIWA, art 42(b)(ii). 27 Commentary to art 42, para 13. 28 ARSIWA, art 48(2)(b). 29 Commentary to art 48, para 2. 30 See above, Chapters 29–31, and further below, Chapters 45–50. 31 ARSIWA, art 48(2). 32 Barcelona Traction, Light and Power Company, Limited, Second Phase, ICJ Reports 1970, p 3, 32 (para 33). 33 See above, Chapter 29. 34 ARSIWA, art 31(1). 35 ILC Yearbook 2000, Vol I, 388 (para 16). 36 Ibid, 388 (para 16). The French text being more explicit, it is reproduced here: ‘L’idée de dommage “moral” a été ajoutée à celle de dommage “matériel” pour permettre une interprétation plus large du terme “préjudice”. En effet, le dommage “moral” peut être entendu comme désignant non seulement la douleur et la souffrance, mais aussi des atteintes plus générales, que certains peuvent qualifier de “préjudice juridique”, causé aux États.’ 37 ARSIWA, art 31. 38 ILC Yearbook 2000, Vol I, 388 (para 17). 39 On these questions of causation, one can usefully refer to the detailed developments in B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité international (Paris, Pedone, 1973), in particular Title II entitled ‘Dommage et lien de causalité’, 177–359. 40 Article 39 was approved by the annulment committee in MTD Equity Sdn Bhd and MTD Chile SA v Republic of Chile (ICSID Case No ARB/01/17), Decision on Annulment of 21 March 2007, para 99, where the claimants had made decisions which increased the risk of the investment.

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Part IV The Content of International Responsibility, Ch.41 Interaction between the Forms of Reparation Yann Kerbrat From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Codification — Customary international law — Sovereignty — Unilateral acts — Peremptory norms / ius cogens

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(p. 573) Chapter 41 Interaction between the Forms of Reparation 1 Interaction based on the search for the common intention of the parties 574 2 Interaction based on general international law 579 Further reading 586 The question of the interaction of the forms of reparation in the international legal order was resolved by the ILC in an apparently simple way, structured on the basis of a hierarchical principle: priority is to be given to restitution; then immediately following restitution are the forms of reparation by equivalent: compensation first and satisfaction where compensation is not possible.1 This is presented as the codification of customary law and has been widely accepted in international legal doctrine. And yet, a survey of practice evidences a much more ambiguous reality. There are three forms of reparation for injury in international law. According to article 34, ‘full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction’. The first form, also known as restitutio in integrum, restitutio in pristinum, or naturalis restitutio, corresponds traditionally to a form of reparation in kind which is effected by the re-establishment of the situation which existed before the wrongful act: the good unlawfully confiscated is restored to its owner, the act which caused the injury is annulled, etc. The other two forms operate by equivalent: compensation takes place through the payment of damages and interest to the injured party, that is, by the allocation of a sum of money covering the damage; satisfaction takes the form of non-material or moral reparation (apologies, expressions of regret, or the recognition of the breach). The list of the forms of reparation is restrictive. Some have attempted to enlarge it by including the offering by the responsible State of assurances or guarantees of non-repetition. Introduced in article 30, the question was raised by the doctrine whether it was preferable to consider these assurances and guarantees as a form of satisfaction,2 as an autonomous and thus new form of reparation,3 or as not being

References (p. 574) stricto sensu related to reparation. It is this last solution which was eventually retained by the ILC: the offer of assurances or guarantees does not constitute, stricto sensu, reparation for the injury but it is linked to the performance of the primary obligation that is imposed on the responsible State whose conduct attests a known risk of new breaches. As a consequence of wrongful acts, assurances or guarantees of non-repetition do not replace the primary obligation breached: they are in addition to the reparation. They respond to the expectations of the injured State to obtain from the author of the unlawful act ‘something additional to and different from mere reparation, the re-establishment of the pre-existing situation being considered insufficient’.4 The International Court of Justice’s judgment in Armed Activities on the Territory of the Congo reinforces this solution by clearly distinguishing in its reasoning the question of the offering of assurances and guarantees of nonrepetition from the question of reparation of the injury suffered.5 Although there are only three forms of reparation, they are not mutually exclusive. The Articles on State Responsibility highlight this, specifying in article 34 that the forms of reparation can be taken ‘either singly or in combination’. Compensation can therefore be associated with restitution in order to compensate, for instance, the loss of enjoyment of a good which was unlawfully seized. Satisfaction is often granted in addition to the other two forms of reparation. In total, seven combinations can be identified, even if factual circumstances often reduce the number of possible combinations applicable. In practice, restitution is very often impossible. The question of the choice of the form of reparation is thus raised and it is consequently convenient to determine how, and initially by whom, the choice of the form of reparation is to be made. Ordinarily, the choice of the means for the reparation of an injury is left to be mutually agreed

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between the injured party and the author of the injury. The criteria governing the choice of the form of reparation are thus contingent and mainly political (at least, given that the two parties are States). Law only takes a secondary role in the negotiations and can only have a small influence on the result. Its importance is only felt when there is a dispute between the injured State and the responsible State and a solution must be established on the basis of the law. Concretely, then, the legal discussion is not relevant unless the parties entrust a third jurisdictional body (an arbitral tribunal or a judicial body) with the task of determining the form or forms of reparation most adequate to make reparation for the injury suffered by one of them. Seized of this dispute, the arbitral or judicial tribunal generally proceeds in two phases. First, it considers whether there is an existing express or tacit agreement between the parties concerning the form of reparation. If it cannot find such an agreement, it turns to the rules of the international law of responsibility.

1 Interaction based on the search for the common intention of the parties Arbitral and judicial case law evidence that when a dispute concerning the consequences of a wrongful act has been referred to a tribunal having jurisdiction, the tribunal tends to look for a solution by reference to the common intention of the parties. This method allows the will of the parties to be taken into account and, as such, respects the sovereignty of the

References (p. 575) parties. It also relieves the tribunal of the task of choosing the form of reparation itself, which would necessarily expose the tribunal to criticism by the parties. In certain cases, the search for such agreement does not present any difficulties. This is the case when the two parties have agreed to a form of reparation in their jurisdictional compromis. For instance, the arbitration agreement concluded in 1979 between Aminoil and Kuwait expressly recognized that re-establishment of the status quo ante was impossible in the circumstances and that the company was thus seeking only financial compensation and/or damages.6 Similarly, the United States and Mexico agreed in the compromis related to the Oberlander and Messenger case that if the arbitrator held that the United States was entitled to obtain reparation, the Mexican government would grant compensation. Restitutio as a form of reparation was thus excluded from the agreement.7 In these cases, which are not infrequent, the determination of the form of reparation by the tribunal is simple: it is achieved by giving effect to the express common will of the parties. This even constitutes an obligation for the tribunal: its competence is limited by the will of the parties, hence the tribunal cannot question whether an alternative form of reparation is more appropriate, for the parties have not requested it to do so. Case law confirms this and contrary examples are hard to find. The famous Martini award,8 often quoted in support of the opposite statement, in reality is in conformity with that rule. In that case, Italy and Venezuela had agreed in an arbitral agreement to request the tribunal to rule on ‘the pecuniary reparation that could be granted in law’ to one of the parties.9 The arbitrators decided that Venezuela ought to ‘recognize as reparation, the annulment of the obligations of payment’ required of Martini by an internal court. The annulment of the obligations of payment is frequently interpreted by the doctrine and case law as a form of restitutio in integrum.10 This analysis led to the Martini case being cited as an example of the freedom of arbitrators to choose the most adequate form of reparation. And yet, in the award the arbitrators did not depart at all from the Italian-Venezuelan agreement. The reparation granted was not, properly speaking, a form of restitution: the company was not reestablished to its previous situation, that is, in its situation as a holder of a concession granted by the Venezuelan government; to the contrary this was rejected by the arbitrators on the ground that it would have been excessive. The tribunal contented itself with asking ‘whether it [was] appropriate to grant pecuniary compensation calculated on the standard that [had been] adopted by it’.11 The tribunal held that the termination of the contract alone did not give rise to reparation

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insofar as it did not constitute an obvious injustice. But since certain unlawful acts had nevertheless caused injury to Martini, the tribunal decided, by way of reparation, to annul certain financial obligations of the company towards Venezuela. The annulled financial obligations related to debts that had accrued as a result of the failure to pay the concession fee. So this measure was a way of assuring pecuniary compensation by Venezuela for the damage caused. The measure therefore amounted to reparation by equivalent.

References (p. 576) In the absence of a formal agreement between the parties concerning the choice of a form of reparation, their intention may be inferred from the unilateral acts adopted by them throughout the proceedings. The tribunal thus must consider the written and oral proceedings, and in particular, the submissions of the parties, for it is not uncommon that during the proceedings one or the other party—often the claimant State or individual—indicates its preference for a specific mode of reparation and/or its refusal to accept another or all other forms. Iran, for instance, chose compensation as a form of reparation in the case concerning the Aerial Incident of 3 July 1988, specifying in its submissions that it requested the ICJ to state that the: Government of the United States is responsible to pay compensation to the Islamic Republic, in the amount to be determined by the Court, as measured by the injuries suffered by the Islamic Republic and the bereaved families as a result of these violations.12 In Barcelona Traction, Belgium had initially requested restitution; but eventually, in its reply, it opted for compensation since restitution seemed practically and legally impossible in the case.13 The position of Germany in the proceedings of Chorzów Factory was similarly amended.14 Conversely, Switzerland and New Zealand only requested restitution during the proceedings in Interhandel 15 and Rainbow Warrior,16 respectively. For its part, before the Court Finland refused at every occasion the option of compensation in Passage through the Great Belt, but eventually accepted financial compensation in settlement.17 In these cases, the tribunal always took into account the request of the injured State in relation to the forms of reparation and refused to consider the other forms. The question arises whether the choice of the form of reparation depends entirely on the will of the injured State and whether the attitude of the author of the injury is thus totally irrelevant. Some have maintained so18 and this position manifestly inspired the final text of the ILC. Article 43 implicitly recognizes it: 1 . An injured State which invokes the responsibility of another State shall give notice of its claim to that State. 2 . The injured State may specify in particular … (b) what form reparation should take in accordance with the provisions of Part Two. The Commentary notes that the provision of each of the forms of reparation can be ‘affected by any valid election that may be made by the injured State’.19 And yet practice does not completely support the idea that the form of reparation is entirely dependent on the claimant State’s election. It is possible to distinguish two

References (p. 577) situations according to the attitude of the responsible party during the proceedings. First, when the responsible State has not objected to the claim of the victim to obtain reparation in the form of its choice, its passivity is interpreted as acquiescence, creating an informal or solo consensu agreement between the parties on the choice of the form of reparation.20 This situation is not rare in practice; in fact the respondent may prefer for strategy reasons to concentrate its

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defence on the existence of its obligation to make reparation or on the reduction of the amount requested by the victim, rather than on the form of reparation chosen by it. Second, when the injured State’s request for a specific form of reparation meets with the objection of the responsible State, the tribunal—especially due to considerations of sovereignty—cannot decide on this issue without taking into account the opposition of the author of the injury. Supporters of the opposite view mention case law favourable to their position. A decision frequently cited in this respect is the Zuzich decision of the United States Foreign Claims Settlement Commission of 1954. The indifference of the Commission to the claims of the responsible State appears from the following passage: once it is established that the Yugoslav Government took the property within the period covered by the Agreement, it is not warranted in taking unilateral action to compensate claimants in some degree by restoring their property unless they waive dollar compensation by this Commission and accept restitution. The fact that claimants have filed a claim for compensation of course militates against the notion that they are willing to accept restitution.21 The Rainbow Warrior award is also commonly cited in relation to this issue. New Zealand had requested a form of restitution in its conclusions entailing the return of Major Mafart and Captain Prieur to the island of Hao, to which they had been assigned. It did not request any form of compensation. The arbitral tribunal initially rejected the request of New Zealand for restitution, but eventually, having limited its examination to the applicant’s claim, it refused to decide on the possibility of awarding reparation by equivalent. The tribunal only indirectly admitted New Zealand’s right to obtain pecuniary compensation in an obiter dictum: it suggested that a fund be constituted ‘to promote close and friendly relations between the citizens of the two countries’, supported by an ‘initial contribution’ from France of two million dollars.22 The question is whether it is possible to draw from these two cases the existence in general international law of a rule pursuant to which the injured State can unilaterally determine the adequate form of compensation, independently of the reaction of the responsible State. This conclusion would certainly be hasty. Not only is case law scant in this respect, but the first case mentioned (Zuzich) confirms that it is necessary to take into account the intention of the parties to the dispute: by their decision, the arbitrators recalled that if it is convenient to take into account the intention of the author of the wrongful act, the intention of the victim cannot be ignored. As for Rainbow Warrior, two elements of procedural law explain the decision. The first is the requirement of the contradictory character of the proceedings:

References (p. 578) The fact that New Zealand has not sought an order for compensation also means that France has not addressed this quite distinct remedy in its written pleadings and oral arguments, or even had the opportunity to do so.23 The second element relates to the characteristics and the competence of a tribunal in international legal proceedings. Since the injured State had asked the judge to order a specific form of reparation and the responsible State had purely and simply requested the judge to reject this claim, the tribunal could not consider another form of reparation not specifically requested, by considering issues not submitted to it without violating the non ultra petita rule. This limit is also relevant when the author of the wrongful act does not only object to the reparation requested, but also requests the tribunal to order another form of reparation. There are several factors moderating the non ultra petita rule. The first and most important one is the large measure of competence recognized to international jurisdictions to interpret the scope and the content of the requests presented to them. This competence allows the tribunal to indicate

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to the parties a form of reparation that they have not expressly requested when the tribunal considers that the choice of this form implicitly includes an admissible request made by either of them. An example of this principle can be founded in the International Court’s decision in Temple of Preah Vihear: the majority of the Court considered that Cambodia’s claim to obtain restitution of the goods placed in the temple was implicitly included in its claim of sovereignty over the building.24 It is conceivable that, on the basis of this case law, courts could consider that a request for compensation is included in a request for restitution, and that they may award financial compensation every time the restitution requested is impossible. This idea is supported by some authors. Special Rapporteur Arangio-Ruiz emphasized in his Preliminary Report that ‘it goes without saying that option for restitutio on the part of the injured State does not exclude resort to compensation whenever restitution is partially impossible’.25 The award in Rainbow Warrior confirms that, failing the existence of a clear intention of the parties, a request for compensation is considered as having a different object than a request for restitution.26 A second limit to the non ultra petita rule concerns satisfaction: unlike restitution and compensation, both of which require an express request by the injured State, it appears that every request for restitution or compensation implicitly entails a request for satisfaction. This is logical since the form of reparation is chosen after the wrongful act has been established and a mere declaration by the tribunal that one of the parties has breached its obligations is considered, in itself, to constitute a form of satisfaction.27 When, contrary to the majority of the cases examined, there exists no agreement between the parties, neither formal nor informal, and the injured State has not indicated any preference

References (p. 579) as to the form of reparation, the tribunal must determine the adequate form of reparation. The tribunal will in such case turn to the general international law of responsibility.

2 Interaction based on general international law The international judge, having been seized of a dispute as to the form of reparation or with a claim requesting him to indicate a form of reparation for the damage (without specifying the form of reparation), can base his decision on two (alleged) rules of international law of responsibility. These are: first, the rule according to which reparation must be adequate, and second, the rule according to which reparation in kind takes priority over reparation by equivalent. Although the existence of the first rule is not contested, the existence of the second rule is questionable. The adequacy rule was strongly formulated by the Permanent Court of International Justice in the jurisdictional phase of the Chorzów Factory case: ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form’.28 This rule has been repeated on many occasions. In time its content has been defined: adequacy is a function of the injury caused by the author of the wrongful act and it has a double dimension. First, a form of reparation is considered adequate if it allows reparation of the entire damage, material and moral, suffered by the injured party. This aspect was evident in the merits judgment of the Permanent Court: the Court emphasized that the form of reparation chosen must ‘as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’.29 Article 31 ARSIWA reflects this and the International Court has recently recognized that ‘it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act’.30 Adequacy, thus understood, has important consequences in the choice of the form of reparation. Notably, it explains why, when restitution is chosen as the form of reparation, it is often accompanied by compensation, or at least by satisfaction, to compensate the loss of enjoyment of the restored good.

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Second, the principle of adequacy requires that reparation be proportionate to the injury suffered. The umpire in the Lusitania case highlighted the necessity of proportionality in his award: ‘the remedy should be commensurate with the loss, so that the injured party may be made whole’.31 Similarly, the Inter-American Court of Human Rights has recently confirmed that: ‘the reparations ordered … must be proportionate to the violations’.32 In consequence, restitution is excluded when it imposes on the author of the wrongful act a burden which is disproportionate to the advantage that derives from this choice of reparation for the injured party.33 The injured party cannot obtain punitive damages/interests, at least not by way of pecuniary reparation.34

References (p. 580) Two additional remarks can be added. First, since the adequacy of the reparation is a function of the injury, neither the origin nor the character of the primary obligation is relevant for the choice of the form of reparation.35 The Rainbow Warrior tribunal confi rmed this in relation to the customary nature of the obligation breached. New Zealand maintained that the adequate form of reparation for breach of treaty was restitution by way of an order addressed to the responsible State to comply with its conventional obligations.36 The Tribunal rejected this argument, holding that no specific rule governed breaches of conventional obligations and that, to the contrary, ‘questions of appropriate remedies, should be answered in the context and in the light of the customary Law of State Responsibility’.37 There is thus no reason to separate contractual from delictual responsibility in international law.38 Another proposition was abandoned, for these same reasons, by the ILC in its work on State responsibility: that there ought to be a distinction between breaches of peremptory norms and breaches of other rules of international law. Arangio-Ruiz had suggested in his Preliminary Report that a distinction be made between breaches of peremptory norms of international law (jus cogens norms) and breaches of ‘ordinary’ rules: restitutio in integrum would be mandatory in the first case, and optional in the second.39 In the end, this distinction was not adopted by the ILC. This decision is sensible: in addition to the fact that the distinction proposed had no support in State practice or case law, its ‘codification’ would have led to the distortion of the restorative character of natural restitution and of compensation. The specific consequences attached to the breach of peremptory norms are motivated, not by the importance or the nature of the injury, but by the seriousness of the conduct and the will to put an end to the breach and avoid its future occurrence. These objectives can be achieved both through cessation of the wrongful conduct and through assurances and guarantees of non-repetition; reparation stricto sensu is not relevant to the character of the breached obligation. The commentary to article 35 indirectly affirms this, for it underlines that ‘in certain cases, especially those involving the application of peremptory norms, restitution may be required as an aspect of compliance with the primary obligation’.40 Second, since the adequacy of a form of reparation depends on the injury, the nature of the injury is, by contrast to the character of the breached obligation, an essential element in the choice. Legal doctrine confirms that satisfaction is a particularly adequate form of reparation for moral or non-material damages, whereas restitution and compensation are more adequate to repair material damages which are financially assessable. This distribution of the forms of reparation is also confirmed by practice. And yet, it must not be

References (p. 581) exaggerated for at least two reasons. First, certain forms of satisfaction often accompany compensation and restitution, even when they are not specifically requested: the judge first declares a wrongful act—a form of satisfaction—and then indicates the means to make reparation for the damage—restitution or compensation. Second, non-material damage could, in certain circumstances, be the object of material compensation. The Tribunal in Rainbow Warrior expressly pronounced on this point.41 In addition, this suggestion is corroborated by abundant case law From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

concerning compensation of indirect damage suffered by foreigners: those States that, in the exercise of diplomatic protection, have taken up the claim of one their nationals have frequently obtained damages as reparation. Yet the injury repaired is non-material for it is limited to the moral damage resulting, for the national State, from the violation of its ‘own rights—its right to ensure, in the person of its subjects, respect for the rules of international law’.42 In these cases, the material damage suffered by the individual serves as a standard for the calculation of the compensation owed to the claimant State for the reparation of its moral damage. In addition to the principle of adequacy of reparation for the injury, another more specific rule is often mentioned in international legal scholarship. Recalled at the beginning of this chapter, this rule provides that restitution is to take priority over other forms of reparation. The ILC Articles on State Responsibility establish this rule and go beyond it by suggesting the existence of a double priority, first of restitution over compensation (article 36(1)), and second of compensation over satisfaction (article 37(1)): The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.43 The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.44 The second of these rules of priority can be immediately dismissed as it is not an expression of positive law: it is not supported either by practice or jurisprudence. Moreover, its utility has not been demonstrated: compensation and satisfaction are not exclusive but complementary, insofar as the indication by a third party of whatever form of reparation generally entails satisfaction for the injured party. The first rule of priority—priority of restitution over compensation—is more delicate. A survey of international case law reveals a paradoxical situation: the existence of this rule is generally affirmed in the reasoning of the decisions, but is applied only very rarely. The affirmation of the primacy of restitution over compensation dates back to the judgment on the merits in Factory at Chorzów: The essential principle contained in the actual notion of an illegal act—a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals—is that reparation must, as far as possible, wipe-out all the consequences of the illegal act and re-establish the situation which would, in. all probability, have existed if that act had not been committed.

References (p. 582) Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear.45 The Permanent Court, in the first part of this dictum, lays down the bases for the assessment of the damages: the goal of reparation is that of re-establishing the situation which would, in all probability, have existed had the wrongful act not been committed, such that the form of reparation chosen must cover not only the damnum emergens but also the lucrum cessans. In the second sentence, the Court appears to indicate that the re-establishment of the situation in pristinum is the natural form of reparation. Subsequent case law contains numerous references to this passage from the Factory at Chorzów judgment. The International Court has mentioned it several times, most recently in its judgment rendered in Application of the Genocide Convention.46 The International Tribunal for the Law of the Sea also cited it in The MV ‘Saiga’ (No 2).47 The European Court of Human Rights implicitly

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referred to it in Papamichalopoulos: If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it … If, on the other hand, national law does not allow—or allows only partial— reparation to be made for the consequences of the breach, Article 50 … empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.48 This same reasoning has been repeated by the European Court, notably in Brumarescu v Romania,49 Beyeler v Italy,50 and Ilaşcu and others v Moldova and Russia.51 The Inter-American Court has recently adopted this conceptualization of the relationship between restitution and compensation. In the White Van case the Court emphasized: Reparation of the damage resulting from the violation of an international obligation requires, whenever possible, the full restitution (restitutio in integrum), which consists in the reestablishment of the previous situation. If this is not possible, as in the instant case, the international court must determine a series of measures, which, in addition to guaranteeing the rights that have been violated, make reparation for the consequences of the violations, and also must also order the payment of an indemnity as compensation for the damages caused.52 Arbitral practice also contains references to the rule of the primacy of restitutio in integrum over the other forms of reparation. Although not applying it, the award in Martini endorses the principle stated in the Chorzów Factory judgment.53 The award in Texaco v Libya goes further, for the sole arbitrator Dupuy while applying the principle indicated that: This Tribunal must hold that restitutio in integrum is, both under the principles of Libyan law and under the principles of international law, the normal sanction for non-performance of contractual

References (p. 583) obligations and that it is inapplicable only to the extent that restoration of the status quo ante is impossible.54 The rule was also followed in the Amoco case by the Iran-US Claims Tribunal.55 Nevertheless, these references are less common in arbitral practice than in judicial practice. Some awards even evidence reluctance to admit that there can exist, in law, a hierarchy between the forms of reparation and the primacy of restitution over the other forms of reparation. In the Walter Fletcher Smith award, sole arbitrator Hale stated that before deciding that reparation will take place through the payment of a sum of money ‘it would not be inappropriate to find that, according to law, the property should be restored to the claimant’.56 For him, then, no rule imposed restitutio as the primary form of reparation. The award in Forests of Central Rhodopin is of a similar tenor: it was suggested during the proceedings that in the case of a total or partial success of the claim, the defendant should be obliged to restore the forests to the claimants. The applicant however left to the appreciation of the arbitrator the possibility of effecting such restitution. The arbitrator considers that he cannot impose upon the defendant the obligation to restore the forests to the claimants … The only practical resolution of the dispute consists … in the imposition upon the defendant of the obligation to pay compensation.57 After extensive reasoning, backed by numerous references to practice, arbitrator Lagergren considered in the award in BP v Libya that there did not exist a customary international law rule or general principle of law requiring that priority be given to restitution over compensation in cases of 58

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expropriation or unlawful nationalization.58 Turning to the concrete application of this rule, the results do not often lead to the primacy of restitution over other forms of reparation; examples of decisions where restitution has been awarded are rare. Among the often-cited cases, the following can be mentioned: Radio-Orient Company,59 Heirs of Lebas de Courmont,60 and Loayza-Tamayo v Peru.61 Only two decisions of the International Court of Justice have awarded restitution as a form of reparation: the Temple of Preah Vihear case, in which the Court ordered Thailand to ‘restore to Cambodia any objects … which may, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities’; 62 and the Arrest Warrant case, in which the Court ordered Belgium to ‘cancel’ the warrant against Yerodia.63 But these two cases are special: the first case was decided on the basis of principle, for Cambodia failed to produce evidence that the objects claimed had effectively been removed from the temple by Thai forces; 64 the second because the Court appeared to attach the obligation of legal restitution to the cessation of a continuous unlawful act (although it was indisputably an instantaneous act):

References (p. 584) The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.65 The judgment in Avena is also often considered as a case of restitutio in integrum, insofar as the Court decided that: the appropriate reparation in this case [for the breaches of Article 36 of the Vienna Convention on Consular Relations] consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the: convictions and sentences of the Mexican nationals.66 However, the usefulness of this precedent can be doubted. The review and reconsideration of the sentences ordered by the Court do not entail a restoration of the status quo ante of the Mexican nationals. It is rather linked to the execution of the primary procedural obligations that States have pursuant to article 36(2) of the Vienna Convention on Consular Relations,67 and does not constitute a form of restitution stricto sensu. Cases of restitution are so rare in practice that some of the decisions quoted by doctrine as illustrations of this form of reparation appear to be false examples when scrutinized closely. This is the case of the award in Martini, for the reasons already explained. The same is true of the award in British Claims in the Spanish Zone of Morocco which dealt with the breach by Spain of its undertaking to put a residence in Tetuan at the disposal of the United Kingdom, to be occupied by the British consul. In its decision, the tribunal declared the unlawful act by Spain and decided that Great Britain had the right to obtain ‘usufruct of a consular residence … which must be, from the point of view of current exigencies, “suitable” to this purpose in the same way as the [initial] residence was suitable from the point of view of the beginning of the 19th century’.68 The measure ordered in this case has often been considered a form of restitution, while in truth it corresponds to the execution of the primary obligation that Spain had undertaken. Other examples can be found in the recent judgments of the European Court of Human Rights in Assanidze v Georgia69 and Ilaşcu v Moldova.70 Both cases concerned the situation of individuals deprived of their liberty contrary to article 5 of the European Convention on Human Rights.71 In both cases the Court held that the State authors of the breaches were under an obligation to free the individuals arbitrarily detained within the shortest delay possible. These decisions are also interpreted as a form of restitution.72 Yet the European Court only required the cessation of a continuing unlawful act. The judgment

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References (p. 585) in Assanidze expressly highlights that the measures ordered are intended to ‘put an end to the violation that has been found’.73 The contrast thus evidenced, between the few cases where restitution was ordered and the relatively numerous cases where the primacy of reparation in kind is affirmed, is largely explained by questions of fact. First, restitutio in integrum is rarely requested by the injured party. During the operation of the Iran-US Claims Tribunal, restitution was requested only in one case, which was moreover atypical since it was between the two States and did not involve a private party against a State. In that case, the Iranian government claimed reparation for the confiscation by the United States of military materials sold by the United States to Iran.74 In addition, the request for restitution was not based on the general law of international responsibility, but on a specific provision of the General Declaration of Algiers which established that ‘the US will arrange, subject to the provisions of US law applicable prior to November 14, 1979, for the transfer to Iran of all Iranian properties which are located in the United States and abroad’.75 The request was rejected by the Tribunal.76 Second, even when the parties have not excluded restitution, restitution is only possible in exceptional circumstances, either because the object of restitution has disappeared (for example a corporal good, the object of the dispute, has been destroyed), or because restitution faces a legal hurdle, resulting for instance from the absence of competence of the seized organ: thus the European Convention on Human Rights only allows the Court to award ‘equitable compensation’.77 This exceptional character is not however the sole reason for the discrepancy between cases affirming the primacy of restitution and those actually applying it. In a significant number of cases compensation was in fact ordered even when restitution could have been effected. Another explanation for this phenomenon resides in the role assigned to the primacy rule by international tribunals. Indeed, it seems that international tribunals rarely mention the rule to effect a choice between different forms of reparation. More often, they cite the rule to justify a specific method for calculating the pecuniary compensation. Arbitrator Lagergren emphasized the duality of conceptions of this rule: while restitutio in integrum in the sense of restitution in kind of industrial property … has sometimes been claimed … no such international tribunal has ever prescribed this remedy with regard to such property, nor considered it in a context such as that presented in these proceedings. The concept has rather been employed at times as a principle for assessing the amount of damages due for breach of an international obligation.78 The purpose of the rule of primacy as a standard for the evaluation of damages explains why some decisions in which it is mentioned correspond to cases where the judge could only grant compensation, either because it was specifically requested or because restitutio

References (p. 586) was materially impossible. The most topical example in this respect is the Chorzów Factory case itself: since Germany had expressly excluded restitutio in its claims, the reference to restitution in the reasons of the judgment was intended to allow the Court to specify ‘the principles which should serve to determine the amount of compensation due for an act contrary to international law’.79 The primacy rule offered, more specifically, a legal justification for the transposition to the international legal order of the principle according to which compensation must cover not only the damnum emergens, but also the lucrum cessans: since reparation must be at least equivalent to restitution, compensation should ‘wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed’.80 In this context, the rule of primacy of restitution serves only to guarantee the integral character of the reparation, and not to determine the choice between different forms of reparation.

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It is but an aspect of the principle, already examined, of the adequacy of the reparation having regard to the injury suffered. Further reading D Anzilotti, ‘La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers’ (1906) 13 RGDIP 5, 285 P-A Bissonnette, La satisfaction comme mode de réparation en droit international (Geneva: Université de Genève, 1952) I Brownlie, ‘Remedies in the International Court of Justice’, in V Lowe and M Fitzmaurice (eds), Fifty Years of International Court of Justice. Essays in honour of Sir Robert Jennings (Cambridge, CUP, 1996), 557 G Cohen-Jonathan, ‘Quelques considérations sur la réparation accordée aux victimes d’une violation de la Convention européenne des droits de l’homme’, in Les droits de l’homme au seuil du troisième millénaire. Mélanges en l’hommage à Pierre Lambert (Brussels, Bruylant, 2000), 109 E Decaux, ‘Responsabilité et réparation’, in SFDI, La responsabilité dans le système international. Colloque du Mans (Paris, Pedone, 1991), 147 C Dominicé, ‘De la réparation constructive du préjudice immatériel souffert par un Etat’, in Le droit international dans un monde en mutation, Liber amicorum en hommage au Professeur Jiménez de Aréchaga (Montevideo, Fundación de Cultura Universitaria, 1995), 505 C Dominicé, ‘La réparation non contentieuse’, in SFDI, Colloque du Mans, La responsabilité dans le système international. Colloque du Mans (Paris, Pedone, 1991), 191 C Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, in Droit international 2 (Paris, Pedone, 1982), 1 P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des Etats’ (1984-V) 188 Recueil des cours 9 C Gray, ‘The Choice between Restitution and Compensation’ (1999) 10 EJIL 413 C Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1990) B Graefrath, ‘Responsibility and damages caused: relationship between responsibility and damages’ (1984-II) 185 Recueil des cours 9 FA Mann, ‘The consequences of an international wrong in international and municipal law’ (1976–1977) 48 BYIL 2 J Personnaz, La réparation du préjudice en droit international public (Paris, Sirey, 1938)

References (p. 587) L Reitzer, La réparation comme conséquence de l’acte illicite en droit international (Paris, Sirey, 1938) D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford, OUP, 2005) B Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973) DP Stewart, ‘Compensation and Valuation Issues’, in RB Lillich and D Barstow Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Irvington, Transnational Publishers, 1998), 325 SD Thomsen, ‘Restitution’, in R Wolfrum (ed), Encyclopedia of Public International Law (Amsterdam, Elsevier Science Publishers), Vol 10, 375 P Weil, ‘Droit des traités et droit de la responsabilité’, in Liber amicorum en hommage au Pr Eduardo Jiménez de Aréchaga, Le droit international dans un monde en mutation (Montevideo, Fundación de Cultura Universitaria, 1994), 523, reprinted in Ecrits de droit international (Paris, PUF, 2000), 191 S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 Austrian Rev of Int & Eur Law 101

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S Wittich, ‘Non-Material Damage and Monetary Reparation in International Law’ (2004) 15 Finnish Yearbook of International Law 321(p. 588)

Footnotes: 1 Arts 36 and 37 ARSIWA. 2 See B Graefrath, ‘Responsibility and damages caused: relationship between responsibility and damages’ (1984-II) 185 Recueil des cours 9, 87; P Daillier and A Pellet, Nguyen Quoc Dinh, Droit international public (7th edn, Paris, LGDJ, 2002), 801. 3 See the hesitations of G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 43 (para 149), 47 (para 163). 4 Ibid, 43 (para 149). 5 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 255ff (paras 255ff). See Chapter 39. 6 The text of the agreement and the award of the tribunal presided over by Paul Reuter are available at 66 ILR 533. 7 The compromis of 2 March 1897 and the award issued on 19 November 1898 are reproduced in H La Fontaine, Pasicrisie Internationale. 1794–1900 (reprint, The Hague, Kluwer Law International, 1997), 558–568. 8 Martini (Italy v Venezuela), 3 May 1930, 2 RIAA 975. 9 Ibid, 977. 10 See eg the opinion of arbitrator René-Jean Dupuy in Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libyan Arab Jamahiriya (1977) 104 JDI 350–389, available in English in (1978) 17 ILM 1; CD Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1990), 13. 11 Martini (Italy v Venezuela), 3 May 1930, 2 RIAA 975, 1001. 12 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v United States), Application, 17 May 1989, 10 (para c). 13 Cf the submissions in Belgium’s application and in its reply memorial, all quoted in Barcelona Traction Light and Power Company, Limited, Second Phase, ICJ Reports 1970, p 3, 12–13 (para 25). 14 Factory at Chorzów, Jurisdiction, 1927, PCIJ, Series A, No 9, p 4, 17. 15 Interhandel (Switzerland v United States), Preliminary Objections, ICJ Reports 1959, p 6, 9, 12. 16 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 222. 17 M Koskenniemi, ‘L’affaire du Passage par le Grand Belt’ (1992) 38 AFDI 905, 940ff. 18 See, especially, L Reitzer, La réparation comme conséquence de l’acte illicite en droit international (Paris, Sirey, 1938), 134ff; G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 36ff (para 109ff). 19 Commentary to art 34, para 4. 20 On the notion of the non-formalized or solo consensu see J Salmon, ‘Les accords non formalisés ou solo consensu’ (1999) 45 AFDI 1. 21 Zuzich, quoted by G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 36–37 (para 111).

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22 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 274 (paras 124– 128). 23 Ibid, 272 (para 119). 24 Temple of Preah Vihear (Cambodia v Thailand), Merits, ICJ Reports 1962, p 6, 36. This part of the decision was strongly criticized by Judges Tanaka and Morelli in a joint declaration, see ibid, 37. 25 G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 37 (para 112). 26 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 272 (para 119). 27 Corfu Channel, Merits, ICJ Reports 1949, p 4, 35; quoted in Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia), Judgment, 26 February 2007, para 463). 28 Factory at Chorzów, Jurisdiction, 1927, PCIJ Reports, Series A, No 9, 21. 29 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. 30 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 257 (para 259). 31 The Lusitania, 1 November 1923, 7 RIAA 32, 39. 32 Loayza-Tamayo v Peru (Reparations and Costs), Inter-Am Ct HR, Series C, No 42 (1998), 20 (para 87). 33 See art 35(b) ARSIWA. 34 See judgments of the Inter-American Court of Human Rights in: Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), 10 (paras 37–39); Godínez Cruz v Honduras (Reparations and Costs), Inter-Am Ct HR, Series C, No 8 (1989), 9 (paras 35–37). See also, S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 Austrian Review of Int’l & Eur Law 101. 35 See, however, the ambiguous wording used by the Inter-American Court in Loayza-Tamayo v Peru (Reparations and Costs), Inter-Am Ct HR, 1998, Series C, No 42 (1998). 36 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 267–268 (para 111). 37 Ibid, 251–252 (para 75); see also, P Weil, ‘Droit des traités et droit de la responsabilité’, in Liber amicorum en hommage au Professeur Eduardo Jiménez de Aréchaga—Le droit international dans un monde en mutation (Montevideo, Fundación de Cultura Universitaria, 1994), 523–543, reprinted in Ecrits de droit international (Paris, PUF, 2000), 191, 207. 38 See B Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 13. 39 G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 37 (para 113). 40 Commentary to art 35, para 3. 41 The reasoning of the Tribunal on this point is based on the existence of an agreement between the parties, Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 271 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(para 115). 42 Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12. 43 Art 36(1) ARSIWA. 44 Art 37(1) ARSIWA. 45 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. 46 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 460. 47 The M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea), ITLOS, Judgment, 1 July 1999. 48 Papamichalopoulos and others v Greece (App No 14556/89), ECHR, Series A, No 330-B (1995), para 34. 49 Brumarescu v Romania (App No 28342/95), ECHR Reports 2001-I [GC], paras 19–20. 50 Beyeler v Italy (Just Satisfaction) (App No 33202/96), ECHR, Judgment of 28 May 2002 [GC], para 20. 51 Ilaşcu and others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VII [GC], para 487. 52 Case of the ‘White Van’ (Paniagua-Morales and others v Guatemala), (Reparations and Costs), Inter-Am Ct HR, Series C, No 76 (2001), 27 (para 76). See also Myrna Mack-Chang v Guatemala, (Merits, Reparations and Costs), Inter-Am Ct HR, Series C, No 101 (2003), 115 (para 236). 53 Martini (Italy v Venezuela) (1930), 2 RIAA 975, 1001–1002. 54 Texaco v Libya (1978) 17 ILM 1, 36 (para 109). 55 Amoco International Finance Corp. v Iran (1987), (1987-II) 15 Iran-US CTR 189, 246ff. 56 Walter Fletcher Smith , 2 May 1929, 2 RIAA 913, 918. 57 Forests of Central Rhodopin (Greece v Bulgaria), 23 March 1933, 3 RIAA 1389, 1432. 58 BP Exploration Co v Libyan Arab Republic (1973) 53 ILR 297, 332–354. 59 Radio-Orient Company, 2 April 1940, 3 RIAA 1871. 60 Heirs of Lebas de Courmont, 21 June–21 November 1957, 13 RIAA 761, 764. 61 Loayza-Tamayo v Peru (Reparations and Costs), Inter-Am Ct HR, Series C, No 42 (1998). 62 Temple of Preah Vihear (Cambodia v Thailand), Merits, ICJ Reports 1962, p 6, 37. 63 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 33 (para 78(3)). 64 Temple of Preah Vihear (Cambodia v Thailand), Merits, ICJ Reports 1962, p 6, 36. 65 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 32 (para 76). For a criticism of this statement, see the Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ICJ Reports 2002, p 3, 89–90 (paras 87–89). 66 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 72 (para 153.9). 67 596 UNTS 261. 68 British Claims in the Spanish Zone of Morocco (Great Britain v Spain), 1 May 1925, 2 RIAA 615, 722. 69 Assanidze v Georgia (App No 71503/01), ECHR Reports 2004-II [GC]. 70 Ilaşcu and others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VII [GC].

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71 213 UNTS 222. 72 G Cohen-Jonathan and J-F Flauss, ‘Cour européenne des droits de l’Homme et droit international general’ (2003) 49 AFDI 664; (2004) 50 AFDI 797; F Sudre, Droit européen et international des droits de l’homme (7th edn, Paris, PUF, 2005), 608. 73 Assanidze v Georgia (App No 71503/01), ECHR Reports 2004-II [GC], para 202. For the relationship between cessation and reparation see G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 5, 11ff (para 21ff). 74 Islamic Republic of Iran v United States of America, Case No B1, (1988) 19 Iran-US CTR 273. 75 Declaration of the Government of the Democratic and Popular Republic of Algeria (General Declaration), 19 January 1981, 20 ILM 224, 227 (para 9). 76 Islamic Republic of Iran v United States of America Case No B1 (1988) 19 Iran-US CTR 273, 286–293 (paras 43–64). 77 See G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 5, 28–33 (paras 85–98). 78 BP v Libya (1973) 53 ILR 297, 353. 79 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. See also Kuwait v Aminoil (1982) 66 ILR 519, 599ff; Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189. 80 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, 4, 47.

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Part IV The Content of International Responsibility, Ch.42.1 The Different Forms of Reparation: Restitution Christine Gray From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 589) Chapter 42.1 The Different Forms of Reparation: Restitution 1 The ‘primacy’ of restitution and the ILC’s approach 589 2 The relation between restitution and cessation 590 3 Material and legal restitution 590 4 Choice of the injured State 593 5 Special regimes of reparation 594 6 Recent requests for restitution 595 7 Limits on restitution 596 Further reading 597

1 The ‘primacy’ of restitution and the ILC’s approach Restitution is often affirmed to be the primary remedy in international law and this is the position taken by the ILC in its Articles on Responsibility of States for Internationally Wrongful Acts. Restitution comes first in the list of forms of reparation in article 34, and a general duty is imposed on States responsible for wrongful acts ‘to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed’ by article 35. This primacy is further confirmed by article 36 which sets out the obligation of the wrongdoing State to compensate ‘for the damage caused thereby insofar as such damage is not made good by restitution’. This is a reaffirmation of the traditional doctrine of the primacy of restitution as set out in Chorzów Factory, that: … reparation must, as far as possible, wipe out all the consequences of the illegal act and

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reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear …1 However, the Commentary to the ILC Articles takes pains to adopt a flexible approach, with the result that it effectively limits the significance of the principle of the primacy of restitution and reflects the rarity of restitution in practice. The significant gap between the theoretical primacy of restitution and the relative rarity of its occurrence in practice, especially in the jurisprudence of arbitral and judicial tribunals, has always been a problem for those asserting the primacy of restitution. Indeed this gap between theory and practice

References (p. 590) also threatens to undermine any attempt to set out general rules in this area. The ILC takes a realistic approach and, despite its commitment to primacy, repeatedly concedes that restitution is often impossible or unavailable, or that its value to the injured State is so reduced that other forms of reparation take priority.2 There are some fundamental uncertainties about the concept of restitution. The wider and more problematic definition is that restitution must ‘reestablish the situation which would … have existed if [the illegal] act had not been committed’. This is the formula adopted in the Chorzów Factory case itself, but it necessarily involves speculation as to what would have been the situation if the illegal act had not occurred. Accordingly, the ILC has chosen to adopt a narrower and simpler definition, that restitution ‘consists in reestablishing the status quo ante, ie the situation that existed prior to the occurrence of the wrongful act …’. This latter form of restitution could be supplemented by compensation where appropriate in order to provide full reparation.

2 The relation between restitution and cessation It is clear that the duty of restitution will often overlap with the obligations of the wrongdoing State to stop its unlawful action under article 30 of the ILC Articles on cessation and nonrepetition. The results of restitution and cessation, both legal consequences of a wrongful act, are not always distinct. The duty to cease the illegal act and the duty to restore the situation which existed before the illegal act are inextricably intertwined. Cessation of wrongful acts may well be required, however, in many cases when restitution is no longer possible. The relation of these two concepts seems to have caused confusion to the Tribunal in the Rainbow Warrior.3 France and New Zealand had agreed that two French agents responsible for the blowing up of the Greenpeace vessel, the Rainbow Warrior, in a New Zealand harbour should serve a three-year sentence on the French Pacific island of Hao. New Zealand successfully accused France of violating this agreement because of its connivance in the premature repatriation of the two agents to France and New Zealand expressly sought restitution for this breach of international law. The Arbitral Tribunal interpreted New Zealand’s request for restitution as in effect a request for the cessation of an illegal act; it then rejected this request on the ground that the obligation on France to detain the two agents in custody was limited in time and had now expired. Thus the confusion between cessation and restitution left New Zealand without an adequate remedy for the violation of its rights by France.

3 Material and legal restitution Restitution takes two main forms: material and legal. Material restitution is the more common in State practice and may involve the liberation of individuals illegally seized or detained, the restoration of property or of territory illegally taken or occupied, and the return of a ship or documents. For example, in British Claims in the Spanish Zone of Morocco4 the Tribunal ordered Spain to replace

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consular premises unlawfully destroyed.

References (p. 591) Legal restitution denotes the alteration or revocation of a legal measure taken in violation of international law, whether a judicial decision or an act of legislation or even a constitutional provision. The best known case is Martini,5 where the tribunal decided that Venezuela was under an obligation to annul the judgment of a domestic court passed in violation of treaty obligations owed to Italy. Other cases on legal restitution are El Salvador v Nicaragua,6 where it was held that the situation existing before a treaty concluded in violation of international law obligations had to be restored, and La Société Radio Orient,7 where the PCA directed the revocation of an order made in violation of Egypt’s treaty obligations. More recently, in LaGrand,8 Germany sought legal restitution in the form of the revocation of a national court judgment; it claimed that the United States had detained, tried and sentenced to death two German nationals without providing consular access, in violation of the Vienna Convention on Consular Relations. Germany subsequently abandoned its claim for restitution when the United States executed the two Germans notwithstanding the Court proceedings. Nevertheless Germany in its written submissions explained why it had originally asked for restitution, even though it was no longer pursuing its claim after both its nationals had been executed and the United States had thus made the return to the status quo ante impossible. Germany argued that the remedy of revocation of a national judgment in breach of international law was not at all alien to State responsibility; domestic court decisions constitute acts of the State just as acts emanating from the executive or legislative branches of government; and judicial acts of States are subject to the same regime of responsibility as all other acts of States. Germany cited the Martini case and the Peace Treaty of Versailles to show that a claim for annulment of a judgment of a domestic court was supported by international practice. Germany acknowledged that international practice accepting restitutio in integrum in case of decisions of domestic courts might be seen as somewhat inconclusive, but affirmed that the existence of a rule to the opposite effect, unequivocally excluding this remedy, could not be maintained either. Awards of restitution by judicial and arbitral bodies are few and well known. In a significant proportion of these cases, the compromis expressly gave the tribunal the power to award restitution, as in the Chorzów Factory case itself. Many tribunals such as the Iran-US Claims Tribunal and the UN Compensation Commission have no power to do other than order compensation; human rights courts have generally adopted a narrow view of their own powers and limited themselves to declaratory judgments and financial compensation. In contrast the International Tribunal on the Law of the Sea asserted the possibility for it to make an award of restitution in M/V Saiga (No 2), citing the dictum in Chorzów Factory as authority.9 The traditional argument for the primacy of restitution rests therefore on principle rather than on practice; it seems more a matter of logic than of authority. Treaty practice, mostly in the form of post-war peace settlements, and diplomatic practice confirm the availability, if not the primacy, of restitution in appropriate cases. Certain International Court judgments confirm that there may be a duty on a State to make restitution. However, there is little theoretical discussion of remedies by the Court

References (p. 592) after Chorzów Factory. Those judgments which in substance recognize an obligation on the wrongdoing State to make restitution have, to date, generally taken the form of a declaratory judgment rather than an order. Thus, in Temple of Preah Vihear,10 the Court declared that there was an obligation on Thailand to withdraw its troops and to return any sculptures and other objects taken from the Temple which it had occupied illegally. In United States Diplomatic and Consular 11

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Staff in Tehran11 the Court declared that Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and to that end terminate the unlawful detention of consular and diplomatic staff, release all staff and ensure that they have the means to leave, and place the US Embassy premises in the hands of a protecting power. These were both cases where the obligation was to return property or persons, identified by the ILC in its commentary as the most straightforward type of restitution.12 More recently, in Land and Maritime Boundary between Cameroon and Nigeria,13 the Court decided that both States were under an obligation expeditiously and without condition to withdraw any administration or military or police forces which were present in the territory falling under the sovereignty of the other. However, in Arrest Warrant14 the Court went further. In this case the DRC claimed that Belgium had violated the principle of sovereign equality and the diplomatic immunity of the DRC Minister of Foreign Affairs because a Belgian judge had issued an international arrest warrant seeking the detention of the Minister for extradition on charges of serious violations of international humanitarian law. The Court accepted the DRC’s request that it require that Belgium should recall and cancel the international arrest warrant. The Court held that ‘the situation which would, in all probability, have existed if the illegal act had not been committed could not be re-established merely by a finding that the warrant was unlawful under international law’.15 The warrant was still extant and remained unlawful. The Court therefore considered that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.16 The Court distinguished this case in Avena,17 another dispute concerning the violation by the United States of the Vienna Convention on Consular Relations as regards its treatment of foreign nationals in detention. The Court went into some detail in its consideration of restitution in this case. It refused Mexico’s request for restitution in the form of the annulment of the convictions and sentences of its nationals. Because the internationally wrongful acts were the failure of the United States authorities to inform the Mexican nationals concerned, to notify Mexican consular posts, and to enable Mexico to provide consular assistance, it followed that the appropriate remedy was an obligation on the United States to permit review and reconsideration of these cases by the courts. It was not the convictions and sentences of the Mexican nationals which were to be regarded as a violation of international law, but solely certain breaches of treaty obligations which preceded them.18

References (p. 593) It is significant that in both these cases the Court left a significant measure of discretion to the respondent State as to the choice of means. In Avena the Court stressed that the obligation of the United States was to provide, ‘by means of its own choosing,’ review and reconsideration of the convictions and sentences of the Mexican nationals. The concrete modalities for such review and reconsideration should be left primarily to the United States. But this freedom as to the choice of means was not without qualification. The Court stipulated that the review and reconsiderations should be effective. What was crucial in the process was the existence of a procedure which guaranteed that full weight be given to the violation of the rights set forth in the Vienna Convention. The process of review and reconsideration should occur within the overall judicial proceedings relating to the individual defendant concerned. The clemency process within the United States was not sufficient in itself to serve as an appropriate means of review and reconsideration.19

4 Choice of the injured State It is generally recognized that it is the injured State which has the choice as to the form of reparation and, in particular, as to whether to request restitution; this is stipulated in article 43(2)(b) of the ILC Articles. Again the Commentary stresses that in practice many injured States will not choose restitution; in most cases it is normal to opt for compensation.20 Moreover, the simple

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statement of the right of the injured State to choose the form of reparation must be further modified in the light of several complicating factors. In the case of a plurality of injured States, such as that arising in Nuclear Tests,21 each may invoke responsibility. But article 46 of the ILC Articles restricts the choice of the injured State: where one injured State seeks restitution and the other seeks compensation, then compensation is to prevail. It is difficult to reconcile this with the theoretical primacy of restitution, but it is clearly a practical response which indicates once more that compensation will be more usual than restitution in practice. Another complicating factor is introduced by the radical provisions on the role of non-injured States in article 48 on ‘Invocation of responsibility by a State other than an injured State’. This provision, admitted to be progressive development rather than codification of the law, allows a non-injured State to invoke the responsibility of a wrongdoing State in cases where there is an obligation of collective interest or an obligation owed to the international community as a whole. In such a situation the non-injured State is given the right to call for reparation, including restitution, in the interests of the injured State or of the (non-State) beneficiaries of the obligation breached. The Commentary acknowledges the potential complexities of this new departure as regards claims for restitution, but says that it was only concerned to set out the general principle.22 There may also be certain breaches where the injured State is not left a free choice of reparation and must choose restitution. Thus the ILC Commentary suggests that in cases where life or liberty of an individual is at stake or the entitlement of a people to their territory or to self-determination it is not open to an injured State simply to take money for a

References (p. 594) continuing breach.23 There is also controversy as to whether certain categories of breaches such as those involving jus cogens or erga omnes obligations leave an injured State with no choice of remedy other than to seek restitution. The final omission of the controversial provision on international crimes of States, and the substitution of serious breaches of obligations under peremptory norms of general international law in article 40, leaves this question unresolved.

5 Special regimes of reparation Thus it is apparent that the form of reparation may depend on the primary obligation breached. That is, the crucial issue in the determination of the availability of restitution may be that it depends on the particular obligation breached. This was recognized to some extent by the ILC in its commentary on article 34 on forms of reparation.24 The decisive factor may be not only whether the obligation is jus cogens or erga omnes, but also the content of the primary obligation violated. Certain obligations lend themselves more easily to restitution than others; thus States are ready to accept that illegal seizure of territory or of historic property demands restitution, but may be more cautious in cases of expropriation of foreign-owned property. The general rules on reparation suggested by the ILC may be displaced by more specific regimes. Here, as elsewhere, article 55 of the ILC Articles on lex specialis is of crucial importance; this provides that the Articles do not apply where there are applicable special rules. However, the scope of this as regards remedies is not entirely clear. It seems well established that the EU and WTO systems provide special regimes, but how far can other treaty regimes be regarded as special, excluding normal rules on the consequences of unlawful acts? And are there also customary law special, self-contained regimes which modify the general rules on remedies in the case of certain obligations? The issue of special regimes came up dramatically before the International Court in Breard25 and La Grand.26 Paraguay and Germany respectively brought actions against the United States for its failure to provide consular access to their nationals who were detained, tried and sentenced to

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death there. On the question of the consequences of the unlawful act the parties disagreed as to the appropriate remedy: was the Vienna Convention on Consular Relations a special regime which excluded the possibility of restitution for breach and required only apology? Paraguay and Germany argued for the primacy of restitution. Paraguay said that restitution was the sole remedy which could have provided meaningful relief, undoing the effects of the illegal acts of the United States and permitting the exercise of their rights under the Vienna Convention. The United States would have had to void the conviction and sentences and to permit Paraguay fully to exercise its right of consular access at any new trial. It was of no consequence that restitution would have required the United States to reverse the judgment of a domestic criminal proceeding. In reply the United States claimed that Paraguay was not entitled to restitution. The assistance of consular officers would not have made any difference to the outcome of the proceedings. In State practice the only consequence of a failure to notify of the right to consular access under the Vienna Convention was that apologies were presented by the

References (p. 595) government responsible. The invalidation of the proceedings and the return to the status quo ante found no support in State practice. The Court did not pronounce on this issue in Breard because Paraguay withdrew its case after the United States executed its national. But in LaGrand the Court apparently rejected the United States’ argument that the Vienna Convention allowed only an apology for denial of consular access and implicitly accepted the German argument that some sort of restitution was the proper remedy: it did so in its finding that if the United States, despite its assurances to the contrary, were in the future to breach the obligation of consular notification an apology would not suffice where foreign nationals were subjected to long detention or convicted and sentenced to severe penalties. In such cases it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights in the Convention. The Court subsequently clarified this in Avena. Although it rejected Mexico’s claims for restitution in the form of annulment of the convictions and sentences of the Mexican nationals detained in the United States, it held—without express use of the term ‘restitution’—that the appropriate remedy was an obligation on the United States to permit review and reconsideration of these cases by its courts.27 The issue of the impact of a primary rule on the primacy or availability of restitution remains controversial also in the context of expropriation of foreign-owned property. There was a clear division between developed and developing States on this topic which caused serious difficulties for the ILC in its early work on the consequences of breach under Special Rapporteurs Riphagen and Arangio-Ruiz.28 This controversy is reflected in the differences between the awards in TOPCO v Libya29 and BP v Libya.30 In the former, the Tribunal upheld the primacy of restitution in cases of expropriation on the basis of Chorzów Factory and arbitral practice. In the latter, in marked contrast, the Tribunal held that expropriation was a special case and that general rules and decisions on restitution were not authoritative in this area. The examination of judicial and arbitral jurisprudence and State practice on expropriation led to the conclusion that there was no support for the primacy of restitution in cases of nationalization. In the final Articles adopted in 2001 the ILC did not have to address this issue directly as it was dealing only with general rules and not with primary obligations.

6 Recent requests for restitution In cases before the International Court, restitution has often been requested but has rarely been awarded. It remains an unusual remedy. It is interesting to consider requests in recent cases where the claimant State argued that restitution was the appropriate remedy. For example, in Armed 31

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Activities on the Territory of the Congo,31 the claimant State asked the Court to declare that all Ugandan forces should forthwith vacate its territory, that Uganda should secure the withdrawal of its nationals and that the DRC

References (p. 596) was entitled to compensation ‘in addition to its claim for the restitution of all property removed’. Similarly, in Ahmadou Sadio Diallo, Guinea claimed that one of its nationals had been unlawfully imprisoned and expelled and that his property had been illegally confiscated; it sought not only an official apology but also an order that the DRC return all the non-monetary assets seized. These cases involve straightforward claims for material restitution.32 More controversial are cases where claimant States seek the annulment of a legal act. It is noteworthy that Spain did not do so in Fisheries Jurisdiction (Spain v Canada).33 Although Spain claimed that Canada’s regulation of fishing in the high seas violated international law, it merely asked the Court to declare that Canada’s legislation was ‘not opposable’ to it and to declare that Canada was bound to refrain from repetition. In contrast in Certain Criminal Proceedings in France, Congo asked the Court to declare that France ‘shall cause to be omitted the measures of investigation and prosecution’.34

7 Limits on restitution The comparative rarity of restitution in practice may be partly explained by the limits on this form of reparation. The doctrine that restitution is not available in cases of material impossibility is well accepted and relatively uncontroversial, despite the fact that there have been few cases on this issue. Restitution will not be possible in the event of the disappearance or fundamental alteration of the property whose return is requested, as was the case in Forests of Central Rhodopia.35 In LIAMCO v Libya36 the Tribunal asserted the primacy of restitution in general but took a wide view of impossibility which effectively undermined any claim of restitution in cases of State expropriation of foreign-owned property. It said that restitutio in integrum is conditioned by the possibility of performance but that impossibility is in fact most usual in the international field. Article 35 of the ILC Articles adds a second, rather more controversial, limit on the provision of restitution, that restitution not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. Although international arbitral and judicial decisions do not expressly employ this terminology and the ILC Commentary does not mention cases on this principle, this seems to be a potentially useful general formula which offers a high degree of flexibility in decision-making on restitution. It is not entirely clear if it is intended to exclude the award of restitution in cases of expropriation of foreign-owned property. The rule that restitution is not available where this would impose a disproportionate burden on the wrongdoing State could conceivably cover a situation such as that in the Gabcíkovo-Nagymaros case.37 Here the Court found that both the State parties had breached a 1977 Treaty on a joint scheme for the construction of dams for the production

References (p. 597) of hydro-electricity, flood-control and the improvement of navigation on the Danube. The Court did not, however, order the obligations under the treaty to be fully reinstated, nor would it order the destruction of recent works constructed in violation of the treaty regime. In refusing this type of restitution, the Court invoked the Chorzów Factory principle that reparation wipe out all the consequences of an illegal act only ‘as far as possible’.38 But in fact the situation in this case does not seem to be a clear instance of material impossibility; it could be interpreted as a very wide interpretation of what constitutes material impossibility or alternatively it could fit under the

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proportionality doctrine. Similarly, in Passage through the Great Belt39 Denmark had undertaken a project to construct a bridge over the Great Belt strait; Finland challenged the legality of this on the basis that the bridge would interfere with international navigation. When Finland requested as a provisional measure that the Court should order Denmark not to start construction of the bridge, Denmark claimed inter alia that the award of restitution on the merits of the case would be too burdensome. This argument could be seen as claiming a limit on restitution on grounds of disproportionality. Thus it seems important that the limits on restitution should be flexibly interpreted, ideally in such a way as to cover cases such as Walter Fletcher Smith,40 where the Tribunal simply held that in the best interests of the parties it would not award restitution. Thus the simple principle of the primacy of restitution in the Chorzów Factory, a case in which restitution was not actually sought or awarded, masks a more complex reality. The ILC Articles, and more particularly the Commentary, give an indication of these complexities. Further reading MB Alvarez de Eulate, ‘La Restitutio in Integrum en la Practica y en la Jurisprudencia Internacionales’ (1972) 11 Revista de Ciencia y Tecnica Juridica, 29–32 C Brown, A Common Law of Adjudication (OUP, Oxford, 2007) I Brownlie, System of the Law of Nations—State Responsibility Part I (OUP, Oxford, 1983) B Graefrath, ‘Responsibility and damages caused: Relationship between responsibility and damages’ (1984-II) 185 Recueil des cours 9 C Gray, Judicial Remedies in International Law (OUP, Oxford, 1987) J Personnaz, La Reparation du prejudice en droit international public (Paris, Sirey, 1939)

References (p. 598)

Footnotes: 1 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 47. 2 Commentary to art 35, paras 3–4. 3 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215. 4 British Claims in the Spanish Zone of Morocco, 1 May 1925, 2 RIAA 615, 722. 5 Martini, 3 May 1930, 2 RIAA 975. 6 El Salvador v Nicaragua, Court of Justice of Central America (1917) 11 AJIL 674. 7 L’affaire de la Société Radio Orient, 2 April 1940, 3 RIAA 1871. 8 LaGrand (Germany v United States of America) Merits, ICJ Reports 2001, p 466. 9 MV ‘Saiga’ (No 2) Case (Saint Vincent and the Grenadines v Guinea) (1999) 38 ILM 1323, 1357 (para 170). 10 Temple of Preah Vihear (Cambodia v Thailand), Merits, ICJ Reports 1962, p 6. 11 United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p 3. 12 Commentary to art 35, para 5. 13 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea Intervening), Merits, ICJ Reports 2002, p 303. 14 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

2002, p 3. 15 Ibid, 32 (para 76). 16 Ibid. 17 Avena and other Mexican Nationals (Mexico v United States of Amercia) ICJ Reports 2004, p 12, 60 (para 123). 18 Ibid, 59–60 (para 121). 19 Ibid, 54 (para 143). 20 Commentary to art 43, paras 6–7. 21 Nuclear Tests (Australia v France), ICJ Reports 1974, p 253; Nuclear Tests (New Zealand v France), ICJ Reports 1974, p 457. 22 Commentary to art 48, paras 12–13. 23 Commentary to art 43, paras 6–7. 24 Commentary to art 34, para 2. 25 Vienna Convention on Consular Relations (Paraguay v United States of America), ICJ Reports 1998, p 298. 26 ICJ Reports 2001, p 466. 27 Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12. 28 See ILC Yearbook 1988, Vol II(1), 39 (para 121). 29 Texaco Overseas Petroleum Company (TOPCO) and California Asiatic Oil Company v Libyan Arab Republic (1977) 53 ILR 389. 30 BP Exploration Co v Libyan Arab Republic (1974) 53 ILR 297. 31 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 181. 32 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment, 24 May 2007, para 10. 33 Fisheries Jurisdiction (Spain v Canada), ICJ Reports 1998, p 432. 34 Certain Criminal Proceedings in France (Republic of the Congo v France), Provisional Measure, Order of 17 June 2003, ICJ Reports 2003, p 102, 103 (para 2). 35 Forests of Central Rhodopia, 4 November 1931, 3 RIAA 1389. 36 Libyan American Oil Company (LIAMCO) v Government of the Libyan Arab Republic (1981) 20 ILM 1, 63. 37 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7. 38 Ibid, 80 (paras 149–150). 39 Passage through the Great Belt (Finland v Denmark), ICJ Reports 1991, p 12. 40 Walter Fletcher Smith v Compañia Urbanizadora del Parque y Playa de Marianao (Cuba v United States), 2 May 1929, 2 RIAA 915.

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Part IV The Content of International Responsibility, Ch.42.2 The Different Forms of Reparation: Compensation John Barker From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 599) Chapter 42.2 The Different Forms of Reparation: Compensation 1 Introduction 599 2 The full reparation principle 600 3 Burden and standard of proof 602 4 The emergence of practical compensation doctrines 603 5 The measure of compensation 604 (a) Inter-State claims 604 (b) Individual claims for personal injury 604 (c) Claims for incidental losses 605 (d) Debt claims 606 (e) Property claims 606 (f) Business and income-producing assets 607 (g) Lost profits 608 (h) The relationship between capital, earnings, and interest 610 5 Policy implications of valuations 610 6 Conclusion 610 Further reading 611

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Compensation is a prevalent remedy, typically in cash or its equivalent, calculated to make good elements of loss of, or injury to, legally protected interests. It is commonly employed where the loss or injury can be quantified in money terms, but can include recognized non-pecuniary injuries, such as emotional trauma associated with violations of human rights. However, the distinction between compensation, on one hand, and ‘moral damage’ to sovereign interests, such as satisfaction, and punitive sanctions involving a monetary element, on the other, is still maintained. In the context of State responsibility, the payment of compensation is understood as a secondary obligation consequent upon the breach of a primary international obligation and is employed where restitution is not available or applicable.1 The customary international law position is reflected in the ILC’s Articles on State Responsibility. After setting

References (p. 600) out the general duty to make reparation2 and the forms it may take,3 article 36 expresses the entitlement to compensation in the following terms: 1 . The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. 2 . The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.4 Responsibility for compensation and the amount payable may be agreed by the parties5 at any stage of proceedings,6 or they may be determined authoritatively by an international judicial, arbitral or administrative body (such as the International Court, an ICSID tribunal, or the United Nations Compensation Commission, respectively). Jurisdiction to award compensation is considered an integral part of the mandate to determine responsibility.7 While concepts and principles relating to compensation have drawn extensively upon domestic law doctrines, either directly or by reference to ‘general principles of law’,8 a distinct legal regime determining the rights and obligations in international law relating to compensation has been evolving through case law and international instruments. Notwithstanding the diversity of avenues of redress and sources of international jurisprudence, a reasonably coherent and increasingly refined body of compensation law has developed to balance the competing needs and interests of the parties to a dispute and of the international community as a whole.

2 The full reparation principle Compensation for an internationally wrongful act rests upon a long-established principle of full reparation affirmed by the Permanent Court in the Chorzów Factory case.9 Its classic articulation has been affirmed and applied in the decisions of the International

References (p. 601) Court,10 regional courts and tribunals,11 and arbitral bodies.12 It is also reflected in codification efforts13 and in State practice, through individual settlements and constitutional and legislative provisions on protection of property rights and on administrative or procedural justice. With respect to material damage, classical doctrine, reflected in article 36(1) of the ILC Articles, holds that restitution is the principal remedy, seeking to re-establish the situation that existed before the wrongful act was committed, a formulation adopted by the ILC. A variation on this, which may be appropriate in the context of treaty or contractual obligations, is that restitution, or its equivalent, places the parties in the position they would have been in had there been compliance

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with the primary obligation. In each case, the loss to be compensated is the financial harm caused by the breach, established by measuring the difference between the actual financial position resulting from the breach and that which otherwise would have obtained. In the expropriation context, recent practice, guided by the proliferation of investment treaties and of decisions under them, suggests that a consensus may be forming around a somewhat updated version of the familiar but contested ‘adequate, effective and prompt’ formula,14 not necessarily as a condition of lawfulness in the way that public purpose is, but as a set of free-standing obligations. The terms ‘adequate’, ‘full’, and ‘appropriate’ may even have converged in their meaning, since they beg similar if not identical questions, requiring the development of more detailed legal principles to govern the application of valuation techniques. Some of the methods, particularly in relation to business claims, by virtue of their complexity, obscure underlying questions of entitlement that must be answered before a line can be drawn between unprotected expectations and protected interests; between non-compensable loss and compensable loss. This is equally relevant to breaches of ‘fair and equitable treatment’ and similar treaty obligations covering nonexpropriation circumstances, because of the additional focus in that context on a sufficient causal connection between the breach and the loss.15 The complex interplay of policy

References (p. 602) considerations and practical application of assessment methods in the cases provides many opportunities for tribunals to refine a more coherent and transparent methodology around which an international consensus can emerge. In customary international law, convertibility of currency of payment was not an absolute requirement of ‘effectiveness’ but this position is being modified, at least in practice, by virtue of the network of bilateral and multilateral conventions which stipulate that compensation must be paid in a freely convertible currency.16 Arguably, for one-off claims, this is a less onerous requirement than for large-scale or mass claims. When a particular dispute settlement procedure is agreed, it is common to specify the agreed currency for the payment of compensation.17 That compensation should be paid ‘promptly’ can be inferred from the fact that interest is normally payable on delayed capital payments from the date of taking, subject to situations, recognized in the ILC Articles, where the compensation obligation may be deemed to arise at a later date, such as date of adjudication. This might occur if the obligation was incapable of prior quantification, or where the claimant was responsible for the delay. Prompt payment does not appear, however, to be a condition of lawfulness, but rather an obligation separately compensated by the award of interest.18

3 Burden and standard of proof The framework of legal rules that guide calculations of compensation is important, but outcomes are also dependent upon complex facts and available evidence. In principle the burden of proof is on the claimant to establish all the elements of a claim including jurisdiction, claimants’ interests in property and/or other legally protected entitlements, eligibility of claimant and subject matter, deprivation, liability (including attribution of acts to the respondent State) and the quantification of various elements of loss. This can be onerous, particularly where factors such as cost, unavoidable delay or unsettled political circumstances make it difficult for claimants to assemble data, preserve relevant documentary evidence and produce witnesses. The general principle may sometimes be relaxed in the interests of justice, for example, through presumptions which alter the burden of proof. This can happen when relatively small amounts are at stake, or when a tribunal takes judicial notice of certain events or conditions. In certain categories of smaller claims, the UNCC relaxed the standard of proof by creating presumptions to bypass expensive, time-consuming and difficult fact-finding in return for claimants accepting

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smaller, pre-determined amounts. Similarly, the Eritrea-Ethiopia Claims Commission adopted a lower standard of proof

References (p. 603) in the determination of damages claims in order to fulfil its function of addressing the ‘socio-economic impact of the crisis on the civilian population’.19

4 The emergence of practical compensation doctrines While the general principles, rationale and standards of compensation do not raise as many difficulties as during the Cold War era, material differences in the factual circumstances of each case and corresponding rule complexity make the practical application of compensation rules challenging. The cases involve a wide range of sovereign, personal and proprietary interests with their own exposure to interference and injury and with greater or lesser degrees of legal protection. Property and contractual losses call for different, and sometimes hybrid, methods of assessment depending on the type of property involved, the kind, duration, and effects of interference, and the forms of evidence available. This is especially true in the case of business losses where income can provide a basis for determining capital value as well as serving as a separate head of damages. Accordingly, a body of detailed legal rules and qualifications has evolved to determine the extent of legal protection afforded to the elements of loss incurred. Such rules provide guidance on issues such as eligibility, causation, attribution, mitigation, treatment of risk, indeterminacy, and the relevance of after-acquired knowledge, ultimately determining the difference between measurable loss and compensable loss. The assessment of compensation may be viewed as an ongoing factspecific delimitation exercise in which the freedoms, rights, and prerogatives of actors in both public and private spheres are defined not only by reference to their competing interests, but in light of additional procedural and governance obligations calculated to raise the standards of conduct of all the parties and to secure peaceful enjoyment of property.20 Challenges in developing a coherent compensation regime in international law derive not only from unique case histories and a multitude of legal sources, but also from the range of legal interests protected. Many sovereign interests do not lend themselves to quantifi cation and so the PCIJ and ICJ have awarded compensation in relatively few instances. Monetary claims by or on behalf of private parties, however, are much more common and disputes over property and contractual or concessionary rights have prevailed in terms of volume and amounts awarded. Personal injury cases have had some prominence, and will grow as regional and other human rights regimes develop enhanced access to remedies. The international criminal law regime has also developed in this regard with the establishment of a Victim’s Trust Fund by the International Criminal Court. Claims have been successfully advanced by individuals and corporations for most categories of property, including businesses, partnership interests, shares and other securities such as options and bonds, debentures and other forms of debt both secured and unsecured, land and buildings, leasehold and reversionary interests, contractual and concessionary rights, chattels including stock-in-trade, animals, vehicles, aircraft and household effects, as well as bank balances, pensions, intellectual property, and goodwill. As noted below, claims have also been made for lost earnings, both accrued and anticipated, in the context

References (p. 604) of expropriation and in relation to breaches falling short of expropriation, as well as for associated incidental expenses. These have called for different approaches according to the nature and elements of each claim, which will be considered next.

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5 The measure of compensation (a) Inter-State claims In many direct inter-State proceedings, such as territorial disputes, compensation is not, on the whole, an appropriate alternative to remedies such as declarations, restitution, satisfaction or guarantees of non-repetition. By contrast, where injuries have been sustained directly by State officials or where State property such as ships, aircraft, and buildings have been affected, it is appropriate for at least a component of the claim to include compensation for such losses, assessed in the normal way according to the kind and extent of loss or injury. In the Corfu Channel case, the loss of a ship, the cost of repairs, and expenses arising from personal injury and death were compensated.21 Wrongful detention of persons and property provide additional heads of loss linked to lost revenue and incidental charges.22 Pollution damage often involves both pecuniary losses such as clean-up costs and loss of revenue, and non-pecuniary losses such as long-term impact on wildlife which, though substantial, are difficult to express in monetary terms.23 The largest environmental claims have been processed by the UNCC which has awarded some US$5.2 billion in respect of over 100 claims. These awards were in respect of damage and the depletion of natural resources in the Persian Gulf including costs incurred by Governments outside of the region assisting States affected by the damage.

(b) Individual claims for personal injury Where compensation is sought by or on behalf of individuals who have suffered physical injury, compensation awards may be calculated on the basis of costs incurred to evacuate, provide medical treatment and rehabilitation, and/or restore lost earnings. More complex calculations arise when addressing physical and mental disabilities which may extend for an indefinite period into the future, calling for ongoing attendant care and involving lost or reduced future earning capacity. In such cases, actuarial evidence is needed to compute the present aggregate capital value of anticipated future annual increments so that the compensation, once invested, can generate the income needed to cover future losses and expenses.24 Difficulties of quantification arise in seeking to make the injured party ‘whole’ in relation to nonpecuniary losses such as pain and suffering, or mental anguish but, as noted, tribunals have provided a contribution toward this kind of injury under the rubric of compensation. This is especially evident where psychological harm has been the direct product

References (p. 605) of human rights violations. The Inter-American Court of Human Rights recognizes a new form of compensable interest, ‘proyecto de vida’, which is in the nature of a long-term diminished ability to enjoy life in light of altered circumstances.25 Non-pecuniary awards may extend beyond the psychological trauma of a personal injury. For example, in Loizidou v Turkey26 an award was made in respect of ‘anguish’ and ‘frustration’ from being deprived of use of property. A fortiori, wrongful death claims by or on behalf of family members may comprise similar pecuniary and non-pecuniary losses, including loss of maintenance, sharing of responsibilities and companionship.27 Punitive or aggravated damages have traditionally been excluded from the international law of compensation, classical doctrine holding that international compensation is essentially restorative in nature, seeking to match the harm caused.28 There are indications that the Inter-American Court of Human Rights may be moving in the direction of awarding aggravated damages for particularly egregious violations of human rights.29

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(c) Claims for incidental losses Where claims are advanced by individuals, corporate entities or States, incidental expenses are admissible in principle, subject to limitations imposed under the terms of reference of individual compensation schemes. Such claims typically include cost of repairs, warehousing and storage fees, financing charges, demurrage, administrative costs and professional fees, evacuation and transport costs, and contractual and regulatory penalties. Certain losses may be excluded by the application of general principles that govern causation and proximity.30 Practice is not entirely consistent, as the concepts of foreseeability and directness are treated differently depending on the legal rules and traditions of the forum and more subtle factors such as the legal background of the judge or arbitrator. The duty to mitigate loss is treated as a corollary of causation in article 39 of the ILC Articles and has a direct bearing on the amount of compensation payable since it will be reduced to the extent that a particular form of loss could reasonably have been avoided by the claimant. Some regimes explicitly impose additional restrictions. The UN Compensation Commission, for example, excludes sanctions-related losses on the basis that they are not the ‘direct’ result of the invasion of Kuwait, as required under Resolution 687.31

References

(p. 606) (d) Debt claims Claims in respect of moneys owed, including claims by secured creditors, create additional problems because it is not the mere existence of the debt or a default per se or the destruction of the security which produces a total loss but rather the extinguishing of the debt or the impossibility of recovery. In calculating compensation where moneys are owed, the deduction of an extant debt liability would produce double jeopardy if the debt should then be recovered, while the failure to deduct such liabilities would result in double recovery if the amount owed is never paid. This is especially problematic in the case of non-arm’s length relationships, such as between related companies. Where expressed in a currency that has lost value from rampant inflation, material loss has not as a rule been considered compensable.

(e) Property claims Property determinations represent the most substantial body of compensation law, raising complex questions of valuation that are not only conceptually challenging but go to the heart of the relationship between citizen and State. An important feature of the conceptual framework is the market-based understanding of value, and the distinction between assets that have value outside their specific context and so are more readily realizable in the marketplace—typically tangible property, and assets such as goodwill and contractual entitlements that are highly context-dependent and more susceptible to commercial, economic and political risk. Finally, it is helpful in understanding questions of entitlement to income to bear in mind temporal factors, particularly the moment when transfer of title is deemed to have taken place, because this ultimately determines the interval that any entitlement to income is recognized in law. Where the loss of an asset is total, ie where both title and possession have been transferred at once, the most widely held doctrine stipulates that compensable loss or damnum emergens is based on the fair market value32 of the property taken, usually as of the date of deprivation, taking into account offsetting benefits and related losses.33 The impact on the market value of the taking or imminent threat of taking is to be disregarded in the assessment of value but the general economic and political climate is considered relevant, provided these have not been artificially manipulated to depress the value of the property.34 In certain circumstances, such as where the value of the business has increased since taking, compensation may be provided in accordance

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with the value of the property at the date of the award, rather than at the date of the expropriation, as a more accurate measure of the true loss. In ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary,35 the Tribunal held: the application of the Chorzów Factory standard requires that the date of valuation should be the date of the Award and not the date of expropriation, since this is what is necessary to put the Claimants in the same position as if the expropriation had not been committed …36

References (p. 607) The concept of value in relation to property is of central importance because of its primacy as the measure of loss and therefore of compensation, at least in cases of expropriation or total loss. However, value is not an absolute or unitary concept. No two individuals or businesses have identical requirements and there can be significant differences in their ability to exploit opportunities. Differing negotiating strengths, tax efficiency, risk exposure, productivity and synergies, quality of management, and proximity to markets, as well as non-economic factors such as political considerations and personalitydriven choices, lead prospective sellers and buyers to make individualized assessments of value and therefore acceptable price. If, however, there are numerous discrete transactions reflecting a price equilibrium responsive to the interaction of supply and demand, then singularities give way to a more objective and reliable indicator of market value. Many forms of property, particularly tangible movable and immovable assets, can be determined in this way, provided there is access to a dynamic market. Some active markets, however, exhibit deficiencies that prevent them from functioning optimally. Moreover, in circumstances where compensation arises, there may be no market at all, either on account of the impact of events on the economy or because of the nature of the asset in question. Evidence of earlier market transactions in relation to the same or identical property or, failing that, genuinely comparable property may be useful, depending on geographical proximity and lapse of time.37 In the absence of such evidence, resort may be had to special techniques developed in commercial valuation contexts to assess the worth of businesses and other income-producing assets. In employing such techniques, tribunals have recognized that the compensation context is somewhat different, introducing a range of legal questions—eligibility, entitlement, causation, and mitigation, etc—requiring legal determinations that cannot simply be delegated to valuation experts.38

(f) Business and income-producing assets The most complex valuations tend to arise in relation to business claims, as can be seen from the decisions of the Iran-US Claims Tribunal, ICSID tribunals, and the UNCC. As noted, in the absence of direct market-based evidence such as openly traded share prices,39 two broad valuation approaches are typically used to approximate fair market value. One approach, represented by replacement value, net book value and break-up value, looks to the combined value of the elements of the business. Depending on the circumstances of the business, components (such as land and buildings, stock-in-trade, accounts receivable, intellectual property, goodwill) may be treated either as discrete items or as part of a productive whole (going concern) that confers additional value upon them. The other broad approach is based on the overall profitability of the business, in which its anticipated earnings are capitalized to establish its overall present worth. This may be achieved using

References (p. 608) techniques such as discounted cash flow method or multiple of earnings method. The choice of method depends upon the characteristics of the business, with the DCF approach From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

common in natural resource industries that involve wasting assets over a fixed period. Each approach has relative strengths and limitations. Asset-based methods offer tribunals reassuring figures that are grounded in existing verifiable data, however, these methods tend to downplay the revenue-generating potential of businesses because the goodwill component is difficult to verify. Although goodwill is compensable in principle, it is most reliably ascertained at the moment of an actual sale when it can be seen what the buyer was prepared to pay over and above the tangible and identifiable intangible assets.40 There after, its value becomes increasingly difficult to establish and is generally written down in the accounts. The effort to quantify goodwill thereafter entails speculative calculations that tribunals are reluctant to entertain.41 Income-based approaches are inherently better equipped to do justice to the future prospects of a business, but suffer from similar problems of uncertainty. Methods such as discounted cash flow offer sophisticated techniques for making projections of future income and applying discount factors to calculate present value. However, calculations are based on assumptions about risks such as political and economic conditions that are difficult to ascertain with the level of certainty that tribunals require.42 They are aware that relatively small errors in relation to some inputs have disproportionate effects on outcomes and this is particularly evident in cases where income-based valuations significantly exceed underlying asset values. In such cases, tribunals tend to be cautious, either adjusting the inputs, or overriding the calculations with preferred outputs.43 The former is to be preferred, particularly to overall adjustments presented as ‘equitable considerations’, since these tend to undermine legal determinacy. Assessments of legal entitlement, risk and discount factors, if carried out rigorously, provide much scope for legitimate policy considerations to play a guiding role. Litigation tends to polarize positions and so when invited to employ income-based methods, tribunals will sometimes compare the outcomes of more than one approach.44 This helps to validate results if there is convergence or, alternatively, ensure that reasons for any major discrepancies are well understood.

(g) Lost profits Most claims for lost profits are for losses that have accrued progressively over a defined interval prior to adjudication, such as when there is a temporary interruption or diminution of use and enjoyment. If possession or use or earnings, rather than title, are wrongfully interfered with for a limited period of time, the loss or diminution of net income over the relevant period is compensable as lucrum cessans. Many of the early lucrum cessans

References (p. 609) cases dealt with temporary interference with use and enjoyment of property, for example ships. In some cases it was possible to establish a probable level of earnings by demonstrating a well-established history, but awards tended to look to the existence of contracts or other formal arrangements to distinguish between probable and speculative earnings. For example, in LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina the Tribunal distinguished between lost future profits which were sufficiently certain to be compensable and those which had inherently speculative elements, which were not compensable, noting that ‘[t]he question is one of “certainty” ’.45 Where the State acts within its rights, lost profits are not compensable per se but the introduction of treaty obligations of fair and equitable treatment, full protection and security, non-discrimination and national minimum standard of treatment have imposed additional limits on States’ freedom of action. In the SD Myers case, involving a breach of NAFTA Treaty provisions on national treatment and minimum standard of treatment, profits were awarded for the limited period in which the violation took place.46 Alternatively, an action may terminate or reduce an income stream indefinitely. Where loss of possession is indefinite with little or no prospect of reversion to the owner, this may be treated as a 47

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virtual taking of title with compensation for the capital value of the property plus interest.47 Once ownership is deemed transferred, however, entitlement to income ceases. Possession and title may be lost or deemed to be lost at different times, in which case the two forms of loss, damnum emergens and lucrum cessans, may, exceptionally, be assessed separately in respect of a limited period prior to determination. Entitlement to both can be maintained only where, as in the Chorzów Factory case, lucrum cessans or its equivalent was awarded in the interval between taking and determination of a claim. Where the taking is unlawful, as an alternative to interest, losses may be compensated by awarding lucrum cessans to the date of award, or by assessing the value of the property as of a later date, such as the date of award.48 Loss of future income may be indirectly compensated by virtue of the value it adds to the overall capital value of a business compensated or, in the alternative, it may be compensated directly. The reason for mutual exclusivity is that once the capital value of the asset is compensated, it provides a basis for restoring the income stream in a different form, consistent with a duty to mitigate. A parallel claim for lost future income in respect of the same subject matter would therefore represent a form of double counting.49 The analysis is similar to income-based valuations of capital assets. A future income stream is conditional upon factors such as future events that by their nature are difficult to predict and applicable contractual terms. The terms of large contracts and concessions are generally tailored to specific circumstances and have to be interpreted on a case-bycase basis to establish that the parties’ respective entitlements are, and hence what actions constitute breaches and are therefore compensable.

References

(p. 610) (h) The relationship between capital, earnings, and interest To avoid double compensation, clarity is required concerning the relationship between capital, income from capital, which in a business context may amount to the same loss, and interest on awards in respect of each. If compensation for the capital value of the property is awarded and is deemed to be owed from the time of deprivation, then interest would normally run in respect of the unpaid compensation thereafter. Consequently, interest on capital will not run in respect of periods when lucrum cessans is awarded.50

5 Policy implications of valuations The manner in which valuation methods are applied have significant public policy implications because they effectively circumscribe the sphere of regulatory authority and determine levels of protection. Income-based methods of valuation can convert unprotected and even prohibited51 market positions into assets if care is not taken to focus on those elements of an income stream that are legally protected. Inappropriate compensation calculations can also over-extend protection to ordinary commercial risk and otherwise legitimate regulatory risk. It is equally possible to deny justice to claimants through unrealistic evidentiary burdens and by the misapplication of valuation techniques.

6 Conclusion Increased economic interdependence and responsive global markets mean that capital flight and lost opportunity resulting from crude confiscatory measures often outweigh the cost of compensating property and income losses. Apart from important issues of fairness, the negative impact on whole economies offers a compelling practical rationale for entitlement to compensation and remedial intervention.

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As can be seen from the case law, it is not the mere expectation of an income stream that is protected but rather legally recognized entitlements such as property, contractual and procedural rights. The obligation and entitlement of the State to regulate economic and social affairs can be fairly represented in valuation calculations if properly formulated, helping to define the limits of entitlement of claimants and respondents. Compensation law plays an important role in providing a methodology to balance out and to determine, by reference to principles, the detailed contours of these mutually defining entitlements. Compensation is a flexible remedy which encourages productive economic activity by lowering or removing certain risks. Without a minimal level of protection, investment remains low and conditional upon unsustainably high returns. Compensation may therefore be understood as one piece in a larger jigsaw puzzle which serves to enhance accountability and reduce risk, thereby facilitating productive financial transactions. The provision of remedies for breaches of international law also strengthens public accountability and the rule of law. Governments have a mandate to protect society against predatory behaviour and other hazards while at the same time promoting productive (p. 611) transactions which create wealth. Many disputes are a product of deficiencies in both public and corporate decision-making. With the progressive development of national governance standards and international compensation doctrine, it can be expected that norms and practices will emerge to reduce and mediate disputes between States and private parties. Further reading G Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, OUP, 1996), chs 5, 6, 9 P d’Argent, Les réparations de guerre en droit international public (2002), ch IX C Gray, Judicial Remedies in International Law (Oxford, OUP, 1987) I Marboe, Calculation of Compensation and Damages in International Investment Law (Oxford, OUP, 2009) I Marboe, ‘Compensation and Damages in International Law: The Limits of “Fair Market Value” ’ (2006) 7 Journal of World Investment & Trade 273 S Ripinsky & J Williams, Damages in International Investment Law (London, British Institute of International and Comparative Law, 2008) D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford, OUP, 2005), esp chs 3, 9 M Sornarajah, The International Law on Foreign Investment (2nd edn, Cambridge, CUP, 2004) ch 10 MM Whiteman, Damages in International Law (Washington, 3 vols, 1937–43)(p. 612)

Footnotes: 1 Very similar considerations apply to lawful taking of property and there is no clear consensus on the difference in treatment of lawful and unlawful takings of property. 2 Art 31(1) provides: ‘The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.’ 3 Art 34 provides: ‘Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination …’ 4 Interest is a form of compensation with particular characteristics that are dealt with separately in ILC art 38: see E Lauterpacht & P Nevill, below, Chapter 42.3. 5 While cases are important sources of doctrinal guidance, claims between States that are settled without recourse to courts and tribunals are the rule rather than the exception. Lump sum settlement agreements may lead to the creation of domestic tribunals for the determination of claims by reference to international law. The oil arbitrations represent only a fraction of cases, most

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of which were settled privately. 6 In BP Exploration Co v Libyan Arab Republic (1973) 53 ILR 297, (1974) 53 ILR 375, the parties settled after a finding of liability but before damages were calculated. 7 See Factory at Chorzów, Jurisdiction, 1927, PCIJ Reports, Series A, No 9, p 4, 21; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ Reports 1986, p 14, 142 (para 283). 8 Many precedents relevant to public international law are drawn from sources which look to other legal systems, including hybrid systems and reference to general principles of law. The domestic legal backgrounds of adjudicators is also an informal but influential factor. See also the governing law clause in the three Libyan Oil cases: BP Exploration Co v Libyan Arab Republic (1973) 53 ILR 297, (1974) 53 ILR 375; Texaco Overseas Petroleum Co (TOPCO) v Libyan Arab Republic (1977) 53 ILR 389; Libyan American Oil Co (LIAMCO) v Libyan Arab Republic (1977) 62 ILR 140. 9 Factory at Chorzów. Merits, 1927, PCIJ Reports, Series A, No 17, p 4, 20: ‘Any breach of an engagement involves an obligation to make reparation … The reparation of a wrong done may consist of an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law … Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’ See C Gray, above, Chapter 42.1. 10 See Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 81 (para 152). In respect of international organizations, see Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 181, 184; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 460. See also Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 31–32 (para 76); Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12, 59 (para 119); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 257 (para 259). 11 See Papamichalopoulos and others v Greece (App No 14556/89), ECHR Series A No 330-B (1995), para. 36; Velásquez Rodríguez v Honduras, (Reparations and Costs), Inter-Am Ct HR, Series C, No 7 (1989); SD Myers Inc v Canada, Award on Liability, (2000) 8 ICSID Rep 3. 12 See CME v Czech Republic, Partial Award (2001) 9 ICSID Rep 113, 238–9 (paras 615–8); Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189, 246–251 (paras 189–206) (Iran-United States Claims Tribunal); LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Award on Damages of 25 July 2007, para 31; ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006, para 484. 13 Codification efforts are described in FV García Amador, First Report on International Responsibility, ILC Yearbook 1956, Vol II, 174, 177–178, 221–226; and in R Ago, First Report on State Responsibility, ILC Yearbook 1969, Vol II, 125. 14 The ‘adequate, effective and prompt’ compensation formula was articulated by the United States when Mexico expropriated US property: see GH Hackworth, Digest of International Law Volume 3 (Washington, US Government Printing Office, 1943), 66. 15 See LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Award on Damages of 25 July 2007, para 45. 16 See eg Article IV of the Treaty between the United States of America and the Republic of Panama Concerning the Treatment and Protection of Investments, 27 October 1982, 21 ILM 1227, which provides that: ‘(1) … compensation shall amount to the full value of the expropriated investment immediately before the expropriatory action became known; include interest at a

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commercially reasonable rate; be paid without delay; be effectively realizable and be freely transferable.’ 17 See eg discussion in Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claim, 17 August 2009, 12 (para 41). 18 The majority of cases that found a taking lawful involved non-payment of compensation up to the time of the determination. The characterization of lawfulness or otherwise is made as of the time of taking, and so subsequent conduct would not normally alter the position. This is reinforced by the fact that, in cases of wrongful taking, illegality was almost invariably found to rest on some other basis. 19 Eritrea-Ethiopia Claims Commission, Final Award, Eritrea’s Damages Claim, 17 August 2009, 10–11 (paras 34–38). 20 For a consideration of this balancing exercise, see Sporrong and Lönnroth v Sweden (App Nos 7151/75, 7152/75), ECHR, Series A, No 52 (1983), paras 66 and 73. 21 Corfu Channel, (Assessment of the Amount of Compensation), ICJ Reports 1949, p 244. 22 See eg The M/V ‘Saiga’ (No 2) (St Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, 120 ILR 143, 200–201 (paras 172, 175). 23 See eg Canada, Claim against the Union of Soviet Socialist Republics for Damage Caused by Soviet Cosmos 954, 23 January 1979, 18 ILM 899; Trail Smelter (Canada/United States of America) (1941) 3 RIAA 1905. 24 See eg in the case of a violation of respect of private life, Beck, Copp and Bazeley v United Kingdom (App Nos 48535/99; 48536/99; 48537/99), ECHR, Judgment of 22 October 2002, paras 97– 124. 25 Loayza Tamayo v Peru, (Reparations and Costs), Inter-Am Ct HR, Series C, No 42 (1998), para 147. 26 Lorzidou v Turkey, (App No 15318/89) ECHR Reports 1998-IV, para 39. See also Papamichalopoulos and others v Greece (App No 14556/89), ECHR, Series A, No 330-B (1995), para 43. 27 See eg Velásquez Rodríguez v Honduras, (Reparations and Costs), Inter-Am Ct HR, Series C, No 7 (1989), para 39; Aloeboetoe v Suriname, (Reparations and Costs), Inter-Am Ct HR, Series C, No 15 (1993), paras 54ff. 28 See The Lusitania, 1 November 1923, 7 RIAA 32, 39: ‘The remedy should be commensurate with the loss’. For further discussion of punitive damages see below, Chapter 45. 29 Myrna Mack Chang v Guatemala (Merits, Reparations and Costs), Inter-Am Ct HR, Series C, No. 101 (2003). 30 In M/V ‘Saiga’ (No 2) (St Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, 120 ILR 143, the Tribunal considered that, ‘any expenses incurred by Saint Vincent and the Grenadines in respect of its officials must be borne by it as having been incurred in the normal functions of a flag State’ (ibid, 201 (para 177)) See also Barbera, Messegue and Jabardo v Spain (App Nos 10588/83; 10589/83; 10590/83), ECHR, Series A, No 285-C, para 16. 31 Under Resolution 687, the Security Council ‘Reaffirm[ed] that Iraq … is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait’: SC Res 687, 3 April 1991, para 16. This is somewhat more restrictive than other tests employed under customary international law, representing a tradeoff to secure a remedy for millions of victims who otherwise would have had none. 32 ‘Fair market value’ is the highest available price available in an open and unrestricted market between informed and prudent parties acting at arm’s length and under no compulsion to act (ie willing buyer and willing seller). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

33 As a rule, offsetting factors are more comprehensively taken into account in the case of corporate claims than claims of individuals. 34 American International Group, Inc v Iran (1983) 4 Iran-US CTR 96, 107, Phillips Petroleum Co Iran v Iran (1989) 21 Iran-US CTR 79, 133 (para 135). 35 ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006. 36 Ibid, para 497. 37 In SEDCO Inc v National Iranian Oil Co and Iran (1987) 84 ILR 484, 573, the Tribunal stated that: ‘Comparable sales, which generally are higher than the claimed values of the SISA rigs, are a useful but only approximate guide’: it added that this ‘conclusion is demonstrated by the fact that “comparable sales” adduced in support of Claimant’s valuation of the SEDIRAN rigs are uniformly lower than the claimed rig values. Thus in each case the information is only “comparable” and requires substantial explanation in justification of its relevance.’ 38 See observations in Amco Asia Corporation and others v Indonesia, Resubmitted Case: Award (1990) 1 ICSID Rep 569, 617–628 (paras 200–258); and in Starrett Housing Corp v Iran (1987) 16 Iran-US CTR 112, 197 (para 266). 39 This formed the basis of the award in INA Corporation v Iran (1985) 8 Iran-US CTR 373. 40 Identifiable intangible assets are intangible assets (such as patents, copyrights and franchise agreements) other than goodwill. 41 There are many statements in cases to this effect. See American International Group, Inc and American Life Insurance Company v Iran and Central Insurance of Iran (‘AIG’ case) (1983) 4 IranUS CTR 96, 107. 42 Cases in which the DCF approach have been used include Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189, Starrett Housing Corp v Iran (1987) 16 Iran-US CTR 112 and Phillips Petroleum Co Iran v Iran (1989) 21 Iran-US CTR 79. 43 Starrett (1987) 16 Iran-US CTR 112, 221–222 (paras 338–339). 44 See the separate opinion of I Brownlie in CME v Czech Republic, Final Award (2003) 9 ICSID 113, 424–438 (paras 58–121) for a comparison of different approaches. 45 LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v Argentina (ICSID Case No ARB/02/1), Award on Damages of 25 July 2007, para 51. 46 SD Myers Inc v Canada, Second Partial Award on Damages (2002) 8 ICSID Rep 3 47 Starrett Housing Corporation v Iran (1983) 4 Iran-US CTR 122, 154. 48 As noted above, a similar approach was adopted in ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary (ICSID Case No ARB/03/16), Award of 2 October 2006, para 484. To avoid double compensation, interest was also to run from the date of the Award. 49 Ebrahimi v Iran (1989) 22 Iran-US CTR 138. 50 On interest generally, see below Chapter 42.3. 51 So strong are the public interest considerations that many jurisdictions proscribe the formation of cartels and criminalize practices such as price fixing and predatory pricing that undermine competition.

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Part IV The Content of International Responsibility, Ch.42.3 The Different Forms of Reparation: Interest Elihu Lauterpacht, Penelope Nevill From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 613) Chapter 42.3 The Different Forms of Reparation: Interest∗ 1 Jurisdiction to award interest and general considerations 613 2 The distinction between pre-award and post-award interest 616 3 The period for which interest is payable 617 4 Compound interest versus simple interest 617 5 The rate of interest 621 6 Conclusion 621 Further reading 622

1 Jurisdiction to award interest and general considerations This chapter will examine some issues relating to the concept of interest in the context of international responsibility. Generally speaking, interest can be an element both in the calculation of a sum due as damages or compensation (pre-award interest) and in relation to the obligation of a judgment debtor as regards the payment of the sum awarded (postaward interest). A tribunal that possesses jurisdiction to determine liability and the compensable damage flowing therefrom is both entitled and obliged to give consideration to interest. A tribunal may refuse to award interest if it is precluded from doing so by the instrument establishing its jurisdiction.1 Tribunals have also decided against the award of interest where settlement funds are restricted,2 or because of the claimant’s conduct.3

References (p. 614) The substantive international legal obligation to pay interest on monies due is well From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

established. An authoritative statement of the position is to be found in article 38 of the ILC Articles on State Responsibility of 2001: 1 . Interest on any principal sum payable under this Chapter [‘Reparation for Injury’] shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result. Jurisdiction to award interest is rarely covered expressly by the statute or procedural rules of a tribunal. There is no reference to any power to award interest in the statute or rules of, for example, the International Court of Justice, the Permanent Court of Arbitration, the International Centre for the Settlement of Investment Disputes, or the Iran-US Claims Tribunal. Nonetheless, those bodies have evidently considered themselves as possessing an inherent competence to award interest. The Permanent Court of International Justice (PCIJ), with a Statute very similar to that of the ICJ, showed no hesitation in dealing with the question of interest in its very first judgment, The SS Wimbledon.4 The PCIJ awarded simple interest of 6 per cent, the amount requested by the applicant, running from the date of the judgment: As regards the rate of interest, the Court considers that in the present financial situation of the world and having regard to the conditions prevailing for public loans, the 6% claimed is fair; this interest, however, should run, not from the day of the arrival of the ‘Wimbledon’ at the entrance to the Kiel Canal, as claimed by the applicants, but from the date of the present judgment, that is to say from the moment when the amount of the sum due has been fixed and the obligation to pay has been established.5 The Iran-US Claims Tribunal in a case relating to the payment of post-award interest held that claims for interest on principal sums awarded are part of the compensation sought and do not constitute a separate cause of action requiring their own jurisdictional grant.6 The Law of the Sea Tribunal has stated that it is ‘generally fair and reasonable that interest is paid on monetary losses, property damage and other economic losses’,7 and the European Court of Justice also concluded in an early case concerning non-contractual liability of the European Community that claims for interest are in general admissible.8

References (p. 615) An important multilateral acknowledgement of the power to award interest is to be found in the Decision of the Governing Council of the United Nations Compensation Commission of 18 December 1992: The Governing Council decides that: 1 . Interest will be awarded from the date the loss occurred until the date of payment, at a rate sufficient to compensate successful claimants for the loss of use of the principal amount of the award. 2 . The methods of calculation and of payment of interest will be considered by the Governing Council at the appropriate time. 3 . Interest will be paid after the principal amount of awards.9 This was affirmed in the ‘Report And Recommendations Made By The Panel of Commissioners Concerning The First Instalment Of Claims For Departure From Iraq or Kuwait (Category “A” Claims)’: In the Panel’s view the above Decision of the Governing Council is supported by international law and jurisprudence which recognize the principle that interest should be paid on the principal amount of awards to make successful claimants whole for their 10

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losses.10 There are a number of instances in which the constituent instrument of a tribunal, or its rules of procedure, foresee the possibility of an award of interest. The North American Free Trade Agreement provides in article 1135 that a tribunal may award ‘monetary damages and any applicable interest’. The American Arbitration Association (AAA) in its Rules on International Dispute Resolution Procedures11 provides, in article 28(4): the tribunal may award such pre-award and post-award interest, simple or compound, as it considers appropriate, taking into consideration the contract and applicable law. Similarly, the World Intellectual Property Organization (WIPO) Rules provide in article 60(b): ‘The Tribunal may award simple or compound interest to be paid by a party on any sum awarded against that party. It shall be free to determine the interest at such rates as it considers to be appropriate, without being bound by legal rates of interest, and shall be free to determine the period for which the interest shall be paid.’12 These provisions are consistent with the views expressed in leading international law treatises.13 The jurisdiction to hear claims for interest and award it as an element of

References (p. 616) reparations is thus well established in international law, although it is less common for regional human rights courts than mixed commissions and arbitral tribunals to discuss or particularize any pre-judgment interest component of a reparations award.14 An award of interest may perform one of several functions. The most frequent rationale given for the award of pre-judgment interest is that it is compensation for loss of the ability to benefit from the use of the principal compensation sum from the date it fell due.15 The fact of the claimant’s loss and the respondent’s responsibility is assumed to follow from the fact of the latter being responsible for the deprivation of monies due to the former without the need to establish any liability for such harm, its directness and proof of loss. An award of interest has also been said to be necessary to protect against the diminution in value of the principal sum for the period between the time it fell due and payment, thus protecting against the effect of inflation on damages due and valued at a date before the judgment or award.16 Interest may also be awarded ‘as damages’ where interest costs are actually incurred by the claimant, the court or tribunal considers that the respondent has liability for such harm and it is not too remote a consequence from the original harm inflicted,17 and on occasion interest may form the principal damages sum rather than being ancillary to it.18 It has also been suggested that an interest award may function as an alternative to other methods of calculation as compensation for loss of profits.19 An interest award may also be used to restore the status quo ante by removing an unlawful competitive advantage gained by a respondent by the use of property or money which they ought not to have had.20

2 The distinction between pre-award and post-award interest It is necessary to distinguish between interest as an element in the calculation of the sum awarded in the decision and interest payable for delay in the payment of that sum. For instance, the obligation to pay compensation for a taking of property will have arisen at

References (p. 617) the time of the taking. That principal sum will then be enhanced by interest for the period from the time of the taking to the date of the award. The resulting figure will constitute the sum

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awarded. Post-award interest may subsequently accrue in respect of any delay in the payment of the sum awarded.21 The judgment or award sum on which interest accrues until payment may also include other components, such as costs and expenses. International courts and tribunals for the most part now award post-award interest, including the regional human rights courts, the European Union courts, and arbitral tribunals. However, some courts and tribunals, for example the Iran-US Claims Tribunal, do not treat postaward interest separately from pre-award interest on principal compensation sums, allowing the interest awarded on the principal compensation sums to run from the start date, before the award, until payment. In those instances, post-award interest does not tend to be awarded on separate components of the award, such as costs and expenses. Where post-award interest is treated separately from pre-award interest, it is not uncommon for a court or tribunal to grant a period of grace—extending to days, weeks, or even months, depending on the circumstances—before post-award interest becomes payable.22

3 The period for which interest is payable Interest is normally awarded to bridge the time gap between the date when the principal sum became due and the date when it is actually paid. Thus, in the case of a taking of property in respect of which there is a legal obligation to pay compensation, as required, for example, by the European Convention on Human Rights, Protocol I, article 1, or by numerous bilateral investment treaties containing property protection provisions, interest will generally be payable from the date of the taking. On the other hand, when damages are determined for physical or moral injury to a person arising from some other wrong, for instance, personal injury or unlawful expulsion, the damages not being fixed or liquidated until the moment of determination by the tribunal, interest will only be awarded to cover a delay in the payment of the sum awarded. Pre-award interest may, however, be awarded on any sums claimed which represent pecuniary losses or expenses incurred and valued at dates before judgment as a result of the wrong.23 The obligation to pay post-award interest terminates, of course, when the sum due is paid.

4 Compound interest versus simple interest A major question in relation to any award of interest is whether it should be ‘simple’ or ‘compound’. ‘Simple’ interest is calculated only on the original principal amount, the stated interest percentage being added thereto at specified intervals or ‘breaks’, eg quarterly or annually, but is not itself added to the principal sum for the future calculation of

References (p. 618) interest. ‘Compound’ interest is added at specified intervals to the principal sum and is thus included as part of the principal when calculating the next amount of interest due. This has sometimes been described as the payment of interest on interest. For reasons which are not entirely clear,24 there has been some disposition on the part of international tribunals to award only simple interest. Marjorie Whiteman, in her major treatise on Damages in International Law, written in 1943, stated that ‘[t]here are few rules within the scope of the subject of damages in international law that are better settled than the one that compound interest is not allowable’.25 More recently, however, it has become increasingly recognized that simple interest may not always ensure full reparation for the loss suffered and that the award of interest on a compound basis is not excluded. This is because modern financial activity, eg in relation to consumer and commercial bank loans and accounts, normally involves compound interest. The reasoning behind this change in approach is that a judgment creditor promptly placed in the possession of the funds due would be able to lend them out or invest them at compound interest rates or, if forced to borrow as a result of the respondent’s wrong, will do so at compound rates. It is therefore unreasonable to limit the interest to simple interest.26

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The first detailed discussion of this development was in the case of Compañia del Desarrollo de Santa Elena SA v Republic of Costa Rica,27 in terms which may helpfully be quoted in full. The Tribunal, having determined that the value of the property at the date of its taking in 1978 was US$4,150,000, continued as follows: 97 . Even though there is a tendency in international jurisprudence to award only simple interest, this is manifested principally in relation to cases of injury or simple breach of contract. The same considerations do not apply to cases relating to the valuation of property or property rights. In cases such as the present, compound interest is not excluded where it is warranted by the circumstances of the case. 98 . First, there are international arbitral decisions where compound interest has been expressly allowed. 99 . Secondly, there are decisions where the possibility of compound interest appears to have been acknowledged, but the circumstances were not thought to be appropriate for its award. 100 . Thirdly, there is the decision of Chamber I of the Iran-US Claims Tribunal in the Sylvania Technical Services case in which, although it was stated that ‘the Tribunal has never awarded compound interest’, the Tribunal specifically declared its intention to ‘derive a rate of interest based approximately on the amount that the successful claimant would have been in a position to have earned if he had been paid in time and thus had the funds available to invest in a form of commercial investment in common use in its own country. Six-month certificates of deposit in the United States are

References (p. 619) such a form of investment for which average interest rates are available from an authoritative official source’. The late Dr. F.A. Mann has made the following telling comment on this passage: ‘It is not certain whether the Tribunal realized that investment in six-month certificates of deposit involves earning compound interest’. 101 . Fourthly, there are the views of writers of high authority. Dr. Mann concluded the article just cited as follows: ‘… it is submitted that, on the basis of compelling evidence, compound interest may be and, in the absence of special circumstances, should be awarded to the claimant as damages by international tribunals’. The Tribunal does not consider that the expression by Dr. Mann of his conclusion in terms of ‘damages’ renders it inapplicable in the present case. While it is true that the taking by Costa Rica of the Claimant’s Property was not initially unlawful, so that no question of damages then arose, the fact remains that there is no substantive distinction to be drawn, so far as the Claimant is concerned, between an entitlement to damages and his entitlement to compensation. CDSE is entitled to the full present value of the compensation that it should have received at the time of the taking. Conversely, the taking state is not entitled unjustly to enrich itself by reason of the fact that the payment of compensation has been long delayed. 102 . Finally, reference may be made to the scholarly treatment of the subject by Professor Gaetano Arangio-Ruiz, Special Rapporteur of the UN International Law Commission on State Responsibility. After close consideration of the authorities he concluded as follows: ‘The Special Rapporteur is therefore inclined to conclude that compound interest should be awarded whenever it is proved that it is indispensable in order to ensure full compensation for the damage suffered by the injured State’. 103 . In other words, while simple interest tends to be awarded more frequently than compound, compound interest certainly is not unknown or excluded in international law. No uniform rule of law has emerged from the practice in international arbitration as regards the determination of whether compound or simple interest is appropriate in any given case.

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Rather, the determination of interest is a product of the exercise of judgment, taking into account all of the circumstances of the case at hand and especially considerations of fairness which must form part of the law to be applied by this Tribunal. 104 . In particular, where an owner of property has at some earlier time lost the value of his asset but has not received the monetary equivalent that then became due to him, the amount of compensation should reflect, at least in part, the additional sum that his money would have earned, had it, and the income generated by it, been reinvested each year at generally prevailing rates of interest. It is not the purpose of compound interest to attribute blame to, or to punish, anybody for the delay in the payment made to the expropriated owner; it is a mechanism to ensure that the compensation awarded the Claimant is appropriate in the circumstances. 105 . In the instant case, an award of simple interest would not be justified, given that since May 1978, i.e., for almost twenty-two years, CDSE has been unable either to use the Property for the tourism development it had in mind when it bought Santa Elena or to sell the Property. On the other hand, full compound interest would not do justice to the facts of the case, since CDSE, while bearing the burden of maintaining the property, has remained in possession of it and has been able to use and exploit it to a limited extent. 106 . Consequently, Claimant is entitled to an award of compound interest adjusted to take account of all the relevant factors.28

References (p. 620) Since the early 2000s the balance of investment treaty tribunal practice has shifted towards awarding compound interest where requested by the claimant,29 but not invariably.30 There are very few examples of compound interest awards in other international judicial practice.31 Notably, recent studies by two domestic law commissions have concluded that there is no reason in principle to preclude the award of compound pre-judgment interest in all types of claim, contract, delict, or otherwise, involving the award of monetary sums valued at a date before judgment.32 Moreover, depending on the circumstances of the case, a simple interest rate which is very high may overcompensate the claimant. Other factors such as ease and cost of calculation may, however, weigh against the award of compound interest for claims involving sums which are small or which have been outstanding for only short periods. The ability of courts and tribunals to award compound interest reflecting rates prevailing over the period of account has been made considerably easier by the availability of both technology able to make calculations easily and published historical interest rate data. Where compound interest has been awarded, the intervals of compounding have varied. The question of whether interest should be compounded and at what intervals cannot really be considered separately from the question of rate: logically the intervals of compounding should be selected based on the intervals associated with the rate selected or normal banking practice.

References

(p. 621) 5 The rate of interest There is no established percentage rate for an interest award. It may be influenced by such factors as the nature of the claim or cause of action and the facts of the case (where and when the liability arose and the circumstances of the parties), the applicable law, the period that has elapsed since payment of the principal became due, any contractual rate agreed between the parties, and the commercial rate prevailing at either the seat of the tribunal or in either the country of the debtor or the creditor. On occasion it is impossible to identify the division of the sum finally awarded as between, on the one hand, the basic value of the claim and, on the other, the amount added to it 33

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by way of interest.33 Rates awarded generally varied between 4 per cent and 8 per cent in the 19th century and for the most part of the 20th century. However, the rates awarded give little authoritative guidance unless viewed in the context of the market interest rates prevailing at the dates of the awards and for the periods the sums due were outstanding, and the law applied by the court or tribunal. For the most part tribunals did not explain their selection of rate, although where they did so, as in the Permanent Court’s SS Wimbledon judgment, prevailing rates were considered persuasive. A development in more recent international practice, led from the early 1980s by a chamber of the Iran-US Claims Tribunal, has been to select an available market interest rate which is relevant to the parties and the circumstances of the tribunal’s operation. The US six-month certificate of deposit rate was considered appropriate to US claimants as it represented a stable, low risk return on a savings vehicle available in their country and for which interest rate data was available over the periods of account.34 Other examples of market rates recently awarded by tribunals include treasury bill rates in the State of the claimant’s nationality35 or the London interbank lending rate (the LIBOR) for the currency of the award.36

6 Conclusion The brevity of the present exposition may suggest a greater certainty in the rules relating to the award of interest than has yet been achieved. The practice of tribunals has varied greatly, particularly in relation to the choice between simple and compound interest, and the selection of the rate of interest. However, there is now an identifiable trend towards acknowledging that the objective of providing a deprived party with a sum approaching the full reparation required by law necessarily involves the use of market rates and compounding as the best approximation of the loss suffered by the deprived party as a result of the respondent’s failure to pay the proper amount of compensation when it became due in law, eg at the date of the taking or wrong. This is a trend to be welcomed.

References (p. 622) But the overall degree of diversity in the approach of tribunals to the question of interest is not satisfactory. Although the topic of interest usually occupies only a small place in an award, its impact on the final result can be considerable. A more detailed codification of the law relating to interest than the ILC has been able to achieve in article 38 of the Articles on State Responsibility seems unlikely for the time being. In the meantime, it is desirable, that so far as they can, tribunals should aim to ensure that the award of interest contributes signifi cantly to achieving a pecuniary result that comes as close as possible to full reparation. Further reading N Affolder, ‘Awarding Compound Interest in International Arbitration’ (2001) 12 Am Rev Int’l Arbitration 45 A van Casteren, ‘Article 215(2) EC and the Question of Interest’, in T Heukels and A McDonnell (eds), The Action for Damages in Community Law (1997), 199 AH Feller, The Mexican Claims Commissions 1923–1934 (1935), 308–312 JY Gotanda, ‘Damages in Private International Law’ (2007) 326 Recueil des cours 73 C Gray, Judicial Remedies in International Law (Oxford, OUP, 1987), 29–32 FA Mann, ‘Compound Interest as an Item of Damage in International Law’, in Further Studies in International Law (Oxford, OUP, 1990), 377–385 P Nevill, ‘Awards of interest by international courts and tribunals’ (2007) 78 BYIL 255 G Salvioli, ‘La responsabilité des états et la fixation des dommages et intérêts par les tribunaux internationaux’ (1929-III) 28 Recueil des cours 277

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D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford, OUP, 2005), ch 9

References

Footnotes: ∗ The authors express their great appreciation of the assistance given in the preparation of this chapter by Ms Michelle Bradfield, formerly Research Fellow, Lauterpacht Centre for International Law. 1 Motion for allowance of interest on awards from the date until their payment, Britain-Venezuela Commission, 9 RIAA 470, 470–1, Christern & Co, Becker & Co, Max Fischbach, Richard Friedericy, Otto Kummerow and A Dauman claims, German-Venezuelan Commission, 1903, 10 RIAA 363, Postal Treaty claim, Italian-Venezuelan Claims Commission, 1903, 10 RIAA 499, Illinois Central Railroad Co v Mexico, US-Mexico General Claims Commission, 1923, 9 RIAA 134. 2 A recent example is the United Nations Compensation Commission which decided that: ‘Taking into account all relevant circumstances, in particular the unavailability of adequate funds and the imminent completion of the Compensation Commission’s claims processing programme, Decides to take no further action with respect to the issue of awards of interest.’ S/AC.26/Dec.243 (2005). 3 Auditing of accounts between the Kingdom of the Netherlands and the French Republic pursuant to the Additional Protocol of 25 September 1976 of the Protection of the Rhine against Pollution by Chlorides, Permanent Court of Arbitration, 12 March 2004 (unofficial English translation available at , para 139; First Eagle Sogen v Bank for International Settlements, Decision of 19 September 2003, 43 ILM 893 (2004), para 99. 4 The SS ‘Wimbledon’, 1923, PCIJ Reports, Series A, No 1, 4, 32. 5 Ibid. It could be doubted whether the PCIJ was correct in precluding the award of interest on elements of the compensation award that were suffered and valued at dates before the judgment. 6 Islamic Republic of Iran v United States of America, Case A-19, (1987) 16 Iran-US CTR 288, 86 ILR 307. 7 The M/V Saiga (St Vincent and the Grenadines v Guinea), Admissibility and Merits (1999) 120 ILR 143, para 173. 8 Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, paras 19–20. See more recently Case T-134/01 Fuchs v Commission [2002] ECR II-3909, paras 56–57. Interest is also recoverable on fines improperly levied by the Community (Case T-171/99 Corus UK Ltd v Commission [2001] ECR II-2967) and to restore the status quo ante where improperly paid state aid is recovered from an individual (eg Case T-459/93 Siemens SA v Commission [1995] ECR II1675, paras 96–100). Recovery of interest in claims by individuals against Member States for breaches of the European Community Treaty will depend on the application of the principle of national procedural autonomy, ie national procedural and remedial rules on interest will apply subject to the requirements of effectiveness and equivalence. For a recent application of the principle in an important English case, see Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Commissioners of Inland Revenue [2007] UKHL 34, [2007] 3 WLR 354, [2007] 7 All ER 657. 9 S/AC.26/1992/16. 10 S/AC.26/1994/2, 21 October 1994, para 51. The significance of this decision is not diminished by the Council’s subsequent Decision of 10 March 2005 not to award interest on damages (see n 2 above). This decision clearly reflected practical considerations rather than any reversal of the substantive position laid down in the Council’s earlier decision. 11 Amended and effective, 15 September 2005 see . 12 See: . Although, on its face, this paragraph

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could be read as contemplating only post-award interest, the reference to determination of the period for which the interest should be paid allows the award of interest on damage incurred and valued as of an earlier date, eg the date that the requirement to pay compensation arose. 13 See eg DP O’Connell, International Law (2nd edn, London, Stevens & Sons Limited, 1970), vol 2, 1122–1123; RY Jennings & AD Watts, Oppenheim’s International Law (9th edn, London, Longmans, 1992), vol 1, 529–530; JB Moore, A Digest of International Law (Washington, Government Printing Office, 1906), vol 6, 1029; J Ralston, The Law and Practice of International Tribunals (revised edn, California, Stanford University, 1926), 129. For closely related topics in private international law, see the detailed treatment by JY Gotanda, Supplemental Damages in Private International Law (The Hague, Kluwer, 1998). 14 Notable exceptions include, in the European Court of Human Rights, Stran Greek Refineries v Greece (App No 13427/87), ECHR, Series A, No 301-B (1995), paras 82–83, Scordino v Italy (No 1) (App No 36813/97), ECHR Reports 2006-V, para 258; Lustig-Prean & Beckett v United Kingdom (Art 41) (App Nos 31417/96; 32377/96), Judgment, 27 September 1999, paras 28–9; Beyeler v Italy (No 2) (Just Satisfaction), (App No 33202/96), Judgment, 28 May 2002, para 23; in the InterAmerican Court of Human Rights, Neira Alegría (Reparations and Costs), Inter-Am Ct HR, Series C, No 29 (1996), para 46, Case of the ‘Street Children’ (Villagrán-Morales et al v Guatemala) (Reparations and Costs), Inter-Am Ct HR, Series C, No 77 (2001), para 81. 15 This is the conclusion of commentators who have reviewed international judicial and arbitral practice: see eg G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), para 78 and P Nevill, ‘Awards of Interest by International Courts and Tribunals’ (2007) 78 BYIL 255, 278–279, and the cases cited therein. 16 For example, see the ECJ decisions in Cases C-104/98 and C-37/90 Mulder v Commission (No 2) [2000] ECR I-203 and Case T-17/89 Brazzelli v Commission [1992] ECR II-293 where compensatory interest for a claim of non-contractual liability was expressly stated to cover inflation only, and to exclude an element of real return because of failure to prove such loss. In the ECHR, see Stran Greek Refineries v Greece (App No 13427/87), ECHR, Series A, No 301-B (1995); Beyeler v Italy (No 2) (Just Satisfaction) (App No 33202/96), Judgment, 28 May 2002. 17 For example, LETCO v Liberia, Award of 31 March 1986, 2 ICSID Reports 343. 18 For example, Pammel v Germany (App No 17820/91), ECHR Reports 1997-IV; Joined Cases C397 and 410/98 Metallgesellschaft Ltd & Ors v Commissioners of Inland Revenue & Or [2001] ECR I-1727 (ECJ). 19 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 20, and M Whiteman, Damages in International Law (Washington DC, US Government Printing Press, 1943), vol III, 186 7–1871. 20 For example, Case T-459/93 Siemens SA v Commission [1995] ECR II-1675. 21 The fact that a DCF approach may have been adopted in calculating the value of an asset as at the date of the taking does not mean that the value thus reached is itself then incapable of generating pre-award interest to cover the period between the taking and the date of the award. But pre-award interest will not be given where an alternative method of calculating compensation is used which calculates the value of the loss suffered as at the date of the award. 22 The European Court of Human Rights commonly allows a three-month grace period, the InterAmerican Court a year. Ad hoc investment treaty arbitral tribunals have allowed grace periods ranging between 30 and 90 days. 23 See eg Lustig-Prean & Beckett v United Kingdom (Art 41) (App Nos 31417/96; 32377/96), Judgment, 27 September 1999. 24 Probably due to the fact that international tribunals have in this area been influenced by domestic laws and judicial practices which have, for the most part, traditionally allowed (in codes in civil law countries and legislation and/or the common law in common law countries) only simple

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interest on sums due under contract, by law or court judgment, usually at specified rates, unless the parties have expressly agreed otherwise or where recognized commercial custom is to compound or capitalize interest charged or accrued. 25 M Whiteman, Damages in International Law (Washington DC, US Government Printing Press, 1943), vol III, 1997. 26 An earlier but still cogent consideration of the problem is to be found in FA Mann, ‘Compound Interest as an Item of Damage in International Law’, Further Studies in International Law (Oxford, OUP, 1990), 377. See also C Gray, Judicial Remedies in International Law (Oxford, OUP, 1987), 32; N Affolder, ‘Awarding Compound Interest in International Arbitration’ (2001) American Review of International Arbitration 45, 70–73; P Nevill, ‘Awards of interest by international courts and tribunals’ (2007) 68 BYIL 255, 307–330. 27 (2000) 5 ICSID Reports 157. 28 Ibid, 176–178. See also SD Myers v Canada, Award on Damages (2002) 8 ICSID Reports 124, 171; Maffezini v Spain (2000) 5 ICSID Reports 419; Metalclad v Mexico (2000) 5 ICSID Reports 209; Middle East Cement v Egypt (2002) 7 ICSID Reports 178; MTD Equity Sdn Bhd and TD Chile SA v Chile (2004) 12 ICSID Reports 6; Pope & Talbot v Canada (2002) 7 ICSID Reports 148; Técnicas Medioambientales Tecmed, SA v Mexico (2003) 10 ICSID Reports 130. 29 Before 2000, capitalized interest was awarded in Atlantic Triton v Guinea (1986) 3 ICSID Reports 13 on the basis of applicable French law and in SPP(ME) v Egypt (1992) 3 ICSID Reports 189 in accordance with the provisions of a loan agreement between the parties (however, only simple interest was awarded on the non-loan elements of the award). Since 2000 compound interest awards have been made in Maffezini v Spain, Award of 13 November 2000, 5 ICSID Reports 419; Metalclad v Mexico, Award of 30 August 2000, 5 ICSID Reports 209; Middle East Cement Shipping and Handling Co SA [ME Cement] v Egypt, Award of 12 April 2002, 7 ICSID Reports 173; AIG v Kazakhstan, Award of 7 October 2003, 11 ICSID Reports 3; Pope & Talbot v Canada, Award on Damages of 31 May 2002, 7 ICSID Reports 148; SD Myers v Canada, Second Partial Award on Damages of 21 October 2002, 8 ICSID Reports 124; Técnicas Medioambientales Tecmed SA v Mexico, Award of 29 May 2003, 10 ICSID Reports 130; Azurix v Argentina (ICSID Case No ARB/01/12), Award of 23 June 2006; LG&E Energy Corp & Ors v Argentina (ICSID Case No ARB/02/01) Award of 25 July 2007; Wena Hotels v Egypt, Award of 8 December 2000, 6 ICSID Reports 89, Siemens AG v Argentina (ICSID Case No ARB/02/8), Award of 17 January 2007; Enron v Argentina (ICSID Case No ARB/01/3), Award of 22 May 2007; Sempra Energy International v Argentina (ICSID Case No ARB/02/16), Award of 28 September 2007; Camuzzi International SA v Argentina (ICSID Case No ARB/03/7), Award of 18 September 2007; BG Group Plc v Argentina (UNCITRAL Case No 08-0485), Award of 24 December 2007; Rumeli Telekom AS & Or v Kazakhstan (ICSID Case No ARB/05/16), Award of 29 July 2008; Continental Casualty Company v Argentina (ICSID Case No ARB/03/9), Award of 5 September 2008; National Grid Plc v Argentina, Award of 3 November 2008; Waguih Elie George Siag & Clorinda Vecchi v Egypt (ICSID Case No ARB/05/15), Award of 1 April 2009. 30 See eg Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v Mexico (ICSID Case No ARB(AF)/04/05), Award of 21 November 2007; Desert Line Projects LLC v Yemen (ICSID Case No ARB/05/17), Award of 6 February 2008; Duke Energy Electroquil Partners & Or v Ecuador (ICSID Case No ARB/04/19), Award of 18 August 2008. 31 In the European Court of Human Rights, see Beyeler v Italy (No 2) (Just Satisfaction) (App No 33202/96), Judgment, 28 May 2002; Wasserman v Russia (Merits and Satisfaction) (App No 15021/02), ECHR, Judgment, 18 November 2004. In the European Union courts, see Case 67/69 Simet v Commission [1971] ECR 197, Case T-171/99 Corus UK Ltd v Commission [2001] ECR II2967, AfCon Management Consultants & Ors v Commission [2005] ECR II-981 and the English courts applying European Union law in Sempra Metals Limited (formerly Metallgesellschaft Ltd) v Commissioners of Inland Revenue [2007] UKHL 34, [2007] 3 WLR 354, [2007] 7 All ER 657.

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32 The Law Commission for England and Wales in its 2004 ‘Report on Pre-Judgment and PostJudgment Interest’ 2004, Law Com No 287 , and the Scottish Law Commission in ‘Report on Interest on Debt and Damages’, September 2006, SCOT LAW COM No 203, SE/2006/146, . 33 As in, for example, much of the practice of the European Court of Human Rights. 34 Sylvania Technical Systems, Inc v Iran (1985) 8 Iran-US CTR 298, at 320–323. 35 Eg CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/08), Award of 12 May 2005. 36 Eg MTD v Chile, Award of 25 May 2004, 12 ICSID Reports 6. The award of an increment on top of the basic LIBOR rate is not uncommon: see eg PSEG Global Inc v Turkey (ICSID Case No ARB/02/05), Award of 1 January 2007, where the LIBOR rate plus 2% was awarded. Some domestic jurisdictions now use an interest rate formula based on central bank rates in legislation, eg the bank rate plus 1 or 2%: see eg the 2002 amended German Civil Code and the French legislative provisions. Some jurisdictions may build an element of penalty or default into statutory interest formulas—for example, twice the bank rate—but this is not appropriate in international law given its rejection of penalties and aggravated damages.

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Part IV The Content of International Responsibility, Ch.42.4 The Different Forms of Reparation: Satisfaction Eric Wyler, Alain Papaux From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 623) Chapter 42.4 The Different Forms of Reparation: Satisfaction 1 Satisfaction and ‘injury’ 625 (a) The ‘classic’ conception 625 (b) The ‘positivist’ conception 626 (c) The modern conception 626 (d) Satisfaction and indirect injury to the State 628 2 Forms of satisfaction 629 (a) Established forms of satisfaction 630 (i) Apologies and statements of regret 630 (ii) Punishment of responsible persons 630 (iii) Monetary compensation 631 (iv) Declaration of wrongfulness 631 (v) Other forms of satisfaction 632 (b) Outmoded forms of satisfaction 633 (c) Links with other consequences of internationally wrongful acts 633 3 Satisfaction and disputes relating to responsibility 634 (a) Diplomatic and jurisdictional practice 634

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(b) Limits upon satisfaction 635 Further reading 636 In spite of the imprecision characterizing its current usage and the absence of any precise definition in international law,1 the term ‘satisfaction’ nevertheless designates certain particular forms of responses to wrongfulness, albeit having ill-defined functions. Its role in the law of responsibility for internationally wrongful acts appears at first glance to relate more to the ‘punitive’ or ‘penal’ dimension of that law than to its compensatory or ‘civil’ aspect, that distinction of course not having been institutionalized to the same extent as in municipal law. That is to say that satisfaction is linked to an injury consequent upon the perpetration of some sort of fault, regardless of the specifics of that notion in international law and whether applied to States, or even, such a transposition not appearing to raise any major objections, to international organizations. (p. 624) It suffices to admit that a legal entity to which some sort of volition may be attributed can, in that capacity, behave in a manner manifesting ‘intent’ or ‘negligence’, even if those elements are less easily applied outside of their usual psychological context,2 and this despite the illegitimacy of completely assimilating the State to a legal entity. The fact that the complexities of the formation of volition attributed to an abstract legal entity spark discussion of ‘objective’ rather than ‘subjective’ responsibility (or attribution) simply reveals the analogy used in the construction. The positivist position (for instance, the attacks of the French sociological school, in particular Duguit and Scelle),3 consisting in the denunciation of the ‘fiction’ inherent in the very notion of legal personality, on the basis of misgivings about the possibility of scientific truth, is outdated, as is demonstrated by the jurisprudence of the International Court of Justice, which implicitly makes reference to the standard of behaviour applicable to a diligent State acting in a particular context.4 The dominant approach, which has regard to fault in the context of wrongfulness and accordingly regards it as conditioned by the nature of the obligation in question, gives the notion of fault some role to play, while at the same time downplaying its importance: responsibility may or may not depend on fault, according to whether the obligation is framed in terms of particular required behaviour (obligations of conduct) or a goal to be attained (obligations of result). In international law that distinction is based less on whether or not a particular goal is to be achieved—taking account of its foreseeability given the hazards of the activity in question—and more on the formal criterion of whether or not the means to be utilized are formally enunciated: ‘[w]hat distinguishes the first type of obligation from the second is not that obligations “of conduct” or “of means” do not have a particular object or result, but that their object or result must be achieved through action, conducts or means “specifically determined” by the international obligation itself, which is not true of international obligations “of result” ’.5 Due to the problematic nature of the distinction, it was not included in the text of the Articles as finally adopted by the ILC on second reading and annexed by the General Assembly to Resolution 56/83.6 In the same vein, the ILC endorsed the concept of responsibility for ‘serious breaches’ of certain obligations under international law—replacing the notion of ‘State crimes’ as contained in the famous article 19 of the Ago draft. Violations of this type are intrinsically dependent on the presence of some sort of fault, as is the case, for example, with customary obligations of due diligence. However, it remains to be seen whether that controversial

References (p. 625) legal construction—which for the time remains progressive development of the law and inconsistent with State practice—will succeed in crystallizing into positive law in practice. Satisfaction, having as its aim to punish or to provide reparation for an ‘offence against the honour or dignity of the State’, likewise supports the notion of a certain subjectivity of States, elaborated by analogy to concepts developed in relation to individuals. What then are the links with the other consequences of responsibility? Satisfaction, in conformity

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with the duality of its function, aims at punishing—in the most general sense of the word—an injury which is judged not susceptible of being redressed either by the traditional forms of reparation of economic damage (ie restitutio in integrum and compensation), or through the application of such means of ‘punishment’ as are available under international law (essentially countermeasures). Because of its predominantly punitive overtones, satisfaction cannot be said to be a substitute for these modes of reparation, in particular as regards compensation aimed at making good the damage; rather satisfaction compliments them. Thus the principle of full reparation in international law is to be understood not in the sense of the civil law, but as a larger notion, which includes the imposition of possible ‘punishments’, such as countermeasures. Such punishment equally fulfils an obvious function of reparation for the victim, in international law as in municipal law.7

1 Satisfaction and ‘injury’ The nature of the injury for which satisfaction attempts to make reparation has not been conceived in an unequivocal way over the centuries.

(a) The ‘classic’ conception According to the classic approach, satisfaction was intended to redress the injuries caused to the honour, dignity or reputation of the State, in other words an injury characterized as ‘moral and political’. That was understood essentially to mean violations of the State’s sovereignty, in particular violations of its territory, as well as wrongs committed against the representatives of the State and its organs; in this regard, diplomatic and consular personnel constituted particular targets, protected on the one hand because of their vulnerability—living abroad—and on the other because of the symbolic value attached to them as an incarnation of the State.8 That conception of the State relies entirely on the transposition of qualities—honour and dignity, but also volition, intention, negligence—which in municipal law are attached to natural persons and, by extension, to legal persons. In international law that transposition was made possible by the so-called ‘representative’ theory, in the light of which acts of diplomatic agents, being incarnations of a sovereign, were considered attributable to the Prince (ie the State).9 As for the possible wrong done to a State as the result of causing injury to its nationals in violation of the law for the protection of aliens, the situation was, from a legal point of view, less clear.

(p. 626) (b) The ‘positivist’ conception A more recent approach, sometimes described as ‘positivist’,10 seeks to do away with any requirement of fault on the part of the State; ‘objective’ responsibility lies in the transgression of legality, understood as a breach of a ‘subjective’ right, which always constitutes ‘damage’ or a ‘legal injury’. According to Anzilotti, a wrongful act consists simply of ‘the combination of two elements: the act, that is to say, a material, external and appreciable action, and the rule of law, with which it is in contradiction’.11 By moving the emphasis from the victim to the obligation, that conception de-emphasizes the ‘moral and political’ damage suffered by the State and highlights the infringement of the law, thus bringing the concept of legal injury to the fore.12 This approach permitted responsibility to escape the web of bilateral relations to which it was once confined and to extend its shadow not only over the legal relations between the responsible State and the State injured by a particular material or moral injury, but also, thanks to the legal injury caused, over all States in the international community. That step prefigures the modern conception of responsibility.

(c) The modern conception Instead of being identified by the nature and the characteristics of the damage suffered, the concept of the ‘injured State’ derives from the characteristics of the obligation breached.13 In this regard, a triple distinction is imposed: the traditional category of ‘bilateral’ obligations (a term referring to the legal relations entered into, often mutually or synallagmatically, by two States in

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much the same way as a creditor-debtor relationship), is to be contrasted with the categories of ‘interdependent’ and ‘integral’ obligations.14 Interdependent obligations create a certain solidarity between all the States bound thereby in the case of a breach, as they all find themselves necessarily affected by the breach, although not inevitably in the same way. For instance, in the case of a treaty intended to fight pollution in a lake which has been signed by the bordering States, if one of the States dumps toxic products in the water, it injures the rights of all of its co-parties, even though the fauna and flora of the lake may not be affected in the same way in all areas. Integral obligations weave inter-State relations even more tightly in the sense that, by protecting essential collective interests of the ‘international community’, they represent (p. 627) an ‘objective’ aspect which excludes the application of the contractual logic which often regulates the legal relations between States. When such obligations are included in treaties, they elevate those texts to the status of traité-lois,15 and their scope ratione personae is defined expansively, going beyond the normally bilateral, limited effect of treaties since they are intended to be of universal application. It is because of this effect, that, for example, the Charter of the United Nations is able by article 103 to assert the superiority of the Charter over other treaties entered into by Member States: the Charter incorporates aspects of a traité-loi or even of a traité-constitution. This ‘objective’ character of treaties incorporating integral obligations, transcending the particular interests of the State Parties, results clearly from an extract of the judgment of the International Court on the preliminary objections in the Bosnian Genocide case: the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention.16 As for customary international law, ‘integral’ obligations are characterized as norms enforceable erga omnes, or even as peremptory norms (jus cogens) if their legal status in relation to other norms having identical aims is one of non-derogability. From the point of view of responsibility, any breach of an ‘integral’ obligation creates a legal injury to every State in the international community. Thus article 48(1)(b) of ARSIWA provides that: Any State other than an injured State is entitled to invoke the responsibility of another State … if: … [t]he obligation breached is owed to the international community as a whole. The fact that this provision may in certain respects be problematic—in particular due to the distinction drawn between the categories of ‘injured States’ and ‘States other than an injured State’ and the use of the formulation ‘invoke the responsibility of another State’—does not affect, so it seems, the reality of the legal injury suffered by all States.17 The consequences of this development of the concept of responsibility are vital for the concept of satisfaction on a theoretical level, since the scope of satisfaction, originally conceived as a form of reparation or sanction for ‘moral and political’ damage, has been broadened to include legal injury.18 But that conceptual change does not seem to find any expression in practice, insofar as the actio popularis, which constitutes the logical

References (p. 628) procedural consequence of the concept of ‘legal’ injury, together with the higher degree of solidarity it implies, remains (at least for the moment) unavailable to States. Thus international practice to a degree continues to be resistant to the attractions of the notion of legal injury.

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(d) Satisfaction and indirect injury to the State Satisfaction being intended to provide reparation for and punish attacks against the territory or the representatives of a State, the question remains whether it also constitute an adequate measure of reparation in cases in which a State is injured ‘in the person of its subjects’?19 Adopting the logic of the State as the sum of its constitutive elements, it is diffi cult to understand why such a wrong should not give rise to a ‘second degree’ or ‘indirect’ injury, as is sometimes suggested, in contrast to wrongs committed against the territory or organs of the State which give rise to ‘direct’ damage. Should the thesis that the State suffers a harm of a moral and political, or even legal, nature through the economic damage inflicted on its national(s) thus be rejected? Once again, it is the concept of the State, in particular as regards the notion of its ‘people’, which provides the response. The assertion of an ‘offence’ to the State of nationality of the individual injured, made famous by the writings of Vattel, was denounced as a fiction, especially in the 20th century. This was in particular due to the scarcity of jurisprudence according satisfaction to the State in addition to the reparation granted to its national, even if a more materialist theory tends to demonstrate that a certain confusion between State and private property in contemporary societies supports the thesis of a convergence of those two wrongs.20 International practice in fact demonstrates that the reparation granted was never part of what accrued to the national State, which, in addition, had not sought to obtain anything else for itself. The better view would appear to be that ‘the State’, in spite of constituting a notion which is not reducible to its population or even to the sum of its constituent elements, inescapably suffers damage of its own, similar to a moral wrong, when wrongful acts harm its nationals.21 However, due to the generally mild character of the injury to the State, the reparation offered to the national represents in itself acceptable satisfaction for the State of nationality. This is confirmed by the attitude of States in practice in the field of diplomatic protection, which always seek to obtain exact compensation corresponding to the injury to the individual.22 The satisfaction accorded to the State thus remains hidden in the shadow of the reparation for the economic damage suffered by its national.23

References (p. 629) Nevertheless, in cases where the State itself is actually targeted by the wrongful act, in that its nationals are used merely as a means by which to harm it, satisfaction comes back into plain view. It is the gravity of the injury that is the distinctive criterion. In this regard, the concept of ‘discriminatory practice’ has been proposed: while, as a general matter, the targeting of particular groups24 is normally carried out by the State against its own population (eg on the basis of ethnicity), State might also attack the nationals of another State on its territory by adopting a series of measures, which although perhaps not necessarily wrongful in and of themselves, contribute to the realization of the specific larger wrongful act, which is first and foremost determined by the intention of the State. This was the basis of the notion of ‘composite acts’ proposed by Ago as Special Rapporteur,25 which became the subject of article 15 of ARSIWA: The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.26 For instance, in the area of nationalizations and expropriations, customary international law prohibits the State from discriminating on the basis of the nationality of the persons targeted by the measures,27 and similarly, the 1992 World Bank Guidelines on the Treatment of Foreign Direct Investment prohibit any discrimination on the basis of nationality.28 In this type of case, it seems beyond doubt that the State suffers a moral injury which merits compensation by some measure of satisfaction in addition to the reparation due to its nationals.

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2 Forms of satisfaction Even if it is not contested that the form that satisfaction takes is, in practice, determined by the circumstances relating to the injury, the settlement of the dispute or the attitude of the States in question,29 some uncertainty remains in respect of the respective impact of these elements. The uncertainties as to the discretion of the injured State as to the choice of forms of satisfaction are explained by its dual purpose, although the injured State always maintains a certain discretion as to the modalities of reparation, satisfaction, the compensatory function of which is accompanied by a certain ‘punitive’ dimension, is best implemented by a judicial decision, as is shown in exemplary fashion by the remedy of a declaratory judgment.30

References

(p. 630) (a) Established forms of satisfaction (i) Apologies and statements of regret Although the traditional way by which amends are made for offences to sovereignty, namely apologies and statements of regret, are frequently offered proprio motu (spontaneously), they do not completely escape from judicial intervention. Thus, an Anglo-American claims commission in The ‘I’m Alone’ recommended that: The United States ought finally to acknowledge its illegality and to apologize to His Majesty’s Canadian Government therefore, and, further, that as a material amend in respect of the wrong, the United States should pay the sum of $25,000 to His Majesty’s Canadian Government.31 The Rainbow Warrior affair followed a similar approach: after the sabotage of the Rainbow Warrior (owned by Greenpeace) by two French secret service agents in the port of Auckland in July 1985, France and New Zealand brought their dispute before the Secretary-General of the UN, who acted as a sort of arbitrator whose decision was beforehand accepted as binding by the parties. The Secretary-General ruled, inter alia, that: … the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law …32 (ii) Punishment of responsible persons In contrast to apologies and expressions of regret, punishment inflicted against its own agents by the State held responsible for their unlawful acts is either a spontaneous response on the part of that State or responds to the demands of the victim State; it is almost never the result of a judicial decision.33 The Rainbow Warrior case, although interesting in this regard, requires the making of only a slight modification to that assessment, given the particular circumstances, namely that New Zealand, the victim State, had already tried and sentenced the French secret service agents who had sabotaged the Rainbow Warrior, resulting in the violation of New Zealand’s sovereignty, to 10 years’ imprisonment. The ruling of the Secretary-General, requiring France to exile its agents on the island of Hao for a period of three years,34 took that circumstance into account: it would have been unthinkable, without humiliating New Zealand, to require an unconditional release of the two agents responsible for the attack. One may, in any case, question the judicial character of that decision.35 As regards responsibility for injury caused to aliens, academic writing has emphasized that the apparent confusion between the arrest and the conviction of those responsible as a means of satisfaction, and those same acts as the execution of the obligation to repress wrongful acts perpetrated by individuals against aliens, conceals an important conceptual

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References (p. 631) difference.36 In the language of the ILC, satisfaction derives from a ‘secondary’ obligation, the responsibility of the State having already been established, whereas the latter scenario represents the execution of a ‘primary’ obligation, which together with the obligation to prevent attacks causing damage to aliens, forms part of the overall obligation of due diligence towards aliens.37 However, given that the initial wrongful act is of necessity always committed before the arrest of those responsible, the risk of a failure to differentiate between the two concepts remains where no judge has established responsibility, nor ordered the provision of the satisfaction in question. The sole difference, which is not always immediately apparent, relates rather to the identity of the author of the wrongful act in question: in one case, State organs, and in the other, private individuals. (iii) Monetary compensation Satisfaction by monetary compensation is controversial as much for its incompatibility with one of the two major functions of satisfaction (ie punishment)38 as for the confusion ratione materiae with the most common forms of reparation, compensation and restitution in kind.39 From this same point of view, satisfaction is difficult to differentiate from punitive damages ordered by a judge because of the gravity of the breach of international law. It is useful to compare in this regard the extract from the decision in The ‘I’m Alone’, cited above, with the following passage, drawn from the 1903 Protocol creating the Italy-Venezuela Mixed Claims Commission: The Venezuelan Government agrees to pay to the Italian Government, as a satisfaction of the point of honor, the sum of £5,500… in cash or its equivalent … 40 (iv) Declaration of wrongfulness The importance of recognition of the wrongfulness of the responsible State’s behaviour depends on whether it emanates from that State or from an international judicial body.41 Declarations of wrongfulness by judicial bodies have a relatively strong foundation in international practice; thus in The ‘Manouba’, the arbitral tribunal declared that: … in case a Power has failed to fulfil its obligations, whether general or special, to another Power, the statement of this fact, particularly in an arbitral award, constitutes in itself a severe penalty.42

References (p. 632) In an identical manner, the International Court of Justice in Corfu Channel held that a declaration constituted adequate reparation for the violation of the territorial sovereignty of Albania perpetrated by the British navy which, without authorization, had cleared mines in Albanian waters in the Corfu Channel. The Court held in the dispositif: … the United Kingdom violated the sovereignty of the People’s Republic of Albania … this declaration by the Court constitutes in itself appropriate satisfaction.43 Mention should also be made of the award of the Arbitral Tribunal in the Rainbow Warrior affair. The Tribunal was constituted to settle a second dispute, arising out of France’s violation of the agreement to execute the Ruling of the Secretary-General, because it had repatriated the two agents well before the end of the three years stipulated. In that regard, the Tribunal held that: the condemnation of the French Republic for its breaches of its treaty obligations to New Zealand, made public by the decision of the Tribunal, constitutes in the circumstances appropriate satisfaction for the legal and moral damage caused to New Zealand.44

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The use of the word ‘condemnation’ neatly encapsulates the punitive dimension of a declaration of wrongfulness. The same view was taken in the Bosnian Genocide case, where the Court concluded that the breach, by Serbia, of the obligation to prevent acts of genocide should be compensated by a declaration of wrongfulness expressed in the judgment.45 That such a statement appears to be a ‘consecration’ of the declaration of wrongfulness as a form of satisfaction in the field of international crimes is not questionable.46 On the other hand, such an abstract compensation could not wholly ‘satisfy’ Bosnian, if one bears in mind the severity/seriousness of the acts of violence which had occurred during the war. By contrast, whenever the international wrongful act is a simple offence and not a crime, the declaration of wrongfulness still remains a sufficient and adequate form of satisfaction.47 (v) Other forms of satisfaction The question arises whether other forms of satisfaction have been established in international practice. Given that they are intimately linked to the concrete facts of the dispute, ‘[t]he appropriate form of satisfaction will depend on the circumstances and cannot

References (p. 633) be prescribed in advance’.48 Satisfaction thus may takes various forms; one may refer in this regard to the establishment of special missions charged with expressing the regret of the responsible State or commissions of enquiry49 and, more recently, the creation of a fund assigned to a humanitarian goal,50 a form of satisfaction labelled ‘constructive satisfaction’ by one commentator.51

(b) Outmoded forms of satisfaction Certain forms of satisfaction are considered to be outdated by commentators. This is notably the case in relation to requirements of saluting the flag of the victim State, which may be characterized as being a more solemn way of presenting apologies, the payment of nominal or symbolic damages and the famous and dreaded punitive damages.52 Despite generally eliminating monetary satisfaction, the proposed article 10 drawn up by Arangio-Ruiz nevertheless included reference to the possibility of an award of nominal and punitive damages by way of satisfaction.53 The reference to punitive damages was excised in 1992,54 because of an alleged incompatibility with the dignity of the State and, equally, because of the risk of abuse which they presented, as strongly evidenced in international practice.55 Nevertheless, Tams points out that that awards of monetary compensation may in practice constitute a ‘hidden’ form of punitive damages.56

(c) Links with other consequences of internationally wrongful acts Even if satisfaction, often referred to as being an ‘exceptional’57 or ‘subsidiary’ form of reparation, may constitute the only means of settling some disputes (for example in the case of a violation of territorial sovereignty not causing material damage), it often accompanies other consequences of internationally wrongful acts, notably restitutio in integrum and compensation.58

References (p. 634) In addition to this relation of complementarity, one may note the relationship of confusion or intermingling with certain other consequences of the wrongful act. Reference may be made to the hypothesis of a ‘material’ concurrence between compensation and satisfaction by way of monetary compensation (or punitive damages). Moreover, satisfaction in the form of the punishment of those responsible may be confused with the giving of guarantees of non-repetition of

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the wrongful act in the unusual case where a victim State demands that the responsible State take such a measure because of the danger of recurrence inherent in the tenure in office of the officials responsible. The Wilson claim, a case drawn from diplomatic practice, illustrates this possibility. The head of a village in Nicaragua who had himself assassinated a national of the United States was suspected of harbouring a hatred for Americans; as a result, the United States demanded that the Government of Nicaragua relieve the high official of his office and convict him, ‘as to leave no doubt as to its purpose and ability to protect the lives and interests of citizens of the United States’.59 The confusion is no less real for being only partial (in such a case, the demand for guarantees of non-repetition encompasses the demand to punish, without removing it completely). This is so even if guarantees of non-repetition, which are focused on the future, in principle have a different purpose than measures of satisfaction, the preventive function of which places them in the realm of ‘sanctions-reparations’.60

3 Satisfaction and disputes relating to responsibility (a) Diplomatic and jurisdictional practice In academic writings, the ‘discretionary’ character of satisfaction is emphasized in order to underline the idea that the injured State has a choice of different forms of satisfaction that suit it.61 But that discretion has been often criticized, either because of the risk of abuse which accompanies it,62 or by reference to international judicial practice.63 Minimizing those risks without eliminating the objective pursued by satisfaction requires assigning to a judge the task of determining, according to the circumstances of the dispute, what type of measures will most effectively rectify the damage caused to the State.64 Even if satisfaction, like every form of reparation, in practice results as much from litigation in relation to responsibility as from the ex gratia making of reparation, it distinguishes itself insofar as certain of the forms it may take either do not lend themselves to judicial intervention, or, on the contrary, seem to be impossible without it. Apologies and statements of regret, saluting the flag, or the punishment of those responsible, which are

References (p. 635) not usually claimed nor ordered by international courts and tribunals, generally depend on the goodwill of the responsible State, which in diplomatic practice may either accept, or possibly even pre-empt, the claim by the injured State.65 On the other hand, satisfaction by way of monetary compensation, punitive damages and, especially, declarations of wrongfulness presuppose (at any rate, certainly in the case of declarations) the intervention of a judge.

(b) Limits upon satisfaction The dignity of a State, together with its sovereign independence, has always dictated certain limits, albeit imprecise, upon the possibility for the injured State to obtain satisfaction. Article 37(3) enunciates that limit in the following terms: ‘[s]atisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State’. Pursuant to the first limit, namely the requirement of proportionality between the satisfaction and the injury suffered, one finds in practice a requirement which likewise permeates the majority of the consequences of responsibility (for instance, countermeasures, restitutio in integrum, and compensation). It should however be noted that, as regards satisfaction, that requirement concerns essentially satisfaction by way of monetary compensation66 and, possibly, punitive damages, without it being entirely excluded that it may apply to satisfaction through the punishment of those responsible or even a demand for an official apology. It is more difficult to imagine a situation in which a declaration of wrongfulness could

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constitute a disproportionate measure, unfavourable to the responsible State, however minor the breach might be. The second limitation, the non-humiliating character of satisfaction, explicitly enshrines the legal existence of the concept of dignity of the State, and rejects the views of those academic writers hostile to the existence of notions of honour, dignity, or reputation of the State.67 Is it possible, without self-contradiction, to assert that such notions are outdated and anachronistic, while at the same time to stigmatize and proscribe satisfaction which is ‘humiliating’ for the responsible State? Finally, the requirement of respect for the independence of the responsible State, which, it is sometimes argued, constitutes a limit on satisfaction, quite apart from seeming to lack any existence independent from the first requirement—satisfaction which threatens the independence of a State would surely be disproportionate—lacks any foundation in international practice.68

References (p. 636) As evidence of the existence of specific modalities of punishment or reparation in the case of injury causing ‘moral’ damage to the State, international practice in relation to satisfaction supports the thesis of State subjectivity developed by analogy to that attributed to individuals. Thus, a State can commit a wrong, for example by discriminating on the basis of nationality of individuals, as well as be the victim of such acts through wrongful acts harming its nationals. The duality of the punitive and compensatory functions of satisfaction is revealed by certain of the established forms it may take, consisting of the making of apologies, the punishment of those responsible, or the making of a judicial declaration of wrongfulness. On the other hand, the controversial and perhaps outdated notions of punitive and symbolic damages more neatly reflect the punitive dimension of satisfaction. Among the consequences of responsibility, satisfaction plays a role which is more complementary than subsidiary, with the nature of the economic or moral injury in question being decisive in determining whether compensation or satisfaction is the more appropriate form of reparation. That complementarity represents a guarantee against the risk of confusion with the usual forms of reparation, restitutio in integrum and compensation. Often offered or negotiated outside of the context of the judicial settlement of disputes, satisfaction is nevertheless much in evidence in recent legal practice, particularly in the form of declaratory judgments. The judgment of the International Court of Justice in Corfu Channel has gained widespread acceptance, perhaps due to the fact that the condemnation of an internationally wrongful act by an impartial third party of recognized authority such that the justice rendered often achieves equilibrium between the interests of the two States in question, without forgetting the fundamental interests of the international community. Further reading D Anzilotti, Cours de droit international, vol I (Paris, Sirey, 1929) D Anzilotti, ‘La responsabilité des Etats à raison dommages subis par ses ressortissants à l’étranger’ (1906) 13 RGDIP 5, 285 P-A Bissonnette, La satisfaction comme mode de réparation en droit international (Geneva, Annemasse, 1952) B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité (Paris, Pedone, 1973) L Cavaré, Le droit international public positif, vol II, (4th edn, Paris, Pedone, 1969) C Dominicé, ‘De la réparation constructive du préjudice immatériel souffert par un État’, in L’ordre juridique international entre tradition et innovation (Paris, PUF, 1995), 349 C Dominicé, ‘La responsabilité non contentieuse’, in SFDL, La responsabilité dans le système international, Colloque du Mans, 31 mai–2 juin 1990 (Paris, Pedone, 1991), 191 C Dominicé, ‘La satisfaction en droit des gens’, in Mélanges Perrin (Lausanne, 1984), 121 P-M Dupuy, ‘Bilan général’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des Etats, Actes du Colloque de l’Institut universitaire européen, Florence, 7–8 decembre 2001 (Paris, Pedone, 2003), 207

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P-M Dupuy, ‘A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility’ (2002) 13 EJIL 1053 P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des Etats’ (1984-V) 188 Recueil des Cours 9 S Nahlik, ‘Development of Diplomatic Law. Selected Problems’ (1990-III) 222 Recueil des cours 187 G Palmisano, ‘Sulla decisione arbitrale relative alla seconda fase del caso Rainbow Warrior’ (1990) 73 Rivista di diritto internazionale 874

References (p. 637) F Przetacznik, ‘La responsabilité internationale de l’Etat à raison des préjudices de caractère moral et politique causés à un autre Etat’ (1974) 80 RGDIP 919 P Reuter, ‘Quelques remarques sur la situation juridique des particuliers en droit international public’, in Mélanges Scelle (Paris, LGDJ, 1950), 535 K Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the Injured State’ (1988) 35 NILR 273 J Salmon, ‘Les obligations quantitatives et l’illicéité’, in L Boisson de Chazournes & V Gowlland-Debbas (eds) The International Legal System in Quest of Equity and Universality; Liber Amicorum Abi-Saab (The Hague, Nijhoff, 2001), 305 L-A Sicilianos, ‘Classification des obligations et dimension multilatérale de la responsabilité internationale’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des Etats, Actes du Colloque de l’Institut universitaire européen, Florence, 7–8 decembre 2001 (Paris, Pedone, 2003), 69 L-A Sicilianos, ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ (2002) 13 EJIL 1127 M Spinedi, ‘La responsabilité de l’Etat pour crime: une responsabilité pénale?’, in H Ascensio, A Pellet and E Decaux (eds), Droit international pénal (Paris, Pedone, 2000), 93 C Tams, ‘Les obligations de l’Etat responsable: le lien manquant?’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États, Actes du Colloque de l’Institut universitaire européen, Florence, 7–8 decembre 2001 (Paris, Pedone, 2003), 79 C Tams, ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’ (2002) 13 EJIL 1161 E Wyler, L’illicéité et la condition des personnes privées (Paris, Pedone, 1995)(p. 638)

Footnotes: 1 According to one definition, in international law satisfaction is, ‘in a general and non-technical sense, any advantage or punishment, obtained by the beneficiary following the making of a claim’ (‘dans un sens général et non technique, [tout] avantage ou rétribution, obtenus par le bénéficiaire, à la suite d’une demande’): J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 1019. 2 Certain authors stumble over that element; for instance, according to Anzilotti: ‘intent and negligence, in the proper sense of those words, express means of volition as a psychological act, and it is therefore not possible to use them except in relation to individuals’ (‘le dol et la faute dans le sens propre du mot expriment des manières d’être de la volonté comme fait psychologique et on ne peut donc en parler qu’en se rapportant à l’individu’); D Anzilotti, Cours de droit international (Paris, Sirey, 1929), Vol I, 498. 3 See in particular G Scelle, Précis de droit des gens (Paris, Sirey, 1934), Vol I, 8–13. 4 See Corfu Channel Merits, ICJ Reports 1949, p 4, 22: ‘Albania’s obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact … and

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the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion.’ In the Bosnian Genocide case, the ICJ emphasized that the subjective element of the crime of genocide, namely the dolus specialis (the intention to act wrongfully), is a necessary component of that specific crime: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 421. 5 Commentary to draft art 20, para 8, in ILC Yearbook 1977, Vol II(2), 1, 13–14. 6 GA Res 56/83, 12 December 2001. 7 M Spinedi, ‘La responsabilité de l’Etat pour crime: une responsabilité pénale?’, in H Ascensio, A Pellet & E Decaux (eds), Droit international pénal (Paris, Pedone, 2000) 93, 108. 8 F Przetacznik, ‘La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État’ (1974) 78 RGDIP 919, 924. 9 See S Nahlik, ‘Development of Diplomatic Law: Selected Problems’ (1990-III) 222 Recueil des cours 187, 221–223. 10 Cf L Cavaré, Le droit international public positif (4th edn, Paris, Pedone, 1969), vol II, 473. 11 D Anzilotti, ‘La responsabilité des États à raison des dommages subis par ses ressortissants à l’étranger’ (1906) 13 RGDIP 5, 14 (‘le concours de deux éléments: l’action, c’est-à-dire un fait matériel, extérieur, et sensible, et la règle de droit, avec laquelle il se trouve en contradiction’). 12 The view has been expressed that the theory thereby creates a dispute ‘as to legality’ (‘de la légalité’) as opposed to a dispute ‘as to reparation’ (‘de la réparation’), insofar as it aims to ‘identify and denounce the violation of the law’ (‘constater et dénoncer la violation du droit’): P-M Dupuy, ‘Le fait générateur de la responsabilité internationale des Etats’ (1984-V) 188 Recueil des Cours 9, 91. 13 P-M Dupuy, ‘A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility’ (2002) 13 EJIL 1053, 1070; P-M Dupuy, ‘Bilan général’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des Etats; Actes du Colloque de l’Institut universitaire européen, Florence, 7-8 décembre 2001 (Paris, Pedone, 2003), 227. 14 The distinction derives, so it would seem, from an insight of Sir Gerald Fitzmaurice and is widely-accepted: see eg S Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the Injured State’ (1988) 35 NILR 273; P-M Dupuy, ‘A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility’ (2002) 13 EJIL 1053, 1071–1072; P-M Dupuy, ‘Bilan général’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des Etats; Actes du Colloque de l’Institut universitaire européen, Florence, 7–8 décembre 2001 (Paris, Pedone, 2003), 227–230. 15 On the distinction between traité-loi and traité-contrat, see G Scelle, Précis de droit des gens (Paris, Sirey, 1934), Vol II, 332ff. 16 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections, ICJ Reports 1996, p 595, 611 (para 22), quoting Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, p 15, 23. 17 See eg L-A Sicilianos, ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ (2002) 13 EJIL 1127, 1138–1140; L-A Sicilianos, ‘Classification des obligations et dimension multilatérale de la responsabilité d’un autre Etat’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des Etats; Actes du Colloque de l’Institut universitaire européen, Florence, 7–8 décembre 2001 (Paris, Pedone, 2003), 69, 69–72. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

18 As demonstrated by the position adopted by the last Special Rapporteur of the ILC on State Responsibility, J Crawford: ‘much of what is subsumed under the term “moral damage” for States really involves what might be described as non-material legal injury, the injury involved in the fact of a breach of an obligation, irrespective of its material consequences for the State concerned’: see J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, para 181. 19 Mavrommatis Palestine Concessions, Preliminary Objection, 1924, PCIJ Reports, Series A, No 2, p 4, 12. 20 See P Reuter, ‘Quelques remarques sur la situation juridique des particuliers en droit international public’, in Mélanges G Scelle (Paris, LGDJ, 1950), Vol II, 535, 541 and B BolleckerStern, La préjudice dans la théorie de la responsabilité internationale (Paris Pedone, 1973), 101; for a critique of that position, see E Wyler, L’illicéité et la condition des personnes privées (Paris, Pedone, 1995), 268–269. 21 ‘The injury inflicted upon an individual, a national of the claimant States … constitutes an act internationally unlawful, because it signifies an offence against the State to which the individual is united by the bond of nationality’, United States-Mexico General Claims Commission, Dickson Car Wheel Co, July 1931, 4 RIAA 669, 678. 22 In this sense, see F García Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 11 (para 43) and J Personnaz, La réparation du préjudice en droit international public (Paris, Sirey, 1939), 285. 23 For a similar opinion, see G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 6 (para 16): ‘The award of a remedy for the moral damage in question seems thus hardly perceptible at first sight’. 24 For example, wide-spread violations of human rights, administrative practices of apartheid or crimes against humanity and genocide: see J Salmon, ‘Les obligations quantitatives et l’illicéité’, in L Boisson de Chazournes & V Gowlland-Debbas (eds), The international legal system in quest of equity and universality; Liber Amicorum G. Abi-Saab (The Hague, Nijhoff, 2001), 305, 312. 25 See draft art 18(4) and the accompanying Commentary, in ILC Yearbook 1976, Vol II(2), 1, 87– 95. For a critical analysis of the concept, see E Wyler, L’illicéité et la condition des personnes privées (Paris, Pedone, 1995), 56–61 and J Salmon, ‘Les obligations quantitatives et l’illicéité’, in L Boisson de Chazournes & V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality; Liber Amicorum G. Abi-Saab (The Hague, Nijhoff, 2001), 305, 317ff. 26 ILC Yearbook 2001, Vol II(2), 67, and commentary at 62–65. 27 P Daillier and A Pellet, Nguyen Quoc Dinh: Droit international public (7th edn, Paris, LGDJ, 2002), para 639. 28 Ibid. 29 See eg J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, para 182. 30 C Dominicé, ‘La responsabilité non contentieuse’, in SFDI, La responsabilité dans le système international: Colloque du Mans, 31 May–2 June 1990 (Paris, Pedone, 1991), 191, 213. 31 The SS ‘I’m Alone’ (Canada v United States of America), 5 January 1935, 3 RIAA 1609, 1618. 32 Differences between New Zealand and France arising from the Rainbow Warrior affair, Ruling of the Secretary-General of the United Nations, 6 July 1986, 19 RIAA 199, 213. 33 See the practice cited by P-A Bissonnette, La satisfaction comme mode de réparation en droit international (Geneva, 1952), 213; F Przetacznik, ‘La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État’ (1974) 178 RGDIP 919, 962–966; and the conclusions of C Dominicé, ‘La satisfaction en droit des gens’, in Mélanges G. Perrin (Lausanne, Payot, 1984), 91, 107. 34 Differences between New Zealand and France arising from the Rainbow Warrior affair, Ruling of the Secretary-General of the United Nations, 6 July 1986, 19 RIAA 199, 214 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

35 Some have characterized the ruling as made ex aequo et bono: see eg G Palmisano, ‘Sulla decisione arbitrale relativa alla seconda fase del caso Rainbow Warrior’ (1990) 73 Rivista di diritto internazionale 874, 901. 36 See C Dominicé, ‘La satisfaction en droit des gens’, in Mélanges G. Perrin (Lausanne, Payot, 1984), 91, 105–106; J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, para 192. 37 In the Bosnian Genocide case, the ICJ clearly stressed the intimate connection existing between the obligation to prevent a genocide and the general customary duty of due diligence: ‘in this area, the notion of due diligence, which calls for an assessment in concreto, is of critical importance’: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 430. 38 F García Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 22 (para 86). 39 Przetacnik in fact confuses them: F Przetacznik, ‘La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État’ (1974) RGDIP 919, 968. 40 Art II, Protocol signed by Italy and Venezuela, Washington DC, 13 February 1903, 10 RIAA 479. 41 Crawford expresses the view that a declaration of wrongfulness can only be made by ‘a competent third party’: J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, para 185; however the Commentary to art 37 ARSIWA makes no distinction in this regard. 42 Permanent Court of Arbitration, The ‘Manouba’ (France v Italy), 6 May 1913, 11 RIAA 471, 475 (‘… pour le cas où une Puissance aurait manqué à remplir ses obligations, soit générales, soit spéciales, vis-à-vis d’une autre Puissance, la constatation de ce fait, surtout dans une sentence arbitrale, constitue déjà une sanction sérieuse.’). 43 Corfu Channel, ICJ Reports 1949, p 4, 36; see also ibid, 35. 44 Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 273 (para 123). 45 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 462. Having denied a sufficient connection between the breach of the obligation to prevent acts of genocide and the alleged prejudice, the Court thus reduced the issue of reparation to the declaration of wrongfulness (ibid). 46 See the commentary on the Bosnian Genocide case by P-M Dupuy: ‘La satisfaction apparaît … comme le mode approprié pour rétablir l’ordonnancement juridique de la situation où il était antérieurement à la création de faits illicites majeurs, du moins lorsque toute réparation matérielle paraît dérisoire ou inadaptée’ (‘Crime sans châtiment ou mission accomplie?’ (2007) 111 RGDIP 235. 47 In Certain Questions of Mutual Assistance in Criminal Matters, the ICJ gave reparation to the State of Djibouti through a declaration of wrongfulness. Djibouti was complaining of a breach, by France, of the duty (embodied in a bilateral treaty on judicial assistance in criminal matters) to motivate a denial of a request based on rogatory letters (Certain Questions of Mutual Assistance in Criminal Matters, Judgement, 4 June 2008, para 204)). 48 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, para 182. 49 See F Przetacznik, ‘La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État’ (1974) RGDIP 919, 957, 960–962.

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50 Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 274 (para 127). 51 C Dominicé, ‘De la réparation constructive du préjudice immatériel souffert par un Etat’ in L’ordre juridique international entre tradition et innovation (Paris, PUF, 1995), 349ff. 52 C Dominicé, ‘La responsabilité non contentieuse’, in SFDI, La responsabilité dans le système international: Colloque du Mans, 31 May–2 June 1990 (Paris, Pedone, 1991), 191, 211. 53 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 56 (para 191). 54 ILC Yearbook 1992, Vol. I, 221 (para 57) (2288th meeting). Crawford expressed his strong support for that deletion: J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, para 190. 55 In this regard, reference can be made to the decision of the US-Mexico General Claims Commission in Janes, 16 November 1925, 4 RIAA 82, in which the award of $12,000 appears to have been excessive in relation to the damage caused; and the Tellini affair (Italy v Greece) in 1923—for discussion of the details of the complex modalities for the settlement of the dispute, see G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 37–38 (para 124 and note 313). 56 C Tams, ‘Les obligations de l’État responsable: le lien manquant?’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États; Actes du Colloque de l’Institut universitaire européen, Florence, 7–8 December 2001 (Paris, Pedone, 2003), 79, 90; C Tams, ‘Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?’ (2002) 13 EJIL 1161, 1169–1170 57 Commentary to draft art 10, para 6: ILC Yearbook 1993, Vol II(2), 1. 58 Even if art 37 of the ILC Articles assigns a subsidiary role to satisfaction, international practice shows a trend in favour of complementarity: see eg the requirement of apologies and compensation in The ‘I’m Alone’ and The ‘Rainbow Warrior’, quoted above. 59 The incident took place in 1894; see JB Moore, A Digest of International Law (Washington DC, Government Printing Office, 1906), Vol VI, 745–746. 60 In addition a call for the provision of satisfaction, under the ILC’s scheme, constitutes a precondition for the taking of countermeasures if it represents a form of adequate reparation; see art 52(1)(a) ARSIWA, referring back to art 43(2)(b): a responsible State which refuses to fulfil its obligation to provide satisfaction (if appropriate) thus risks the adoption of countermeasures against it by the injured State. 61 F Przetacznik, ‘La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État’ (1974) RGDIP 919, 944. 62 F García Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 29 (paras 111–112); J Personnaz, La réparation du préjudice en droit international public (Paris, Sirey, 1939), 289. 63 C Dominicé, ‘La satisfaction en droit des gens’, in Mélanges G. Perrin (Lausanne, 1984), 212. 64 Ibid. 65 Although there are exceptions, as illustrated by those decisions ordering the responsible State to apologize: see eg The ‘I’m Alone’ and The ‘Rainbow Warrior’. In LaGrand, the ICJ stated that the apologies already offered by the United States to Germany for the breach of art 36 of the Vienna Convention on Consular Relations 1963 could not be considered as sufficient reparation, because detention of individuals appeared to have been one of the consequences of the wrongful act (Lugard (German v United States of America), ICJ Reports 2001, p 466, 512 (para 133).

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66 F García Amador, Sixth Report on State Responsibility, ILC Yearbook 1961, Vol II, 1, 29 (paras 111–112). 67 Notably Dominicé, for whom ‘the obligation to make reparation for a hypothetical moral wrong to the State does not exist’ and ‘satisfaction does not exist in international law as a means of making reparation’) (‘l’obligation de réparer un hypothétique dommage moral de l’Etat n’existe pas’ and consequently ‘il n’existe pas, en droit international, un mode de réparer … qui serait la satisfaction’: C Dominicé, ‘La responsabilité non contentieuse’, in La responsabilité dans le système international, Colloque Le Mans, 31 mai–2 juin 1990 (Paris, Pedone, 1991), 117–118; for Conforti, ‘the only true form of reparation is compensation’ (‘la seule, véritable forme de réparation consiste dans l’indemnisation’; B Conforti, ‘Cours générale de droit international public’) (1988-V) 212 Recueil des cours, 9, 209. 68 It is for this reason that it was not included in draft art 10 as proposed by Arangio-Ruiz: G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 56 (para 191).

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Part IV The Content of International Responsibility, Ch.43 Contribution to the Injury Anaïs Moutier-Lopet From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Wrongful acts — Reparations — Responsibility of states — Circumstances precluding wrongfulness

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(p. 639) Chapter 43 Contribution to the Injury 1 The conduct of the victim and the law of international responsibility 641 2 Contribution to the injury and determination of the reparation 644 Further reading 645 It is ‘a principle of international law’1 that an internationally wrongful act entails an obligation to make full reparation. But the injury can also be the consequence of other causes.2 These causes can be completely external to the victim, as for example in the case of force majeure, a circumstance precluding wrongfulness. It is also possible that the injury results, totally or partially, from the victim’s conduct. It is therefore necessary to examine the causal link to determine whether the behaviour of the victim contributed to the injury, and if so, to determine the consequences of this contribution relative to the injury resulting from an internationally wrongful act. These situations, characterized in national legal systems through the notions of ‘contributory negligence’, ‘comparative fault’, ‘relative fault’, and ‘concurrent fault’,3 are approached differently in international law. The question of contribution to the injury as such has not been thoroughly addressed in the doctrine.4 Although both the doctrine and the case law suggest that it is necessary to consider the conduct of the victim, there is disagreement as to the function of that conduct and its effect on the obligations of the respondent State. Some authors see the contributory fault of the victim as both an exonerating and an attenuating circumstance.5 Others agree on the necessity to take it into account in the determination of reparation.6 Differences may also be found in codification projects.

References (p. 640) The Institute of International Law, during its session at Neuchâtel in 1900, considered the conduct of the victim as a circumstance exonerating responsibility. If the injured person is herself the cause of the event leading to the injury, following, for example, a provocative attitude towards a crowd, the obligation of reparation disappears.7 The American Law Institute considered the conduct of the victim as an exception to admissibility, as part of the ‘clean hands’ doctrine. According to this Anglo-Saxon equitable principle, a State cannot bring an international claim on behalf of one of its nationals if the injured national did not maintain proper conduct towards the State allegedly responsible, including where the national intervened in the host State’s internal affairs or committed hostile acts against it.8 During its preparation for the 1930 Conference for the Codification of International Law at The Hague, the Preparatory Committee, on the basis of the responses given by governments to the question whether it was necessary to take into account the fact that the victim had adopted a provocative attitude towards those who inflicted injury on him, elaborated Basis of Discussion No 19. This provided that the extent of a State’s responsibility depended on all the circumstances of the case, and in particular whether the victim acted against a foreigner or adopted a provocative attitude. But the responses from governments revealed no consensus as to whether this hypothesis should operate as an exonerating or simply as an attenuating circumstance, and consequently Basis No 19 was unanimously deleted. Eventually, the provision involving questions of fact was referred to the judge’s appreciation.9 Similarly, the Harvard Draft Convention on State Responsibility for Injury to Aliens of 1961 treated the contributory fault of the foreign victim as an exception to admissibility.10 In that same year the ILC’s Special Rapporteur published a complete draft on the codification of international responsibility for injuries caused to foreigners. García Amador considered the foreigner’s fault as a circumstance exonerating responsibility11 and as an attenuating circumstance in the determination of reparation.12 The only common element between these provisions is the reference to the conduct of the victim, a private person, but they differ in relation to the characterization and the

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function of that conduct. The ILC, following Ago’s recommendation, rejected the fault of the victim as a circumstance precluding wrongfulness, only retaining the provisions on the victim’s contribution to the injury as a circumstance attenuating responsibility, a choice justifi ed by consideration of the role of the victim’s conduct in the law of international responsibility.

(p. 641) 1 The conduct of the victim and the law of international responsibility To understand the ILC’s decision to limit the effect of the victim’s contribution to reparation, it is necessary to refer to the work of Bollecker-Stern on damage in the theory of international responsibility.13 As demonstrated by Stern, there is no need to distinguish the causal role of the simple act of the victim from the causal role of the victim’s wrong. To Reuter’s question in the Barcelona Traction case as to the existence in international law of a specific theory of clean hands,14 Bollecker Stern concluded that: ‘there is no autonomous clean hands doctrine in international law, in the case of the wrongful conduct of the victim the normal rules on causation must be applied’.15 Consequently, ‘it is not the characterization of the victim’s conduct, but its causal role which is important’.16 Thus, whether the victim’s conduct is culpable or not and whether the victim contributing to the injury is a natural or legal person, or the injured State itself, the applicable rules are the same. These are the rules codified in ARSIWA. Article 2 establishes two conditions for the existence of an internationally wrongful act: a breach of international law by a State and the attribution of the breach to the State. Of course, in limited circumstances, listed in Chapter V of Part One, the wrongfulness of the conduct or the responsibility of the State may be precluded. The conduct of the victim is not listed as one of these circumstances, and therefore cannot be considered as a circumstance precluding wrongfulness. This is not to say that the conduct of the victim is irrelevant for the purposes of State responsibility. If the conditions of article 2 are not met then no internationally wrongful act exists; but where the conditions of article 2 are met, an internationally wrongful act is established, and in this case, the conduct of the victim may influence the consequences of that wrongfulness. Where there is no internationally wrongful act, or a wrongful act cannot be attributed to the defendant State, it is immaterial whether the victim has contributed to its injury and any such contribution cannot be characterized as an exonerating factor. This is the case, for example, where the victim (often a private person) has contributed to a damage caused by other persons whose acts cannot be attributed to the defendant State. In the Tatsuji Saito case no reparation was awarded to the successors of a Japanese national murdered by American soldiers to whom the victim had sold alcohol illegally, since the American soldiers had acted in their private capacity; no internationally wrongful act could be attributed to their State of nationality.17 Likewise, where an act is attributable to the defendant State but does not constitute a breach of an international obligation, the conduct of the

References (p. 642) victim is immaterial. In British Claims in the Spanish Zone of Morocco Arbitrator Huber recognized that it was the negligence of the victims who, following the theft of their cattle by unknown persons, had reported the fact too late, thus justifying the absence of legal proceedings against the culprit by the competent authorities.18 In those circumstances there was no internationally wrongful act. Where the international responsibility of the State for an internationally wrongful act is established, the conduct of the victim can influence the legal consequences flowing from that responsibility. One of these consequences is the obligation of the responsible State to provide full reparation for 19

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the injury caused by its internationally wrongful act.19 It is only the injury flowing from the internationally wrongful act which must be repaired.20 Thus a direct causal link is required. The victim’s conduct may be either one of the causes or the exclusive cause of the injury suffered. The ILC noted that ‘[f ]ull reparation is due for the whole damage—but nothing more than the damage— ascribable to the wrongful act’.21 According to Salmon, ‘[i]t is thus necessary to analyse the causal relationship in order to determine if reparation must be full, partial or nil’.22 It is convenient here to refer again to the work of Bollecker-Stern, echoed in that of Salmon, which distinguishes four modalities of concurrence of cause: exclusive intervention, parallel intervention, complementary intervention, and cumulative intervention of the foreign cause. In the case of exclusive intervention of the victim, it is possible that the State may have effectively created a certain situation through an internationally wrongful act, but it is the conduct of the victim which constitutes the direct and exclusive cause of the injury suffered.23 Thus, ‘no reparation is due by the author of the unlawful act, who did not have any role—although apparently having had one—in the production of the injury’.24 This is the case where the act of the victim causally intervenes after the State’s wrongful act. The act of the victim is, in fact, rarely recognized as being entirely the consequence of the wrongful act.25 Instead, the act of the victim is considered as a free act or ‘acte libre’. In the Cowper case, the tribunal refused to award reparation to Cowper for the loss of his harvest, since the origin of this loss was not the taking of his illegal slaves, but of his negligence, because he had not replaced his slaves for 10 years.26 Must it be deduced that the unlawful act places an obligation of conduct on the victim? According to Bollecker-Stern, ‘[i]t appears that the minimum that can be required of the victim is not to aggravate by too passive or too aggressive a conduct the injurious consequences of the unlawful act’.27 In the case of parallel intervention, the wrongful act produces or may produce an injury, but the injury is also caused by the conduct of the victim. In these circumstances, no

References (p. 643) reparation can be requested from the State to whom the act is attributable, since both acts, that of the State and that of the victim, are independent.28 In the case of the intervention of a cumulative cause, it is the convergence of the unlawful act and the conduct of the victim (neither of which could have caused the injury by itself ) that produces the injury. The conduct of the victim can justify a reaction of the defendant State, which must be proportionate to the gravity of the act and must respect human rights. Failure to meet these conditions entails that the State’s conduct must be considered as the exclusive cause of the injury, and the behaviour of the victim is not taken into account in the evaluation of the reparation. In the case of Rozas v United States the arbitrator recognized that the conduct of Mr Rozas, an American national strongly suspected of having participated in a conspiracy of insurgents against the Mexican government, justified his arrest, but did not justify the ill-treatment which he had suffered nor the judgment rendered against him which failed to comply with international minimum guarantees.29 Finally, in the case of complementary intervention, multiple causes concur in the production of the injury. According to Bollecker-Stern, ‘[i]n fact, this case deals with multiple injuries having the same nature which add up and give the impression that it is a sole injury’.30 It occurs when the act of the victim can only partially justify the act of the State. Thus ‘a separation must be carried out and reparation can be requested from the State to whom the unlawful act is attributable, but only in the amount of the injury caused by its unlawful act taken alone’.31 In fact, ‘to hold the author State liable for reparation of all of the injury would be neither equitable nor in conformity with the proper application of the causal link theory’,32 when the unlawful act of the State played a decisive but not an exclusive role in the production of the injury. For instance, in the Delagoa Bay Railway case concerning the annulment of the concession for operation of the railroad 25 years before its expiration, the arbitrators recognized that ‘[a]ll the

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circumstances that can be adduced against the concessionaire company and for the Portuguese Government mitigate the latter’s liability and warrant … a reduction in reparation’.33 The Permanent Court in The SS ‘Wimbledon’ implicitly recognized the necessity of taking account of the conduct of the victim in determining the amount of the reparation, although without doing so in the case, for the conduct of the victim was not reprehensible but instead was reasonable in the circumstances.34 The International Court in LaGrand recognized that ‘Germany [could] be criticized for the manner in which these proceedings were filed and for their timing’ and that conscious of the consequences of the late submission of the claim, the Court would have taken this factor into

References (p. 644) account ‘had Germany’s submission included a claim for indemnification’.35 These three examples were referred to by the ILC in the Commentary to article 39.36

2 Contribution to the injury and determination of the reparation The application of the general regime of international responsibility must allow consideration of all the consequences of the intervention of the victim in the production of the injury. Nevertheless, the ILC considered that the question of contribution to the injury was sufficiently important to require a separate article. Article 39 thus concerns situations where the injury has been caused by the internationally unlawful act of the State, responsible for its act in accordance with articles 1 and 28, but where the victim, either an injured State or any natural or juridical person in relation to whom reparation is sought, has materially contributed to the injury by some wilful or negligent act or omission.37 The conduct of the victim which is at the origin of the internationally wrongful act and constitutes an attenuating factor of the responsibility of the State must then be taken into account to determine the form and the scope of the reparation. These situations seem a priori dealt with by the requirement of an immediate cause. But the codification of this rule is justified, for it stipulates the circumstances in which and the purposes for which the conduct of the victim must be taken into account in the determination of the reparation. Similarly, not every act and omission of the victim will be relevant. The conduct of the victim is not taken into account unless it is wilful or negligent and ‘manifest[s] a lack of due care on the part of the victim of the breach for his or her own property rights’.38 This wording, which follows that of article VI(1) of the Convention on International Liability for Damage Caused by Space Objects,39 replaced the expression ‘contributory negligence’ which appeared in the initial draft proposed by Arangio-Ruiz because ‘being borrowed from the common law system, it was not easily understood in other legal systems and … it lent itself to a restrictive interpretation excluding deliberate acts or omissions’.40 The characterization used is flexible, although some States had suggested that other factors might also be relevant.41 Arangio-Ruiz produced the initial draft of article 39. Establishing the theory of concomitant causes, he envisaged the possibility of the injury having causes exterior to the internationally wrongful act and provided for a reduction of compensation ‘notably when the negligence of the State could have … contributed to the injury’.42 While rejecting the theory of concomitant causes in its entirety, the Commission retained contributory negligence as an element to take into account to determine the obligations of the responsible State in relation to the form and extent of reparation, even though the contribution of the victim to the injury could have had a more important role than as a mere mitigating factor in the determination of reparation.43

References (p. 645) Arangio-Ruiz’s original draft was proposed specifically in the context of reparation by 44

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equivalent—that is, compensation.44 The final provision applies to reparation and not merely to compensation. In practice, the contribution of the victim to the injury has been taken into account in the context of pecuniary compensation owed to the injured State, by reducing the amount of the compensation proportionately to the contribution to the damage. But it may also have an influence in the choice of the form of reparation, and on any other appropriate forms of reparation. The ILC gave an example of a State-owned ship unlawfully seized by another State, which suffered damage attributable to the negligent conduct of the captain while seized. In these circumstances, the sole reparation that can be requested from the seizing State is the restitution of the vessel in its damaged state.45 Finally, the conduct which contributes to the injury may be either that of the injured State or that of ‘any person or entity in relation to whom reparation is sought’.46 This expression intends to cover ‘not only the situation where a State claims on behalf of one of its nationals in the field of diplomatic protection’, but also any other situation in which a State invokes the responsibility of another State in relation to conduct primarily affecting a third party,47 that is, the situations envisaged in articles 42 and 48. In fact, in these situations ‘the position of the State seeking reparation should not be more favourable, so far as reparation in the interests of another is concerned, than it would be if the person or entity in relation to whom reparation is sought were to bring a claim individually’.48 Further reading C von Bar, The Common European Law of Torts, Damage and Damages, Liability for and without Personal Misconduct, Causality and Defences (Munich, Beck, 2000) DJ Bederman, ‘Contributory Fault and State Responsibility’ (1990) 30 Virginia JIL 335 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pédone, 1973) L García Arias, ‘La doctrine des clean hands en droit international public’ (1960) 30 Annuaire des anciens auditeurs de l’Académie de droit international 14 FV Garcia Amador, L Sohn, & R Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (Dobbs Ferry, NY, Oceana Publications, 1974) B Graefath, ‘Responsibility and Damage Caused: Relations between Responsibility and Damages’ (1984-II) 185 Recueil des cours 95 CD Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1987) J Salmon, ‘Les circonstances excluant l’illicéité’, in K Zemanek & J Salmon, Responsabilité internationale (Paris, Pedone, 1987) J Salmon, ‘La place de la faute de la victime dans le droit de la responsabilité internationale’, in International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Milan, Giuffré, 1987), 371

References (p. 646)

Footnotes: 1 Factory at Chorzów, Jurisdiction, 1927, PCIJ, Series A, No 9, p 4, 21. 2 See B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 265–351. 3 See C von Bar, The Common European Law of Torts (Munich, Beck, 2000), Vol 2, 517–540. 4 J Salmon, ‘La place de la faute de la victime dans le droit de la responsabilité internationale’, in International Law at the Time of its Codification: Essays in Honour of Roberto Ago (Milan, Giuffré, 1988), Vol III 371; DJ Bederman, ‘Contributory Fault and State Responsibility’ (1990) 30 Virginia JIL 335.

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5 F Garcia Amador, L Sohn, & R Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (Dobbs Ferry, NY, Oceana Publications, 1974), 35–36, 126–127; DJ Bederman, ‘Contributory Fault and State Responsibility’ (1990) 30 Virginia JIL 335, 368. 6 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 326–328; D Carreau, Droit international public (5th edn, Paris, Pedone, 1997), 431; CD Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1987), 23–24; B Graefrath, ‘Responsibility and Damage Caused: Relations between Responsibility and Damages’ (1984-II) 185 Recueil des cours, 95. 7 Art 3 of the Draft Rules on the Responsibility of States for Injury to Aliens in Case of Riot, Insurrection or Civil War, available in French in 18 Annuaire IDI 255. 8 Art 6 of Project No 16 of the American Institute of International Law on Diplomatic Protection, 1925, reproduced in FV García Amador, First Report on State Responsibility, Annex VII, ILC Yearbook 1956, Vol II, 173, 227. 9 Publications of the League of Nations, Legal Questions, 1929, V. 3, doc. C.75.M.69.1929.V, 99. The Bases of Discussion were reproduced by FV García Amador, First Report on State Responsibility, Annex II, ILC Yearbook 1956, Vol II, 173, 223ff. 10 Art 4.4, in F García Amador, L Sohn, & R Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (Dobbs Ferry, NY, Oceana Publications, 1974), 172, and commentary, 177–178. 11 See draft art 13(2), FV García Amador, Third Report on State Responsibility, ILC Yearbook 1958, Vol II, 47, 50. 12 Draft arts 13(3) & 24(3): ibid, 52, 67. 13 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 301–351. 14 ‘Reply of Belgium’, ICJ Pleadings, Barcelona Traction, Light and Power Company, Limited, Vol 5, 389 (in French). 15 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 312. See also L García Arias, ‘La doctrine des clean hands en droit international public’ (1960) 30 Annuaire des anciens auditeurs de l’Académie de droit international 14; J Salmon, ‘Des mains propres comme condition de recevabilité des réclamations internationales’ (1964) 10 AFDI 226. 16 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 316. 17 Tatsuji Saito, Hackworth, Digest, Vol V, 586, cited by J Salmon, ‘Des mains propres comme condition de recevabilité des réclamations internationales’ (1964) 10 AFDI 226. 18 British Claims in the Spanish Zone of Morocco (Great Britain v. Spain), 1 May 1925, 2 RIAA 616, 699. Other examples are given in B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 317–321. 19 Art 31(1) ARSIWA. 20 Art 31(2) ARSIWA. 21 Commentary to draft art 6bis, para 7, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 60. 22 J Salmon, ‘La place de la faute de la victime dans le droit de la responsabilité internationale’, International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Milan, Giuffré, 1987), Vol III, 201. 23 Ibid, 213–215. 24 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Pedone, 1973), 296. 25 Ibid, 194–196, 328–330; J Salmon, ‘La place de la faute de la victime dans le droit de la responsabilité internationale’, International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Milan, Giuffré, 1987), 212–215; CD Gray, Judicial Remedies in International Law (Oxford, Clarendon Press, 1987), 23–24. 26 Cowper (United States/Great Britain), (1822), in A de Lapradelle & N Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), Vol I, 348. 27 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 336. 28 Ibid, 342–344; J Salmon, ‘La place de la faute de la victime dans le droit de la responsabilité internationale’, International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Milan, Giuffré, 1987), 223–225. 29 Rozas v United States in JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), Vol III, 3125. For other examples see B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 321–326; J Salmon, ‘La place de la faute de la victime dans le droit de la responsabilité internationale’, International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Milan: Giuffré, 1987), 209–212. 30 B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973), 281. 31 Ibid, 285. 32 Commentary to draft art 6bis, para 6, ILC Yearbook 1993, Vol II(2), 59. 33 Delagoa Bay Railway (1900), in GF de Martens, Nouveau recueil général de traités, 2e série, Vol XXX, 329, 407. 34 The SS ‘Wimbledon’, 1923, PCIJ Reports, Series A, No 1, p 4, 31. 35 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 487 (para 57), 508 (para 116). 36 Commentary to art 39, paras 3 and 4. 37 Ibid, para 1. 38 Ibid, para 5. 39 961 UNTS 187. 40 ILC Yearbook 1992, Vol I, 217 (paras 20–27). 41 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 220. 42 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 56 (para 191). 43 ILC Yearbook 1992, Vol I, 217 (para 25). 44 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507m, para 218. 45 Commentary to draft art 6bis, para 7, ILC Yearbook 1993, Vol II(2), 59–60. 46 Commentary to art 39, para 6. 47 Ibid. 48 Ibid.

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Part IV The Content of International Responsibility, Ch.44 Division of Reparation between Responsible Entities Alexander Orakhelashvili From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Responsibility of international organizations — Reparations — Circumstances precluding wrongfulness — Diplomatic protection — Vienna Convention on the Law of Treaties — United Nations (UN) — North Atlantic Treaty Organization (NATO)

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(p. 647) Chapter 44 Division of Reparation between Responsible Entities 1 Concepts, categories, and interests 647 2 Areas in which the division of reparation is relevant 649 (a) Responsibility of States 649 (i) The types of wrongful conduct 649 (ii) The requirement of shared wrongfulness 651 3 Responsibility for actions of international organizations 653 4 Practical aspects of the division of reparation 656 (a) Responsibility of States 656 (b) Responsibility to and of international organizations 660 (c) Procedural aspects: the Monetary Gold principle 663 5 Conclusions 664 Further reading 665

1 Concepts, categories, and interests Internationally wrongful acts can be (and often are) committed through the collaboration of two or more subjects of international law, which gives rise to what is sometimes referred to as joint and several responsibility. In such situations the allocation of the remedial duties to relevant entities may become an issue. The law in this field is called on to find the proper balance between the two legitimate interests. The first is that of the injured entity in the effective redress for the wrongful act and its consequences. In the case of concurrent, combined or concerted action of two or more States, the efficiency of redress depends on the ability of the injured State or non-State entity to demand reparation from at least one of the responsible States. The question of general prevention is also relevant—the law of State responsibility should not be construed as taking note of the effective participation of the State in the wrongful act, especially in situations involving causal connection to the outcome of the breach, and yet as excluding that very same participation from the reach of the rules of attribution and redress, thereby allowing the State concerned to escape responsibility. The principal criterion should be the need to enable the injured party to ensure effective redress for wrongful acts; in other words to guarantee the effectiveness of the norms which have been breached. The second interest, which is relevant both where the wrongful act is committed by two or more States and where two or more States are injured, is that of the responsible entity (p. 648) not to provide more reparation than is necessary for the redress of the wrongful act. As the Permanent Court of International Justice noted in the Chorzów Factory case, tribunals must avoid awarding double damages.1 Similarly, the International Court in the Reparations case noted that: international tribunals are already familiar with the problem of a claim in which two or more national States are interested, and they know how to protect the defendant State in such a case.2 This would, according to the Court, apply also to cases where one of the claimants is an international organization. It seems generally agreed that the responsibility of international organizations is governed by the

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same general principles as State responsibility. As the ILC’s Special Rapporteur on Responsibility of International Organisations has emphasized, the standards applicable to international organizations need not be different from the standards applicable in the law of State responsibility.3 At the same time, the structural peculiarity of international organizations requires certain differentiations that potentially cover both the principles applicable to and the outcomes of responsibility. For instance, the 1969 Vienna Convention on the Law of Treaties served as an example for drafting and adopting the 1986 Vienna Convention applicable to treaties concluded with the involvement of international organizations. While most rules and principles in the two conventions are similar, the structural characteristics of international organizations have led to the adoption of specific rules applicable to organizations regarding the conclusion of treaties (article 7(3)), the validity of treaties (article 46), and dispute settlement (articles 65–66). It can be argued that similar structural differences can require different treatment in the law of responsibility as well. The ILA Final Report on the Accountability of International Organizations considered that the principles of responsibility applicable to both fields are similar though not identical: ‘the principles of State responsibility are applicable by analogy, but with some variations, to the responsibility of international organizations’.4 In the field under consideration, the structural peculiarity of international organizations is apparent. While the situation raising the division of reparation between responsible States involves two or more States, actions by international organizations almost inherently raise the question of division of reparation with other entities, either because of the delegated character of the powers of international organizations, or because of their lack of a territorial basis, which means that, apart from staff cases, they can only breach international law either on the territory of some State or in collusion or collaboration with one or more States, eg when the decisions of the UN Security Council oblige States to adopt a certain course of conduct, most notably in the case of mandatory sanctions, or when the development programmes of the World Bank are implemented in the territory of a State with its consent and cooperation. At the same time, the specific case of territorial

References (p. 649) governance presents a situation where the organizations can exercise territorial jurisdiction which can affect questions of responsibility and reparation. First, it is necessary to examine the conceptual and normative preconditions of the division of reparation, that is, the areas in which the issue of the division of reparation arises. Second, the practical aspects and modalities of the division of reparation will be examined. Third and finally, the focus will be on the procedural prerequisites and obstacles to the recovery of reparation where it is to be divided between the two or more responsible entities. Attempts to locate the applicable principles are not assisted by the fact that in practice cases involving the responsibility of multiple States for the same wrongful act have quite often been settled, rejected or discontinued before reaching the stage at which the reparation is determined; 5 or procedural obstacles have prevented the determination of the issues of joint responsibility and the division of reparation, as in the case of the Inter national Court’s application of the absent third party doctrine.

2 Areas in which the division of reparation is relevant (a) Responsibility of States (i) The types of wrongful conduct The question of the plurality of responsible and injured States and hence the question of the division of reparation between the responsible entities comes into play either through the

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concerted action of States or in cases where the roles of States differ in terms of the kind and degree of their involvement in the wrongful act. These issues are logically prior to the issue of division of reparation. The construction of the rules regarding participation in the commission of an internationally wrongful act by another State is of crucial importance in terms of which State has to provide reparation for the relevant wrongful act. The rules on attribution serve the purpose of legal certainty in terms of allocation of the responsibility for a wrongful act in a way that makes the ensuing legal relations predictable both for the author State—in terms of knowing what it will be responsible for—and the injured State—in terms of knowing who it can claim reparation from. The collaboration of States in the commission of a wrongful act is largely a matter of fact and can assume different forms. Article 6 of the ILC’s Articles on State Responsibility provides that: The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.

References (p. 650) As the commentary to article 6 suggests, the notion of an organ ‘placed at the disposal of ’ the receiving State implies that the organ in question acts under the authority and for the purposes of that State. This excludes the cases of inter-State collaboration or cooperation, pursuant to a treaty or otherwise. The conduct of a joint organ is attributable to both States.6 The relevant question appears to be on behalf of which State the wrongful act is carried out. In Drozd and Janousek, the European Court of Human Rights had to determine whether the acts of the Andorran courts were attributable to France and Spain. The Court decided that the organs in question were not the organs of these States and hence no attribution was possible.7 Thus, the situations covered by article 6 do not give rise to joint and several responsibility for the relevant wrongful act. The ILC Articles contain several provisions dealing with situations that constitute exceptions to the principle of independent responsibility.8 According to article 16: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State. As the Commentary specifies, the assisting State must be aware of the circumstances making the conduct of the assisted State internationally wrongful. This explains the requirement that the State must be acting with knowledge of the wrongful act.9 The Commentary states that the aiding or assisting State can be responsible only for the aid or assistance that contributes to the wrongful act of the recipient State.10 The State cannot be responsible for the aid or assistance in general which has subsequently, and entirely unexpectedly, been used to commit a wrongful act.11 It is also significant that: there is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act.12 However, the rule embodied in article 16 would not operate effectively if it were interpreted and applied in the light of some conditions stated in the commentary, namely that ‘the aid or assistance must be given with a view to facilitating the commission of the wrongful act.’13 It is unclear whether this requirement necessarily corresponds to what article 16 requires, especially as the words ‘with

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a view to facilitating the commission of the wrongful act’ refer to the intention of the State to facilitate the commission of the wrongful act. If the intention to contribute to or facilitate the wrongful act committed by the other State is the essential requirement—that is, the requirement that more than mere knowledge of the wrongful act should be involved—this can, as

References (p. 651) Graefrath correctly observes, prevent the responsibility of States for their participation in the wide range of wrongful acts and ‘make the whole construction of complicity unworkable’.14 If the requirement of intention were applied in practice, the claimant State or entity would have to prove on a case-by-case basis that the aiding or assisting State had intended to facilitate the commission of the wrongful act. This would involve proving the subjective intention of the State and create an almost irrefutable presumption in favour of the aiding State. Nor has the Commission provided any instances from practice justifying the requirement of intention. Therefore, it seems that the better approach is to adopt in practice the standard referring to objective circumstances, which would include all the requirements regarding the factual side of aid or assistance that the Commission elaborated upon in article 16 and its Commentary, to the exclusion of the requirement that ‘the aid or assistance must be given with a view to facilitating the commission of the wrongful act’. According to the ILC’s article 17: A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. This provision, as the commentary affirms, covers the responsibility not only for dependent States, but also the responsibility of States which are in control, such as an occupying power.15 In order to embody an effective rule, article 17 should not be understood to be limited to the control and direction by the State with whom the directed State has some juridical link, but also to encompass those cases where those control and direction derives from factual dependency as opposed to juridical dependency. Finally, according to article 18: A State which coerces another State to commit an act is internationally responsible for that act if: (a) the act would, but for the coercion, be an internationally wrongful act of the coerced State; and (b) the coercing State does so with knowledge of the circumstances of the act. (ii) The requirement of shared wrongfulness The participation in the wrongful act of the other State and the ensuing responsibility has, along with its factual side, also a legal or normative aspect. The ILC resorted, in relation to article 16(b), to an analogy with the law of treaties and suggested that, as treaties do not bind third parties (articles 34 and 35 of the 1969 Vienna Convention): an aiding or assisting State may not deliberately procure the breach by another State of an obligation by which both States are bound … Correspondingly, a State is free to act for itself in a way inconsistent with obligations of another State vis-à-vis third States. Any question of responsibility in such cases will be a matter for the State to whom assistance is 16

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provided vis-à-vis the injured State.16

References (p. 652) In relation to article 17, the ILC asserted the similar principle, pointing to the context of bilateral obligations.17 The conduct subsumable under article 18 is apparently free of such a condition. This approach merits examination. There is a conceptual difference between the pacta tertiis rule embodied in articles 34 and 35 of the Vienna Convention and the rules of responsibility. The former is about whether the State is bound by the rule, while the latter, especially in this context, is about whether it is responsible for the breach of the same rule by the other State. Being responsible does not always overlap with being bound. That the State is free to act for itself in a way inconsistent with obligations of another State vis-à-vis third States does not mean that it can contribute to the breach by that another State of the rights of third States. Article 16 speaks of the aiding or assisting State being ‘internationally responsible’ for the wrongful act linked to that of the other State, rather than the first State itself committing that act as an act attributable to itself. Therefore the issue under articles 16 and 17 is conceptually different from the issues of attribution and existence of a wrongful act dealt with under articles 2, 12, and 13. In the case of these latter provisions, the requirement that the act concerned must be wrongful for the State that commits it is appropriate, while in the case of article 16, which relates to the acts of other States, this is not necessarily so. True, some factors can be considered in terms of the award of compensation to the injured State, for instance the fact that the assisting State only assisted in the commission but did not itself commit the act. But, as the ILC emphasized, in some cases this can be a distinction without difference, because the assistance can be the crucial factor in the commission of the breach.18 The injured State must be able to demand compensation from the State whose conduct is crucial in having caused the wrongful act to occur. To illustrate, the technological means provided by an economically wealthier State A to an economically poorer State B can be used by State B to divert a watercourse that is under the regime agreed between States B and C, that regime being the subject of public knowledge. It may be the case that B would be unable to divert the watercourse in the absence of the technology provided by A. The issues of compensation for the inhabitants of State C that suffer in consequence of the diversion may arise and State B may be unable to afford providing the due reparation to State C. Yet the ILC’s reference to the pacta tertiis rule suggests that the State A, even if aware of the treaty regime between States B and C and having essentially provided the technology to enable the State B to breach its obligations towards State B, can escape responsibility where no wrongful act would have been possible at all had State B not contributed to it through its assistance. Depending on the circumstances, injured States could face insurmountable difficulties in recovering reparation, due to the absence of joint and several responsibility. Also, in case of serious breaches of human rights and humanitarian law perpetrated by one State through means provided by the other State not party to the relevant humanitarian treaties, if the relevant tribunal takes a conservative view of the sources of law and refuses to accept that the relevant human rights and humanitarian norms possess customary status, the ILC’s parallel to the pacta tertiis rule will enable the aiding or assisting State to escape responsibility for those serious breaches. This would introduce a condition of impunity in the relevant fields.

References (p. 653) For these reasons the requirement of awareness is to be preferred to the requirement that the aiding or assisting State be bound by the obligation breached by the recipient State. If the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

requirement of shared wrongfulness is absent in the case of coercion (article 18), it is unclear why it is present in cases of direction and assistance (articles 16 and 17). For aid and assistance can be quite similar to coercion, if not in means then in their capability to serve, under circumstances, as the crucial factor bringing about the wrongful act of the other State. The differential treatment of the issue of shared wrongfulness is therefore not justified because it makes the rules of responsibility inefficient.

3 Responsibility for actions of international organizations The personality of international organizations is derivative; organizations exist because States establish them, endowing them with certain powers and competences. Lacking a territorial basis and independent resources, organizations can, apart from conducting their daily administrative business, act only through the means provided by States. Apart from the fact that in providing resources to the organization States act in pursuance of their political and economic interests rather than of abstract collective notions, the very use of such resources often takes place with substantial participation of member States, either in the decision-making process or the process of implementation or both. The practical effect of institutional decisions also depends on their implementation in the legal systems of States. Whether the ‘fiction theory’ developed in jurisprudence with respect to corporations in national law explains the essence of international organizations does not need to be discussed here. But it is a fact of life that organizations cannot accomplish most of what they do, whether lawfully or unlawfully, without the resources and participation of member States. This is mirrored in responsibility relations, and the rules of responsibility, in order to reflect the real patterns of organizations and consequently to establish a predictable legal framework, need to be construed so as to enable the injured States or individuals to claim reparation from the very same entity which has effectively perpetrated the breach in question, whatever the relevance of the corporate veil. This is especially true in cases where the troops of member States act under the aegis of the organization. There are different patterns of allocation of responsibility in practice. For instance, in 1950 the US accepted responsibility and agreed to pay compensation for the damage mistakenly inflicted by its troops on China and the Soviet Union during the Korean War. On the other hand, the United Nations has on a number of occasions accepted responsibility for wrongful acts committed by peace-keeping units.19 It may be argued that the crucial factor is whether the relevant military unit is an organ of the organization, which peace-keeping units normally are and authorized troops normally are not. At the same time, the UN’s acceptance of responsibility is not conclusive in excluding the responsibility of member States. Whether the relevant unit is an organ of the organization may, for the purposes of attribution, depend not only on the organization’s jurisdictional and disciplinary powers, but also on the degree of its factual control, and the allocation of powers and influence in the factual process of decisionmaking. Depending on this, the relevant breach may (p. 654) be attributed to the organization, the member State(s) or to both. Thus, even if units are under the formal jurisdiction of the organization, the responsibility of State(s) exercising a substantial degree of factual control is not excluded. On the other hand, when an organization, like the UN, authorizes military action of States willing to perform it, this does not make the relevant States exclusively responsible. While taking the authorized action States do not merely act—they rather act in implementing the institutional decision.20 Therefore, it is difficult to draw a black-and-white distinction between the cases where the units are formally placed at the disposal of the organization and where they are not. Such a distinction would enable States to place large armed contingents under the formal control of the organization over which they have financial and political control and thus escape responsibility for any actions of those contingents. For instance, the UN’s insistence on the link of the exclusive control over the UN forces and the 21

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UN’s responsibility for the action of those forces21 leaves open what is to happen if the control of the organization is not exclusive but is shared with member States. The fact that the State or organization does not exclusively control the forces cannot preclude their responsibility if they have a substantial degree of factual control over the contingent or the relevant situation allows for identifying a link of cause-and-effect between the entity and the wrongful act. Thus, with regard to the Kosovo crisis, some NATO member States asserted that the responsibility for Kosovo lay with the UN which administered the territory and with NATO which led the bombing campaign. But it is still possible, as Special Rapporteur Gaja pointed out, to hold that the attribution of conduct to an organization does not exclude the attribution of the same conduct to its member States, especially when they are engaged in planning and contributing to the military action performed by or under the aegis of the organization, as was the case with the NATO military campaign against FRY.22 This legal position enhances the ability of the injured States to recover for their losses on a joint and several basis. As for the participation of international organizations in the wrongful acts of other entities, the rules of State responsibility regarding aid and assistance to, direction and control, or coercion of State in the commission of the wrongful act can be applied to situations involving international organizations.23 This works in practice with regard to the World Bank development projects implemented in collaboration with a State, especially where the World Bank Inspection Panel pronounces on the Bank’s compliance with its policies and procedures embodying rules of international law. The provision of funds by international organizations to States to implement projects that cause human rights violations or environmental harm can qualify as aid or assistance in committing the wrongful act, or under some circumstances even as direction and control, considering the degree of the State’s dependency on the funds provided.24 But such a process can also involve coercion, if the provision of funds by international financial institutions is linked with (p. 655) strict conditions whose fulfilment will breach the relevant State’s international obligations towards other States or individuals.25 This explains why the UN Committee on Economic and Social Rights requests States parties to the International Covenant on Economic, Social and Cultural Rights to explain to the Committee what their national Governments have done to ensure that the decisions of international financial institutions adopted with participation of the relevant members will not cause breaches of the Covenant; the inference being that if they do, such breaches will be attributable to the recipient States.26 A cognate situation exists in other fields. If the organization adopts a binding decision that causes States to commit a wrongful act, each State may well be held responsible for its part in the implementation of the organization’s decision.27 The rationale for this can be explained by the fact that normally the acts of the institutional organ which produce wrongful consequences are beyond their powers, either because they cannot be subsumed within the institution’s implied powers, or because they contradict the constituent instrument, or in certain cases because they violate peremptory norms. In such cases, the invalidity of the relevant act follows, which means that the relevant States are no longer legally justified in acting. This phenomenon can be illustrated by the example of Security Council sanctions. If a case can be made for the finding that the Security Council action is illegal and invalid, then two options are available. Either the Council’s measure, remaining without legal significance, fails to preclude the wrongfulness of the actions of States pursuant to that measure; or the UN incurs responsibility together with the relevant States. The viability of the latter option is reinforced by the fact that the commission of the relevant wrong by the States would not have occurred had the Security Council not authorized or obligated them to proceed in that way. While this is true, the practical implementation of this legal position can be hampered by the absence of regular jurisdiction over the acts of the Security Council. But this does not prevent individual States from making a proper judgment as to whether the pursuance of sanctions is legally justified, nor does it prejudice the consequent claims of the State injured by the sanctions against the UN or the member States. Yet another dimension of interaction between the organization and its members in breaching legal

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norms is that of agency, as discussed by the English courts in the International Tin Council cases. Following the insolvency of the ITC, the courts had to determine who was liable to third States for its debts: the organization or its member States? The Court of Appeal held that: the relationship between the member States and the ITC under the provisions of the Sixth International Tin Agreement is not that of principals and agent but in the nature of a contract of association or membership similar to that which arises on the formation of a company between the shareholders inter se and the legal entity which they have created by their contract of association.28 The House of Lords pointed out that the 6th ITC Agreement did not express or imply an intention of the member States that the ITC should act as their agent so as to pledge their

References (p. 656) credit in its daily dealings.29 In other words, the members could have designated the ITC as their agent but they did not do so. If this is the generally applicable law, then the crucial factor is the personality of the organization and the intention of the member States, rather than the actual interaction between the members and the organization. But this does not always ensure effective redress for the injured parties. Also, the specific context of the ITC case—liability for debts rather than responsibility for internationally wrongful acts as understood in international law—as well as the reliance of English courts on the categories of English law alongside or in preference to international law,30 militate against presuming that the ITC standard represents the general standard of international law. Last but not least, it must be repeated that the requirement of shared wrongfulness31 cannot be applied without qualification in this area either, as it can in some circumstances promote impunity.

4 Practical aspects of the division of reparation (a) Responsibility of States It has been said that any mature system of law must contemplate multiple party responsibility for wrongs.32 As for the plurality of responsible or injured States, the crucial question is ‘what difference does it make to the responsibility of one State, if another State (or indeed several other States) is also responsible for the very same conduct, or also injured by it’.33 The ILC Articles attempt to resolve these issues. According to article 46: Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act. Thus the entitlement of each State to invoke reparation is independent from the similar entitlements of other States. In the Wimbledon case, there were several claimants asserting the freedom of passage in the Kiel Canal, but only one of them claimed monetary compensation and the Permanent Court acted accordingly.34 At the same time, as Special Rapporteur Crawford pointed out, ‘there may be a potential entitlement of the claimant State to full reparation, which has to be qualified at the level of invocation in order to avoid double recovery’.35 The special case of plurality of claimants is presented by ILC article 48 which provides for the standing of every State to vindicate the breaches of erga omnes obligations. This case is cognate to article 46, but whether the relevant claimant States are injured States

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(p. 657) in the technical sense is not material for their entitlement to demand reparation under article 48. At the same time, article 48 allows a claim reparation not for claimant States themselves but for the injured State(s) or non-State actors; third States can in particular claim restitution.36 The ILC commentary on article 46 considers the cases in which: one State may claim restitution whereas the other may prefer compensation. If restitution is indivisible in such a case and the election of the second State is valid, it may be that compensation is appropriate in respect of both claims.37 While the award of compensation runs the risk of double damages, certain other remedies can be awarded to individual injured States or non-State actors without any risk of duplication. This includes restitution, some forms of satisfaction such as the expression of regret, apology, nominal damages, as well as guarantees of non-repetition. Generally, issues of the division of reparation are bilateral. The responsible States can arrange among themselves the modalities of reparation to the injured State as they wish. Such an arrangement was made, though in rather different circumstances, by the Persian Government which undertook to compensate a United States national, appointed as Treasurer to the Persian Government but then dismissed at Russian insistence. Persia’s agreement to assume liability foreclosed the possibility of a claim against Russia,38 even though Persia would not have dismissed the Treasurer but for Russian compulsion. The matter was bilateral both as between Russia and Persia and between Persia and the United States. But in other contexts there may be limits on the power of States to dispose of claims of reparation, especially where the norms violated are peremptory in character. As Special Rapporteur Crawford noted, in certain cases the injured State is not entitled to waive restitution and prefer compensation, such as in case of forcible invasion and annexation of a State’s territory and illegal detention of persons.39 This perspective imposes limits on the choice of injured parties. The issue of plurality of responsible States is dealt with by ILC article 47, which provides that: Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. As the Commentary specifies, this provision requires that the responsibility of the State for the wrongful act shall not be reduced even if another State is also involved in the perpetration of the same wrongful act.40 Such a concept of joint and several responsibility seems to be accepted in international law, as explained, for instance in the separate opinion of Judge Shahabuddeen in Nauru.41 The Court’s judgment did not contradict that line of reasoning but did not follow it either, because of procedural obstacles to Nauru suing all three States. As the ILC specified, if the two States combine their efforts in committing the wrongful act, the injured State can hold each responsible State to account for the wrongful act as a whole. Article 47 is also relevant in cases where two States act through a joint organ or

References (p. 658) where one State directs the other State in committing the wrongful act.42 In some contexts, such as that of joint occupation and administration of territory, the presumption operates in favour of affirming the joint responsibility of occupying or administering States.43 The issue of whether one responsible State, such as Australia, had to provide the whole reparation or only part of it was not resolved in Nauru because the Court pronounced only on the issue of jurisdiction and admissibility. However, the Court pointed out that had the case proceeded to the merits, regard might have been had to the special role played by Australia in the administration of Nauru.44 The two other States involved in the process—UK and New Zealand— subsequently agreed to contribute to the payment

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made by Australia, which may be viewed as a de facto acknowledgment of this joint and several responsibility, but not on such clear terms as an examination of the question by the Court could have provided.45 Even if the commentary does not say so, article 47 is relevant also in the case of aid or assistance to the State in committing the wrongful act. The Corfu Channel case, for instance, related to the context where the United Kingdom could under international law have demanded reparation for the damage caused to its vessels both from Yugoslavia which had actually laid the mines and Albania which failed to warn the United Kingdom about the danger its vessels faced in the Albanian territorial waters. Given the limitations on the judicial process that made it possible to sue Albania only, the United Kingdom demanded the entire reparation from Albania, which was awarded by the Court.46 As for the nature of the collusion between Albania and Yugoslavia in laying mines, this can be characterized as a joint action which the ILC commentary expressly mentions. But given the distinct roles of Albania and Yugoslavia in this process, this could also be a case of aid or assistance in the commission of the wrongful act: the mine-laying by Yugoslavia did not in isolation cause the injury to British vessels; what caused it was the decision of Albania, which according to the Court knew or ought to have known about the mines, not to warn the United Kingdom about them. It is thus arguable that the principle of plurality of responsible States was applied by the Court to the case of aid or assistance to the State in committing the wrongful act. That cases of aid or assistance call for the joint responsibility of the involved States is due to the fact that: the whole conception of ‘aid or assistance’ as an autonomous wrong is in principle misconceived … In simple terms many strong cases of ‘aid or assistance’ will be primarily classifiable as instances of joint responsibility and it is only in the marginal cases that a separate category of delicts is called for.47 As for the assessment of damages, it is suggested that tribunals would assess damages against the complicit State at a level lower than those it might assess against the principal State.48 But again, no a priori answer can be given to this question, as everything depends

References (p. 659) on the level of complicity and participation, the causal link, the capacity of individual States to pay, and the availability of judicial venues. The International Court’s jurisprudence generally admits the possibility of holding States responsible jointly and severally. The European Court of Human Rights has also pronounced on this issue, albeit in circumstances that cast doubt on the credibility of its findings. The Court in the Ilaşcu case49 found that the breaches of the applicants’ rights under article 3 (freedom from torture and inhuman treatment) and article 5 (freedom from arbitrary detention) of the European Convention of Human Rights were attributable to both defendant States—Moldova and Russia. The applicants came, according to the Court, within jurisdiction in terms of article 1 of the Convention in respect of both Moldova and Russia. The relevant part of the Moldovan territory on which the ‘Moldavian Republic of Transdniestria’ is based came, according to the Court, under Russia’s ‘jurisdiction’ as the MRT existed because it was supported by Russia militarily, politically, and economically.50 As the violations of articles 3 and 5 took place on that territory, they engaged Russia’s responsibility. While the Court accepted that the Moldovan Government did not exercise authority over part of its territory which was under the effective control of the ‘Moldavian Republic of Transdniestria’, it still asserted that even in the absence of effective control over the Transdniestrian region, Moldova had a positive obligation under article 1 of the Convention to take diplomatic, economic, judicial or other measures that were

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in its power to take and were in accordance with international law to secure to the applicants the rights guaranteed by the Convention.51 Given all that, the Court awarded just satisfaction under article 41, ordering that both Moldova and Russia separately pay compensation to the three victims, as well as their costs and expenses. While the finding of joint and several responsibility and the ensuing compensation for the combined action of States contributes to the effectiveness of human rights, the way the Court arrived at this decision casts doubt on its credibility. The reasoning that, as Moldova had positive obligations to secure the relevant rights of the applicants, the situation came within its jurisdiction under article 1 is strange. The Convention predicates State obligations, whether positive or negative, only where the situation comes within article 1. The Court’s reasoning affirming the responsibility of Moldova even in the absence of its effective control on the relevant territory contradicts its previous jurisprudence. For instance, the Court held in Banković that the 10 NATO member States could not be held accountable under the Convention because they exercised no effective control over the area where they conducted their military campaign.52 If Banković is right, then Ilasçu should have been decided otherwise; if Banković is wrong, the Court should have said so. Furthermore, the Court’s finding of responsibility for conduct in the absence of effective control also contradicts the jurisprudence on the matter of Northern Cyprus. For example, in An v Cyprus, claims originating from Northern Cyprus were rejected because Cyprus

References (p. 660) had no effective control there,53 and in a series of decisions regarding Northern Cyprus the responsibility of Turkey was established for the very same reason.54 The Court’s reasoning in Ilaşcu involves a substantial degree of arbitrariness which also undermines the credibility of its finding that each of the defendants had to pay compensation individually. In Banković, States which in the Court’s view had no effective control over the territory of FRY were not obliged under article 1 of the Convention to abstain from the forcible action that has directly caused deaths and injuries, while in Ilaşcu, Moldova, although never having done anything to violate the applicants’ rights, was considered bound to take positive measures, possibly diplomatic demarches and protests, to secure Convention rights to applicants. While Banković was killed off at the jurisdictional stage, Ilaşcu which had much less justification under article 1, was taken to the merits and pursued to the end. Such divergent treatment of different States is possible if one adopts, as the European Court did, mutually exclusive interpretations of article 1 on different occasions. Apart from endorsing double standards in the law of the European Convention, Ilaşcu is at divergence with the general international law standard that States are not under an obligation to provide their nationals with diplomatic protection, which outcome prevailed in the Abbasi case before the English Court of Appeal.55 The issue of joint and several responsibility was also addressed within the framework of the UN Compensation Commission dealing with damage to States, natural and juridical persons during the Iraq’s invasion of Kuwait in 1990–1991. In Decision 15 the Commission’s Governing Council determined two criteria for granting compensation for losses suffered: (a) the loss must be the result of Iraq’s unlawful invasion and occupation of Kuwait; (b) the causal link must be direct. The Commission has established that Iraq need not compensate those losses and damages which arose as a consequence of the trade embargo. Compensation was only to be paid to the extent that the losses were caused by the invasion and occupation and would have been caused irrespective of the introduction of the trade embargo. At the same time, the responsibility of Iraq was not excluded if the loss or damage was caused simultaneously by invasion by Iraq and the trade embargo.56 Also, under the Compensation Commission scheme, Iraq had to pay for losses which resulted from the Coalition’s military operations,57 instead of the relevant damages being allocated among the

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responsible States in terms of the causal link between the action and the injury. Holding the State liable beyond what it had done has no legal justification—this principle underlies the law of joint and several responsibility.

(b) Responsibility to and of international organizations When an international organization is injured by an internationally wrongful act, it can lodge a complaint against the responsible State even if the very same wrongful act has injured other State(s). This position appears to be recognized in the law of diplomatic protection. As the International Court emphasized in the Reparations Advisory

References (p. 661) Opinion, the organization must be able to present claims on behalf of its injured agents in order to ensure that in performance of their functions they are not dependent on their national States.58 As the Court stated, there is no rule of law which assigns priority to the claim of the State or that of the organization and the outcome may be the ‘competition between the State’s right of diplomatic protection and the Organisation’s right of functional protection.’59 In line with this, the ILC Special Rapporteur on Diplomatic Protection, John Dugard, proposed a draft article according to which the right of States to exercise diplomatic protection for their nationals shall not preclude the exercise of functional protection of the very same persons by an international organization whose agents they are.60 On the other hand, the State of nationality can exercise its right of diplomatic protection even if the relevant national is also the agent of an international organization and functional protection is also a possibility.61 Such a legal position enables both injured entities to demand the reparation for the same wrongful act. This enhances the position of the individual in question, because if one entity fails to exercise protection and claim reparation, he/she may be able to rely on the protection of another entity. As for the responsibility for the acts of organizations, many scholars would agree that members are concurrently and secondarily liable for the actions of the organization.62 As the House of Lords affirmed in Attorney-General v Nissan, the fact that British military units were serving under the UN command in the Cyprus peace-keeping mission did not preclude the injured party from claiming redress from the Crown, because British forces serving with the United Nations continued to be soldiers of Her Majesty.63 The issue of member State responsibility towards third parties for the actions of the organization was dealt with in the ITC litigation. The Court of Appeal considered the ITC to be an independent international legal person and held that third parties could not recover their contractual debts from the member States.64 Nourse LJ came to the conclusion that ‘the intention of the States who were parties to the Sixth International Tin Agreement was that the members of the ITC should be liable for its obligations’. Such liability was direct and secondary. ‘Further, no limitation having been put on it, the liability is unlimited.’ Therefore, the ITC has separate personality in international law, but: its members are nevertheless jointly and severally, directly and without limitation, liable for the debts on its tin and loan contracts in England, if and to the extent that they are not discharged by the ITC itself.65 The House of Lords also held that the personality of the ITC was the key factor in precluding the liability of member States. As the ITC had legal personality, the member States were not liable for its debts.66

References (p. 662) Nourse LJ’s reasoning distinguishing between personality and the aspects of liability or

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responsibility is conceptually consistent, because despite the personality of an organization, its member States still control its actions in a variety of ways. For the reasons advanced by Nourse LJ, as well as in the preceding section, the ITC standard should not be applied as a generalized standard, especially in contexts different from that of the ITC (which involved contractual debts governed by English law). The issue of personality cannot be the key to the determination and application of principles of responsibility at the international level. Instead, the context of the individual case could allow for member States’ responsibility despite the separate personality of the organization. Personality cannot be a veil for actions which are on their face covered by the organization’s powers but are in reality performed by States, for instance, large-scale military operations. Personality is a matter of legal status; the law of responsibility is concerned not with legal status as such but with ensuring the responsibility of the entity which has, as a matter of fact, perpetrated or contributed to the wrongful act. In the law of State responsibility the issue of personality does not arise as a distinct element; attribution standards are reduced to the interpretation of factual situations. It is not indispensable in the context of the responsibility of international organizations either: the question is whose conduct has actually brought about the wrongful act. Personality indeed means little in terms of the actions of an organization which has derivative personality and which depends more or less on the support and resources of States. The rules of responsibility of international organizations must be construed as providing effective redress for wrongs done, yet the concept of personality does very little to support such effectiveness. Thus the separate personality of international organizations should not result in immunizing States from responsibility for actions to which they have effectively contributed. In situations where the organization and its members are liable jointly and severally, different ways can be envisaged to allocate obligations to compensate. As Nourse LJ pointed out, when the organization cannot meet its liabilities, its members are obliged to stand in, according to the level of their contributions. If all the States pay their shares, the difference between joint and several responsibility will be academic.67 This is in line with the International Court’s pronouncement that the UN General Assembly can apportion the unforeseen expenses as part of the UN budget, which means that the members have to pay according to the level of their contributions.68 The question whether the members’ responsibility should be enforced by such means or as between the members and the injured State directly is merely about the means of implementation of responsibility. The concurrent and secondary responsibility of members is the best option for ensuring legal certainty. If some of the responsible entities are unwilling to pay compensation, then recovery should be obtainable from other responsible entities. In Certain Expenses even the members that had expressly distanced themselves from the relevant peace-keeping operations were considered to be bound to pay for their expenses, and it seems odd to insist on the personality of international organizations to preclude the responsibility of members for those institutional actions to which they have contributed and given support. The concurrent and secondary responsibility of members for the action by the organization cannot, contrary to what is suggested in the doctrine,69 be excluded by the pacta

References (p. 663) tertiis rule. International organizations are entities with derivative personality which militates against the assumption of the complete independence of their actions from those of States. The approach not taken by the majority in the ITC case is endorsed in the jurisprudence of the European Convention on Human Rights. In several cases the Convention organs have affirmed that when States transfer the powers and competences to the organization, States still remain responsible for their actions under the European Convention, unless the relevant organization provides for protection adequate in terms of the Convention standards.70 This practice affirms that the responsibility of member States persists after the delegation of powers and with regard to the actions covered by that delegation. This standard on its face seems to contradict the standard of exclusion of concurrent and secondary responsibility of members, disapproving its acceptance as From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

the general standard of international law.

(c) Procedural aspects: the Monetary Gold principle The procedural means to enforce the responsibility of international organizations are different from the means that are available against States. There is no compulsory jurisdiction over international organizations; indeed often there is no possibility of jurisdiction except on the basis of ad hoc consent. Damages can be recovered through international claims, and through national courts, for instance in situations like the ITC case, or through complementary proceedings against the forum State before tribunals like the European Court of Human Rights. With regard to the responsibility of States, practice has worked out some limitations on the enforceability of claims related to joint and several responsibility. In Monetary Gold, the International Court asserted that it could not address the claim of the UK to obtain the gold belonging to Albania in satisfaction of the Court’s judgment in Corfu Channel, because Albania was not party to the proceedings and hence the Court could not adjudicate on Albania’s interests in its absence.71 Subsequent cases have developed this approach. In Nauru, the Court concluded that the issue whether Australia was responsible for the administration of Nauru alone, or together with New Zealand and UK which shared the administration, did not prejudice the possibility of Australia being sued alone. A case could be brought before the Court against each of the administering States individually. Neither the principle of consent nor the Monetary Gold principle would preclude judicial enforcement of Australia’s responsibility on the individual plane.72 The determination of the responsibility of UK and New Zealand was not the subject of Nauru’s claim.73 The absent third party doctrine has been further resorted to in the East Timor case where Portugal, as the former administering power of the East Timor, sued Australia because of the latter’s decision to exploit, on the basis of the 1989 Indonesian-Australian Timor Gap Treaty, the natural resources of East Timor. The Court refused to hear the case, asserting that:

References (p. 664) the effects of the judgment requested by Portugal would amount to a determination that Indonesia’s entry into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in matters relating to the continental shelf resources of East Timor. Indonesia’s rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State’s consent. Such a judgment would run directly counter to the ‘wellestablished principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent’ (Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, 32).74 This reasoning misapplied Monetary Gold. The Court was, with respect, in error in identifying the subject matter of the dispute and in applying to it the doctrine of indispensable parties. Monetary Gold involved in rem claims which could justify the argument that by deciding to allocate the gold, the Court would not just be pronouncing on Albania’s rights but also expressly disposing of Albanian gold. This could explain why Albania’s interests were the very subject matter of the proceedings. By contrast Indonesia’s interests would not have been the subject matter of the Court’s judgment against Australia, because Indonesia’s participation in the wrongful act would have been recognized only by implication. The decision itself would have been only about Australia’s conduct. The Court’s decision would have had no legal impact on Indonesia’s rights because the Court would not pronounce on this issue and also because, whatever the Court’s pronouncement, the judgment would have been effective only as between Portugal and Australia, in accordance with article 59 of the Court’s Statute.

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In general, the doctrine of the absent third party must not be allowed to preclude the judicial enforcement of responsibility for the entire category of actions and wrongful acts, namely the wrongs committed by more than one State, whether through a joint action, joint organs, complicity, or direction or control. A sound procedural principle cannot operate so as to as make the whole range of substantive legal issues non-justiciable. The reason that the procedural principle precludes adjudication must be exclusively procedural. The ‘absent third party’ doctrine as taken to its extremes in East Timor does not respond to this requirement.

5 Conclusions It has been argued that the principal goal in interpreting the norms on responsibility and division of reparation should be to ensure effective responsibility and redress from the entity which has effectively committed the wrongful act, which effectively is in a position to redress it, and to which the injured State can have access through available dispute settlement mechanisms. But the law, or at least its application, is currently in many respects uncertain, unsatisfactory, and even chaotic. The general, or generalizable, standards of responsibility are not always consistently defined and in addition they are differently applied by different decision-making bodies, sometimes in an arbitrary way. The application of individual norms is not always based on the need to ensure the effective redress for the wrongful act. For these reasons the international legal system fails to provide for uniform and predictable standards in certain fields of joint and several responsibility, and the procedural principles as developed and applied by international tribunals severely (p. 665) undermine the effective implementation of State responsibility for actions of multiple States and the award of remedies. Further reading C Amerasinghe, ‘Liability to Third Parties of Member States of International Organisations: Practice, Principle and Judicial Precedent’ (1991) 85 AJIL 259 L Bouve, ‘Russia’s Liability in Tort for Persia’s Breach of Contract’ (1912) 6 AJIL 389 B Graefrath, ‘Complicity in the Law of International Responsibility’ (1966/2) RBDI 370 V Lowe, ‘Responsibility for the Conduct of Other States’ (2002) Japanese Annual of International Law 1 J Noyes & B Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ (1988) 13 Yale JIL 225 A Orakhelashvili, ‘The World Bank Inspection Panel in Context: Institutional Aspects of the Accountability of International Organisations’ (2005) International Organisations Law Review 57 J Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) BYIL 77 M Shaw & K Wellens, ILA Final Report on Accountability of International Organisations (2004) M Terwiesche, ‘International Responsibility arising from the Implementation of a Security Council Resolution: The 2nd Gulf War and the Rule of Proportionality’ (1995–1996) 22 Polish YIL 81(p. 666)

Footnotes: 1 Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 49, 58–59. 2 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 149, 185–186. 3 G Gaja, First Report on Responsibility of International Organisations, 2003, A/CN.4/532, 8–9, 18– 19; see also G Gaja, Second Report on Responsibility of International Organisations, 2004, A/CN.4/541, 3; see also C Amerasinghe, Principles of the Institutional Law of International

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Organisations (2nd edn, Cambridge, CUP, 2005), 401. 4 M Shaw & K Wellens, ILA Final Report on Accountability of International Organisations (2004), 27. 5 The US made a claim of joint and several responsibility against USSR and Hungary in the case of the Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v Union of Soviet Socialist Republic, Hungary), Order of 12 July 1954, ICJ Reports 1954, p 103; however, findings as to responsibility were never made because the respondents refused to accept the Court’s jurisdiction. See also the discontinuance order in the Lockerbie cases, Order of 10 September 2003, ICJ Reports 2003, p 1. In Banković, where the European Court was asked to determine the responsibility of 10 NATO member States for the bombing of the Belgrade television station which claimed the life of several persons, the Court refused to adjudicate because the matter was allegedly beyond the Convention’s espace juridique, see Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), Decision on admissibility, ECHR Reports 2001-XII [GC]; for an analysis see A Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14 EJIL 529, 538–551. 6 Commentary to art 6, paras 2 and 3. 7 Drozd and Janousek v France and Spain (App No 12747/87), ECHR, Series A, No 240 (1992), paras 91–96. 8 Commentary, Chapter IV of Part I, para 8. 9 Commentary to art 16, para 4. 10 Commentary to art 16, para 5; see also the observations on the US financial assistance to Israel which contributes to the expansion of settlements in the West Bank, J. Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) 57 BYIL 77, 113. 11 V Lowe, ‘Responsibility for the Conduct of Other States’ (2002) Japanese Annual of International Law 1, 6. 12 Commentary to art 16, para 5. 13 Commentary to art 16, para 5. 14 B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 RBDI 375. 15 Commentary to art 17, para 5. 16 Commentary to art 16, para 6. 17 Commentary to art 17, para 8. 18 Commentary to art 16, para 10. 19 G Gaja, Second Report on Responsibility of International Organisations, 2004, A/CN.4/541, 15– 18; see also C Amerasinghe, Principles of the Institutional Law of International Organisations (2nd edn, Cambridge, CUP, 2005), 403–404. 20 M Terwiesche, ‘International Responsibility arising from the Implementation of a Security Council Resolution: The 2nd Gulf War and the Rule of Proportionality’ (1995–1996) 22 Polish YIL 83. 21 G Gaja, Third Report on Responsibility of International Organisations, 2004, A/CN.4/553, 17. 22 G Gaja, Second Report on Responsibility of International Organisations, 2004, A/CN.4/541, 4. 23 G Gaja, Third Report on Responsibility of International Organisations, 2005, A/CN.4/553, 11. 24 For the details of this process see A Orakhelashvili, ‘The World Bank Inspection Panel in Context: Institutional Aspects of the Accountability of International Organisations’ (2005) International Organisations Law Review 57. 25 G Gaja, Third Report on Responsibility of International Organisations, 2005, A/CN.4/553, 12. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

26 Concluding Observations of the Committee on Economic, Social and Cultural Rights: France, 30 November 2001, E/C.12/1/Add.72, para 32; Concluding Observations of the Committee on Economic, Social and Cultural Rights: Belgium, 01 December 2000 E/C.12/1/Add.54, para 31; Concluding Observations of the Committee on Economic, Social and Cultural Rights: Germany, 24 September 2001 E/C.12/1/Add.68 para 31; Concluding Observations of the Committee on Economic, Social and Cultural Rights: Japan, 24 September 2001 E/C.12/1/Add.67 para 37. 27 G Gaja, Third Report on Responsibility of International Organisations, 2005, A/CN.4/553, 12. 28 Maclaine Watson v Dept of Trade [1988] 3 All ER 257, 311. 29 JH Rayner Ltd v Dept of Trade [1990] 2 AC 468, 513–516. 30 Ibid, 482. 31 As advanced in G Gaja, Third Report on Responsibility of International Organisations, 2005, A/CN.4/553, 16–18. For concerns arising out of such a requirement see also P Sands & P Klein, Bowett’s Law of International Institutions (5th edn, London, Stevens, 2001), 520. 32 J Noyes & B Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ (1988) 13 Yale JIL 258, 266. 33 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507.Add.2, 20; see in general, J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentary (Cambridge, CUP, 2002), 45–46. 34 SS Wimbledon, 1923, PCIJ Reports, Series A, No 1, p 4, 30–33. 35 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507.Add.2, 12 36 Commentary to art 48, paras 8–10, 13. 37 Commentary to art 46, para 4. 38 L Bouvé, ‘Russia’s Liability in Tort for Persia’s Breach of Contract’ (1912) 6 AJIL 389, 392–393. 39 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.1, 5. 40 Commentary to art 47, para 11. 41 Separate Opinion of Judge Shahabuddeen, Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 283–285. 42 Commentary to art 47, para 2. 43 I Brownlie, System of the Law of Nations. State Responsibility (Oxford, OUP, 1983), 188. 44 Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 258–259. 45 The settlement agreement between Nauru and Australia referred to Australia’s denial of responsibility, art 1, 23 ILM 1475. Such denial is not conclusive in terms of whether responsibility can actually be established in law. 46 Corfu Channel, Merits, ICJ Reports 1949, p 4; Corfu Channel, Assessment of the Amount of Compensation, ICJ Reports 1949, p 244. 47 I Brownlie, System of the Law of Nations. State Responsibility (Oxford, OUP, 1983), 191. 48 J Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) 57 BYIL 77, 129. 49 Ilaşcu and others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VII [GC]. 50 Ibid, para 392. 51 Ibid, paras 330–331, 333–335; the Court added that Moldova had not been sufficiently attentive to this issue in its bilateral relations with the Russian Federation. 52 Banković v Belgium, The Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, The Netherlands, Norway, Poland, Portugal, Spain, Turkey and the

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United Kingdom (App No 52207/99), Decision on Admissibility, ECHR Reports 2001-XII [GC]. 53 An v Cyprus, 13 HRLJ 44. 54 Cyprus v Turkey (App Nos 6780/74 & 6950/75), 2 DR 125; Cyprus v Turkey (App No 8007/77), 13 DR 145; Chrysostomos v Turkey, 12 HRLJ (1991); Loizidou v Turkey (Preliminary Objections) (1995) 103 ILR 622; (Merits) (1996) 108 ILR 443; Cyprus v Turkey, Merits (2001) 120 ILR 10. 55 Abbasi v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department [2002] ECWA Civ 1598; 126 ILR 685. 56 UNCC Governing Council, Decision 15, 18 December 1992, 109 ILR 615, para 3. 57 Criteria for Expedited Processing of Urgent Claims, S/AC.26/1991/1 para 18; S/AC.26/1991/7/Rev.1, paras 6, 21, 34. 58 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174, 183. 59 Ibid, 185. 60 J Dugard, Fifth Report on Diplomatic Protection, 2004, A/CN.4/538, 8–9. 61 Ibid, 11, 13. 62 For the overview see C Amerasinghe, Principles of the Institutional Law of International Organisations (2nd edn, Cambridge, CUP, 2005), 421–425; for Amerasinghe’s own approach see ibid, 440; see also CF Amerasinghe, ‘Liability to Third Parties of Member States of International Organisations: Practice, Principle and Judicial Precedent’ (1991) 85 AJIL 259. 63 Attorney-General v Nissan [1970] AC 179; 44 ILR 360, 375–376. 64 Maclaine Watson v Dept of Trade [1988] 3 All ER 257, 295–307 (Kerr LJ). 65 Ibid, 333–334. 66 JH Rayner Ltd v Dept of Trade [1990] 2 AC 468, 479. 67 Maclaine Watson v Dept of Trade [1988] 3 All ER 257, 333. 68 Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962, p 151, 172–179. 69 Cf C Amerasinghe, Principles of the Institutional Law of International Organisations (2nd edn, Cambridge, CUP, 2005), 440. 70 M & Co v Federal Republic of Germany (App No. 13258/87), ECHR, Decision on Admissibility, 9 February 1990, 33 YB ECHR 1990; Waite & Kennedy v Germany (App No 26083/94), ECHR Reports 1999-I; Matthews v United Kingdom (App No 24833/94), ECHR Reports 1999-I; Bosphorus Hava Yollari Turizm v Ireland (App 45036/98), ECHR Reports 2005-VI. 71 Monetary Gold Removed from Rome in 1943, ICJ Reports 1954, p 19, 31–32. 72 Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 259–260. 73 Ibid, 261. 74 East Timor (Portugal v Australia), ICJ Reports 1995, p 90, 104.

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Part IV The Content of International Responsibility, Ch.45 Punitive Damages Stephan Wittich From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Damages — Responsibility of states — Diplomatic protection — Erga omnes obligations

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(p. 667) Chapter 45 Punitive Damages 1 The notion of punitive damages 667 (a) Municipal law 667 (b) International law 668 2 International practice 669 (a) Diplomatic practice 669 (b) Early cases 669 (c) Modern cases 671 3 The work of the ILC on the topic 672 (a) Treatment of punitive damages during the first reading 672 (b) The issue of punitive damages during the second reading 673 4 Conclusions 674 Further reading 675

1 The notion of punitive damages (a) Municipal law The notion of ‘punitive damages’ derives from the common law: it involves the payment of damages in addition to actual (compensatory) damages when the defendant acted with recklessness, malice, deceit, or other reprehensible conduct (eg violence, oppression, fraud …). As the term indicates, punitive damages are intended to punish the defendant and thereby to deter blameworthy conduct. In addition, they may also be used to reduce or eliminate any profits the wrongdoer has gained from the tort. Accordingly, the difference between punitive or exemplary damages on the one hand, and substantial damages on the other, is that the former are meant to punish the individual wrongdoer and to deter the general public, while the latter are awarded to compensate for a significant loss or damage. Substantial damages mean any damages not purely nominal or symbolic, even if they are not very large. Various terms denoting this type of noncompensatory damages (in particular, ‘punitive’, ‘penal’, ‘exemplary’, ‘aggravated’, and ‘multiple’ damages) are often employed as synonyms.1 Despite this proliferation of terms, in several common law jurisdictions (in particular the United Kingdom, Canada, and Australia), a useful distinction is made between punitive damages proper and aggravated damages. The latter are a special form of compensatory damages, that is, damages on an increased scale awarded to the injured party over and (p. 668) above the actual economic, financial or other material loss, where the wrong done was aggravated by reprehensible conduct on the part of the wrongdoing party. Although these aggravating circumstances may be the same as in the case of punitive damages, aggravated damages have no punitive function. Rather they focus on the injured party’s feelings that were hurt due to the defendant’s behaviour. Exemplary or punitive damages, on the other hand, are intended to punish the defendant, and thereby to serve one or more of the objects of punishment—moral retribution, individual and general deterrence. While the subtle distinction between aggravated and punitive damages is often not easy to maintain, it is a valuable one. Punitive damages are known to practically all common law countries, albeit with variations. In the United States, for instance, punitive damages take a prominent position in the law of remedies, while judicial practice has severely restricted their availability in England. The most important field

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of application for punitive damages awards in municipal law are cases of injury to the person or to personal reputation. In contrast, civil law systems do not generally provide for damages in addition and unrelated to any actual damage caused. While there are, to be sure, several remedies of private law in civil law countries that have an afflictive character (eg contractual fines or the astreinte in French law), there is no unifying concept analogous to punitive damages.

(b) International law In international law, the idea of punitive damages is disputed. Many reasons are advanced for the generally negative attitude towards this type of remedy. In the first place, it is argued that penal remedies against States would be contrary to the principle of sovereign equality. Furthermore, the imposition of penalties would require judicial machinery with compulsory jurisdiction, which does not exist in international law. Likewise, determining whether the criteria for punitive damages are met requires third party assessment. Yet the vast majority of disputes are settled at the diplomatic level, and punitive damages can hardly play a role unless they are considered as a ‘self-inflicted penalty’ which will rarely be relevant in practice. Another argument against punitive damages is that they simply are not part of positive international law, as there is no practice in support of them. In sum, punitive damages appear unacceptable in international law for a variety of theoretical and practical reasons. However, it would appear that the real problem with punitive damages in inter national law is that the various approaches to the concept are incoherent, added to which the terminology on the matter is far from clear. One reason for this state of affairs is the uncertainty surrounding the concept of damage in general. For instance, it is sometimes said that punitive damages may in principle be awarded but are due only in case of ‘moral’ damage without however clarifying the term ‘moral damage’. Another source of confusion certainly is the fact that authors in international law hardly ever have the same concept in mind when they refer to punitive damages. This is not surprising given the fact that—as already mentioned—punitive damages are generally unknown to many domestic legal systems, in particular those with a civil law tradition. It is almost inevitable that scholars not familiar with punitive damages take a different approach to this concept than those accustomed to it. For example, it is an unsettled question in international law whether damages may be awarded for purely non-material damage directly suffered by a State (without one of its nationals being involved); hence some international lawyers consider any award of (p. 669) substantial, ie more than merely nominal or symbolic, damages in the absence of actual (pecuniary, economic, financial, or other material) loss as an award of punitive damages even if these substantial damages are designed to recover non-material damage and thus serve a purely compensatory function. Consequently, while certain municipal laws distinguish between punitive and aggravated damages, it is difficult to apply that subtle distinction to international law. The matter is further complicated by the more general question of calculating and measuring damages, in particular in case of nonmaterial injury which is not easily, if at all, assessable in monetary terms. Unless the award is specifically designated as one of compensatory, aggravated, or punitive damages, the particular purpose of the award can hardly be ascertained. Cases can readily be envisaged where moral damages, ie compensatory damages for non-material (‘moral’) injury to foreign nationals, overlap with aggravated or punitive damages. But the fact that an award of damages often involves a considerable discretionary element does not mean that it is punitive in character.2

2 International practice (a) Diplomatic practice Incidents of diplomatic practice are often cited in support of punitive damages but this is highly uncertain.3 In most cases, dispute settlement by diplomatic means fails to apply legal principles,

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and it is therefore doubtful whether diplomatic practice in the field of punitive damages may be considered as State practice that is accompanied by opinio iuris. Often it is unclear whether the payments of damages in these incidents had been preceded by a violation of international law at all. Furthermore, most cases of diplomatic practice with regard to punitive damages are outdated and concerned excessive claims of former colonial powers against weaker States. This practice is inappropriate and should not be considered as a reference point for the modern law of State responsibility.

(b) Early cases Early cases which are frequently taken as examples of punitive or aggravated damages concerned claims of diplomatic protection for injuries of nationals abroad, in particular for personal injuries. In such cases, international tribunals, in assessing the award of damages, have at times taken into account aggravating circumstances, for example, the seriousness of the responsible State’s delinquency. A specific category of such cases concerned the failure of State organs to apprehend and prosecute individuals for criminal offences against aliens. Here the territorial State was not responsible for the initial offence itself (such as the murder of an alien) but only for the non-apprehension and non-prosecution of the alleged offenders. While the reparation due was thus confined to compensating the non-material damage suffered by the relatives of the murdered victim (eg grief caused by the non-prosecution of the culprit), some of these cases involved substantial awards of damages which appear to have gone far beyond the mere compensation (p. 670) of this non-material damage.4 In other cases, substantial damages were awarded as an expression of regret for the indignity inflicted upon another State by mistreating one of its nationals.5 Finally, in one case it was explicitly held that the injury to the alien and, more importantly, the failure to prosecute the alleged perpetrators amounted to a severe offence against the State of nationality which was awarded a substantial amount of damages for that indignity.6 It is certainly true that in many of these cases the tribunals considered the circumstances of the violation so aggravating as to justify awards of substantial damages and perhaps even intended some sort of retribution. Since the amount of damages awarded appear to be unrelated to the damage actually inflicted, some commentators regard these awards as penal in character.7 However, without exception these early cases concerned injuries to aliens and the sum awarded accordingly was paid to the injured State in the interest of the individual rather than in its own right. In other words, these damages were designed to make up for personal injuries actually suffered by the foreign individuals concerned and may, at best, be considered as aggravated damages. There is only one early case which appears to have endorsed a punitive function of damages, the well-known and often cited I’m Alone case.8 There the Claims Commission awarded the sum of $25,000 as a ‘material amend’ to Canada for the intentional unlawful sinking by the United States coast guard of a British ship of Canadian registry. Since the ship was controlled and managed and the cargo owned by United States nationals, the sum awarded could not have been intended to compensate for material loss: on this basis, some authors consider this award to be penal in nature. However, a closer analysis suggests that the award was indeed compensatory rather than punitive.9 In particular, Canada claimed compensation for expenses in repatriating the crew as well as for legal expenses, the total amount exceeding the sum awarded. Thus the $25,000 awarded can readily be regarded as compensation for actual loss suffered by the violation. On the other hand, there is also early case law clearly denying the availability of punitive damages. Some of these cases rejected the claim for punitive damages because the circumstances of the case would not justify such an award.10 In the main, this ‘negative’ practice concerns cases in which the tribunal held that it was not competent under its constituent treaty to award penal remedies. The best-known example are the Lusitania cases, where the umpire rejected a claim for punitive damages, holding that the arbitral commission was without the power to make such awards under the terms of its constituent treaty.11 There are other decisions to the same effect.12 There is disagreement in the doctrine as to the interpretation of those cases in which the tribunal

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based its refusal to award punitive damages on its lack of competence under the compromis. Thus it is often argued that despite this rejection, none of these tribunals

References (p. 671) denied, as a matter of principle, the availability of punitive damages in international law.13 However, in most cases the compromis contained no specific restriction as to the available remedies; rather this restriction was implied by the respective tribunals on the basis of general international law. The majority of writers, therefore, take the more convincing view that the lack of jurisdiction of courts and tribunals to award punitive damages followed from the widespread opinion that they are not a suitable remedy in international law.14

(c) Modern cases Similar considerations may be applied to the more recent case law. There is not a single case in contemporary practice in which an international court or tribunal has awarded punitive damages. Even where serious breaches of international obligations were involved, either due to the importance of the norm breached or because of aggravating circumstances—or both—punitive damages were not an issue. In the Corfu Channel case, for instance, the International Court of Justice emphasized the ‘grave omissions’ by Albania15 but eventually treated the violation like any other wrongful act and awarded merely compensatory damages. Similarly, in Armed Activities on the Territory of the Congo, the Court considered Uganda’s unlawful military intervention in the Congo ‘to be a grave violation of the prohibition on the use of force’16 but did not take this fact into consideration with regard to the consequences of this grave violation. In the M/V Saiga case, the International Tribunal for the Law of the Sea held Guinea responsible for ‘excessive use of force’17 but did not award any, let alone substantial, damages for this material breach of important provisions of the Law of the Sea Convention.18 Likewise, the Eritrea-Ethiopia Claims Commission, after finding Eritrea responsible for a ‘serious’ violation of article 2(4) of the United Nations Charter which, in the view of the Commission, entailed ‘serious consequences’ confined itself to awarding compensation for the damage actually incurred.19 In the Velásquez Rodríguez case, which involved very serious violations of human rights, the Inter-American Court of Human Rights outright refused to award punitive damages since ‘this principle is not applicable in international law at this time’.20 Also, the European Court of Human Rights has consistently rejected the award of exemplary, punitive or even aggravated damages.21 At the same time, however, the European Court seems prepared to award some kind of increased compensatory damages where the mere finding of a violation of the European Convention on Human Rights would not afford appropriate reparation. Thus, in the specific context of a breach of article 6(1) of the Convention, the Grand Chamber of the Court justified the deviation from the Court’s

References (p. 672) previous restrictive case law on damages by the need to standardize its judgments and decisions ‘in order to arrive at equivalent results in similar cases’. It further stated: All this has led the Court to award higher levels of compensation than those awarded by the Convention institutions prior to 1999, and which may differ from those applied in the event of a finding of other violations. This increase, far from being a punitive measure, was intended to serve two purposes. On the one hand it encouraged States to find their own, universally accessible, solution to the problem, and on the other hand it allowed applicants to avoid being penalised for the lack of domestic remedies.22 In the Rainbow Warrior case the Secretary-General of the United Nations, acting as a mediator, awarded substantial damages for grave violations of international law committed by France. Since

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the compensation awarded exceeded the value of the material loss suffered by New Zealand, it might be argued that this award was punitive in nature. On the other hand, the ruling of the Secretary-General on compensation was not accompanied by any reasons, hence it is impossible to determine the real nature of the award.23 Furthermore, given the grave violation at issue, the significant sum awarded is not surprising in respect of the serious non-material damage suffered by New Zealand. Thus, the award by the Secretary-General can at best be regarded as one of aggravated damages, the amount of damages being measured according to the gravity of the breach without any intention to punish the responsible State. In a 2008 decision, an investment tribunal awarded compensation for moral damages, described as a ‘symbolic’ amount and not as a punitive measure. In Desert Line Projects LLC v Republic of Yemen, the claimant requested a sum for moral damages, including loss of reputation and stress and anxiety caused to its executives as a result of the actions of the respondent in breach of the fair and equitable treatment standard in the Oman-Yemen BIT.24 The Tribunal found that the violation of the treaty, and in particular the physical duress exerted on the executives, was malicious and therefore the respondent was liable to reparation for moral injury.25 However the reparation was framed as compensation for moral injury rather than punitive damages.

3 The work of the ILC on the topic (a) Treatment of punitive damages during the first reading In the work of the ILC on the law of State responsibility, the idea of punitive damages was already raised by the first Special Rapporteur, García Amador. He took the view that international responsibility included criminal aspects and considered punitive damages as a justified form of reparation.26 Pursuant to his overall approach, García Amador based his view concerning punitive damages on the cases mentioned above concerning injuries to aliens and involving substantial awards of damages.

References (p. 673) Although Special Rapporteur Ago introduced the concept of ‘international crimes’ into the draft articles, he did not envisage any penal consequences, such as punitive damages. Likewise Special Rapporteur Riphagen did not address the issue of punitive damages: he considered both compensation and satisfaction strictly compensatory in nature. In contrast, Special Rapporteur Arangio-Ruiz heavily emphasized punitive damages as a form of satisfaction which he considered afflictive rather than compensatory in nature.27 He proposed the inclusion of punitive damages, ie the ‘payment of a sum of money not in proportion to the size of the material loss’28 in case of ‘delicts of particular gravity’.29 The relevant draft article 45(2)(c) of the first reading text envisaged ‘in cases of gross infringement of the rights of the injured State [the payment of ] damages reflecting the gravity of the infringement’ as a form of satisfaction. It is, however, unclear whether Arangio-Ruiz really intended punitive damages in the true sense of the word, or rather aggravated damages, ie compensatory damages for a violation of an international obligation under aggravating circumstances. In any event, the ILC rejected the concept of punitive damages and considered such ‘damages reflecting the gravity of the infringement’ as ‘exemplary’ damages, obviously meaning aggravated damages.30 The scope of this provision was, however, unclear, as these damages were just a form of satisfaction and therefore only applicable in case of non-material damage,31 although they were, in principle, compensatory and hence a specific form of compensation. It was a perplexing inconsistency of the Articles adopted on first reading that while an injured State could receive aggravated, ie substantial damages by way of satisfaction in former draft article 45, such damages, let alone punitive damages, were ruled out as a consequence of the definition of

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international crimes given in former draft article 19.

(b) The issue of punitive damages during the second reading Special Rapporteur Crawford proposed to retain aggravated damages, that is, ‘damages reflecting the gravity of the injury’, as a form of satisfaction in case of non-material damage to the State.32 He also proposed punitive damages as a consequence of a serious breach of an obligation to the international community as a whole. Alternatively, if aggravated damages were not retained by the Commission by way of satisfaction in the case of ‘normal’ breaches, Crawford suggested that they should be available as a consequence of serious breaches of an obligation to the international community as a whole.33 Although the Drafting Committee adopted Crawford’s second alternative by deleting aggravated damages as a form of satisfaction but retaining them (instead of punitive damages) in case of serious breaches of erga omnes obligations, any reference to aggravated damages was eventually deleted from the final text. It would appear that the reason for this negative (even hostile) attitude towards substantial damages in the absence of actual, economic loss was the apparent equation by quite a few governments of aggravated with punitive damages, the latter being unacceptable to almost all States. In other words, substantial damages are considered punitive in character in the absence of actual pecuniary or economic loss, even if they are intended to compensate for nonmaterial damage. (p. 674) The result is that article 41 on particular consequences of a serious breach of an obligation arising under a peremptory norm of general international law does not envisage any form of substantial damages in addition to compensation. This question was deliberately left open. This is also indicated by article 41(3) which indicates that the consequences of a serious breach of a peremptory norm mentioned in paragraphs 1 and 2 are not exhaustive. The Commentary states: that international law may recognise additional legal consequences flowing from the commission of a serious breach in the sense of article 40 and [t]he fact that such further consequences are not expressly referred to in Chapter III does not prejudice their recognition in present-day international law, or their further development.34 Aggravated and even punitive damages are certainly a candidate for such further consequences, but it is an indication of their controversial status that they are not mentioned at all, even by way of example, in the Commentary.

4 Conclusions In conclusion it may be stated that, as practice reveals, there is no clear authority for punitive damages in international law, and this scarcity of practice evidences that, at present, punitive damages are certainly not a generally accepted remedy in international law. The few cases that may charitably be considered as substantial awards of damages (‘I’m Alone’, Rainbow Warrior) involved violations of international law under aggravating circumstances that caused significant non-material damage to the injured State. These damages were apparently intended to compensate for damage suffered, not to punish the wrongdoer. In the practice of international law, damages serve purely compensatory functions.35 Furthermore, these few cases do not indicate any pattern to the effect that aggravated or punitive damages are a specific consequence of violations of particular norms of international law, for instance within the meaning of article 41, or of violations causing specific types of injury, such as moral injury consisting in what is often called an affront to the dignity, honour, and prestige of a State. While this is sometimes argued for,36 this argument is neither supported by practice nor convincing from a conceptual point of view. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

On the other hand, this does not mean that punitive damages are a priori excluded as a specific remedy. It may well be the case that a secondary norm itself provides for punitive damages in case of breach of a particular primary norm (as is indicated by paragraph 14 of the Commentary to article 41). Likewise, there is no reason to rule out the possibility that punitive damages might be applied by an international court or tribunal on a consensual basis, for instance because the parties to judicial proceedings have agreed in advance on that remedy in the compromis. Both eventualities would also operate under the lex specialis rule (article 55). As a matter of principle, aggravated damages are more feasible than punitive damages, as they have a generally compensatory function. It is of course highly uncertain

References (p. 675) that a court or tribunal will award even aggravated damages eo nomine. Yet, once it is acknowledged that this type of damages is compensatory because it is adapted to the gravity of the infringement, there is no sound reason in theory to discard them as a specifi c remedy in case of grave violations of international law, irrespective of the nature or importance of the norm breached. Nevertheless, given the scarcity of awards not only of aggravated or punitive damages but even of ordinary compensatory damages in general international law, and the doubts which still exist as to whether damages are available at all for non-material damage directly suffered by the State,37 the answer to the question of aggravated or punitive damages must be left to the further development of international law by State practice. Further reading HW Briggs, ‘The Punitive Nature of Damages in International Law and State Responsibility for Failure to Apprehend, Prosecute or Punish’, in JM Matthews and J Hart (eds), Essays in Political Science in Honor of Westel Woodbury Willoughby (Baltimore, Johns Hopkins Press, 1937), 339 G Carella, ‘I Punitive Damages e la riparazione dello danno morale in diritto internazionale’ (1983) 67 Rivista di diritto internazionale 751 CC Hyde, ‘Concerning Damages arising from Neglect to Prosecute’ (1928) 22 AJIL 140 NB Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000), 187–207 NB Jørgensen, ‘A Reappraisal of Punitive Damages in International Law’ (1997) 68 BYIL 247 D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford, OUP, 2005), 354– 367 S Wittich, ‘Non-Material Damage and Monetary Reparation in International Law’ (2004) 14 FYIL 321 S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 ARIEL 101 S Wittich, ‘Lusitania v. Rainbow Warrior: Punitive Damages im Rahmen der Staatenverantwortlichkeit’, in HF Köck (ed), Rechtsfragen an der Jahrtausendwende. Akten des 21. Österreichischen Völkerrechtstages (Vienna, Linde, 1998), 247(p. 676)

Footnotes: 1 Cf BA Garner, Black’s Law Dictionary (abridged 8th edn, St Paul, Thomson/West, 2005), 335. 2 N Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000), 187– 207. 3 See S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 ARIEL 101, 141–142. 4 See eg Laura MB Janes et al (USA) v United Mexican States, 16 November 1925, 4 RIAA 82, 86–

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90. 5 See eg Maal, 1903, 10 RIAA 730, 732–733. 6 Heirs of Jean Maninat, 31 July 1905, 10 RIAA 55, 81–83. 7 For example, R Jennings & A Watts, Oppenheim’s International Law (9th edn, London, Longman, 1992), Vol 1, 533. 8 SS ‘I’m Alone’ (Canada, United States), 30 July 1933 & 5 January 1935, 3 RIAA 1609, 1618. 9 See S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 ARIEL 101, 121–122. 10 Ibid, 131–133. 11 The Lusitania, 1 November 1923, 7 RIAA 32, 41. 12 See S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 ARIEL 101, 135–137. 13 For example, C Eagleton, ‘Measure of Damages in International Law’ 39 (1929–1930) Yale LJ 52, 61–62. 14 C Gray, Judicial Remedies in International Law (Oxford, OUP, 1987), 28. 15 Corfu Channel case (United Kingdom v Albania), Merits, ICJ Reports 1949, p 4, 23. 16 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 227 (para 165). 17 M/V ‘Saiga’ (No 2) (1999) 38 ILM 1323, (para 159). 18 Ibid, 1358 (para 176). 19 Eritrea-Ethiopia Claims Commission, Final Award, Ethiopia’s Damages Claims, 17 August 2009. 20 Velásquez Rodríguez (Reparations and Costs), Inter-Am Ct HR, Series C, No 7 (1989), para 38. 21 BB v United Kingdom (App No 53760/00), Judgment of 10 February 2004, para 36: ‘The Court recalls that it does not award aggravated or punitive damages’. Wainwright v United Kingdom (App No 12350/04), Judgment of 26 September 2006, para 60: ‘The Court does not, as a matter of practice, make aggravated or exemplary damages awards’. See, however, Ludescher v Austria (App No 35019/97), Judgment of 20 December 2001, para 30, where the Court found ‘no basis, in the circumstances of the present cases, for accepting the applicant’s claim for punitive damages’ (emphasis added). 22 Cocchiarella v Italy (App No 64886/01) Judgment of 29 March 2006, para 67. 23 See S Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 ARIEL 101, 127–128. 24 Desert Line Projects LLC v Republic of Yemen (ICSID Case No ARB/05/17), Award of 6 February 2008, at paras 50, 58, 277, 284, and 286. 25 Ibid, paras 289–290. 26 FV García Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II(1), 173, 211– 212 (paras 201–209); FV García Amador, Sixth Report on State Responsibility, ILC Yearbook 1977, Vol II(1), 3, 35–37 (paras 140–145). 27 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 31–42 (paras 106–147). 28 Ibid, 41 (para 139). 29 Ibid, 42 (para 145). 30 See ILC Yearbook 1992, Vol I, 221 (para 57).

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31 Ibid, 221 (para 56). 32 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507 paras 191–192. 33 Ibid, paras 380–381. 34 Commentary to art 41, para 14. 35 Commentary to art 36, para 4. 36 See eg G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 1, 31 (para 106). 37 S Wittich, ‘Non-Material Damage and Monetary Reparation in International Law’ (2004) 14 FYIL 321, 355–363.

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Part IV The Content of International Responsibility, Ch.46 The Obligation of Non-Recognition of an Unlawful Situation Martin Dawidowicz From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Peremptory norms / ius cogens — Customary international law

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(p. 677) Chapter 46 The Obligation of Non-Recognition of an Unlawful Situation ∗ 1 Introduction 677 2 The obligation of non-recognition: beyond forcible territorial acquisition? 679 (a) The leading examples in practice 679 (b) Assessment of practice 683 3 The content of the obligation of non-recognition 684 4 Concluding observations 685 Further reading 686

1 Introduction The obligation of non-recognition of an unlawful situation is in large part based on the wellestablished general principle that legal rights cannot derive from an illegal act (ex injuria jus non oritur).1 In an ‘essentially bilateral minded’2 international legal order, however, with relatively weak enforcement mechanisms, this principle is subject to ‘considerable strain and to wide exceptions’.3 This important qualification delineates the contours of the principle of non-recognition in significant ways. Considerable strain is caused by an apparent antinomy of legality (ex injuria jus non oritur) and effectiveness (ex factis jus oritur). This is especially relevant where unlawful situations are maintained

References (p. 678) for extended periods of time, for example in case of forcible annexation of territory.4 An unlawful situation may be ‘cured’ or validated over time through a gradual process of waiver, acquiescence and prescription.5 As a minimum, the rationale of the obligation of non-recognition is to prevent, in so far as possible, the validation of an unlawful situation by seeking to ensure that a fait accompli resulting from serious illegalities do not consolidate and crystallize over time into situations recognized by the international legal order—a concern expressed by the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.6 As Brownlie has observed, however, this situation will presumably only occur ‘in rare cases as a result of very long possession or general acquiescence by the international community’.7 In such circumstances, the function of non-recognition is to vindicate the ‘legal character of international law against the “law-creating effect of facts”’.8 The obligation of non-recognition of an unlawful situation is set out in Article 41(2) ARSIWA in the following terms: No State shall recognize as lawful a situation created by a serious breach [by a State of an obligation arising under a peremptory norm of general international law] … The ILC’s definition of the principle is based on three interrelated elements. First, all peremptory norms may in principle give rise to an obligation of non-recognition. Second, only a serious breach of a peremptory norm is subject to the obligation of non-recognition. Third, the principle of nonrecognition is only applicable where a serious breach of a peremptory norm specifically results in the assertion of a legal claim to status or rights by the wrongdoing State—‘a situation’ all States are obligated not to recognize ‘as lawful’. The ILC explains, without much further elaboration, that this general obligation of non-recognition reflects ‘a well established practice’ and is thus said to 9

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embody existing customary international law.9 However, this assertion prompts two observations. First, the examples of peremptory norms noted in the ILC Commentary refer almost exclusively to unlawful situations resulting from territorial acquisitions brought about or maintained by the threat or use of force.10 International courts and tribunals have confirmed that forcible territorial acquisitions constitute the unlawful situation par excellence covered by the obligation of non-recognition under customary international law.11 However, with

References (p. 679) the possible exceptions of the right to self-determination, the prohibition of racial discrimination and apartheid and basic principles of international humanitarian law, there is virtually no practice in relation to the obligation not to recognize ‘as lawful’ situations resulting from breaches of other peremptory norms. So while there is considerable evidence of an obligation of non-recognition under general international law, the extent to which this obligation covers all breaches of peremptory norms is somewhat unclear. The practice in this regard is examined in Section 2 of this Chapter. Second, the precise content of the obligation is also unclear. What exactly are States supposed to do in order not to recognize as lawful a set of facts? For some types of peremptory breaches of international law, it may be asked with some reason whether—beyond the distinct obligation not to render aid or assistance and the faculté to resort to third-party countermeasures12 —the principle of non-recognition amounts to little more than a ‘barren duty’.13 Unfortunately, the ILC does not answer this question. But even on the assumption that it is not a barren duty which ‘adds nothing of substance’14 in such circumstances, its precise content remains ‘largely undefined’.15 The content of the obligation itself is examined in Section 3 of this Chapter, before conclusions are reached in Section 4.

2 The obligation of non-recognition: beyond forcible territorial acquisition? It may be asked whether article 41(2), which covers all (serious) breaches of peremptory norms, is supported by a ‘well-established practice’ reflective of customary international law on the matter. The examples which are widely considered representative of the scope and content of the obligation of non-recognition under general international law appear—at least in part—to provide a negative answer to this question.

(a) The leading examples in practice The first example is the treatment of the regime of Southern Rhodesia led by Ian Smith.16 Six days before its declaration of independence, the General Assembly adopted a resolution which appealed to all States ‘not to recognize any government in Southern Rhodesia which is not representative of the majority of the people’.17 The day after the declaration of independence, the Security Council adopted a resolution under Chapter VI which called upon all States ‘not to recognize this illegal racist minority regime’.18 A week later,

References (p. 680) the Security Council adopted another resolution under Chapter VI which added that States were obligated ‘not to entertain any diplomatic or other relations with it’.19 In the following years, coupled with the imposition of economic sanctions under Chapter VII, the Security Council spelt out the content of non-recognition in some detail. In particular, it entailed an obligation for UN member States not to recognize the issuance of passports by the regime (save on humanitarian grounds) and a need to withdraw consular and trade representation; 20 to deny, at the national level and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

through its competent State organs, the legal validity of any purported public or official acts of the regime; and to suspend or refuse any claim to membership of an international organization by the regime.21 In a similar vein, the General Assembly urged all States to ‘refrain from any action which might confer a semblance of legitimacy on the illegal regime’.22 With some notable exceptions,23 these obligations were widely observed by States. The second example is the treatment of South West Africa (Namibia), starting in 1966. On 27 October 1966, the General Assembly declared that South Africa had failed to fulfil its obligations in respect of the administration of its mandate in South West Africa (Namibia) and to ensure the moral and material well-being and security of the indigenous inhabitants of the Territory through the application of an illegal policy of apartheid, racial discrimination, and a forcible denial of their right to self-determination. The General Assembly terminated South Africa’s mandate on that basis.24 South Africa’s continued illegal presence in Namibia—characterized by the United Nations Council for South West Africa as a ‘foreign occupation’25—was confirmed by the Security Council,26 and prompted a number of resolutions by the Council under Chapter VI. In rather general terms, the Security Council called on all States ‘to refrain from all dealings with the Government of South Africa purporting to act on behalf of the Territory of Namibia … which are inconsistent with [its illegal presence in Namibia]’.27 In a further resolution under Chapter VI, the Council outlined a number of proscribed acts (similar to those applicable in the Rhodesia situation) which were tantamount to ‘implying recognition of the authority of the Government of South Africa over the Territory of Namibia’.28 These obligations were widely complied with.29 A third example can be found in the resolutions adopted by the General Assembly and the Security Council during the 1970s relating to the establishment by South Africa of four Bantustans or ‘homeland States’; namely, the Transkei (1976), Bophuthatswana (1977), Venda (1979), and Ciskei (1981). The General Assembly, later endorsed by the Security Council acting under Chapter VI, declared the declaration of independence of the Transkei ‘invalid’ and called on States ‘to deny any form of recognition to the so-called independent (p. 681) Transkei’.30 The same position was adopted in relation to the other Bantustans, with the specific call that States ‘reject any travel documents’ issued by them.31 Fourth, the action of the UN following the 1967 war in the Middle East warrants mention. At an emergency session in 1967, the General Assembly expressed deep concern at the situation prevailing in Jerusalem as a result of the measures taken by Israel in placing the city under a common civil administration. The General Assembly considered these measures ‘invalid’ and called upon Israel ‘to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem’.32 Subsequently, the General Assembly, and later the Security Council acting under Chapter VI, declared that Israel’s occupation of East Jerusalem, the Gaza Strip, the West Bank and the Golan Heights should be characterized as belligerent occupation under international humanitarian law; that is, a status incompatible with Israel’s legal claims to East Jerusalem33 and its apparent de facto annexation of other occupied territories (notably through the establishment of Israeli civilian settlements). The Security Council condemned Israel’s legal claim to East Jerusalem as ‘null and void’ and called upon States not to recognize it, notably by withdrawing established diplomatic missions from the city.34 The General Assembly has adopted the same position on several occasions.35 In addition, the political organs of the United Nations have declared that certain changes carried out by Israel in the Gaza Strip and the West Bank contravene the 1949 Geneva Conventions and as such are ‘null and void’; accordingly, they have called upon Israel ‘to rescind forthwith all such measures and to desist from all policies and practices affecting the physical character or demographic composition of the occupied Arab territories’.36 The General Assembly has further called upon all States ‘not to recognize any such changes and measures carried out by Israel in the occupied Arab territories and invite[d] them to avoid actions, including in the field of aid, that could constitute recognition of that occupation’.37 In a similar vein, the Security Council has decided that Israel’s formal decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is ‘null and void’ and ‘without international legal effect’, and 38

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accordingly demanded that Israel rescind its decision.38 For its part, the General

References (p. 682) Assembly has characterized this annexation as an ‘act of aggression’ that should ‘not be recognized’.39 Finally, the General Assembly has declared that Israel’s presence in the Palestinian occupied territories contradicts the right to self-determination of its inhabitants.40 While no State has formally recognized Israel’s de facto (and sometimes de jure) claims to the occupied territories, problems have arisen in practice regarding acts by third States that might imply such recognition—an example in point being the application of the preferential treatment clause in the 1995 EC-Israel Association Agreement to the export of goods produced in the West Bank and the Gaza Strip.41 The fifth example is the treatment of the Turkish Republic of Northern Cyprus (TRNC).42 After the TRNC declared its independence on 15 November 1983, the Security Council adopted a resolution under Chapter VI by which it considered the declaration of independence to be legally invalid and called upon all States not to recognize any other State than the Republic of Cyprus.43 Subsequently, the Security Council also condemned all secessionist actions and reiterated the call upon all States not to recognize the secessionist entity.44 The European Community, the Committee of Ministers of the European Council, and the Commonwealth have adopted similar positions.45 Finally, in respect of Iraq’s invasion of Kuwait in August 1990, the Security Council adopted a resolution under Chapter VII calling upon States ‘not to recognize any regime set up by the occupying Power’.46 The Security Council further decided that the annexation had ‘no legal validity’ and called upon all States, international organizations and specialized agencies in general terms ‘not to recognize that annexation, and to refrain from any action or dealing that might be interpreted as an indirect recognition of that annexation’.47 The Organization of the Islamic Conference, the Arab League, the Gulf Cooperation Council, the Non-Aligned Movement, the OAS, the European Community, and the Nordic countries made statements to similar effect.48 In the event, no State recognized Iraq’s annexation of Kuwait or its authority in that country and Iraqi legal claims arising from the annexation were denied in foreign national courts.49 The purported annexation was eventually reversed by enforcement action under Chapter VII.

References

(p. 683) (b) Assessment of practice These examples call for two general observations. First, since the practice assessed above is based almost exclusively on Security Council action under Chapter VI of the United Nations Charter and General Assembly resolutions, it is necessary to determine whether the source of the obligation of non-recognition may be considered a conventional obligation based on the Charter (i.e. limited to action mandated by UN organs) or customary in character and thus generally available to States on an individual basis. In the case of the General Assembly, the answer seems clear: the legality of the acts adopted by States pursuant to those resolutions was conditional on a pre-existing obligation of non-recognition under general international law. In the case of the Security Council, the answer to the same question will depend on the concrete application of the test expounded in the Namibia Advisory Opinion to determine whether a given Chapter VI resolution is binding on States under article 25 of the Charter.50 Whether or not one agrees with the Namibia test or its application in that case,51 it is doubtful whether many of the resolutions assessed above would meet that test. In any event, it is generally accepted that the Security Council does not have an a priori competence in the field of State responsibility—a point repeatedly stressed by the ILC.52 Therefore, individual States are obligated under general international law not to recognize certain unlawful situations; they do not require the

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approval of UN organs to justify their actions since this obligation is self-executory. Second, the brief survey of practice assessed above suggests that the obligation of nonrecognition has been applied to unlawful situations resulting from forcible territorial acquisition, apartheid and racial discrimination, the denial of the right to self-determination and basic principles of international humanitarian law. This practice therefore does not support an obligation of non-recognition in respect of all peremptory norms, as suggested in article 41 ARISWA. But this may not necessarily be the end of the matter. Both in conceptual and practical terms, it seems that what is decisive is not the individual character of the peremptory norm but that the unlawful situation flowing from the breach of such a norm results in a legal claim to status or rights by the wrongdoing State which is capable of being denied by other States. Practice demonstrates that this has not been the case for all peremptory norms, and with good reason. For example, situations created by acts of genocide, torture, or crimes against humanity do not, in principle,53 result in any legal consequences which are capable of being denied by States—the source, it may be recalled, of Judge Kooijmans’ ‘great difficulty’ in understanding what a duty not to recognize an illegal fact involves. While the absence of any practice admittedly makes it difficult to draw any definitive conclusions, it seems clear as a matter of principle that this fact alone does not necessarily negate the possibility that the obligation of non-recognition may also cover other peremptory norms under general international law. Indeed, the valid

References (p. 684) reasons described above for the absence of practice in relation to these norms reinforces the notion that there is no logical difficulty in accepting this conclusion. It therefore appears that, consistently with article 41(2) ARSIWA, the obligation of non-recognition is based on customary international law and applies to any unlawful situation resulting from a serious breach of a peremptory norm where that situation results in the assertion of a legal claim by the wrongdoing State.

3 The content of the obligation of non-recognition Article 41(2) ARSIWA does not elaborate the content of the obligation of non-recognition, although the Commentary notes that the obligation ‘not only refers to the formal recognition of [situations created by the relevant breaches], but also prohibits acts which would imply such recognition’.54 Where the Security Council and the General Assembly have elaborated upon the content of the obligation of non-recognition, they have generally defined it broadly to include any dealings with the responsible State which could imply formal recognition of an unlawful situation, save where humanitarian considerations apply.55 In addition to this generalized obligation, the Security Council and the General Assembly have referred to obligations not to recognize passports or travel documents issued by a regime; 56 to withdraw consular representation; 57 to withdraw diplomatic missions; 58 to deny the legal validity of any public or official acts of the regime; 59 and to refuse any claim to membership of an international organization.60 Although the obligation of non-recognition has been referred to by the ICJ on a number of occasions, the Court has provided little in the way of elaboration of the content of the obligation of non-recognition. Two judgments warrant examination: the Court’s Advisory Opinion in relation to Namibia61 and its later Opinion in the Wall case.62 In the Namibia opinion, the Court held that South Africa’s mandate over Namibia had been lawfully revoked and that South Africa’s continued presence in Namibia was accordingly unlawful. In consequence, all States had an obligation of non-recognition. The Court first stated the content of that obligation in general terms, holding that any dealings with South Africa which may ‘imply a recognition that South Africa’s presence in Namibia is legal’ would be inconsistent with the Security 63

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Council’s declaration of illegality and as such proscribed.63

References (p. 685) More particularly, the Court noted that States were accordingly enjoined from (1) entering into treaty relations with South Africa in all cases in which the Government of South Africa purported to act on behalf of or concerning Namibia; (2) invoking or applying existing bilateral treaties concluded by South Africa on behalf of or concerning Namibia which involved active intergovernmental co-operation; (3) sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia; (4) sending consular agents to Namibia (and when required to withdraw any such agents already there); and (5) entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which might entrench its authority over the Territory.64 The Court recognized an important qualification on the broad ground of humanitarian considerations: it noted that ‘with respect to multilateral treaties, however, the same rule [of invalidity] cannot be applied to certain general conventions such as those of a humanitarian character, the nonperformance of which may adversely affect the people of Namibia’. In a similar vein, invalidity did not extend to ‘those acts, such as, for instance, the registration of births, deaths and marriages, the effect of which can be ignored only to the detriment of the inhabitants’.65 In the Wall Advisory Opinion, the Court held that all States were ‘under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem’.66 However, the Court did not elaborate on the content of the obligation of non-recognition, leaving the matter to be determined by the political organs of the UN acting within their respective spheres of competence. The Court stated: … the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.67 The Court’s decision not to elaborate on the content of the obligation in the Wall case left States with a particular uncertainty as to what this duty entails—if anything—in circumstances which do not necessarily result in legal claims.

4 Concluding observations While article 41(2) ARSIWA states the obligation of non-recognition in general terms, its simplicity glosses over some significant ambiguities in relation to the circumstances in which the obligation of non-recognition arises and its precise content. First, the ILC’s contention that the obligation of non-recognition applies to all peremptory norms is not borne out by practice—at least not in the conclusive manner suggested by the ILC. The obligation of non-recognition has traditionally been intimately linked to forcible territorial acquisition. Since the 1960s, it has been extended to cover the prohibitions of apartheid, racial discrimination, basic principles of international humanitarian

References (p. 686) law and the denial of the right to self-determination. In contrast, there is no practice in relation to other peremptory norms. But what appears to be decisive is not the character of the particular peremptory norm but rather the extent to which an unlawful situation flowing from the violation of a peremptory norm results in a legal claim to status or rights by the responsible State. While this is relatively common where there is an unlawful annexation of territory, it is rather less

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obvious when such a situation would arise in respect of some other peremptory norms, such as the prohibitions of torture and genocide. Second, while it is clear that where an obligation of non-recognition arises, it entails a broad obligation to refrain from any formal act of recognition and acts which would imply such recognition in a formal sense, there remains uncertainty as to the precise content of the obligation. The ILC did not elaborate on this question and international courts and tribunals as well as the political organs of the United Nations have been reluctant to develop relevant criteria beyond concrete cases. In these circumstances, it is very difficult for States to precisely identify the acts or omissions in respect of which they are obliged; an uncertainty which is not resolved in the ILC Articles. Further reading H Blix, ‘Contemporary aspects of recognition’ (1970-III) Recueil des cours 586 J Charpentier, La reconnaissance internationale et l’évolution du droit des gens (Paris, Pedone, 1956) T-C Chen, The International Law of Recognition: with special reference to practice in Great Britain and the United States (London, Stevens & Sons Ltd, 1951) T Christakis, ‘L’obligation de non-reconnaissance des situations créées par le recours illicite à la force ou d’autres actes enfreignant des règles fondamentales’, in C Tomuschat and J-M Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus cogens and obligations erga omnes (The Hague, Martinus Nijhoff, 2006), 127 J Dugard, Recognition and the United Nations (Cambridge, Grotius, 1987) H Lauterpacht, Recognition in International Law (Cambridge, CUP, 1947) S Talmon, ‘The Duty “Not to Recognize as Lawful” a Situation created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Substance?’, in C Tomuschat and J-M Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (The Hague, Martinus Nijhoff, 2006), 101

Footnotes: ∗ The views expressed herein are solely those of the author and do not necessarily reflect those of the United Nations. 1 See eg Factory at Chorzów, Jurisdiction, 1925, PCIJ, Series A, No 9, p 4, 31; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 46–47; ibid, Sep Op Judge Dillard, 166–167; Arbitral Tribunal for Dispute Over the Inter-Entity Boundary in Brcko Area Award, (Republika Srpska v. Bosnia-Herzegovina), Award of 14 February 1997, para 77, available at ; Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV, 26. See also H Lauterpacht, ‘Règles générales du droit de la paix’ (1937-IV) 62 Recueil des cours 287; TC Chen, The International Law of Recognition (London, Stevens & Sons Limited, 1951), 411; G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 4, 16 (para 64). 2 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 22, 38 (para 91). 3 H Lauterpacht, Recognition in International Law (Cambridge, CUP, 1947), 420–430; see also H Kelsen, Principles of International Law (2nd edn, New York, Holt, 1966), 316–317. 4 H Lauterpacht, Recognition in International Law (Cambridge, CUP, 1947), 420–427; TC Chen, The International Law of Recognition (London, Stevens & Sons Limited, 1951), 420–422. 5 See eg H Lauterpacht, Recognition in International Law (Cambridge, CUP, 1947), 420–430; P Guggenheim, ‘La validité et la nullité des actes juridiques internationaux’ (1949-I) 74 Recueil des cours 231; WE Hall, A Treatise on International Law (8th edn, Oxford, Clarendon Press, 1924), 143–144; RY Jennings, The Acquisition of Territory in International Law (Cambridge, CUP, 1963),

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60–62; East Timor (Portugal v Australia), ICJ Reports 1995, p 90, Diss Op Judge ad hoc Skubiszewski, 264–265 (paras 131–132). For detailed criticism of this view see A Orakhelashvili, Peremptory Norms in International Law (Oxford, OUP, 2006), 360–409. 6 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 184 (para 121). 7 I Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press, 1963), 422. 8 H Lauterpacht, Recognition in International Law (Cambridge, CUP, 1947), 430. 9 See Commentary to draft art 53, para 2, ILC Yearbook 1996, Vol II(2), 58, 114. 10 Commentary to art 41, paras 5–8. 11 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 171 (para 87); Arbitral Tribunal for Dispute Over the Inter-Entity Boundary in Brcko Area Award (Republika Srpska v Bosnia-Herzegovina), Award of 14 February 1997, para 77, available at ; East Timor (Portugal v Australia), ICJ Reports 1995, p 90, Disciplinary Opinion of Judge Skubiszewski, 262 (para 125), 264 (para 129). 12 It should be noted that the distinct obligation of non-assistance applies ‘whether or not the breach itself is a continuing one’; see Commentary to art 14, paras 11–12. For a detailed assessment of practice on third-party countermeasures see M Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and Their Relationship to the UN Security Council’ (2006) 77 BYIL 333; C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005), 198–251. 13 See the comments and observations submitted by the United Kingdom on art 18 of the Draft Declaration on Rights and Duties of States, A/CN.4/2 (15 December 1948), 111. 14 A/CN.4/515/Add.2, 13 (France). 15 A/CN.4/515, 54 (Spain); see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, Sep Op Judge Kooijmans, 232 (paras 44–45). 16 See generally R Zacklin, The United Nations and Rhodesia (New York, Praeger, 1974); V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (Dordrecht, Nijhoff, 1990), 423–486. 17 GA Res 2022(XX), 5 November 1965. 18 SC Res 216, 12 November 1965. 19 SC Res 217, 20 November 1965. See also to similar effect SC Res 288, 17 November 1970. 20 SC Res 253, 29 May 1968. 21 SC Res 277, 18 March 1970. 22 GA Res 2946(XXVII), 7 December 1972. 23 South Africa and Portugal (at least until the carnation revolution of 1974). See further SC Res 277, 18 March 1970. 24 GA Res 2145(XXI), 27 October 1966. 25 A/6897, 10 November 1967. Following the revocation of the mandate, the Council was established by the General Assembly (GA Res 2248(S-V), 19 May 1967) to administer the mandated territory until independence. See further R Zacklin, ‘The Problem of Namibia in International Law’ (1981-II) 171 Recueil des cours 308–327. 26 SC Res 264, 20 March 1969. 27 SC Res 269, 12 August 1969; SC Res 276, 30 January 1970. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

28 SC Res 283, 29 July 1970 (emphasis added). 29 See generally the extensive practice referred to in S/9863, 7 July 1970. 30 GA Res 31/6A, 26 October 1976; SC Res 402, 22 December 1976; SC Res 407, 25 May 1977. 31 GA Res 32/105N, 14 December 1977; GA Res 34/93G, 12 December 1979; GA Res 36/172A, 17 December 1981; S/13549, 21 September 1979 (statement by the President of the Security Council); S/PV.2315 (statement by the President of the Security Council). But see the humanitarian concerns raised by France and the United Kingdom in relation to the categorical non-recognition of travel documents (summarized in UNYB (1979), 182). For a discussion see J Dugard, Recognition and the United Nations (Cambridge, Grotius, 1986), 98–108; J Dugard, ‘Collective NonRecognition: The Failure of South Africa’s Bantustan States’, in Boutros-Boutros-Ghali Amicorum Discipulorumque liber. Paix, développement et démocratie, Vol I (Brussels, Bruylant, 1998), 383– 403. 32 GA Res 2253(ES-V), 4 July 1967; GA Res 2254(ES-V), 14 July 1967. For Israel’s view that this action did not alter the status of Jerusalem (and therefore did not amount to annexation), see A/6753-S/8052, 10 July 1967. 33 See Basic Law: Jerusalem, Capital of Israel, 5740–1980 (31 July 1980), available at . Article 1 of the Basic Law provides that ‘Jerusalem, complete and united, is the capital of Israel’. 34 SC Res 476, 30 June 1980; SC Res 478, 20 August 1980. 35 GA Res 36/120E, 10 December 1981; GA Res 37/123C, 16 December 1982; GA Res 39/146C, 14 December 1984. 36 GA Res 2949(XXVII), 8 December 1972; see also SC Res 465, 1 March 1980. 37 GA Res 2949(XXVII), 8 December 1972. 38 SC Res 497, 17 December 1981. The text of the Golan Heights Law (14 December 1981) is available at . 39 See eg GA Res 37/123A, 16 December 1982. 40 GA Res 36/226A, 17 December 1981; GA Res 39/146A, 14 December 1984. 41 See C Hauswaldt, ‘Problems under the EC-Israel Association Agreement: The Export of Goods Produced in the West Bank and the Gaza Strip under the EC-Israel Association Agreement’ (2003) 14 EJIL 591. See also S Talmon, Kollektive Nichtanerkennung illegaler Staaten. Grundlagen und Folgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern (Tübingen, Mohr Siebeck, 2006), 119–120 (with further references). 42 See A/38586-S/16148, 16 November 1983. See generally S Talmon, Kollektive Nichtanerkennung illegaler Staaten. Grundlagen und Folgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern (Tübingen, Mohr Siebeck, 2006). 43 SC Res 541, 18 November 1983. 44 SC Res 550, 11 May 1984. 45 The statements are quoted in J Dugard, Recognition and the United Nations (Cambridge, Grotius, 1986), 109 (fns 135–137). 46 SC Res 661, 6 August 1990. 47 SC Res 662, 9 August 1990. 48 See A/45/383-S/21444, 6 August 1990; A/45/409-S/21502, 13 August 1990; S/21448, 10 August 1990; S/21500, 13 August 1990; S/21430, 3 August 1990; S/21468, 7 August 1990; S/21719, 6 September 1990; A/45/585-S/21849, 5 October 1990; S/21665, 23 August 1990; S/21751, 12 September 1990.

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49 See Iraq Airways Company and the Republic of Iraq v Kuwait Airways Corporation (No 1) (2002), 103 ILR 340, 116 ILR 534, 125 ILR 602. 50 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 53 (para 114). 51 This was a controversial issue which divided the Court: for approval see ibid, Separate Opinion of Judge Ammoun, 97–98; Separate Opinion of Padilla Nervo, 118–119; for dissent see Dissenting Opinion of Judge Fitzmaurice, 293; Separate Opinion of Judge Petrén, 136–137; Dissenting Opinion of Judge Gros, 340–341; Separate Opinion of Judge Onyeama, 147–149; Separate Opinion of Judge Dillard, 150, 165–166. 52 See Commentary to art 40, para 9; Commentary to draft art 53, para 3, ILC Yearbook 1996, Vol II(2), 58, 169–170. 53 For a discussion of some possible scenarios, see S Talmon, Kollektive Nichtanerkennung illegaler Staaten. Grundlagen und Folgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern (Tübingen, Mohr Siebeck, 2006), 116–118. 54 Commentary to art 41, para 5. 55 See eg GA Res 2946(XXVII), 7 December 1972 (Rhodesia); SC Res 283 (29 July 1970) (Namibia); SC Res 497, 17 December 1981 (Israel); SC Res 550, 11 May 1984 (TRNC). 56 SC Res 253, 29 May 1968 (Rhodesia); GA Res 32/105N, 14 December 1977) (South Africa); GA Res 34/93G, 12 December 1979 (South Africa); GA Res 36/172A, 17 December 1981 (South Africa). 57 SC Res 253, 29 May 1968 (Rhodesia); 58 SC Res 476, 30 June 1980 (Israel); SC Res 478, 20 August 1980 (Israel); GA Res 36/120E, 10 December 1981 (Israel); GA Res 37/137C, 16 December 1982 (Israel); GA Res 39/146C, 14 December 1984 (Israel). 59 SC Res 253, 29 May 1968 (Rhodesia). 60 lbid. 61 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16. 62 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136. Although the Court also dealt with the obligation of nonrecognition in the East Timor case, its judgment does not elaborate the content of the obligation: see East Timor (Portugal v Australia), ICJ Reports 1995, p 90. But see ibid, Diss Op Judge ad hoc Skubiszewski, 262–265. 63 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 55, 58 (paras 121, 133). 64 Ibid, 55–56 (paras 122–124). 65 Ibid, 55–56 (paras 122, 125). In a dissenting opinion, Judge Petrén suggested that the obligation of non-recognition only excluded ‘diplomatic relations and those formal declarations and acts of courtesy through which recognition is normally expressed’ and did not extend to lower administrative levels, ‘since necessities of a practical or humanitarian nature may justify certain contacts or certain forms of cooperation’: ibid, 134–135. 66 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 200 (para 159). 67 Ibid, 200 (para 160).

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Part IV The Content of International Responsibility, Ch.47 The Obligation of Non-Assistance to the Responsible State Nina HB Jørgensen From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Peremptory norms / ius cogens — State practice

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(p. 687) Chapter 47 The Obligation of Non-Assistance to the Responsible State 1 Introduction 687 2 Evolution of the obligation in the work of the ILC 687 3 Basis for the obligation in international law 690 4 Relationship with other Articles and the international community 692 5 Conclusion 692 Further reading 693

1 Introduction After a considerable amount of conceptual juggling during the period 1996–2001, the International Law Commission (ILC) confirmed in its Articles on State Responsibility that there was a need to distinguish between two degrees or levels of responsibility. The term ‘international crime’, which was formerly used to describe the conceptual foundation of the ‘aggravated’ regime of responsibility, has been discarded. However, the obligations incumbent upon all States in the face of an ‘extraordinary’ wrongful act have survived the conceptual changes, suggesting that the tenet if not the terminology of ‘international crime’ to some extent remains valid. The evolution of the obligation not to render aid or assistance to the responsible State under the ‘aggravated’ regime of responsibility and its basis in international law will be discussed before returning to certain conceptual issues by way of conclusion.

2 Evolution of the obligation in the work of the ILC The ILC completed its first reading of Part I of the Draft Articles on State Responsibi lity in 1980. Part I included draft article 19, drawn up by Special Rapporteur Ago in 1976,1 which attempted to define a restricted set of obligations to which a special regime of responsibility needed to be attached in order to safeguard the fundamental interests of the international community as a whole. In the early 1980s, Special Rapporteur Riphagen (p. 688) began to grapple with the question of the consequences of international crimes in the context of Part II of the Draft Articles dealing with the content, forms, and degrees of international responsibility. In his view the notion of international crimes implied that the wrongful act thus qualified could not be made good by any substitute performance (first parameter), that an injury was caused to all States (second parameter), and that special legal consequences were entailed (third parameter).2 One such special consequence was an obligation of all States to contribute to a situation in which the responsible State would be compelled to stop the breach. As a minimum, this would include refraining from supporting a posteriori the conduct constituting an international crime. Breaking this down further, Riphagen argued that the support a posteriori from which all States should refrain could refer to the conduct constituting the international crime itself, to the result of such conduct, or to the responsible State generally, in fields of relationship unrelated to the crime. In 1982, Riphagen put forward draft article 6: 1 . An internationally wrongful act of a state, which constitutes an international crime, entails an obligation for every other state: (a) not to recognize as legal the situation created by such act; and (b) not to render aid or assistance to the author state in maintaining the situation created by such act; and (c) to join other states in affording mutual assistance in carrying out the obligations

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under (a) and (b). 2 . Unless otherwise provided for by an applicable rule of international law, the performance of the obligations mentioned in paragraph 1 is subject mutatis mutandis to the procedures embodied in the United Nations Charter with respect to the maintenance of international peace and security. 3 Paragraphs (a) and (b) embodied the notion that each individual State has at least an obligation not to act in such a way as to condone an international crime. This obligation also implied certain rights and in the draft commentary it was pointed out that draft article 6 recognized the possibility that the ‘international community as a whole’ could determine the content of the special legal consequences and the procedural conditions under which they should be applied.4 Even at this early stage, the provisions of draft article 6 were seen to be minimum requirements and paragraph (b) was ‘necessarily drafted in rather vague terms’.5 By 1985, the wording of draft article 6 had altered slightly to reflect more closely the observations in the Commentary. The pertinent part of the new draft article 14 read: 1 . An international crime entails all the legal consequences of an internationally wrongful act and, in addition, such rights and obligations as are determined by the applicable rules accepted by the international community as a whole. 2 . An international crime committed by a state entails an obligation for every other state: (a) not to recognize as legal the situation created by such crime; and (b) not to render aid or assistance to the state which has committed such crime in maintaining the situation created by such crime; and (c) to join other states in affording mutual assistance in carrying out the obligations under subparagraphs (a) and (b). 6 (p. 689) In the Commentary,7 the three different kinds of additional legal consequences were described. First, there could be a new collective right of all States to require the responsible State to fulfil its ordinary secondary obligations. Second, there could be additional secondary obligations of that State going beyond the undoing of the international crime. These first two types of additional legal consequences remained undefined. The third type, namely the new obligations of all States not to recognize or support the results of an international crime, seemed relatively uncontroversial, perhaps because they simply represented a minimum degree of solidarity that had a tangible foundation in existing international law. In his Seventh Report on State Responsibility,8 Special Rapporteur Arangio-Ruiz formulated a detailed set of draft articles dealing with the substantive and instrumental consequences of international crimes which, in article 18, included a duty on all States to ‘abstain from any act or omission which may assist the wrongdoing State in maintaining’ the situation created by the international crime. But by 1996, Chapter IV of Part II dealing with international crimes had been reduced back to minimum requirements. Draft article 53 entitled ‘Obligations for all States’ included the obligations: (a) not to recognize as lawful the situation created by the crime; (b) not to render aid or assistance to the state which has committed the crime in maintaining the situation so created. 9 According to the Commentary: By virtue of this text, obligations are imposed on all States and the involvement of all States is believed to reflect the interest of all States in the prevention and suppression of international crimes which, by definition … impair ‘fundamental interests of the international 10

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community’.10 The obligation to refrain from assisting the wrongdoing State was described as a negative obligation which already reflected a well-established practice. In his First Report on State Responsibility,11 Special Rapporteur Crawford highlighted the element that all States are injured States as being the most significant consequence of international crimes. He saw little difficulty with the limited obligation of solidarity under article 53. However, many members of the ILC and, more particularly, many governments, continued to object strongly to the underlying concept of international crime which was consequently recast in terms of responsibility erga omnes. In 2000, Part II of the Draft Articles included a new formulation: 12

Chapter III : Serious breaches of essential obligations to the international community Article 41 Application of this chapter 1 . This Chapter applies to the international responsibility arising from an internationally wrongful act that constitutes a serious breach by a state of an obligation owed to the international community as a whole and essential for the protection of fundamental interests. (p. 690) 2 . A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible state to fulfil the obligation, risking substantial harm to the fundamental interests protected thereby. Draft article 42, dealing with the consequences of serious breaches of obligations to the international community as a whole, included the old obligations for all States: (a) not to recognize as lawful the situation created by the breach (b) not to render aid or assistance to the responsible state in maintaining the situation so created. In his Fourth Report of 2001,13 Crawford reiterated that the core of Chapter III of Part Two and its essential justification was the idea of obligations to the international community as a whole. The 2001 Draft Articles as finally adopted in 2001 recast this idea in terms of peremptory norms. Chapter III of Part Two entitled ‘Serious breaches of obligations under peremptory norms of general international law’ now states:

Article 40 Application of this Chapter 1 . This Chapter applies to the international responsibility which is entailed by a serious breach of an obligation arising under a peremptory norm of general international law. 2 . A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible state to fulfil the obligation. Article 41, dealing with the particular consequences of a serious breach of an obligation under this chapter, unsurprisingly retains the obligation that ‘No state shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation’ (article 41(2)).

3 Basis for the obligation in international law

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The obligation not to render aid or assistance to the responsible State under article 41(2) encompasses notions of interdependence and solidarity that underlie the Charter of the United Nations and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States.14 State practice provides some support for the contention that when a State commits an act that affects at least the conscience of all other States, a form of collective response by all States is necessary to counteract the effects of the breach. This was the thinking behind many of the Security Council resolutions condemning apartheid in South Africa. Resolution 418 (1977), for example, applied a mandatory arms embargo against South Africa and called upon all States, including non-members of the United Nations, to comply with the resolution and ‘refrain from any co-operation with South Africa in the manufacture and development of nuclear weapons’. In Resolution 218 (1965), dealing with the situation in the Territories under Portuguese administration, the Security Council requested all States to refrain from ‘offering the Portuguese Government any assistance which would enable it to continue its repression of the people of the Territories under its administration; and to take all the necessary measures to prevent the sale and supply of arms and military equipment to the Portuguese Government for this purpose’. The resolutions adopted by

References (p. 691) the Security Council during the conflict between Iraq and Kuwait in 1990–1 went well beyond any obligation not to assist Iraq, and in that context, international solidarity proved its worth. Riphagen’s draft article 6 was inspired in part by article 71 of the 1969 Vienna Convention on the Law of Treaties15 which states in the context of a treaty being void for conflicting with a peremptory norm, that parties shall ‘(a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law, and (b) bring their mutual relations into conformity with the peremptory norm of general international law’. Thus it would seem that the prohibition on international cooperation with the responsible State in maintaining the situation created by a serious breach of an obligation arising under a peremptory norm of general international law is a mix of codification and progressive development of the law. It is likely to require further development within the specific framework established by the ILC Articles. The obligation not to assist the responsible State is limited to acts that would assist in preserving the situation created by the breach. It does not cover international co-operation with the responsible State in unrelated fields. In other words, it does not require the complete isolation of the responsible State. However, a State may legitimately avoid all types of international co-operation with the responsible State if it so wishes. In its Advisory Opinion in the case concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), the International Court of Justice found that United Nations member States were under an obligation ‘to recognize the illegality and invalidity of South Africa’s continued presence in Namibia’ and ‘to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia’.16 The Court went on to say that ‘the termination of the Mandate and declaration of the illegality of South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of the situation which is maintained in violation of international law: in particular, no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognize the validity or effects of any such relationship or of the consequences thereof ’.17 The existence of consequences for third States was confirmed by the International Court in its Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.18 Although the Court made no express reference to articles 40 and 41 of the Articles, the consequences it identified reflect the Articles: it held that the norms in question constituted rights and obligations erga omnes and ‘[g]iven the character and importance of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

rights and obligations involved’, other States were under an obligation not to recognize the illegal situation resulting from the construction of the Wall, and not to render aid and assistance in maintaining that

References (p. 692) situation.19 Evidently the language here is taken from the Articles, despite the lack of acknowledgement.

4 Relationship with other Articles and the international community Article 16 of the Articles provides that a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible for doing so if: (a) that state does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that state. Article 41(2) goes further than article 16 in the sense that it deals with conduct ‘after the event’ which assists the responsible State in maintaining the situation brought about by the breach. Thus, if the breach under article 40 is ongoing, States that provide assistance may also be in breach of that article. Article 41(2) comes into play when the actual breach has ended and a new situation prevails. It may be argued that the wrongful act of providing assistance under article 41(2) is itself a breach of a peremptory norm as presumably it cannot be derogated from by means of an agreement between States. It is thus possible that the consequences of assisting a State in maintaining a situation caused by a breach under article 40 is more far reaching in terms of the number of affected States (see articles 42 and 48). The obligations in article 40(2) carry potential a contrario implications for breaches that are not systematic or gross. The problem can be illustrated by the hostage-taking of American diplomatic and consular staff in Tehran in December 1979 and their subsequent detention until January 1981. If it is assumed that the taking of hostages in this instance was not an example of a systematic and gross breach of an obligation arising under a peremptory norm, could other States have recognized the act as lawful? Furthermore, could States have assisted in maintaining a particular situation brought about by the hostage-taking after the hostages had been released? Although article 16 helps to clear up this ambiguity by confirming that a State may not lawfully assist in the actual detention of hostages, the problem of how and where to draw the line between ‘ordinary’ and ‘aggravated’ breaches remains acute. In practice, it is likely to be the United Nations that calls for solidarity in the face of a breach under article 40 in accordance with its own procedures, but the obligation under article 41(2) nevertheless helps to strengthen the international system and fills in potential loopholes where, for example, the United Nations fails to act.

5 Conclusion The initial approach of the ILC was to distinguish two normatively different types of internationally wrongful act and to introduce an aggravated regime of consequences for

References (p. 693) what used to be known as international crimes. The main problem was to define the

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concept embodied in the primary rule so that the Articles, which deal exclusively with secondary rules, could contain a meaningful two-tier system of consequences. The focus has now shifted to the scale of the breach and its effects, and the idea that international responsibility occurs along a continuum. This was reflected by the emphasis in article 41 of the Draft Articles put forward in 2000. As Crawford pointed out in his Fourth Report on State Responsibility: In the context of peremptory norms the emphasis is on the primary rule itself and its nonderogable or overriding status. By contrast the emphasis with obligations to the international community is on the universality of the obligation and the persons or entities to whom it is owed, all States and legal entities. Since the context of Chapter III is the consequence of the breach, the appropriate term is the second.20 However, the Open-ended Working Group on the topic felt that the category of peremptory norms was to be preferred ‘since it concerned the scope of secondary obligations and not their invocation’ and was well-established in the Vienna Convention.21 The reality seems to be that whichever term is used, it is impossible to escape the problem of defining the underlying normative distinction. The duty not to assist the responsible State was previously part of an unambitious and soft regime in the context of international crimes. It remains uncontroversial as a minimum requirement under article 41 and is, in any case, probably applicable to breaches of all peremptory norms. Further reading J Dugard, ‘Collective Non-Recognition: The Failure of South Africa’s Bantustan States’, in Boutros Boutros-Ghali, Amicorum Discipulorumque Liber: paix, développement, démocratie, Vol I (Brussels Brulyant, 1998), 383 A Pellet, ‘The New Draft Articles of the International Law Commission on the Responsibility of States for Internationally wrongful Acts: A Requiem for States’ Crime?’ (2001) 32 Netherlands Yearbook of International Law 55 T Treves, ‘The International Law Commission’s Articles on State Responsibility and the Settlement of Disputes’, in M. Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Oxford, OUP, 2005), 223 E Wyler, ‘From “State Crime” to Responsibility for “Serious Breaches of Obligations under Peremptory Norms of General International Law” ’ (2002) 13 EJIL 1147 C Yamada, ‘Revisiting the International Law Commission’s Draft Articles on State Responsibility’, in M Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Oxford, OUP, 2005), 117

References (p. 694)

Footnotes: 1 Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 95–6. 2 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 22, 44 (paras 130–132). 3 Ibid, 48 (para 150). 4 Ibid, 48 (para 150(4)). 5 Ibid, 48 (para 150(9)). 6 W Riphagen, Sixth Report on State Responsibility, ILC Yearbook 1985, Vol II(1), 13. 7 Ibid, 14.

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8 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3. 9 Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 72. 10 Commentary to draft art 53, para 1, ibid. 11 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 11 (para 51). 12 A/CN.4/L.600, 11 August 2000. 13 J Crawford, Fourth Report on State Responsibility, A/CN.4/517, 2001, para 49. 14 Annex to GA Res 2625(XXV), 24 October 1970. 15 1155 UNTS 331. 16 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16, 54 (emphasis added). 17 Ibid, 56. 18 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 159). 19 Ibid, 200 (para 160). See also the dissenting opinion of Judge Kooijmans, ibid, 231–232 (paras 40–45) as to the Court’s determination that these consequences resulted from the erga omnes character of the obligations. See also J Crawford, ‘International Crimes of States’, Chapter 29 for further discussion. 20 J Crawford, Fourth Report on State Responsibility, A/CN.4/517, 2001, para 49. 21 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 22 (para 49).

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Part IV The Content of International Responsibility, Ch.48 The Obligation of Cooperation Nina HB Jørgensen From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — United Nations (UN)

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(p. 695) Chapter 48 The Obligation of Cooperation 1 Introduction 695 2 The obligation to cooperate in the Articles on State Responsibility 695 3 The significance of the shift in emphasis 697 4 Relationship between the obligation to cooperate and the other Articles 697 5 Basis for the obligation in international law 698 6 Solidarity and neutrality 700 7 Conclusion 700 Further reading 701

1 Introduction Solidarity in the face of a gross and systematic failure by a State to observe an obligation arising under a peremptory norm of international law implies a positive obligation on all States to take part in public action on behalf of the international community to protect common interests. This obligation operates in conjunction with the rights and powers of the directly and indirectly injured States. The obligation to cooperate emerged as part of the ‘common minimum’ set of consequences drawn up by the International Law Commission in respect of the concept formerly known as ‘international crimes’. It has undergone subtle but significant changes since its introduction in 1982 and is less settled in international law than its partner obligations of non-recognition and non-assistance, discussed in previous chapters.

2 The obligation to cooperate in the Articles on State Responsibility Article 6 of Part II of the Draft Articles on State Responsibility drawn up by Special Rapporteur Riphagen in 19821 listed the obligations for all States consequent upon the commission of an international crime. These were: (a) not to recognize as legal the situation created by such act; (b) not to render aid or assistance to the author state in maintaining the situation created by such act; and (p. 696) (c) to join other states in affording mutual assistance in carrying out the obligations under (a) and (b). While paragraphs (a) and (b) dealt with the two sides of the relationship between the State responsible for the crime and all other States, paragraph (c) referred to the relationship between those other States. Given that the obligations in paragraphs (a) and (b) are obligations not to act, paragraph (c) seems to be of limited value. It does not specify what sort of action should be taken and in a sense it simply confirms the erga omnes effect of the breach and the need for a community reaction. The obligation in paragraph (c) was clearly to be distinguished from any right of third States to take countermeasures or other action against the responsible State. In 1996, Special Rapporteur Arangio-Ruiz broadened the scope of the obligation to cooperate. His draft article 53, entitled ‘Obligations for all States’, stated: An international crime committed by a state entails an obligation for every other state: (a) not to recognize as lawful the situation created by the crime;

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(b) not to render aid or assistance to the state which has committed the crime in maintaining the situation so created; (c) to cooperate with other states in carrying out the obligations under subparagraphs (a) and (b); and (d) to cooperate with other states in the application of measures designed to eliminate the consequences of the crime.2 The new paragraph (c) described more concisely the obligation that constitutes, under article 53, the first limb of the obligation to cooperate. Under paragraph (d), all States were also under a duty to participate in the response to an international crime. Article 53 was provisionally adopted by the Drafting Committee on first reading,3 despite reservations being expressed on the grounds that paragraph (d) did not reflect lex lata. In 2000, Special Rapporteur Crawford separated the obligation to cooperate from the obligations of non-recognition and non-assistance. Under his proposal,4 a serious breach of an obligation owed to the international community as a whole entailed the following obligations for all States: (a) not to recognize as lawful the situation created by the breach; (b) not to render aid or assistance to the responsible state in maintaining the situation so created; (c) to cooperate as far as possible to bring the breach to an end. The words ‘as far as possible’ seemed inappropriately vague in the context of a strict obligation. By 2001, these words had been deleted and the obligation to cooperate had been brought to the top of the list of obligations. Article 41(1) of the Articles as finally adopted by the Commission lists cooperation as the first of the particular consequences of a serious breach of an obligation arising under a peremptory norm: States shall cooperate to bring to an end through lawful means any serious breach within the me aning of article 40.

References

(p. 697) 3 The significance of the shift in emphasis The shift from an inadequately defined right to take collective action to eliminate the consequences of an international crime to a duty to cooperate in bringing about the cessation of a serious breach of an obligation arising under a peremptory norm marked a significant development in the elaboration of the ‘aggravated’ regime of responsibility under the Articles. It also reflects the shift in emphasis from the conceptual underpinnings of the controversial article 19 to the practical effect of obligations owed to the international community as a whole. Article 41(1) is open to a broad interpretation. First, it seems to envisage some form of collective response through the organized international community, ie the United Nations. United Nations action would constitute ‘lawful means’ and would make the obligation under the Articles residual. The obligation could nevertheless ensure that States support measures that fall short of being obligatory by a decision of the Security Council. It is noteworthy that the International Court in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,5 after noting the duties on third States of non-recognition and nonassistance, expressed the view that: the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from

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the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.6 Second, it suggests that all States are obliged to cooperate with individual States or regional groups employing ‘lawful means’ as defined elsewhere in the Articles. This raises potential difficulties where there is no directly injured State to take the lead. For example, if massive human rights violations are committed within a State, other States may be injured States according to the Articles but it may be that no positive action is taken. If all States fulfil the duty of non-recognition, are they nevertheless in breach of their obligations under the Articles for not ‘cooperating’ in taking further action, or does the obligation only come into play when States begin to call for cessation of the wrongful act? Situations may also arise where it is unclear under international law whether or not the action taken is lawful. Even if the action is clearly unlawful, some States may refuse to cooperate because they feel it is an inappropriate response to the particular wrongful act. The key to ensuring cooperation is probably to strengthen international institutions, and in this endeavour, the strengthening of the duty to cooperate under the Articles can only be a positive development, even if the scope of the duty requires further clarification.

4 Relationship between the obligation to cooperate and the other Articles The obligation to cooperate must be viewed in the context of the Articles as a whole, in particular the provisions concerning the invocation of the responsibility of a State, countermeasures, and circumstances precluding wrongfulness. Article 42 entitles a State as an ‘injured State’ to invoke the responsibility of another State if the obligation is owed to:

References (p. 698) (a) That state individually; or (b) A group of states including that state, or the international community as a whole, and the breach of the obligation: (i) Specially affects that state; or (ii) Is of such a character as radically to change the position of all the other states to which the obligation is owed with respect to the further performance of the obligation. Under Article 48, any State other than the injured State may invoke the responsibility of another State if: (a) the obligation breached is owed to a group of states including that state, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. These provisions draw a distinction between the ‘injured’ State and other States. The rights of States that are covered by article 48, but which are not injured States under article 42, are limited to claiming cessation of the wrongful act and assurances and guarantees of non-repetition, and ‘performance of the obligation of reparation … in the interest of the injured State or of the beneficiaries of the obligation breached’ (article 48(2)). Therefore, where an affected State claims cessation and performance of the obligation of reparation following a serious breach of an obligation arising under a peremptory norm, all other States are under a duty to cooperate. An injured State is entitled to take limited non-forcible countermeasures against the responsible State in order to induce that State to comply with its obligations of cessation and reparation. Where countermeasures are resorted to in the context of a breach under article 40, all other States are

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obliged to cooperate. Article 54 states that the provisions on countermeasures do not ‘prejudice the right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State’. Thus it would seem that affected States may also resort to countermeasures for limited purposes, and again, the duty to cooperate would arise if the breach were of sufficient seriousness. The circumstances precluding wrongfulness in Part One, Chapter V of the Articles assist further in establishing the boundaries of ‘lawful means’. Of special interest is article 26 which states ‘Nothing in this Chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law’. This highlights the essential nature of peremptory norms and ensures that the basis for articles 40 and 41 cannot be undermined. Action taken in self-defence in conformity with the United Nations Charter is another example of a circumstance precluding wrongfulness (article 21).

5 Basis for the obligation in international law Riphagen’s draft article 6(c) was inspired by article 49 of the United Nations Charter which provides: ‘The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council’. The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations7 provides evidence of

References (p. 699) the consensus among United Nations Member States on the meaning and elaboration of the principles of the Charter. One of the Principles is the duty of States to cooperate with one another in accordance with the Charter. This duty is explained as follows: States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences. To this end: (a) States shall co-operate with other states in the maintenance of international peace and security; (b) States shall co-operate in the promotion of universal respect for and observance of human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance … (d) States Members of the United Nations have the duty to take joint and separate action in cooperation with the United Nations in accordance with the relevant provisions of the Charter. In Military and Paramilitary Activities in and against Nicaragua, the International Court of Justice held that the unanimous consent of States to this Declaration ‘may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves’.8 Care must nonetheless be taken in extrapolating duties that have arisen in the context of the United Nations system and suggesting that these have become generally recognized principles of international law, however desirable such a development may be. The relevant examples of State practice involved United Nations action. For example, the Iraqi invasion of Kuwait in 1990 provoked a strikingly unified response so far as non-forcible measures were concerned, and solid compliance with obligations imposed by Security Council resolutions.

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There is some indication in respect of genocide that there already exists an independent duty to cooperate in response to the breach, although Article VIII of the 1948 Genocide Convention9 makes the United Nations the primary player by requiring State parties to ‘call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide’. Bruno Simma has commented: ‘In the face of genocide, the right of States, or collectivities of States, to counter breaches of human rights most likely becomes an obligation’.10 This view is supported by the International Court of Justice. In its Advisory Opinion on Reservations to the Genocide Convention11 the Court spoke of ‘the universal character both of the condemnation of genocide and of the cooperation required “in order to liberate mankind from such an odious scourge”’. In Application of the Genocide Convention, the Court added: ‘It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes’.12 Nevertheless, the international

References (p. 700) community’s failure to cooperate in taking effective action to prevent or halt the Rwandan genocide suggests that the duty is more theoretical than real. There is certainly no obligation to cooperate where a State takes action in response to a serious breach that goes beyond ‘lawful means’ as defined in the Articles unless cooperation is required by a regime of special rules. NATO action against the Federal Republic of Yugoslavia in 1999 in response to the Kosovo crisis without Security Council authorization did not inspire the unanimous support of non-members of NATO. However, the duty to cooperate may expand as new methods become ‘rooted in and partially justified by contemporary trends of the international community’.13 New types of international action against terrorism, for example, may inspire new obligations to cooperate in combating terrorism.

6 Solidarity and neutrality A measure taken in response to an infringement of fundamental interests of the international community as a whole by one State or a small group of States may have minimal effect if it is evaded or ignored by other States. This raises the question whether States can remain neutral even where the obligation on all States to uphold community interests comes into play. Neutrality could in certain circumstances be interpreted as support for the responsible State. It would seem that where the effectiveness of measures rests on universality, States may not claim neutrality. This reflects the distinctions drawn within the United Nations system. Thus, even Switzerland (then a non-member State) implemented economic sanctions against Iraq during the Iraq-Kuwait conflict. In contrast, its refusal to allow allied forces to fly over its territory during the Gulf War was probably an acceptable assertion of neutrality, since States were only requested to provide support under the relevant Security Council resolutions.14

7 Conclusion An authoritative prior determination as to the nature of the wrongful act is desirable, if not a necessity, if the obligation to cooperate is to be meaningful. Otherwise it is up to individual States to decide for themselves whether a breach is gross and systematic and it can only be inferred that a breach has that character if all States cooperate in bringing the breach to an end. When American diplomats were taken hostage in Tehran in 1979, it was never clear whether the Iranian action constituted an ‘ordinary’ wrongful act, an erga omnes breach, or a ‘crime’. Furthermore, it was unclear whether the affected States were acting on their own behalf or assisting the directly injured State (the United States) in enforcing its rights. The system of collective or universal action in response to the worst types of act that may be committed by a State is still in a process of development. As part of this process, the obligation to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

cooperate has a key role to play in ensuring universal support for the interests of humanity. (p. 701) Further reading A Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 EJIL 23 C Chinkin, Third Parties in International Law (Oxford, OUP, 1993), ch 14 B Simma, ‘NATO, The UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1(p. 702)

Footnotes: 1 W. Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 22, 48 (para 150). 2 Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 72. 3 ILC Yearbook 1996, Vol 1, 183 (paras 26–34). 4 A/CN.4/L.600, 11 August 2000. 5 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136. 6 Ibid, 200 (para 159). 7 Annex to GA Res 2625 (XXV), 24 October 1970. 8 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 100 (para 188). 9 78 UNTS 277. 10 B Simma, ‘NATO, The UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1, 2. 11 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15, 23. 12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 31). 13 A Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 EJIL 23, 25. 14 See further C Chinkin, Third Parties in International Law (Oxford, OUP, 1993), ch 13.

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Part IV The Content of International Responsibility, Ch.49 International Criminal Responsibility of the State Antoine Ollivier From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — State entities and attribution — Individual criminal responsibility — International peace and security — Peace keeping

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(p. 703) Chapter 49 International Criminal Responsibility of the State 1 Responsibility and punishment in international law 704 (a) Civil law aspects and punitive attributes of State responsibility 705 (b) ‘Sanctions’ in international law: between coercion, reparation, and repression 706 2 Criminal responsibility and the international legal order 709 Further reading 714 The term ‘international crime of State’ used by Roberto Ago in his draft article 19 on State responsibility was not novel.1 Moreover, neither the Special Rapporteur2 nor the International Law Commission3 suggested that a State’s responsibility for a ‘crime’ need necessarily be criminal. The use of such a term in codificatory text, however, foreshadowed an evolution of the law of responsibility and rekindled a tenacious controversy regarding the legal character of responsibility in international law. The notion of ‘international crime’ suggested that the institution of responsibility was to experience an evolution comparable to that of other legal systems in which, ‘originally conflated, civil and criminal responsibility [tended] to slowly differentiate themselves’.4 However, beyond the notion of ‘international crime’, Ago’s general approach, according to which a ‘wrongful act’ leads to new and different legal relationships5 constituted a radical innovation given the classical unitary theory which assimilated responsibility to the obligation to make reparation for injury caused. Among the new relationships resulting from any internationally wrongful act, and not only from international crimes, the Special Rapporteur included ‘the faculty to impose a sanction on the subject which has engaged in wrongful conduct’,6 thereby considerably broadening the functional field of responsibility in international law. The inclusion of ‘sanctions’ in the Draft Articles on (p. 704) State Responsibility among the circumstances precluding wrongfulness, as well as the use of the term ‘crime’, led to a rethinking of the possible criminalization of responsibility in international law to which the work of the ILC would lead. Similarly, during its study of certain consequences which should attach to the commission of an ‘international crime’, and sometimes also to ‘delicts’, the ILC envisaged different mechanisms the criminal or punitive nature of which was open to question. The Articles ultimately adopted by the ILC in 2001 abandoned any criminal connotation in the area of State responsibility. The discussion regarding the nature of responsibility has, however, always been heavily impregnated with concepts of municipal law and, notably, with the distinction between compensation and punishment. Indeed, ‘in all legal systems, responsibility combines concerns of sanction and of restitution’.7 The debate is marked by a varied international practice and divided doctrinal positions as to the possibility of subjecting a State which has perpetrated an internationally wrongful act to a sanction, and as to the legal character of such a sanction. It is not necessary to discuss here the merits of distinguishing in international law between categories of internationally wrongful acts, or between the consequences of a ‘crime’ or a ‘serious breach of an obligation arising under a peremptory norm of general international law’, questions which are addressed in other Chapters.8 On the other hand, a reflection on the nature of State responsibility generally in international law requires giving consideration to the advisability of comparing that institution with mechanisms of responsibility in domestic legal systems. Doctrinal consideration of this subject has essentially revolved around the work of Roberto Ago, and subsequently of the ILC, on the possibility of recognizing a regime of criminal responsibility applicable to States in international law. Evoking the criminal responsibility of States raises two sets of questions. The first concerns the nature of the measures taken, in the international system, in reaction to the perpetration of an internationally wrongful act: do certain responses to a wrongful act constitute punishment? The

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answers vary considerably depending on the variety of conceptions of international State responsibility which one may adopt. Moreover, it is necessary to question which subject, or subjects, may invoke such responsibility and the way in which they can do so. Drawing an analogy between individual criminal responsibility (and that of legal persons) in municipal law and a State’s international responsibility for a ‘crime’ (or for the violation of certain obligations) leads to a number of theoretical and practical difficulties and calls into question the very structure of international society.

1 Responsibility and punishment in international law The content of State responsibility has often been described using concepts borrowed from domestic legal systems which are allegedly sufficiently general to allow their transposition to the international legal order. Some have argued that State responsibility possesses certain ‘punitive’ attributes, in opposition to the classical aspects of reparation, and that therefore the possibility of qualifying state responsibility as penal in certain circumstances was not excluded. The existence of a category of ‘penal sanctions’ rests, however, on very shaky ground in international law. Neither the characterization of (p. 705) certain aspects of responsibility as criminal nor the existence of criminal State responsibility as an autonomous category can be firmly established.

(a) Civil law aspects and punitive attributes of State responsibility The notion of an ‘international crime’, as opposed to a ‘delict’, has fuelled debate about the schematic distinction between ‘civil’ and ‘criminal’ responsibility that, for some, can be found in the institution of international responsibility. The approach advocated by Roberto Ago in undertaking the codification of the law of international state responsibility constituted a break from the classical doctrinal conception of this issue. The ‘classical’ conception9 was based on the unity of the legal regime flowing from an internationally wrongful act. State responsibility, for authors such as Anzilotti,10 was to be exclusively understood as an obligation to make reparation. This conception excluded any possibility of ‘sanction’ in the law of responsibility, and ultimately deprived it of any punitive aspect. While a State victim of a wrongful act was at liberty, according to the proponents of this doctrine, to resort to ‘sanctions’, Ago emphasized that such a possibility existed ‘only as a means of enforcement […] and not as a “sanction” in the proper sense of the term, ie having a punitive purpose’.11 This first conception of responsibility, which was predominant in the doctrine for a considerable time and which found solid support in international jurisprudence,12 was thus characterized by its exclusively ‘civil’ aspect: as State responsibility was to be analysed through the prism of reparation of the damage caused, it could not serve to punish the State having committed the wrongful act. According to this approach, the purpose of responsibility was first and foremost to guarantee the sovereign equality of States. The evolution of international society between the two world wars and since World War II, notably through the prohibition of the use of force, however, led certain authors to oppose this unitary theory of State responsibility. Highlighting the need to repress certain violations of international law deemed to be particularly serious, one school, born of criminal law, propounded the development of criminal responsibility by subjecting States to a true international criminal jurisdiction.13 In the writings of Hans Kelsen, responsibility is also understood in a way that is radically opposed to the ‘civil’ view. According to Kelsen, the only legal consequence of a wrongful act would be the entitlement of the wronged State to impose a sanction on the guilty State. As Ago explained, ‘[s]tarting from the idea that the legal order is a coercive order, this view sees in an act of coercion not only the sole possible form of sanction, but also the sole legal consequence following directly from the wrongful act. The obligation

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References (p. 706) to make reparation is […] no more than a subsidiary duty …’.14 Here, the sanction is to be understood ‘in the proper sense of the term’, that is to say as a functionally repressive measure.15 For Kelsen, reprisals and war were sanctions that the State could enforce under general international law.16 However, Kelsen’s thesis can be qualified in light of his remarks on the possible comparison between ‘sanctions’ in general international law and mechanisms for compelling enforcement, rather than punishment.17 Another conception, more nuanced and which may be qualified as a middle course, was that advocated by Ago and followed by the ILC. Under this approach, the wrongful act produced distinct consequences ‘which amount, according to the case, either to giving the subject of international law whose rights have been infringed by the wrongful act the subjective right to claim reparation— again in the broad sense of the term—from the author of the act or to giving that subject, or possibly a third subject the faculty to impose a sanction on the subject which has engaged in wrongful conduct’.18 The sanction evoked was thus clearly conceived of as repressive in nature for, as Ago wrote, ‘by “sanction” here is meant the application of a measure which, although not necessarily an act of coercion and not necessarily involving the use of force, is nevertheless characterized by the fact that its purpose is, in part at least, to impose a penalty. Such a purpose is not the same as an attempt to secure by coercion the fulfilment of the obligation …’.19 In his course at the Hague Academy, Ago contended that: there exist sanctions in international law, sanctions in the typically repressive and corporal sense of the term: put briefly, there can be no doubt that there exist forms of punishment, even in the field of general international law. One only has to think for a moment of the nature and the function of the classical institution of reprisals. Indeed, reprisals possess all of the characteristics of private punishment and constitute on any view the typical and well defined form of sanctions and of the repressive effect of a delict in the law of nations.20 Logically, Ago foresaw, among the circumstances precluding wrongfulness, ‘the legitimate exercise of a sanction’. By following this approach, and developing it in the context of draft article 19’s hypothesis of ‘crimes’, the ILC would come under criticism for ‘criminalizing’ State responsibility. Beyond these diverse general conceptions of the content of State responsibility, the characterization of different consequences of a State’s internationally wrongful act from a criminal perspective fuelled controversy as to whether real forms of punishment exist under international law.

(b) ‘Sanctions’ in international law: between coercion, reparation, and repression Among ‘sanctions’ in international law, it is customary to mention countermeasures. Certain authors have noted, inter alia, their punitive purpose, without however concluding that criminal sanctions exist in international law. Hence, Alland indicates that (p. 707) countermeasures ‘seek more often than one would suspect to fulfil a punitive function […] While this practice is not properly expiatory, it is very much characterized by reprobation and ‘future deterrence’, notions which are firmly connected to the theory of punishment’.21 Maria Spinedi opines that ‘counter-measures are to be included in the category of punishment since in themselves they inflict harm on the perpetrator of a wrongful act, without however restoring the wronged subject to the pre-existing or an equivalent situation’.22 A considerable number of authors are therefore in agreement that countermeasures may assume punitive aspects.23 In this regard, one may refer to measures which are definitive in nature and principally aim to cause injury to the responsible State. However, these characteristics of countermeasures do not permit their inclusion in a general category of punishment which might

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exist in international law. In fact, certain authors have characterized countermeasures as enforcement measures. They contend that countermeasures are means of enforcing international law rather than a means of repressing its violation. Compelled enforcement or automatic enforcement therefore constitute more appropriate concepts than that of criminal sanction. According to Combacau, it has often been said that the incorporation of sanctions or countermeasures within the concept of responsibility amounted to a ‘criminalization’ of international responsibility, until then purely ‘civil’. However, while it may be true that, like criminal responsibility, a broader notion of responsibility as propounded by a part of the contemporary literature aims to further the international rule of law and not only the particular interests of the State whose rights have been affected by a wrongful act, its means are not repressive in nature: the aim is in no way to ‘punish’, which would treat the violation of a rule as irreversible, but rather to ensure compliance with the rule, however late, by compelling the targeted state to renounce its deviant conduct.24 Similarly, Barboza is of the view that decentralized reactions to certain wrongful acts, such as the use of force as collective self-defence, are to be classified as part of a category of police measures which aim first and foremost to put an end to a violation, rather than to punish the responsible State.25 This approach finds some support in the results of the second reading of the Articles. The object of countermeasures is strictly limited to ensuring the performance by the wrongdoing State of its secondary obligations (cessation, reparation), and cannot include punishment of that State.26 The same reasoning is applicable to ‘sanctions’, as that term is commonly used, eg in the context of measures adopted by the United Nations Security Council. Are such measures concerned primarily with punishing a State which has caused a breach of international

References (p. 708) peace and security, or rather are they aimed at compelling that State to respect its obligations under the United Nations Charter? Again, it is possible to regard certain sanctions adopted under Chapter VII as punitive measures, not only from the perspective of the targeted State, which may experience them as such, but also given their collective nature. In practice, however, truly punitive elements are rare. Certain authors have explored whether the measures taken against the Axis Powers after the Second World War, and more recently against other States are, strictly speaking, repressive in nature.27 However, recognizing this aspect does not lead to their classification in a rigorous legal category of forms of ‘punishment’ or of ‘criminal sanctions’ in international law. The expression ‘criminal sanction’ does not take into account the context in which such measures are taken, and in particular, the fact that they emanate from a political organ, namely the United Nations Security Council, and that they are a means of ensuring, legally, the specific objective of the maintenance of international peace and security. Christian Dominicé argues that: collective sanctions of the type that can be ordered under Chapter VII of the Charter of the United Nations also evade any characterisation based upon categories deriving from municipal law. They can have the nature of a type of punishment—they always do from a certain perspective, albeit in varying degrees from case to case—but they most often seek to ensure cessation of an unlawful situation by the most appropriate means of constraint.28 Conversely, the irreducibility of the mechanisms of international law to municipal law categories is stressed by authors who have shown that reparation for a wrongful act could also constitute, to some extent, reprobation or expiation. Satisfaction is evidently foremost among the methods of redressing the moral prejudice suffered by a State. Its symbolic character is easily comparable to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

the exemplary aspect of a punishment. While it is not possible here to discuss the specific question of ‘punitive’ damages in international law as the equivalent in international law of fines, one must note that satisfaction can itself have a partly repressive character. This idea can be found in the work of the ILC under the leadership of Arangio-Ruiz, according to whom: satisfaction, [is] a form of reparation which tends to be of an afflictive nature—distinct from compensatory forms of reparation such as restitutio and pecuniary compensation. Of course, the distinction between compensatory and afflictive or punitive forms of reparation, notably between pecuniary compensation and the various forms of satisfaction, is not an absolute one. Even such a remedy as reparation by equivalent (not to mention restitution in kind) performs, in the relations between States as well as in inter-individual relations, a role that cannot be deemed to be purely compensatory. Though its role is certainly not a punitive one, it does perform the very general function of dissuasion from, and prevention of, the commission of wrongful acts.29 Alland has clearly shown how the relationship of responsibility in both municipal and international law is always marked by ‘functional interlinkages’ not only between reparation for and repression of the violation of an obligation, but also with the future performance of

References (p. 709) an obligation.30 He therefore insists ‘rather on differentiating responsibility according to its functions than on its “criminalization”, strictly speaking’.31 Ago himself acknowledged the difficulty of clearly distinguishing between acts of coercion depending on whether their purpose is to sanction, in the true sense of the term, or rather to compel a State to fulfil its obligations, given the lack of distinction in international law between civil and criminal offences.32 In the same sense, Pellet writes ‘neither civil nor criminal, but stemming from both, international responsibility presents unique characteristics and cannot be assimilated to the categories of municipal law, especially given how little the society of States has to do with a national community’.33 The existence of criminal sanctions as an autonomous legal category thus appears doubtful. The boundary between notions of punishment and other mechanisms, such as specific performance, is nebulous and depends to a large degree on the psychology and subjectivity of the actors involved or of the commentator. Moreover, the notion of the international criminal responsibility of States cannot seriously rest solely on the alleged existence of forms of ‘punishment’ in international law. It is also necessary to take into consideration the enforcement mechanisms for which the notion calls. Given the present stage of the organization of international society, the implementation of criminal responsibility is difficult to envisage.

2 Criminal responsibility and the international legal order The notion of criminal responsibility is fundamentally in conflict with the structure of the international legal order. Although, in a more or less subjective manner, principles which evoke sanctions or punishment can be identified in international law, they do not together form an adequate and autonomous theory of the criminal responsibility of States. While some authors have developed the idea of criminal responsibility in international law based solely on the concept of punishment, one that is allegedly sufficiently broad as to apply in both municipal and international legal orders,34 if one compares the international legal order with the concept of criminal responsibility, as that concept is most commonly understood, the shortcomings of those theories become apparent. A number of scholars agree on certain constitutive elements of criminal responsibility. This concept could be defined, as a minimum, as including both a set of rules which are fundamentally important From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

to a given society and the enforcement of particular punishments for their violation, as well as the existence of an organ representing society responsible for finding a violation, determining guilt and deciding upon the applicable punishment.35 (p. 710) The nature of the subjects to whom international criminal responsibility would be applied, as well as the characteristics of the society in which such responsibility would have to be implemented, lie at the heart of the most convincing objections to such a concept. These objections reflect a position very largely shared by States themselves, as well as in academic writing. Before evoking the difficulties of applying criminal responsibility to a legal person, it is necessary to recall that criminal responsibility constitutes the answer of a social body to violations of norms which are deemed essential or fundamental. In his course at the Hague Academy, Dupuy argued that ‘the “public order” nature of the obligations that are violated, that is to say, that they are obligations of importance to the social group as a whole’, is one of the two necessary elements, in any legal system, for the recognition of criminal responsibility.36 There can be no doubt that for the majority of States and scholars such norms of international law do exist. However, such norms, which first and foremost limit the autonomy of the State, cannot as such establish State criminal responsibility. Further, they constitute only one of the necessary definitional elements for such responsibility. Special Rapporteur Ago himself largely relied upon the emergence of such non-derogable norms in proposing draft article 19 relating to international crimes of States.37 The adoption, in the Vienna Convention on the Law of Treaties of article 53 in respect of jus cogens norms, and the case law of the International Court of Justice establishing erga omnes obligations,38 constitute the most significant signs of this evolution.39 However, the recognition of such norms of international law does not completely satisfy the principle of legality expressed by the adage ‘nullum crimen (nulla poena), sine lege’, according to which all criminal offences must have been previously legally defined and established. The recognition of the principle that norms may be distinguished according to their importance to the community does not amount to drawing up a list of such norms and of the ensuing violations of obligations.40 These objections are not, however, insurmountable, and one can consider that legal certainty is guaranteed to the extent that ‘it is up to the primary norms of international law […] to confer on a given set of facts a truly criminal characterization and to specify the sanctions risked by a State which contravenes one of those norms’.41 Does it follow from the nature and importance of the relevant norms that a State which violates them is ‘criminal’? Two arguments can be advanced against the criminalization of

References (p. 711) the State: the first rests on questionable theoretical considerations, while the second has practical justifications which are more convincing. The most vigorous opponents to the idea of State criminal responsibility have obviously invoked the maxim ‘societas delinquere non potest’. Indeed, it is necessary to insist on the distinction between the eventual criminal will of an individual, on the one hand, and the absence of such will, strictly speaking, on the part of the legal person that is the State. The latter always expresses itself and acts through organs or individuals, but never directly.42 As some members of the ILC argued: ‘the criminalization of States should be abandoned, since a State could not be placed on the same footing as its Government or the handful of persons who, at a given moment, might be in charge of its affairs’. Those same members insisted on ‘the mens rea requirement—a requirement which, it was stated, should be distinguished from the procedure for the attribution of responsibility [to a State]’. For those members, ‘it was not possible to attribute the mens rea of one individual to another, still less of one individual to a legal entity such as a State’.43 This argument is not adhered to by all. Rigaux44 has shown how criminal responsibility and the nature of a legal person could be reconciled, drawing from certain solutions in municipal law which 45

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have attributed criminal intent to legal entities.45 At the level of principle, it is not impossible that a State, as a legal person, could be held criminally responsible. However, imposing criminal responsibility on a State and its population, the human community which it constitutes, is more difficult than imposing such responsibility on an organization incorporated under municipal law and its shareholders. It would be possible to discuss at length the vagaries of collective responsibility; certain authors have emphasized the extent to which the stigmatization of a whole people for crimes committed by its governors may in fact lead to results contrary to those sought, namely improved adherence, in the future, to certain common norms deemed fundamental. However, it is sufficient to highlight the practical disadvantages of State criminal responsibility and the risks of holding a community responsible for a wrongful act: punishing the State and punishing the victims of the infraction can be one and the same.46 Further, it is difficult to envisage in international law the criminal sanctions taken, in certain municipal legal systems, against legal persons. The most serious such sanction, the dissolution of the legal person, is impracticable in international law.47 Indeed, the notion of criminal responsibility could be reconsidered in order to apply it to States, and certain members of the ILC suggested the possibility of taking punitive (p. 712) measures against a State which would not affect its population.48 This would bring us back to the question of forms of punishment in international law. Even if they were to be considered legitimate for certain particularly grave conduct, one difficulty persists: who has the responsibility, in the international order, to determine a violation committed by a State and to punish it? While fundamental ‘public order’ norms exist in international law, the same cannot be said of the existence of an independent and impartial authority responsible for prosecuting and trying the perpetrators of ‘international crimes.’ In his First Report on State Responsibility, Crawford enumerated five conditions which would have to be met by any regime worthy of the name of criminal responsibility.49 In addition to the prior definition of crimes, he listed: an adequate procedure governing inquiries conducted on behalf of the international community; procedural guarantees allowing for the exercise of the rights of the accused; appropriate and defined sanctions (nulla poena sine lege); and, lastly, a system permitting a criminal State to purge its culpability. He therefore emphasized the procedural requirements of such a regime, in the absence of which a criminal responsibility of States could very easily be used politically by the most powerful States. Indeed, the legal interest of States regarding the adherence to certain essential obligations, an interest which may be advanced individually, must be distinguished from the possibility for a State to punish another subject of international law. Arangio-Ruiz proposed that the United Nations would play a central role in the case of the commission of an international crime, constructing a complex and unrealistic mechanism involving the main organs of the organization in establishing a State’s criminal responsibility.50 The practical difficulties inherent in his proposals were considerable and few States would have agreed to be bound by such a system. It is possible to detect the beginnings of a criminal mechanism in the particular case of armed aggression, for which an organ responsible for recording the perpetration of the ‘crime of crimes’ and for taking the necessary measures to put an end to them is already in existence.51 However, quite apart from the fact that it is debatable whether the measures taken by the Security Council under Chapter VII should be viewed as sanctions which are repressive in nature,52 no general and impartial system governing reactions to criminal conduct of States exists in international law. The majority of States have rejected any idea of criminal responsibility, invoking the theoretical arguments discussed above. Subsequent to the first reading of the draft articles, governments have, independently of the issue of the distinction between two categories of internationally wrongful acts, criticized the notion of criminalizing the regime of responsibility for ‘international crimes of States’.53 As for international practice, the famous statement of the Nuremberg Tribunal that ‘[c]rimes against international law are committed by men, not by abstract entities, and only From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

References (p. 713) by punishing individuals who commit such crimes can the provisions of international law be enforced’54 is generally relied upon in order to reject any notion of State criminal responsibility.55 This conclusion was affirmed, albeit in a slightly nuanced fashion, by the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v Blaskič : Under current international law States can only be the subject of countermeasures taken by other States or of sanctions visited upon them by the organized international community, i.e., the United Nations or other intergovernmental organizations […]. [I]t is clear that States, by definition, cannot be the subject of criminal sanctions akin to those provided for in national criminal systems.56 In 2007 the International Court clearly rejected the ‘criminal’ characterization of State responsibility in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, holding that the international responsibility of a State is not ‘of a criminal nature’.57 In the end, the Articles adopted certainly exclude the characterization of the law of responsibility in two branches, civil and criminal.58 This is illustrated by the rejection of the term ‘international crime’ (and of the term ‘international delict’), replaced by a less connotative circumlocution, as well as on the one hand, by the abandonment of certain provisions regarding remedies for crimes which were included in the draft adopted on first reading, and on the other, by the strict definition of the ends which may be pursued by a State which takes counter-measures. However, the completion of the work of the ILC on State responsibility leaves the way open for numerous possible future developments. The 2001 Articles, through saving clauses, do not prejudge all of the potential consequences of ‘serious breaches of obligations arising under peremptory norms of gene ral international law’. Indeed, they were adopted ‘without prejudice’ to other specific consequences of serious breaches of peremptory norms59 and to the ‘lawful measures’ that States other than an injured State may take.60 Crawford, having discarded draft article 19 from the Articles, nevertheless appears, in some respects, to be among the authors who do not oppose the possible emergence in the future of a criminal responsibility of States in international law.61 On a practical level, the emergence of a criminal responsibility of States is not impossible. In reality, the answers to the two distinct questions which are posed regarding, first the existence in positive law of a criminal responsibility of States, and, second, the advantages, or progress, which such a notion could present in the future, are connected to one’s conception of international

References (p. 714) society. In any event, international law today remains ‘rudimentary’ and therefore, short of a structural transformation of the international legal order, ‘the lack of a distinction between criminal and civil responsibility in international law is but the consequence of the absence of an authority having as its function the defence of common interests’.62 In the end, the discourse relating to criminal and civil responsibility leads to a functional conceptualization of international responsibility which, although evocative, is of little utility in describing a juridical notion or category. Moreover, the concept of punishing a State with repressive measures is particularly unsuited to the decentralized structure of international society. In the present state of international law, and despite its normative evolution, the implementation of responsibility is not institutionalized in two distinct branches. Discussing the criminal or civil nature of State responsibility, despite the impasse to which it may lead, nevertheless illustrates the considerable richness and potential of this central institution of international law.

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Further reading G Abi-Saab, ‘The Uses of Article 19’ (1999) 10 EJIL 339 J Barboza, ‘State Crimes: A Decaffeinated Coffee’, in V Gowlland-Debbas & L Boisson de Chazournes (eds), The International Legal System in Quest of Equity and Universality/L’ordre juridique international, un système en quête d’équité et d’universalité, Liber Amicorum G Abi-Saab (The Hague, Martinus Nijhoff, 2001), 357 DW Bowett, ‘Crimes of State and the 1996 Report of the International Law Commission on State Responsibility’ (1998) 9 EJIL 163 P-M Dupuy, ‘Responsabilité et Légalité’, in SFDI, La responsabilité dans le système international Colloque du Mans, 31 mai–2 juin 1990 (Paris, Pedone, 1991), 263 P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” de l’illicite’ (1983) 87 RGDIP 506 P-M Dupuy, ‘Observations sur le “crime international de l’Etat” ’ (1980) 84 RGDIP 449 P-M Dupuy, ‘Action publique et crime international de l’Etat: a propos de l’article 19 du projet de la commission du droit international sur la responsabilité des Etats’ (1979) 25 AFDI 539 M Gounelle, ‘Quelques remarques sur la notion de “crime international” et sur l’évolution de la Responsabilité Internationale de l’Etat’, in J Makarczyk and K Skubiszewski (eds), Mélanges offerts à Paul Reuter. Le droit international: unité et diversité (Paris, Pedone, 1981), 315 NHB Jørgensen, The Responsibility of States for International Crimes (Oxford, OUP, 2000) K Marek, ‘Criminalizing State Responsibility’ (1978–1979) 14 RBDI 460 A Pellet, ‘Can a State Commit a Crime? Definitely, Yes!’ (1999) 10 EJIL 425 A Pellet, ‘Vive le crime! Remarques sur les degrés de l’illicité en droit international’, in A Pellet (ed), International Law at the Dawn of the Twenty-First Century—Views from the ILC/Le droit international à l’aube du XXIème siècle—Réflexions de codificateurs (New York, United Nations, 1997), 287 F Rigaux, ‘Le crime d’Etat: réflexions sur l’article 19 du projet d’articles sur la responsabilité des Etats’, in P Lamberti Zanardi (ed), Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago (Milan, Giuffré, 1987), Vol III, 301 R Rosenstock, ‘An International Criminal Responsibility of States?’, in A Pellet (ed), International Law at the Dawn of the Twenty-First Century—Views from the ILC/Le droit international à l’aube du XXIème siècle—Réflexions de codificateurs (New York, United Nations, 1997), 265 (p. 715) M Spinedi, ‘La responsabilité de l’Etat pour “crime”: une responsabilité pénale?’, in H Ascencio, E Decaux, & A Pellet (eds), Droit international pénal (Paris, Pedone, 2000), 93 M Spinedi, Les Crimes Internationaux de l’Etat dans les travaux de codification de la responsabilité des Etats entrepris par les Nations Unies (Florence, European University Institute, 1984) C Tomuschat, ‘International Crimes by States: An Endangered Species?’, in K Wellens (ed) International Law: Theory and Practice. Essays in Honour of Eric Suy (The Hague, Kluwer, 1998), 253 O Triffterer, ‘Prosecution of States for Crimes of State’ (1996) 67 Revue Internationale de Droit Pénal 341 JHH Weiler, A Cassese, & M Spinedi (eds), International Crimes of State. A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Florence, European University Institute, 1989)(p. 716)

Footnotes: 1 See the examples of the use of this term in international practice enumerated by Special Rapporteur Ago in his Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 53–54 (para 153). 2 Ibid, 33 (note 154).

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3 Commentary to draft art 19, ILC Yearbook 1976, Vol II(2), 104 (note 473). 4 M Gounelle, ‘Quelques remarques sur la notion de “crime international” et sur l’évolution de la responsabilité internationale de l’Etat’, in J Makarczyk & K Skubiszewski (eds), Mélanges offerts à Paul Reuter. Le droit du international: unité et diversité (Paris, Pedone, 1981), 318. 5 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 208 (para 36). 6 Ibid. 7 P-M Dupuy, ‘Le fait générateur de la responsabilité des Etats’ (1984-V) 188 Recueil des cours 24. 8 Chapters 29, 30, and 31; see also the references in the further reading list. 9 See the summary contained in R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 206–207 (para 33); see also P-M Dupuy, ‘Le fait générateur de la responsabilité des Etats’ (1984-V) 188 Recueil des cours 24, 29–36. 10 D Anzilotti, ‘La Responsabilité Internationale des Etats à raison des dommages soufferts par ses assortissant, à l'é tranger (1906) 13 RGDIP 285, 308; D Anzilotti, Cours de Droit International (trans G Gidel, 1929, Paris, Panthéon Assas-LGDJ, 1999), 467–468. 11 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 207 (para 34). 12 See eg Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 3, 29. 13 Q Saldaña, ‘La Justice Pénale Internationale’ (1925-V) 10 Recueil des cours 227, 296ff; V Pella, La criminalité collective des Etats et le droit pénal de l’avenir (Bucharest, Imprimerie de l’État, 1926); and H Donnedieu de Vabres, Les principes modernes du droit pénal international (Paris, Sirey, 1928). See also R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 44–45 (para 133), and 46 (note 247), and the reservations put forward by the Special Rapporteur. 14 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 208 (para 35). 15 Ibid. 16 H Kelsen, ‘Théorie du droit international public’ (1953-III) 84 Recueil des cours 1, 28–35. 17 Ibid; see also P Guggenheim, Traité de droit international public (Geneva, Librairie de l’Université, 1953), Vol 2, 83 and R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 208 (n 27). 18 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 208 (para 36). 19 Ibid. 20 R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 527. 21 D Alland, Justice privée et ordre juridique international—Etude théorique des contre-mesures en droit International Public (Paris, Pedone, 1994), 190–191 (para 141). See also C Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, in C Dominicé (ed), L’ordre juridique international: entre tradition et innovation (Paris, PUF, 1997), 307. 22 M Spinedi, ‘La responsabilité de l’Etat pour ‘crime’: une responsabilité pénale?’, in H Ascencio, E Decaux, & A Pellet (eds), Droit international pénal (Paris, Pedone, 2000), 111–112 (para 48). 23 See eg P-M Dupuy, ‘Observations sur la pratique récente des ‘sanctions’ de l’illicite’ (1983) 87 RGDIP 506. 24 See J Combacau & S Sur, Droit international public (6th edn, Paris, Montchrestien, 2004), 520. 25 J Barboza, ‘State Crimes: A Decaffeinated Coffee’, in V Gowlland-Debbas & L Boisson de Chazournes (eds), The International Legal System in Quest of Equity and Universality/L’Ordre Juridique International, un système en quête d’équité et d’universalité, Liber Amicorum G AbiSaab (The Hague, Martinus Nijhoff, 2001), 367ff. 26 See ARSIWA art 49, and see further Chapters 79 and 80.

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27 P Daillier & A Pellet, Droit international public (Nguyen Quoc Dinh) (Paris, LGDJ, 2002), 801. 28 C Dominicé, ‘Observations sur les Droits de l’Etat victime d’un fait internationalement illicite’, 307 (n 109); see also J Barboza, ‘State Crimes: a Decaffeinated Coffee’, in V Gowlland-Debbas & L Boisson de Chazournes (eds), The International Legal System in Quest of Equity and Universality/L’ordre juridique international, un système en quête d’équité et d’universalité, Liber Amicorum G Abi-Saab (The Hague, Martinus Nijhoff, 2001), 367, 370. 29 G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol II(1), 40 (para 136). 30 D Alland, Justice privée et ordre juridique international—Etude théorique des contre-mesures en droit international public (Paris, Pedone, 1994), 206–210. See also P-M Dupuy, ‘Responsabilité et légalité’, in SFDI, La responsabilité et le système international Colloque du Mans, 31 mai–2 juin (Paris, Pedone, 1991), 278ff. 31 D Alland, Justice privée et ordre juridique international—Etude théorique des contre-mesures en droit international public (Paris, Pedone, 1994), 210 (n 21). 32 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199, 1, 208 (para 38). 33 A Pellet, ‘Vive le crime! Remarques sur les degrés de l’illicite en droit international’, in A Pellet (ed), International Law at the Dawn of the Twenty-First Century—Views from the ILC / Le droit international à l’aube du XXIème siècle—Réflexions de codificateurs (New York, United Nations, New York, 1997), 302–303 (para 17). 34 See R Ago, ‘Le délit international’ (1939-II) 68 Recueil des cours 527; M Spinedi, ‘La responsabilité de l’Etat pour “crime”: une responsabilité pénale?’, in H Ascencio, E Decaux, & A Pellet (eds), Droit international pénal (Paris, Pedone, 2000), 103–113. 35 See eg P-M Dupuy, ‘Le fait générateur de la responsabilité des Etats’ (1984-V) 188 Recueil des cours 24, 58; K Marek, ‘Criminalizing State Responsibility’ (1978–1979) 14 RBDI 460, 463. 36 P-M Dupuy, ‘Le fait générateur de la responsabilité des Etats’ (1984-V) 188 Recueil des cours 24, 58; see also P-M Dupuy, ‘L’unité de l’ordre juridique international: Cours général de droit international public’ (2002) 297 Recueil des cours 9, 280–283. 37 See the Commentary to draft art 19, paras 16–18, ILC Yearbook 1976, Vol II(1), 102. 38 See Barcelona Traction, Light and Power Company, Limited, (Belgium v Spain) Second Phase, ICJ Reports 1970, p 3, 32 (para 33). 39 Cf R Rosenstock, ‘An International Criminal Responsibility of States?’, in A Pellet (ed), International Law at the Dawn of the Twenty-First Century—Views from the I.L.C./Le droit international à l’aube du XXIème siècle—Réflexions de Codificateurs (New York, United Nations, 1997), 265, 272–274. 40 See the observations of some members of the Commission, recorded in Report of the ILC, 46th Session, ILC Yearbook 1994, Vol. II(2), 138 (para 240). See also J Crawford, First Report on State Responsibility, 1998, A/CN.4/490/Add. 3 (1998), para 91; P-M Dupuy, ‘Observations sur le crime international de l’Etat’ (1980) 84 RGDIP 449, 468. 41 F Rigaux, ‘Le crime d’Etat: réflexions sur l’article 19 du projet d’articles sur la responsabilité des Etats’, in P Lamberti Zanardi (ed), Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago (Milan, Giuffré, 1987), Vol III, 301, 309 (para 9). 42 J Barboza, ‘State Crimes: A Decaffeinated Coffee’, in V Gowlland-Debbas & L Boisson de Chazournes (eds), The International Legal System in Quest of Equity and Universality/L’ordre juridique international, un système en quête d’équité et d’universalité, Liber Amicorum G AbiSaab (The Hague, Martinus Nijhoff, 2001), 361–365. 43 Report of the ILC, 46th Session, ILC Yearbook 1996, 138 (para 240); see also R Rosenstock, ‘An International Criminal Responsibility of States?’, in A Pellet (ed), International Law at the Dawn of the Twenty-First Century—Views from the I.L.C./Le droit international à l’aube du XXIème From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

siècle—Réflexions de codificateurs (New York, United Nations, 1997), 265, 276–278. 44 F Rigaux, ‘Le Crime d’État: Réflexions sur l’Article 19 du Projet d’Articles sur la Responsabilité des États’, in P Lamberti Zanardi (ed), Le droit international à l’heure de sa codification. Etudes en l’honneur de Roberto Ago (Milan, Giuffré, 1987), Vol III, 301, 319ff. 45 See also J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 22 (para 86); on the broader question of fault and responsibility, see Chapter 17. 46 See J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 22–23 (para 87). 47 G Berlia, ‘De la Responsabilité Internationale de l’Etat’, in G Scelle and C Rousseau (eds), La technique et les principes du droit public—Etudes en l’honneur de G Scelle (Paris, LGDJ, 1950), Vol II, 875, 889. 48 See the summary of the debates in the ILC on the Fifth and Sixth Reports by G Arangio-Ruiz: Report of ILC, 47th Session, ILC Yearbook 1994, Vol II(2), 144–145 (paras 289, 294). 49 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 22–23 (para 87). 50 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, 3, 17–26 (paras 70–119), 29 (para 139); see also Report of the ILC, 45th Session, ILC Yearbook 1995, Vol. II(2), 45ff (para 230ff). 51 J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 23 (para 91). 52 Ibid, para 20. 53 See the observations of States on the draft adopted on first reading (‘Comments and Observations Received from Governments’, UN Doc A/CN.4/488 and Add.1-3 (1998)), and the synthesis by F Belaïch, ‘Les Réactions des Gouvernements au Projet de la CDI sur la Responsabilité des États’ (1998) 44 AFDI 514, 523–525. 54 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg (Nuremberg: International Military Tribunal, 1948) Vol 22, 466. 55 See in particular, J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 14 (para 55). 56 Prosecutor v Blaskić (Case IT-95-14-AR 108bis), Decision on the Objection to the Issue of Subpoenae Duces Tecum, Appeals Chamber, 29 October 1997, 110 ILR 688, 697–698 (para 25). See also the discussion of the practice of States and of the Security Council and of the relevant case law in J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 14–16 (paras 55–59). 57 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Serbia), Judgment of 26 February 2007, paras 167 and 170. 58 See the summary of the debates in the Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 22 (paras 45–49). 59 See art 41(3). 60 See art 54. 61 See the final observations on draft article 19 as adopted on first reading in 1996: Report of the ILC, 50th Session, ILC Yearbook 1998, Vol II(2), 76–76 (paras 322–332), and J Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 21ff (paras 83ff). 62 P Reuter, ‘Principes de droit international public’ (1961-II) 103 RCADI 425, 586.

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Part IV The Content of International Responsibility, Ch.50 The ‘Transparency’ of the State Rafaëlle Maison From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — International courts and tribunals, jurisdiction — Immunity from jurisdiction, states — Disarmament — Countermeasures

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(p. 717) Chapter 50 The ‘Transparency’ of the State 1 Introduction 717 2 International prosecutions 718 (a) The creation of international criminal tribunals 718 (b) The evolution of the responsibility relationship 719 3 Prosecution before a foreign judge 720 (a) Justifications for denying State immunity in case of international crimes 720 (b) Limits on decentralized prosecutions 722 Further reading 723

1 Introduction In its decision of 1 October 1946, the Nuremburg International Military Tribunal stated: Many other authorities could be quoted, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.1 This formula, which has remained famous, illustrates perfectly what may be referred to as ‘State transparency’ as a possible consequence of international crime. The accused all claimed to have only carried out the will of the Nazi State—a version of the ‘act of State’ defence. Their claim was rejected. The phenomenon of State transparency has transformed the classical machinery of international responsibility. When a State commits an international crime (or, according to the terms of ILC Articles of 2001, a serious breach of an obligation under a peremptory norm of general international law), international law may operate, in part, without allocating the conduct of individual agents to the State in question. Instead of, or in addition to, holding the State, with its separate legal personality, responsible for the crime, which can result in collective obligations of a State to make reparation or even in sanctions against the State, the State’s separate legal personality is sometimes ignored in that agents of the State can be required to answer personally

References (p. 718) before a criminal tribunal for official acts which played a part in the crime without their official status being an obstacle to conviction. The internal organization of the State is no barrier; internal transactions of the State thereby become, in principle, apparent, allowing international law to prosecute directly the participating officials. The State’s separate legal personality, which alone allows for the attribution of acts of agents to the State, is to this extent disregarded. The Supreme Court of Israel, in the Eichmann case, indicated in the same manner that an agent of the State’s position ‘may be compared with that of a person who, having committed an offence in the interests of a corporation which he represents, is not permitted to hide behind the collective responsibility of the corporation itself ’.2 The phenomenon of State transparency (which constitutes an exceptional modification of the classical machinery of international responsibility, by which individual agents would be, in principle, spared) has two applications in substantive law which are taken only partially into account by the work of the ILC on State responsibility. First, when the prosecution of agents of the State can result

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in the creation of international criminal tribunals; second, it is sometimes also instituted before foreign tribunals, thereby constituting a more decentralized form of prosecution.

2 International prosecutions Prosecutions instituted before international tribunals can impinge upon State sovereignty in that the resulting transparency is either imposed or accepted beforehand. In both cases, the outcome of criminal proceedings partially transforms the relationship of international responsibility since an agent of the State (more particularly, the person in the position of authority in a State) is directly subjected to an international criminal sanction. In this regard, we are presented with an aggravated form of satisfaction arising out of the commission of a crime.

(a) The creation of international criminal tribunals Two principal models govern the creation of international criminal tribunals. In the case of special tribunals (for example, the Nuremberg and Tokyo International Military Tribunals and the International Criminal Tribunals for the former Yugoslavia and for Rwanda) the agreement of the State against whose agents prosecutions are instituted was not sought beforehand. Conversely, the International Criminal Court was created using a consensual model, even though its jurisdiction is compulsory in certain cases. These various models of creation illustrate the processes by which State transparency is created. When the Nuremberg and the Tokyo Tribunals were created,3 the consent of Germany and Japan to the prosecution of their agents for official acts was not specifically sought. Similarly, the creation of the International Criminal Tribunals for the former Yugoslavia and for Rwanda by mandatory Security Council resolutions, adopted under Chapter VII

References (p. 719) of the United Nations Charter,4 did not require the agreement of the States concerned. None of these tribunals, in examining their own competence in response to defence contentions, considered such agreement necessary. In this regard, these tribunals distinguish themselves quite radically from those tribunals created or considered as having jurisdiction over the crimes committed in Cambodia and Sierra Leone where United Nations intervention appears more like assistance with an internal process of prosecution. One can compare the creation of international criminal tribunals on an authoritarian model to a decision by the international community to prosecute. In these cases, the criminal conduct for which punishment is sought is already more or less well-defined in the instruments creating the tribunals, thereby restraining the prosecutors’ leeway considerably. The creation ad hoc of international tribunals is already, in itself, a form of sanction against a State against whose agents prosecutions are instituted. Respect for the State’s internal organization is ignored, together with the classical principle of the necessity of State consent to jurisdiction. Punishment of individuals is not, therefore, justified by a universal criminal law, only partially existent when these tribunals were created. Rather, this punishment is justified by a collective reaction to a State wrong, which though directed at a State dissolves its separate legal personality. Conversely, by ratifying the Rome Statute creating the International Criminal Court,5 certain States have accepted in advance that the commission of these same international crimes can result in the personal liability of those responsible. This important development means that criminal liability no longer depends upon a sanction against a State (a decision to prosecute) but rather upon a treaty, which itself defines the crimes within the competence of the Court. This can be understood as an acknowledgement of the transformation of the relationship of responsibility arising from the commission of these crimes. It nonetheless remains that even without having committed themselves to the Rome Statute, States can still be subjected to the compulsory jurisdiction of the Court in the

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circumstances provided for in article 12(2) of its Statute. The Treaty of Rome thus, to a certain extent, produces effects for third-party States. This exceptional phenomenon can be justified if one takes the Statute to be a codification of the customary sanctioning practices described above.

(b) The evolution of the responsibility relationship Commenting on the Nuremberg trial in 1948, Georges Scelle wrote of a ‘complete reversal of the former mechanism’ of international responsibility.6 Agents of the State may now be convicted for ‘personal fault’ consisting in the violation of international criminal standards. The State’s collective responsibility, extending notably to reparation for loss suffered, continues to exist, but in a secondary and subsidiary manner. Prior to the Second World War, other commentators had made the case for application at the international level of the dual form of responsibility sometimes recognized in domestic law in order to punish the criminal conduct of legal persons, viz the responsibility of the corporate personality itself and the personal responsibility of the individuals in charge of ‘the management or the oversight of the interests of the corporate person’.7

References (p. 720) A formula of this type appears to have been introduced into substantive law by international criminal proceedings. It is clearly more an example of an evolutionary development than of a ‘complete reversal’ of the former machinery. International prosecutions make the State’s legal status disappear in order to prosecute an individual, in contrast to the classical operation of international law where as soon as a wrongful act is attributed to a State the relationship of responsibility arises and the State itself is held to account to the exclusion of the individual agent. However, ‘State transparency’ within an international criminal trial does not necessarily persist outside of it: various collective mechanisms of sanction or of reparation can precede or follow the criminal sanction of an individual. Examples include the embargo measures adopted against the Federal Republic of Yugoslavia or the reparation and disarmament measures required of Germany and Japan after the Second World War. Theoretically, individual prosecutions may be regarded as a form of satisfaction integrated within a wider regime of reparation for crime of State. Following the reasoning developed by Special Rapporteur Arangio-Ruiz, one can consider that a regime of individual criminal liability has a function and expressions close to those of satisfaction in the general theory of international responsibility.8 First, its function appears to be that of assuaging the distress created by crime (with no question, however, though of compensating for loss suffered). Second, its expression, which aims to punish the authors of a wrongful act, approximates—or at least reinforces—the criminal or disciplinary sanctions sometimes demanded of a State within the context of satisfaction.

3 Prosecution before a foreign judge Prosecutions instituted against agents of the State before a foreign court for crimes that could incur State responsibility represent another manifestation of the principle of ‘State transparency’. As soon as wrongful (eg tortious) conduct can be assimilated to official acts, an agent of the State should be able to invoke successfully the immunity of the State itself. But the practice of foreign courts, ruling on the basis of specific international conventions or of their domestic law which, in certain cases, confers upon them a universal competence, tends to reject the logic of immunity. There are various justifications for this tendency. It seems that respect for diplomatic immunities, where applicable, is a limiting factor, though this is disputed.

(a) Justifications for denying State immunity in case of international crimes Two principal explanations are advanced to justify allowing domestic criminal proceedings against

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foreign agents who acted within the scope of their official function. First, ignoring the immunity that agents could benefit from (functional immunity) could be justified as a countermeasure. The rejection of the rule of immunity, the rule not being disputed in this first analysis, would constitute a wrongful act. In accordance, however, with the classical theory of countermeasures this wrong would be overridden, by the intention to respond to a prior wrongful act on the part of the State whose agent is prosecuted. State transparency would be, in effect, a reprisal against a wrongful act committed by a State, a measure taken at the time of the decision to ignore any functional immunity rather than at the time of the (p. 721) actual punishment of the agent. This explanation, advanced by Giuseppe Sperduti in the context of the prosecution of enemy agents for war crimes at the close of the Second World War,9 has been defended by Flavia Lattanzi in the context of prosecutions instituted on the basis of international treaties providing expressly for the competence of domestic judges. For Lattanzi: in the case of particularly serious conduct such as war crimes, crimes against peace or against humanity, there automatically arises as a consequence to be borne by a State […] sanctions of a privative character. In this case, the functioning of general international law standards attributing a subjective right with regard to the organisation of the State will be suspended with regard to the State responsible, standards which would have prohibited the prosecution by foreign States of individuals for activities carried out as organs of the State. The potential for such States to prosecute these organs of a State, and their actual prosecution represent precisely the exercise of this privative guarantee, which infringes the right of the State to which the individual-organ belongs.10 This explanation seems attractive. However, it has two major drawbacks. First, it will not always be easy to discover in domestic criminal proceedings, especially when initiated by individual victims, the intention on the part of the forum State to react to a prior wrongful act of the State whose agent is prosecuted. Second, and in particular, it is difficult to affirm that the exercise of criminal jurisdiction recognized by treaty constitutes an internationally wrongful act, except if one holds (disputably) that this jurisdiction could only be exercised against agents coming from States that have also ratified the treaty in question. In the case of prosecutions instituted against agents coming from States not party to the conventions in question, the countermeasure theory could, therefore, continue to be maintainable. The second justification for the rejection of functional immunity is to be preferred. In this second type of argument, stress is placed upon a weakening of the rule of immunity, which no longer applies when acts were carried out in the context of official acts of a State but, however, constitute international crimes. It is sometimes maintained that acts of this nature cannot seriously be considered as official acts, which justifies the prosecution. In other cases, and perhaps more convincingly, one emphasizes that this type of official act, seriously wrongful under international law, cannot claim to be covered by the rule of immunity, the scope of which is more or less extensive. The long-standing theory11 restricting the scope of functional immunity is reflected in contemporary practice. The settling of the Lockerbie cases and the position adopted by the Security Council against Libya can be considered illustrations of this restriction.12 The opinion expressed by certain members of the House of Lords in the Pinochet case shows that the theory is also reflected in the practice of national tribunals. It was held in that case that, faced with systematic criminal conduct and widespread crimes of State, the rule of immunity could no longer be applied in favour of a former head of State.13 The restrictive theory of immunity has also

References (p. 722) been coherently affirmed in the joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case.14 Immunity constitutes an exception to a jurisdictional competence that should, in principle, be exercisable. This exception, they stressed, is only justified if it protects an interest recognized by the international community. Reiterating that the scope of

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State immunity, insofar as civil jurisdiction is concerned, has been limited for a long time, they specified that the same could be true if the functional immunity of agents is intended to hinder the prosecution of a certain number of serious crimes. However, this heralded weakening of the immunity rule, or this new limitation on its scope, appears to find its limits in the in the immunity ratione personae of diplomatic personnel and certain other high agents of the State.

(b) Limits on decentralized prosecutions We have seen that the prosecution of agents of the State before domestic courts for the commission of infractions assimilated to crimes of State constitutes a transformation of the classical mechanisms of responsibility. This type of disagreement could in every case be elevated to the intergovernmental level for settlement by negotiation; the notion of an erga omnes obligation allows even a State not directly injured to invoke a relationship of responsibility if it so chooses. It is obvious that in practice, however, States not directly injured will hesitate before taking such steps unless they serve a political interest. Without a centralized international reaction, therefore, it is very often the adoption of a not-strictly-territorial, or perhaps even universal, principle of criminal jurisdiction, combined with the access to courts of victims, that renders liability for serious breaches of obligations under peremptory norms of general international law effective. At the same time, however, it is clear that prosecution by domestic judges on a decentralized model is often initiated by victims. Such prosecution does not always correspond to the will of the executive organs of the forum State, the principal actors in inter-State relations. They, ideally, wish to obtain the cessation of the State’s wrongful act, or reparation for it, by traditional diplomatic means. Often, however, prosecutions set in motion before a foreign judge are directed at agents exercising diplomatic functions for the simple reason that some of these agents, in addition to being capable of being held responsible for the crimes committed (prime minister, head of State), are within reach, due to their travel, of measures of restraint (notably, arrest) that a domestic judge can utilize within the territory of the forum. These measures can possibly run directly counter to the executive will and jeopardize any means of diplomatic settlement. We are thus presented with a conflict between two interests, both apparently legitimate—the preservation of normal relations between States on the one hand, the prosecution of crimes of State on the other—or between the two logics of dispute settlement potentially serving the same legitimate interest, viz suppression of and reparation for the wrong—diplomatic on the one hand, criminal on the other. As emphasized by Judges Higgins, Kooijmans, and Buergenthal, the rule of immunity only resolves, provisionally, in one sense or the other, the conflict of interests. In this case, current practice tends towards the preservation of the rule of immunity in order to preserve good diplomatic relations. (p. 723) Such practice is reflected in contemporary national case law. The French Cour de cassation affirmed the immunity of a serving Head of State in a case concerning the Libyan Head of State.15 The Belgian Cour de cassation upheld the immunity of the Israeli head of government.16 The International Court of Justice established the principle of immunity for a Minister of Foreign Affairs in office in the Arrest Warrant case. The Court’s judgment, however, remains rather ambiguous in respect of the scope of the immunity, since the Court seemed to exclude the possibility of trying a former Minister for Foreign Affairs for acts carried out within the context of his official acts whilst in office, without, however, providing a clear justification for this disputable conclusion.17 In her dissenting opinion, Judge ad hoc van den Wyngaert noted that, contrary to classical diplomatic law, under which a margin of action is safeguarded in favour of the host State when a diplomat has broken domestic criminal law, the principle of an absolute immunity in favour of Heads of State, heads of government and Ministers for Foreign Affairs, leaves States wishing to institute proceedings considerably impoverished.18 The protection of an agent in office can, furthermore, have perverse effects: preservation in office for a long time and, with it, in consequence, the spectre of impunity. Faced with the problematic consequences, of the immunity rule, one must ask whether the exercise of criminal proceedings in a foreign State would necessarily seriously

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damage the inter-State relations the rule aims to preserve. In this regard, one notes that the power of enforcement of the forum State remains very limited and that the State whose agent is prosecuted retains, in any case, the power to appoint other representatives in order to conduct its international relations where they require travel abroad. The interest in preserving the immunity of agents exercising duties of State representation should not, therefore, be overestimated. Substantive law may well continue in this regard to evolve in the direction of a restriction of immunity, at the risk, however, of provoking a more radical questioning of decentralized prosecutions, which are open to abuse and do not necessarily constitute the ideal means of responding to a crime of State. Further reading G Arangio-Ruiz, ‘The Establishment of the International Criminal Tribunal for the former territory of Yugoslavia and the Doctrine of Implied Powers of the United Nations’, in F Lattanzi & E Sciso (eds), Dai Tribunali penali internazionali ad hoc a una Corte permanente (Napoli, Editoriale Scientifica, 1996), 31 M Cosnard, ‘Les immunités du Chef d’État’, Colloque SFDI, Le chef d’État et le droit international (Paris, Pedone, 2002), 189 P De Sena, Diritto internazionale e immunità funzionale degli organi statali (Milano, Giuffrè, 1996) M Henzelin, Le principe de l’universalité en droit pénal international, Droit et obligation pour les Etats de poursuivre et juger selon le principe de l’universalité (Brussels, Bruylant, 2000) H Kelsen, ‘Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals’ (1943) 31 California Law Review 530

References (p. 724) F Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale (Milano, Giuffrè, 1983) R Maison, La responsabilité individuelle pour crime d’Etat en droit international public (Brussels, Bruylant, 2004) V Pella, La criminalité collective des Etats et le droit pénal de l’avenir (Bucarest, Imprimerie de l’État, 1926). P Picone, ‘Sul fondamento giuridico del Tribunale penale internazionale per la ex Jugoslavia’, in F Lattanzi & E Sciso (eds), Dai Tribunali penali internazionali ad hoc a una Corte permanente (Napoli, Editoriale Scientifica, 1996), 65 M Spinedi, ‘International Crimes of State, The Legislative History’, in JJ Weiler, A Cassese, & M Spinedi (eds), International Crimes of State (Berlin, Walter de Gruyter, 1989), 7 J Verhoeven (ed), Le droit international des immunités: Contestation ou consolidation? (Brussels, Larcier, 2004) A Watts, ‘The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers’ (1994-III) 247 Recueil des cours 9

Footnotes: 1 The Trial of the Major War Criminals before the International Military Tribunal (Nuremberg, International Military Tribunal, 1949), Vol I, 235. 2 Judgment of 29 May 1962 (1968) 36 ILR 310. 3 See Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed and entered into force 8 August 1945, 82 UNTS 279; and see proclamation by General MacArthur of 19 January 1946, Charter of the International Military Tribunal for the Far East, 19 January 1946 (as amended 26 April

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1946), 4 Bevans 21. 4 Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 25 May 1993, 32 ILM 1203; Statute of the International Tribunal for Rwanda, SC Res 955, 8 November 1994, 33 ILM 1598. 5 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90. 6 G Scelle, Cours de droit international public (Paris, Domat-Montchrestien, 1948), 969–972. 7 V Pella, Rapport pour l’association internationale de droit pénal, Actes du deuxième congrès international de droit pénal (Paris, Librairie des juris-classeurs, 1930), 584–585. 8 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3. 9 G Sperduti, L’individuo nel diritto internazionale, Contributo all’interpretazione del diritto internazionale secondo il principio dell’effettività (Milano, Giuffrè, 1950), 175–176. 10 F Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale (Milano, Giuffrè, 1983), 357. 11 For example, C Lombois, ‘Immunité, exterritorialité et droit d’asile en droit pénal international’ (1978) 49 Revue internationale de droit pénal 509. 12 On the Security Council’s position, G Ziccardi Capaldo, ‘Verticalità della comunità internazionale e Nazioni Unite. Un riesame del caso Lockerbie’, in P Picone (ed), Interventi delle Nazioni Unite (Padova, Cedam, 1995), 61. 13 See on this point the positions of the various members of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte (Nos 1 & 3), 119 ILR 50, 135. 14 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, 84–85 (paras 70– 75). 15 France, Cour de cassation, Chambre criminelle, arrêt du 13 mars 2001. 16 Belgium, Cour de cassation, section française, 2ème Chambre, 12 février 2003. 17 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, p 3, 26–27 (para 61). 18 Dissenting Opinion of Judge ad hoc van den Wyngaert, ibid, 143–151 (paras 11–23).

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Part IV The Content of International Responsibility, Ch.51.1 Responsibility for Violations of Human Rights Obligations: International Mechanisms Susan Marks, Fiorentina Azizi From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Diplomatic protection — European Commission on Human Rights — Inter-American Commission on Human Rights (IACommHR) — African Commission on Human and Peoples' Rights (ACommHPR) — Treaties, interpretation

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(p. 725) Chapter 51.1 Responsibility for Violations of Human Rights Obligations: International Mechanisms 1 Introduction 725 2 The requirement of State action for a breach of human rights 726 3 The standard of due diligence 728 4 Territorial scope of protection 732 5 ‘Human rightism’: some reflections 735 Further reading 737

1 Introduction In a lecture delivered in 2000 Alain Pellet took up the subject of ‘ “human rightism” and international law’.1 Explaining his use of the term ‘human rightism’, he noted that this phrase might be deployed in a number of different ways. For example, it might be used to criticize the moralism of human rights activists, and to highlight the dangers associated with the transformation of human rights into a secular religion. Pellet expressed some sympathy with these concerns, but stated that for him the primary meaning of human rightism is more ‘neutral’ and technical, ie that the focus is on the relations between human rights and international law, and, in particular, on what he takes to be the habitual exaggeration by human rights activists of the autonomy of human rights with respect to general international law. In his words: human rightism may be defined as the ‘stance’ that consists in being absolutely determined to confer a form of autonomy (which, to my mind, it does not possess) on a ‘discipline’ (which, to my mind, does not exist as such): the protection of human rights.2 Pellet’s aim in calling attention to human rightism was to ‘sound a note of caution against the confusion of categories: law, on the one hand, human rights ideology, on the other’.3 In his assessment, the greatest dangers are presented by two common analytical procedures. One consists in the belief, or in moves to promote the belief, ‘that a particular (p. 726) legal technique belongs specifically to human rights when it is well known in general international law’, leading to unjustified claims for ‘special treatment’.4 The other danger consists in the ‘tendency to indulge in wishful thinking and take sketchily emerging trends or, worse still, trends that exist solely in the form of aspirations, as legal facts’.5 This second worry, of course, has a very long pedigree, and is expressed perhaps most famously in Jeremy Bentham’s response to the French Declaration of the Rights of Man and the Citizen, in which Bentham criticizes the concept of the rights of man as ‘nonsense upon stilts’, and reminds its proponents that ‘a reason for wishing that a certain right were established, is not that right—want is not supply, hunger is not bread’.6 But if Pellet sought to renew awareness of the need to ‘resist the temptation to present political projects … as scientific truths’,7 he attached no less importance to the first-mentioned ill-effect of human rightism. Emphasizing the character of human rights as a branch of international law, he called on human rights activists to ‘be careful to avoid cutting the branch from the tree, for it would wither’. In this chapter we follow Pellet’s lead, and investigate the relationship between human rights and general international law. However, whereas his analysis was pitched broadly and backed up with examples that in the main concern the sources of obligation, the law of treaties, and the modalities for enforcing norms, our focus will be on the extent of State responsibility. In particular, we will concentrate on three issues bearing upon the responsibility of States for human rights abuse: the scope of State acts, the duty to exercise due diligence, and the territorial reach of obligations. These three issues by no means account for all aspects that could be considered, but they will suffice to illustrate a number of important points about the shape and dynamics of the relationship between human rights norms and State responsibility principles. They will help us to grasp how the

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law of State responsibility has informed developments in the field of human rights, and how developments in the field of human rights have informed the law of State responsibility. At the end of our discussion, the three issues will also provide an illuminating backdrop against which to assess Pellet’s claims regarding the non-independence of human rights with respect to general international law, the categorical confusions of ideology for law and political projects for scientific truths, and the twin dangers of human rightism.

2 The requirement of State action for a breach of human rights For whose actions in violation of human rights is the State responsible? In terms of the general law of State responsibility, this prompts enquiry into the ‘attribution’ of conduct to the State. Alongside the State’s obvious responsibility for the conduct of State organs, the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts and accompanying commentary make clear that conduct may be attributed to the State in a variety of circumstances. While all of these circumstances may implicate the international protection of human rights, some have featured especially prominently in human rights activism and jurisprudence. (p. 727) In the first place, the State will be responsible for the conduct of persons or entities empowered to exercise governmental authority.8 According to the Commentary, whether a contract entails empowerment to exercise ‘governmental authority’ depends on what is considered governmental in a particular society, having regard to ‘its history and traditions’.9 One straightforward case of entities being empowered to exercise governmental authority, referred to in the Commentary, is the practice in some countries of engaging private security firms to serve as prison guards.10 In this context, a key part of the State’s potential responsibility relates to its obligations to protect human rights, among them inmates’ rights to life, humane treatment, respect for private and family life, and nondiscrimination in the exercise of these rights. Thus, the Commentary lends support for ongoing efforts to hold States accountable for violations of inmates’ rights in privately-run prisons.11 As we shall see in the next section, however, prison privatization is by no means the only situation in which States have been held accountable for ensuring that private entities performing public functions act in a way consistent with human rights. Secondly, the State will be responsible for the conduct of State organs or empowered entities acting in that capacity, notwithstanding that the organs or entities exceeded their authority or contravened instructions.12 In this connection, the Commentary cites the opinion of the InterAmerican Court of Human Rights in the case of Velásquez Rodríguez.13 This case arose out of an enforced disappearance in Honduras. Finding the Honduran State responsible under the American Convention on Human Rights, the Court observed that whenever an organ or official fails to respect the rights recognized, the State in question is responsible for a violation of the Convention. It went on: ‘This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority’.14 Likewise, in the earlier Irish case, revolving around claims of arbitrary detention, ill-treatment, and discrimination in Northern Ireland, the European Court of Human Rights declared that State authorities ‘are strictly liable for the conduct of their subordinates’.15 Where the protection of human rights is concerned, the European Court said that the national authorities have a ‘duty to impose their will on their subordinates and cannot shelter behind their inability to ensure that it is respected’.16 Thirdly, the State will be responsible for the conduct of private individuals or groups who are ‘in fact acting on the instructions of, or under the direction or control of, the State in carrying out the conduct’.17 The ILC Commentary explains that this is an exception to the general principle that the conduct of private individuals or entities is not attributable to the State, and is based on the existence of a ‘specific factual relationship between the person or entity engaging in the conduct and the State’.18 This form of responsibility was central to another decision of the Inter-American Court of Human Rights, in the case of Blake.19 Again, the application arose out of an enforced disappearance, this time in

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References (p. 728) Guatemala. The evidence indicated that the disappeared person had been abducted and killed by members of a ‘civil patrol’. The Guatemalan Government argued that it could not be held responsible for the actions for civil patrols, as these were voluntary community organizings that had sprung up in areas of conflict. For the Inter-American Court, however, it was clear that civil patrols: enjoyed an institutional relationship with the Army, performed activities in support of the armed forces’ functions, and, moreover, received resources, weapons, training and direct orders from the Guatemalan Army and operated under its supervision’.20 On this basis, the Court concluded that the patrols ‘should be deemed to be agents of the State and … the actions they perpetrated should therefore be imputable to the State’.21 Let us highlight one final context in which attribution may occur. The State will be responsible for the conduct of private individuals or groups who are: in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.22 In Elmi the Committee against Torture considered an application by a Somali man who had fled violent persecution by clan militias opposed to his family and clan, and travelled to Australia.23 Informed that he would be returned to Somalia, he argued that his forced return would violate the obligation of Australia under the Torture Convention not to send a person to a State ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture’ (article 3). The Australian Government maintained that the complaint fell outside the Torture Convention, as the Convention covered only acts of torture ‘committed by, or at the instigation of, or with the consent or acquiescence of a public official or any other person acting in an official capacity’ (article 1(1)). To this extent, as noted in the ILC’s commentary, the Torture Convention appears to be a lex specialis, dealing with a somewhat narrower range of involvements than would generally be attributable to the State.24 Even so, the Committee rejected the Australian argument. While it was true that the threat faced by the applicant related to action by clan militias, rather than State officials, the Committee observed that Somalia had been without a central government for a number of years, that the international community negotiated with the warring factions, and that some of the factions had set up quasi-governmental institutions. The particular area to which the applicant would return was in fact under the effective control of the clan opposed to his family. In these circumstances, the Committee considered that the members of an armed clan could be regarded as ‘public officials or other persons acting in an official capacity’. It followed that the applicant was indeed exposed to a danger of torture within the meaning of the Torture Convention, with the result that his return to Somalia would, as he argued, violate the obligations of Australia.

3 The standard of due diligence We have so far been examining the responsibility of the State for or in connection with its own acts which are violative of rights. This is a central dimension of State responsibility,

References (p. 729) but it is not the only dimension. Especially in the context of human rights, it is often the State’s failure to act—its failure to ensure protection, including protection against invasions of human rights by non-State actors—that is the problem. That an internationally wrongful act may be constituted not just by actions but also by omissions is recognized in the ILC Articles.25 Indeed, the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Commentary remarks that: [c]ases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts.26 For all these cases, however, this dimension of State responsibility long remained relatively undeveloped. In what follows, we review some of the ways in which human rights lawmaking and jurisprudence have helped to change that situation. We may begin by referring to the path-breaking judgment of the Inter-American Court of Human Rights in the Velásquez Rodríguez case. The evidence before the Court did not reveal exactly who had abducted Manfredo Velásquez Rodríguez. What it did reveal was that a practice of enforced disappearance carried out or tolerated by Honduran officials existed at the relevant time, and that Velásquez Rodríguez had disappeared within the framework of that practice. On this basis, the Court determined that Velásquez Rodríguez had disappeared ‘at the hands of or with the acquiescence’ of Honduran officials, and that accordingly, the Government of Honduras had failed to meet its obligations under the American Convention.27 Specifically, the Government had failed to ensure to Velásquez Rodríguez his rights to personal liberty, humane treatment, and life, in violation of articles 7, 5, and 4, read in conjunction with the basic obligation under article 1(1) to ensure the rights recognized to all persons within national jurisdiction. Explaining its conclusion, the Court said that: in principle, any violation of rights recognized in the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to the State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.28 Thus the Court breathed new life into the old ‘due diligence’ standard of diplomatic protection law, and used it as the basis for a legal duty to prevent human rights violations and to use the means at [the State’s] disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.29 This idea that States have a duty to exercise due diligence in preventing and responding to allegations of human rights abuse connects with, and has been elaborated by a range of other developments in international human rights law. Within the jurisprudence of the

References (p. 730) European Court of Human Rights, it is expressed in the concept of ‘positive obligations’. By positive obligations are meant obligations not simply to refrain from denying human rights, but to take specific measures to protect them. Rooted in the general undertaking in article 1 of the European Convention to secure the rights recognized to everyone within the State party’s jurisdiction, positive obligations were initially associated mainly with the right to private and family life, but have now become an important element in the Court’s interpretations of many Convention rights. Thus, for example, in A v United Kingdom, the Court confronted an application by a child who had been severely beaten by his stepfather. Charged with assault, the stepfather had been

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acquitted by the national courts on the ground that what had been involved was ‘reasonable chastisement’. The child argued that this violated the provisions of article 3 of the Convention, under which ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment’, and the Court upheld this argument. Addressing the question of the State’s responsibility, the Court said that article 1 of the Convention, read together with article 3: requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such illtreatment administered by private individuals.30 In the later case of Z and Others v United Kingdom, the European Court reiterated that the State has a ‘positive obligation, under Article 3 of the Convention, to provide … adequate protection against [torture or] inhuman and degrading treatment’.31 That case concerned the failure of the national authorities to take action to prevent the serious illtreatment and neglect of four children over a period of years, and the Court made clear that the State’s positive obligation includes a duty to take ‘reasonable steps to prevent illtreatment of which the authorities had or ought to have had knowledge’.32 In the case of Edwards v United Kingdom a similar approach was applied to the right to life.33 The applicants’ son had been detained in the same cell as a prisoner who suffered from acute mental illness, and who subsequently killed him. They argued that the introduction into their son’s cell of a dangerously unstable prisoner constituted a violation of the State’s obligations with respect to their son’s right to life. Accepting this argument, the Court observed that, alongside the State’s primary duty to secure the right to life by putting in place effective criminal law provisions and law enforcement machinery, there is also in appropriate circumstances a ‘positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual’.34 In this case the Strasbourg Court considered that the inadequate nature of the screening process on the cell-mate’s arrival in prison, coupled with the failure of relevant agencies (medical profession, police, prosecution, and court) to pass information about him to the prison authorities, disclosed a breach of the State’s positive obligation to protect the right to life. In a General Comment adopted in 2004 the Human Rights Committee has affirmed that the duty to exercise due diligence and take positive measures to protect human rights likewise applies in connection with the International Covenant on Civil and Political

References (p. 731) Rights.35 While observing that obligations under the Covenant ‘do not, as such, have direct horizontal effect’ between private individuals, the Committee stated that: the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities.36 Thus, there may be circumstances in which a failure to ensure Covenant rights … would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.37 In explicating Covenant commitments in this way, the Committee echoed the Inter-American and European interpretations to which we have just referred. At the same time, it echoed the work of the Committee on Economic, Social and Cultural Rights. With regard to the International Covenant on Economic, Social and Cultural Rights, that latter Committee has long adopted a tripartite formulation From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

under which the obligations of States parties are parsed as obligations to ‘respect, protect and fulfil’ the rights recognized. Thus, for example, in a General Comment on the right to the highest attainable standard of health, guaranteed in article 12 of the Covenant, the Committee on Economic, Social and Cultural Rights observes that the ‘right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil’.38 The obligation to respect the right to health requires States to ‘refrain from interfering directly or indirectly with the enjoyment of ’ that right. The obligation to protect the right to health requires States to ‘take measures that prevent third parties from interfering with’ that right. And the obligation to fulfil the right to health—which in turn implies obligations to facilitate, provide, and promote—requires States to ‘adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of ’ that right.39 We have touched on three ways which human rights courts and other supervisory bodies have framed responsibility for omission to act. First, States have a duty to exercise due diligence to prevent violations and respond appropriately when they occur. Second, States have positive obligations to take adequate steps to safeguard human rights. Third, States have obligations not just to respect human rights, but also to protect and fulfil them. A consistent implication is that the State is responsible for providing protection against infringements of human rights both by State officials and by private individuals or entities. With regard to protection against private individuals, there is one context in which the challenge to State complacency has been exceptionally sustained and far-reaching: violence against women. Activism concerning violence against women has long been linked to an explicit critique of approaches to State responsibility oriented primarily to State acts. Feminists have shown that failure to take seriously the ‘omissive’ responsibility of States is

References (p. 732) not neutral but gendered. For insofar as no or inadequate steps are taken to curb abuses in the ‘private’ sphere, women are disproportionately affected. Under the influence of this critique, initiatives by international organizations, governments, and non-governmental organizations today assert and specify the obligations of States to prevent, investigate and punish acts of violence against women, whether committed by State officials or private individuals. These initiatives, which include the United Nations General Assembly’s Declaration on the Elimination of Violence against Women, adopted in 199340 and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women,41 mark the definitive retooling of the ‘due diligence’ standard.

4 Territorial scope of protection To this point we have considered for whose actions in violation of human rights the State bears responsibility, and on what basis the State may be held responsible for omission to act. Let us now turn to the final issue announced above, the question of the territorial scope of human rights obligations. This has received considerable attention in recent years, especially, though by no means solely, within the framework of the European Convention on Human Rights. An important milestone was the 1995 judgment of the European Court of Human Rights in Loizidou v Turkey, Preliminary Objections.42 The applicant was a Cypriot citizen, who claimed to be the owner of land in Northern Cyprus to which Turkish forces prevented her from returning. After attempting unsuccessfully to enter the Turkish-occupied part of Cyprus to reassert title to the land, she argued that Turkey was responsible for the violation of a number of her rights, among them her right to ‘peaceful enjoyment of … possessions’. The Turkish Government urged the Court to declare the complaint inadmissible on the ground that (inter alia) the Government could not be held responsible for the events in question. Under the European Convention, States parties are required to secure the rights recognized to everyone ‘within their jurisdiction’ (article 1). Yet, according to

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the Government, the events of which the applicant complained fell outside the jurisdiction of Turkey; rather, they came within the jurisdiction of the Turkish Republic of Northern Cyprus (TRNC). Against this background, the Court put forward its interpretation of the concept of ‘jurisdiction’ as a factor limiting responsibility under the European Convention. In the first place, it said that the concept of ‘jurisdiction’ under article 1 ‘is not restricted to the national territory of the High Contracting Parties’.43 The Court continued: [T]he responsibility of a Contracting Party may … arise when as a consequence of military action—whether lawful or unlawful—it exercises effective control of an area outside national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.44

References (p. 733) In the later merits phase of the case,45 the Court found that the presence of Turkish troops engaged in active duties in northern Cyprus indicated that indeed Turkey exercised effective control of the area. The Court added that it was ‘not necessary to determine whether … Turkey actually exercises detailed control over the policies and actions of the authorities of the “TRNC”.’46 In the circumstances, the military presence was sufficient to engage the responsibility of Turkey for those policies and actions. In Banković v Belgium and Others47 the Court had occasion to return to this question of the overall scope and limits of responsibility under the European Convention. The applicants complained of violations of human rights in connection with the bombing by NATO forces of a television station in Serbia in 1999. The NATO State respondents countered that the victims were not within their jurisdiction, and in this context the Court accepted that contention. Referring to Loizidou and other earlier cases, the Court said that its recognition of the exercise of extraterritorial jurisdiction was ‘exceptional’, and occurred when the State in question: through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.48 As the NATO States were not in effective control of Serbia and its inhabitants in this sense, the Court considered that those States could not be held responsible under the European Convention for violations arising out of the bombing of the television station. After Banković the European Court of Human Rights again confronted the issue of the Convention’s territorial reach in Ilaşcu and Others v Moldova and Russia. This case concerned the trial and imprisonment of four Moldovan nationals in the Transdniestrian region of Moldova. The applicants brought proceedings against Moldova and Russia, complaining of violations of numerous rights under the European Convention, including very serious violations of the right not to be subjected to torture or other ill-treatment. Although a separatist regime—the Moldavian Republic of Transdniestria (MRT)—had been established in the region in 1991, the applicants argued that the Moldovan authorities remained responsible under the European Convention, inasmuch as they had failed to take appropriate steps to end the abuses. The applicants contended that the Russian authorities shared responsibility, since the region was under de facto Russian control, and the MRT received support from the Russian Federation. The Court accepted these arguments. Dismissing the Moldovan Government’s argument that the Transdniestrian region was not within its jurisdiction, the Court said that: even in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with 49

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international law to secure to the applicants the rights guaranteed by the Convention.49 On the evidence, a majority of the Court did not consider that the Moldovan Government had fully discharged that obligation. As for the Russian Federation, the Court explained that the acts complained of fell within its jurisdiction on account both of the political

References (p. 734) and military support which the Russian authorities had provided to the Transdniestrian separatists, and of the fact that the applicants had actually been arrested and initially guarded and ill-treated by Russian soldiers, who had then transferred them into the custody of MRT officials, with consequences that were or should have been anticipated. In Banković, the European Court emphasized the character of the European Convention as a ‘multilateral treaty operating … in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States’.50 In its assessment, the ‘Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States’.51 What then of treaties that are designed to be applied throughout the world, or at any rate without regional specificity? In 1981 the Human Rights Committee expressed its views on a complaint against Uruguay, alleging violations of

References (p. 735) the International Covenant on Civil and Political Rights in connection with the enforced disappearance of a Uruguayan national. The evidence showed that the victim had been abducted in Argentina by members of the Uruguayan security forces, and later transferred to Uruguay.52 Under article 2(1) of the Covenant, each State party undertakes to respect and ensure the rights recognized ‘to all individuals within its territory and subject to its jurisdiction’. The Committee was clear that article 2(1) does not remove accountability for violations of Covenant rights committed by State agents abroad, whether with the acquiescence of the foreign government or in opposition to it. In its words: it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.53 Much later, the Committee was to develop this point in General Comment 31, mentioned already. In the interpretation put forward there, the reference in article 2 of the Covenant to ‘all individuals within [a State party’s] territory and subject to its jurisdiction’ means that Covenant rights must be respected and ensured to all those within State territory, even if they are not nationals, and to all those within State jurisdiction, even if they are not situated within national territory. Thus, the enjoyment of these rights must be available to: those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained.54 The Committee gives the example of: forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.55 Shortly after the General Comment was adopted, the International Court of Justice provided endorsement of the Committee’s interpretation in the context of proceedings concerning Israeli acts in occupied Palestinian territory. For the Court:

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the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.56 This question of the extent to which a State may be held responsible for violations of human rights that occur outside national territory (or, as in the Moldovan case, within an area of national territory over which effective control is lacking) has obvious urgency, perhaps especially today in the conditions of the global ‘war against terror’. Scarcely less pressing, however, and arguably even more so, is the related question of the extent to which a State may be held to account where, though not directly responsible for violations of human rights in another country, it assists in or facilitates the commission of those violations. That question has recently been taken up in connection with calls to strengthen international control of arms transfers. Reflected in these calls is a ‘supply-side’ approach to curbing abuses, which concentrates on preventing transfers of arms to State and non-State actors who will foreseeably use them to commit serious violations of human rights and humanitarian law.57 In this regard, the responsibility of States is asserted under the principle, recognized in article 16 of the ILC Articles, that: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. Illustrating this principle, the Commentary notes that States may incur responsibility for providing ‘material aid to a State that uses the aid to commit human rights violations’.58 The Commentary cautions, however, that: [w]here the allegation is that the assistance of a State has facilitated human rights abuses by another State, the particular circumstances of each case must be carefully examined to determine whether the aiding State by its aid was aware of and intended to facilitate the commission of the internationally wrongful act.59 With regard to small arms (guns), one analyst has proposed more forthrightly that the principle of knowing assistance can be understood to ‘prohibit States from transferring small arms to another State knowing that the other State will use the arms in violation of international law’.60 Put affirmatively, it can be understood to require States to ‘turn off the tap’.61

5 ‘Human rightism’: some reflections What general points can we glean from this brief survey of developments in the responsibility of States for the infringement of human rights? In particular, how does it orient us

References (p. 736) with respect to Pellet’s account of human rightism and related phenomena, mentioned at the beginning? Before addressing these questions, we must re-emphasize that the issues we have addressed represent only a subset of ways in which State responsibility principles and human rights norms intersect. Most obviously, we have not said anything about the concepts of ‘obligations erga omnes’ and ‘peremptory norms’ and their overlap with human rights. Nor have we discussed the significance of human rights as constraints on the countermeasures that may be taken against a State which is responsible for an internationally wrongful act.62 Nor have we broached the subject of compensation for the victims of human rights abuse. Even without investigation of these and other matters, however, at least two points are surely clear. On the one hand, we have seen that the interpretation of human rights treaties has been shaped in

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notable ways by the general law of State responsibility, just as Pellet might maintain. Human rights courts and tribunals regularly express their analyses in terms that draw on concepts and principles of State responsibility, and increasingly human rights activists are likewise using ideas recognized in the law of State responsibility to support their initiatives. On the other hand, we have also seen that, for their part, the general principles of State responsibility have been shaped in notable ways by developments in the interpretation of human rights treaties. Anyone who doubts that has only to glance through the ILC’s Commentary. Beyond the Commentary, the challenge to traditional understandings is currently perhaps most evident with regard to responsibility for omission (the duty to exercise due diligence, positive obligations, etc) and the implications of the principle of knowing assistance. In these areas, concerns as disparate (or maybe not so disparate) as violence against women, privatization of health services, and the need for improved international arms control have driven, and are continuing to drive, moves to push at the boundaries of State responsibility and expand the range of actions that governments should be expected to take against violence, injustice and social exclusion. If, as Pellet contends, it is important not to exaggerate the autonomy of human rights with respect to general international law, our discussion in this chapter thus suggests that it may likewise be important not to exaggerate the autonomy of general international law with respect to human rights. But the non-independence of human rights is not Pellet’s only preoccupation. For him, human rightism is also characterized by a tendency to engage in wishful thinking, and treat aspirations as if they were legal facts. Certainly it is true that accounts of human rights law are informed by normative theories of how the world should be. However, so too are accounts of international law, and everything else. The idea that there is some non-normative ground wholly outside ethics, politics and culture on which we can stand to discover legal facts can hardly be credited. That is not to say that there is nothing distinctive about law compared to ethics, politics, and culture. It is simply to say, as our discussion of State responsibility for human rights abuse clearly shows, that legal interpretations are developed for the sake of, and in conjunction with, projects for ordering social life. Perhaps the best approach is to set aside talk of autonomy and independence, branches and trees, and rather to recognize that human rights and international law are at once enmeshed and distinctive—both in relation to one another and in relation to the larger political projects within which each is necessarily deployed.

References (p. 737) Further reading B Frey, ‘Working Paper on the question of the trade, carrying and use of small arms and light weapons in the context of human rights and humanitarian norms’, 30 May 2002, E/CN.4/Sub.2/2002/39 A Pellet, ‘ “Human rightism” and International Law’, Gilberto Amado Memorial Lecture, delivered 18 July 2000 (New York: United Nations); the original French text (‘“Droitsde l’hommisme” et droit international’) is reprinted in Droits fondamentaux, no 1 (2001), available online at: . A Coyle, A Campbell, & R Neufeld (eds), Capitalist Punishment: Prison Privatization and Human Rights (Atlanta, Clarity Press, 2003)(p. 738)

Footnotes: 1 A Pellet, ‘ “Human rightism” and International Law’, Gilberto Amado Memorial Lecture, delivered 18 July 2000 (New York, United Nations). 2 Ibid, 3. 3 Ibid, 2. 4 Ibid, 5.

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5 Ibid, 5. 6 ‘Anarchical Fallacies’ (1843), reprinted in J Waldon (ed), Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (London, Methuen, 1987). 7 A Pellet, ‘ “Human rightism” and International Law’, Gilberto Amado Memorial Lecture, delivered 18 July 2000 (New York, United Nations), 16. 8 ARSIWA, art 5. 9 Commentary to art 5, para 6. 10 Commentary to art 5, para 2. 11 For a review of concerns and initiatives, see A Coyle, A Campbell, & R Neufeld (eds), Capitalist Punishment: Prison Privatization and Human Rights (Atlanta, Clarity Press, 2003). 12 ARSIWA, art 7. 13 Commentary to art 7, para 6. 14 Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988); 95 ILR 232, 296 (para 170). 15 Ireland v United Kingdom (1978) 58 ILR 188, 263 (para 159). See also Ilaşcu and Others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VII, para 319. 16 Ireland v United Kingdom (1978) 58 ILR 188, 263 (para 159). 17 ARSIWA, art 8. 18 Commentary, to art 8, para 1. 19 Blake v Guatemala, Merits, Inter-Am Ct HR, Series C, No 36 (1998). 20 Ibid, para 76. 21 Ibid, para 78. 22 ILC Articles, art 9. 23 Elmi v Australia Communication No 120/1998, Views of the Committee against Torture, 25 May 1999, CA T/C/22/D/120/ 1998. 24 See Commentary to art 55, para 5. 25 ARSIWA, art 2. 26 Commentary to art 2, para 4. 27 Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988); 95 ILR 232, 291 (para 148). 28 Ibid, 296 (para 172). 29 Ibid, 297 (para 174). 30 A v United Kingdom (App No 25599/94), ECHR Reports 1998-VI, para 22. 31 Z and Others v United Kingdom (App No 29392/95), ECHR Reports 2001-V, para 72. 32 Ibid, para 73. 33 Edwards v United Kingdom (App No 46477/99), ECHR Reports 2002-II. 34 Ibid, para 54. 35 Human Rights Committee, General Comment 31 ‘The Nature of the General Legal Obligation: Imposed on States Parties to the Covenant’, 29 March 2004, CCPR/C/21/Rev.1/Add. 13. 36 Ibid, para 8. 37 Ibid. 38 Committee on Economic, Social and Cultural Rights, General Comment 14 ‘The Right to the

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Highest Attainable Standard of Health, Article 12’, adopted 11 May 2000, E/C.12/2000/4, para 33 (emphasis omitted). 39 Ibid. 40 GA Res 48/104, 20 December 1993. 41 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Belém do Pará, 9 June 1994. 42 Loizidou v Turkey, Preliminary Objections (App No 15318/89), ECHR, Series A, No 310 (1995) [GC]; 103 ILR 622. 43 Ibid, 642 (para 62). 44 Ibid. 45 Loizidou v Turkey, Merits (App No 15318/89), ECHR Reports 1996-V [GC]; 108 ILR 445. 46 Ibid, 466 (para 56). 47 Banković v Belgium and Others (App No 52207/99), ECHR Reports 2001-XI [GC]. 48 Ibid, para 71. 49 Ilaşcu and Others v Moldova and Russia (App No 48787/99), ECHR Reports 2004-VI [GC], para 331. 50 Banković v Belgium and Others (App No 52207/99), ECHR Reports 2001-XII [GC] para 80. 51 Ibid. 52 López Burgos v Uruguay, Communication No 52/1979 (R 12/52), Views of the Human Rights Committee, 29 July 1981, A/36/40, 176. 53 Ibid, para 12.3. 54 General Comment 31, para 10. 55 Ibid. 56 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 180 (para 111). 57 See B Frey, ‘Working Paper on the question of the trade, carrying and use of small arms and light weapons in the context of human rights and humanitarian norms’, 30 May 2002, E/CN.4/Sub.2/2002/39, para 17. 58 Commentary to art 16, para 9. 59 Ibid. 60 B Frey, ‘Working Paper on the question of the trade, carrying and use of small arms and light weapons in the context of human rights and humanitarian norms’, 30 May 2002, UN Doc E/CN.4/Sub.2/2002/39. 61 See Amnesty International & Oxfam International, Shattered Lives (Control Arms Campaign, 2003), 73. 62 See ARSIWA, art 50(1)(b) and Commentary to art 50, paras 6–7.

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Part IV The Content of International Responsibility, Ch.51.2 Responsibility for Violations of Human Rights Obligations: Inter-American Mechanisms Raphaële Rivier From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 739) Chapter 51.2 Responsibility for Violations of Human Rights Obligations: Inter-American Mechanisms∗ 1 Inter-American State responsibility 742 (a) The conditions for State responsibility in the Inter-American system 742 (i) Violation of an Inter-American obligation 743 (ii) Attribution of conduct which violates an Inter-American obligation to a State 745 (iii) Harm resulting from the relevant conduct 747 (b) The content of Inter-American responsibility 748 (i) The obligation to make reparation for the harmful consequences of an internationally wrongful act 748 (ii) Modalities of implementation: the relevance of traditional solutions 749 2 The implementation of Inter-American State responsibility 751 (a) Establishing Inter-American responsibility 752 (i) The objective and exclusive character of Inter-American responsibility 752 (ii) Mechanisms for the establishment of Inter-American responsibility 753 (iii) Causes of action alleging responsibility 755 (b) The consequences attaching to the establishment of Inter-American responsibility 757 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(i) Moves beyond classical solutions 757 (ii) Moves away from classical solutions 758 Further reading 760 [E]very violation of an international obligation which results in harm creates a duty to make adequate reparation.1 In upholding the international responsibility of Honduras for breach of the American Convention on Human Rights,2 the Inter-American Court of Human Rights reaffirmed the principle of customary international law pursuant to which every wrongful act committed by a State entails its responsibility.3 The institution of State responsibility consists of two elemental

References (p. 740) rules: the first describes the preconditions for the existence of State responsibility; the second imposes an obligation to make reparation. These rules apply irrespective of the origin of the obligation breached, but they do not exclude the possibility that a treaty (or the entities which apply it) may itself lay down either different preconditions for the incurring of responsibility, or responsibility having a different content, as the result of a violation of its provisions. In such a case, these two customary rules apply subject to the terms of any applicable treaty. The Inter-American system for the protection of human rights consists of a number of different treaties, each having its own control mechanism. The first of these is the Charter of the Organization of American States,4 a multilateral treaty adopted in 1948, which forms the constituent instrument of that organization. In its original form, the Charter contained few provisions on human rights; however, the Protocol of Buenos Aires, adopted in 1967, institutionalized the Inter-American Commission on Human Rights, which had been created by resolution in 1959, and conferred upon it, as its principal function, the promotion of ‘observance and protection of human rights’.5 Pursuant to article 1(2) of its Statute,6 the Inter-American Commission exercises this function by reference to both the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man, a resolution adopted by the Ninth International Conference of American States in 1948.7 Although originally envisaged as being non-binding, the American Declaration is now considered to constitute an authentic interpretation of article 3(l) of the OAS Charter (as amended), which proclaims the fundamental rights of the individual.8 However, the key instrument in the InterAmerican system of protection is the American Convention on Human Rights, adopted at the San José Conference in 1969. Article 33 of the American Convention confers on the Inter-American Court and Inter-American Commission ‘competence with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention’. By article 41, the Inter-American Commission is expressly charged with ‘promot[ing] respect for and defense of human rights’. The jurisdiction of the Inter-American Court under article 62(3) extends to ‘all cases concerning the interpretation and application of the provisions of this Convention … , provided that the States Parties to the case recognize or have recognized such jurisdiction … ’. Twenty-four states are currently party to the American Convention, of which 23 have accepted the jurisdiction of the InterAmerican Court. In addition, the Inter-American Commission and the Inter-American Court also oversee the proper application of any other regional instrument which confers jurisdiction on them. There is thus a multitude of regimes of protection, based on distinct texts and on the acceptance of specific jurisdictional commitments. For the sake of simplicity, these regional arrangements will be referred to collectively as ‘Inter-American law’.

References (p. 741) Within the limits of their respective individual commitments, the member States of the OAS have undertaken various rules of conduct in relation to the protection of human rights. They have

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further created mechanisms of dispute resolution applicable to those rules of conduct, albeit without systematically providing for accompanying rules relating to the consequences of their violation. It follows that it is for the bodies applying Inter-American law to determine the conditions under which the obligation to make reparation arises, as well as to establish the processes by which that obligation is implemented. By basing their conclusions on customary law or referring to the decisions of international courts of general jurisdiction, the Inter-American Court and Inter-American Commission have sometimes sought to escape from the limited role assigned to them by Inter-American law. This tendency to locate the interpretation and application of the texts of which they are the guardians within general international law manifests itself in particular in cases raising issues of State responsibility. However, although they seek to limit the autonomy of those texts, the Inter-American Court and Inter-American Commission are not organs of general competence. The material scope of their contentious jurisdiction does not permit them to hear each and every dispute relating to the interpretation or application by a member State of the OAS of its international obligations, even if those obligations relate to human rights. First, certain Inter-American conventions do not contain any provision explicitly conferring jurisdiction in relation to their interpretation and application in human rights disputes. Accordingly, the Court has held that it has no jurisdiction to monitor compliance with the 1985 Inter-American Convention to Prevent and Punish Torture9 and that its jurisdiction extends only to inquiring whether and to what extent particular conduct constitutes a breach of the American Convention.10 Further, the Inter-American Court refused to apply international humanitarian law in a case in which the Inter-American Commission had asked the Court to hold that Colombia had breached common article 3 of the 1949 Geneva Conventions; the Court held that the American Convention ‘has only given the Court competence to determine whether the acts or the norms of the States are compatible with the Convention itself, and not with the 1949 Geneva Conventions’.11 In the end, the Inter-American Court is an institution empowered to ensure the implementation of specific treaty commitments. Although it does not exclude the possibility of interpreting those commitments in the light of customary international law or other treaties from which it derives no jurisdiction, it does not have specific jurisdiction in respect of those other instruments. Where a court is empowered only to rule on the application of a particular convention (as is the case with the Inter-American Court), it has no power to establish the responsibility of a State under general international law. It applies rules which are separate from general international law, so that its judgments do not establish the responsibility on the basis of general international law, although substantively the solutions arrived at will often coincide with those which would be arrived at under general international law. For example the Court may be called on to apply rules which refer back to general international law. Such a reference can be provided for by the particular convention (as is the case, for example, with article 46(1)(a) of the American Convention, pursuant to which the rule requiring exhaustion of domestic

References (p. 742) remedies is to be applied ‘in accordance with generally recognized principles of international law’) or it may result from the intervention of the Court in determining the applicable law. Accordingly, it can be seen that the Inter-American Court and Inter-American Commission are specialized organs, empowered to ensure compliance with a system of regional law. The rules relating to State responsibility for violation of Inter-American norms may thus be seen as rules which are tailored in order to ensure the implementation of those norms. Hence, the law of State responsibility in the Inter-American system comprises rules which are formally distinct from the rules of the generally applicable law of responsibility. Does it therefore constitute a self-contained regime? The answer is far from being self-evident.

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The Inter-American system would be self-contained if it excluded the application of all the rules of general international law where there is a violation of the Inter-American law. However, although the rules governing State responsibility for breach of the Inter-American law differ in certain aspects from the generally applicable rules under customary international law, they do not derogate from them. On the other hand, the Inter-American mechanisms relating to the implementation of State responsibility may be considered to exclude the applicability of general international law, and consequently displace it. An analysis of the content of the Inter-American rules relating to State responsibility and the techniques it applies in the implementation of responsibility permits this phenomenon to be verified, as well as serving to highlight the specificity of the regime compared to that under general international law. Such an analysis must take into account, in particular, the primary aim of the system, which is not to create legal relationships between its member States, but to regulate relationships between individuals and between individuals and the State. As a matter of its internal rules, the Inter-American system establishes, inter alia, direct international rights for the benefit of individuals, irrespective of their nationality, with the result that the responsibility of a State may be invoked in respect of treatment of any individual, including its own nationals. This particularity of rules pertaining to human rights does not have any significant impact on the approach of the Inter-American organs to State responsibility; they have reached solutions similar to those adopted under general international law, reinforcing and enriching those rules to a greater extent than they have rejected them. However, while the rules of general international law are primarily aimed at application outside the context of litigation, the rules contained in the InterAmerican system benefit from powerful mechanisms of enforcement. It is when Inter-American State responsibility is engaged in a particular case within the Inter-American system that it takes on its full force and specifi city in comparison to that under general international law.

1 Inter-American State responsibility Two rules of positive Inter-American law shape the Inter-American law of State responsibility for internationally wrongful acts. The first sets out the preconditions for State responsibility and permits identification of the responsible State. The second establishes the content of that responsibility by attaching a particular consequence to a violation of Inter-American law. These rules will be examined in turn.

(a) The conditions for State responsibility in the Inter-American system Inter-American law identifies as responsible those States which have violated their obligations under Inter-American law by conduct which is attributable to them, where that violation has caused harm. (p. 743) (i) Violation of an Inter-American obligation Inter-American State responsibility is premised on the existence of conduct by the State contrary to an Inter-American obligation by which it is bound. The violation from which State responsibility results in the Inter-American system constitutes a juridical fact; responsibility thus has an identical function to that under general international law, that is, to sanction the consequences of the noncompliance of particular conduct with the law. However, that does not exclude the possibility that the violation may result from the adoption of a particular juridical act, whether domestically or internationally, or from the way in which the State gives it effect, if that conduct contravenes the rights established under the American Convention.12 However, non-compliance of this type is not normally the intended effect of such acts and there is therefore no question of rendering the act internationally invalid, whether by declaring that it is void or simply unopposable. The engagement of Inter-American State responsibility therefore presupposes material conduct which is contrary to an obligation of the State in force at the time of the conduct; that also means

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that even if an obligation is no longer in force, responsibility incurred for a violation which occurred at a time when it was in force persists.13 However, while general international law is concerned with every violation by a State of its obligations irrespective of their origin or their objective, InterAmerican State responsibility is triggered only by a violation of an Inter-American obligation. In other words, a violation by an OAS member State of an obligation towards a third State does not amount to unlawful conduct under Inter-American law. This restriction aside, which relates to the formal source of the obligation, unlawful conduct under Inter-American law bears the same characteristics as under general international law. There are different ways in which an obligation under Inter-American law may be breached. Conduct which is contrary to that which is required of a State may consist of an act or an omission.14 It may be instantaneous or can extend over a period of time. In Blake, concerning the disappearance and murder of two American citizens in Guatemala in March 1985 whose remains were not discovered until June 1992, the Inter-American Court drew a distinction between a continuous violation and one which has already been accomplished, and held that forced disappearance constituted a continuing violation so long as the fate of the relevant person remained unknown.15 The violations in Blake thus extended over the period of seven years from the kidnapping, namely over ‘the entire period during which the act continue[d] and remain[ed] not in conformity with the international obligation’.16 The characterization of the internationally wrongful act as continuing permitted the Court to find that it had jurisdiction ratione temporis; the problem arose because Guatemala, although having been party to the American Convention since 1978, had not accepted the compulsory jurisdiction of the Inter-American Court

References (p. 744) until 1987, whilst the initial relevant acts had taken place in 1985. The Court held that the kidnapping, detention and murder of the victims, which occurred in March 1985, could not be regarded as constituting a continuing violation so as to be subject to scrutiny by the Court.17 However, it declared that it had jurisdiction to consider the concealment of those acts and the ‘disappearance’ of the victims, which had extended for a period of over five years after Guatemala’s acceptance of the Court’s compulsory jurisdiction.18 Inter-American law, like customary international law, precludes a State from relying on domestic law to justify a violation of its obligations. A finding that an act is unlawful under Inter-American law is therefore independent of any internal judicial order which may validate the act.19 It further does not depend on whether or not the act complies with the domestic law of the State. In that regard, the Inter-American Court has construed the ‘federal clause’ in article 28 of the American Convention in light of the principle of general international law according to which a State cannot invoke its own internal (federal) structure to excuse a violation of its international obligations, nor to escape its obligation to make reparation.20 Can the State invoke its commitments to third parties in order to justify a violation of regional obligations? The Inter-American institutions have never had to decide a case where the State was subject to an Inter-American obligation which put it in breach of another international rule. The Court nevertheless accepts that it has jurisdiction ‘to determine whether any norm of domestic or international law applied by a State, in times of peace or armed conflict, is compatible or not with the American Convention’.21 The Court has stated that, in exercising that jurisdiction, it is subject to no normative limitation: any legal norm may be submitted to such an examination of compatibility.22 Accordingly, the performance by a State party to the American Convention of its obligations owed to third parties is not automatically exempted from the scope of jurisdiction under the American Convention. Consequently, the Inter-American institutions will probably require State parties to the American Convention to make the latter prevail over any contrary international obligations. This ‘priority’ of application of obligations would mean that State parties might be required to breach some other

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international rule which has been held to be in contravention of the American Convention. However, such a ruling requiring a State party to comply with its obligations under the American Convention to the exclusion of its other obligations is necessarily relative; it cannot discharge States from performance of obligations owed to third parties. It is not for the Inter-American Court or Commission to lay down a mechanism which would preclude the wrongfulness of conduct which would otherwise be internationally wrongful, on the basis that that conduct is required by InterAmerican law.

References (p. 745) According to the Inter-American Court, modern human rights treaties in general, and the American Convention in particular: … are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting states. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the state of their nationality and all other contracting states.23 The objective character of the obligations under the American Conventions prevents State parties from relying on circumstances involving the improper performance, or even total lack of performance by another State party in order to absolve itself of its own responsibility to perform its own obligations. First, Inter-American treaty obligations are not subject to the operation of the normal rules governing extinction or suspension as between the States in question; for instance, pursuant to its article 27, performance of the American Convention can only be suspended ‘in time of war, public danger, or other emergency that threatens the independence or security of a State Party’ (and only in respect of rights which are not in any case excluded from the application of that provision). Second, no conduct by one State party contrary to its Inter-American obligations can render subsequent conduct of another State party lawful. The operation of certain circumstance precluding wrongfulness is therefore excluded. Hence, conduct will be illegal even if an attempt is made to justify it as a countermeasure. The very character of the rights protected explains why they are not subject to the effects of reciprocity: as a matter of principle they depend solely on the quality of their beneficiaries as human persons. The consideration which those States which have undertaken such obligations are entitled to expect does not depend upon a similar corresponding counter-performance by other States in exchange, but consists in the very engagement to respect the right in question undertaken by the other State parties. It is for this reason that it is not entirely inaccurate to regard human rights obligations as constituting derogations from general international law; the latter in any event provides that such obligations cannot be affected by countermeasures.24 A residual issue is the effect of a State’s consent to the conduct which has caused harm, which under the general rules of State responsibility amounts to a circumstance precluding wrongfulness. Even assuming that the responsibility of the State breaching InterAmerican law is not engaged as against the consenting State, their agreement to derogate does not exhaust the rights of other States, nor the rights of the beneficiaries of the obligation in question to have it respected. The responsibility of the State breaching Inter-American law will therefore in any case be incurred. (ii) Attribution of conduct which violates an Inter-American obligation to a State The international responsibility of a State can only be engaged by conduct which is attributable to it. The attribution of conduct is also a constituent element for Inter-American responsibility.25 The subject whose conduct is to be examined by reference to the rules of Inter-American law is the State and attribution is the process which enables that scrutiny. The rule which defines InterAmerican responsibility therefore provides the criteria for identification of the subject to which wrongful conduct is to be attributed. Since

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References (p. 746) attribution serves to identify the State which is responsible for the harm, it enables a link to be made between the conduct of an actor and a subject of international law, in order to determine the responsibility of the latter. Although the rules of Inter-American law make individuals the beneficiaries of its guarantees, they only impose obligations on States. The Inter-American mechanisms do not impose civil responsibility under international law on the actor which materially carries out the conduct in question: their unlawful acts are not internationally unlawful for them since, not being subject to any obligation, they are by definition incapable of breaching those obligations. The Inter-American system does not add any new bases of attribution to the normal group of rules according to which conduct may be attributed to the State. ‘Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State’,26 and the classic solutions under general international law are also used by the Inter-American Court. Further: this conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.27 The effectiveness of the system of protection of human rights justifies the reference to this rule of customary international law.28 The Inter-American Court has also made clear that the motivation of agents of the State29 or their hierarchical position30 are irrelevant. Further, the continuity of the State means that responsibility exists independently of any change of government.31 This is yet another affirmation of the irrelevance of the internal organization of the State in determining whether its responsibility is engaged. In addition: [an] illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.32 The State here is not responsible for the acts of particular individuals, but for its own act, which is analysed as an omission. Article 1(1) of the American Convention indeed not only requires the State party to respect the rights recognized but also to ‘ensure’ to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms. This obligation to ensure the free and full exercise of the rights guaranteed by the American Convention: implies the duty of States parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.33

References (p. 747) Responsibility here sanctions the violation of an obligation of due diligence, the scope of 34

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which has in any event been extended by the Inter-American Commission.34 This process, which enables the link to be made between the active conduct of an individual and the passive conduct of a State, is not new.35 (iii) Harm resulting from the relevant conduct General international law requires at least two elements for the responsibility of a State to be engaged: that conduct is attributable to the State and that the conduct constitutes a violation of one of the State’s international obligations. Such conduct generates State responsibility and is its origin. However, the question arises whether those two elements are sufficient. The ILC Articles answer that question in the affirmative. At least as a general matter, damage is not therefore relevant for the identification of the responsible State. More modestly, it only serves to identify those who have a cause of action based on that responsibility. However, that approach is disregarded in the practice of the Inter-American organs. In finding Cuba responsible for a violation of the article 1 of the American Declaration (the right to life, liberty and personal security), the Inter-American Commission declared that ‘damage or harm’ was one of the basic elements for establishing international responsibility.36 The same reasoning has been applied by the Commission in relation to a violation of the American Convention.37 Having found that that requirement was satisfi ed, the Inter-American Commission affirmed that the respondent State was under an ‘obligation to make reparations for the damages caused and compensate the families of the victims and survivors’.38 The Inter-American Court has concluded that the enactment and enforcement of a law which contravenes the American Convention constitutes a violation of that treaty which engages the State’s responsibility if it affects the rights and freedoms of specific individuals.39 It also distinguished between legal provisions which, by their very existence, are susceptible to injure individuals, and those which can do so only through means of enforcement.40 The Court therefore seems to admit, consistently with the approach of the European Court, that the mere enactment of a legislative provision is capable of engaging State responsibility if the individual is directly at risk of suffering consequences for which damages would be payable. Here, the consequences that arise from the relevant act (the obligation to make reparation) are subject to the existence of damage.

References (p. 748) It is true that the damage does not explain the fact that the State incurs responsibility, the origin of which lies in the act which has caused the damage. Nevertheless, damage is a condition for State responsibility, for a State will not be subject to the consequences of responsibility unless its unlawful act causes damage. As the Inter-American Court held in its first contentious case: It is a principle of international law, which jurisprudence has considered ‘even a general concept of law,’ that every violation of an international obligation which results in harm creates a duty to make adequate reparation.41

(b) The content of Inter-American responsibility Inter-American responsibility consists of the obligation to make reparation, an obligation which is realized according to modalities similar to those encountered under the customary law of State responsibility. (i) The obligation to make reparation for the harmful consequences of an internationally wrongful act In stating that ‘[i]t is a principle of international law, which jurisprudence has considered “even a general concept of law,” that every violation of an international obligation which results in harm creates a duty to make adequate reparation’,42 the Inter-American system restated a rule of 43

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customary international law, previously stated by the Permanent Court of International Justice.43 The rule of responsibility therefore operates objectively, attaching a particular consequence to the fact that the responsibility of a State is engaged after verification of a hypothesis which the rule envisages: a violation which is imputable to the State and causes damage. This consequence is embodied in the obligation to make reparation. Further, given that Inter-American law determines the scope of that obligation, its modalities and its beneficiaries, the responsible State cannot rely on its domestic law to justify its non-compliance.44 Inter-American law attaches effects to the harmful consequences of an act giving rise to international responsibility, whether one is dealing with the violation of a subjective right of a State (ie to have human rights obligations respected) or damage suffered immediately by the beneficiaries of the obligation in question, because Inter-American responsibility constitutes a mechanism for ensuring reparation. The Inter-American Court has authoritatively asserted that the system of protection of human rights, and in particular the American Convention, does not have any penal vocation: [t]he international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.45

References (p. 749) In its judgment on damages in the same case, the Court reiterated its denial of the existence of any penal dimension or aim of the compensation awarded in respect of harm suffered by the victim of a violation, refusing to award punitive or exemplary damages.46 Inter-American responsibility does not therefore sanction a breach of international legality arising from the violation of a human right, nor does it have a deterrent effect, nor is intended to punish a State for its unlawful conduct. It is its function to restore the victim to his or her international rights, by guaranteeing reparation of the harm suffered. In this regard, the specificity of the Inter-American system in creating rights directly invocable by individuals logically finds its expression in the obligation to make reparation: an injured individual, just as is the case with an injured State, is the beneficiary of a secondary obligation to make reparation. (ii) Modalities of implementation: the relevance of traditional solutions Although the Inter-American Commission may pronounce upon the obligation to make reparation incumbent on a responsible State, its rulings in that regard lack binding force. The Inter-American Commission lacks any powers to enforce its decisions and cannot impose on States any process by which they must comply with those pronouncements. The Inter-American Commission therefore limits itself to the formulation of proposals and recommendations with a view to remedying the situation under consideration. By contrast, the Inter-American Court has powers of enforcement and can order measures by way of reparation in its judgment on the merits.47 However, most often, in the absence of an agreement between the Inter-American Commission and the defendant State within the time limit fixed by the judgment on merits it delivers a separate judgment on the question of reparation. The Court derives its powers from article 63(1) of the American Convention, pursuant to which: … [i]f the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.

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Though this primary provision authorizes the Court to impose the modalities of reparation on the merits, the modalities it usually uses are largely borrowed from the customary international law on responsibility. According to the Court itself, ‘[t]his article codifies a rule of customary law which, moreover, is one of the fundamental principles of current international law, as has been recognized by this Court … and the case law of other tribunals’.48 This does not, however, preclude the fact that the nature of the violation in question determines what amounts to adequate reparation. As regards restitutio in integrum, the Inter-American Court has declared that it is only one mode of reparation among others, given that it may prove to be unsatisfactory.49 In practice, however, the Court will opt for an alternative form of reparation only if it is satisfi ed that restoration of the status quo ante is impossible, insufficient or inadequate.50

References (p. 750) By presenting restitution as the preferred means of reparation in relation to breach of an obligation under Inter-American law, the Inter-American Court apparently wished to demonstrate that the purpose of the Inter-American mechanisms of responsibility is to require the State to erase the consequences of violation and to restore the situation affected by the illegal act as regards the victim. The Court accordingly immediately adopted the principle of restitutio in integrum, as enunciated by the Permanent Court of International Justice,51 in an area in which the European Court of Human Rights has shown a certain reluctance to apply that principle as normally applicable under customary international law. The Inter-American Court has even confused restitutio with the principle of full reparation, holding that it ‘includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm’.52 Article 63(1) of the American Convention empowers the Inter-American Court to order that the victim be guaranteed enjoyment of the right violated. Measures of this type deal with the conduct of the State for the future, and are therefore equivalent to an order for cessation of a continuing illegal act.53 The Court can equally order reparation for the consequences of the measure or situation which results from the breach, which confers upon it a broad power to make injunctions. In cases involving Honduras the Inter-American Court showed restraint, refusing to order that Honduras was required, as a form of reparation, to carry out investigations, to prevent further disappearances and to punish the individuals responsible for the violations. However, in that regard, it referred to its previous judgments on the merits, in which it had declared that the obligation to guarantee the free and full exercise of the recognized rights comprised such measures.54 In later cases, the Court has recalled that the obligation to investigate had to be undertaken with seriousness and not as a mere formality,55 as well as emphasizing the need to investigate, prosecute, capture, try and sentence those responsible for human rights violations as a means of preventing impunity.56 If one follows the analysis adopted by the ILC, what is at issue here is the continuing duty of the responsible State to perform the primary obligation, separate from the question of reparation consequent upon its breach.57 Nevertheless, in another case involving forced disappearances, the Court ruled in favour of judicial measures of reparation and considered that adequate reparation under article 63(1) of the Convention would be comprised of ‘the continuation of the judicial proceedings inquiring into the disappearances of [the victims] and punishment of those responsible in conformance with Colombian domestic law’.58 Although such measures are aimed at bringing an end to a continuing illegality, they consist of more than a mere element of the duty to execute the primary obligation, as they also aim at eliminating the consequences of the illegal conduct, as well as guaranteeing to the victim that there will be no repetition of comparable violations. The measures do not derive from

References (p. 751) the primary obligation, but consist of the imposition of a new obligation, which brings them within the field of reparation, as is also indicated in article 30 of the ILC Articles. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Decisions of the Inter-American Court relating to compensation are based on the principles relating to reparation under customary international law. Therefore the Inter-American Court has conferred on the grant of compensation for violations of the human person the same role as compensation plays under customary law: the responsible State is bound to indemnify the damage caused by its act in so far as reparation by restitution is not possible.59 The compensation required covers both material loss and non-material damage, extra-patrimonial damage being generally calculated according to an equitable evaluation and supported by a methodical process often relying on expert reports.60 In order to establish the causal link between the internationally wrongful act and the injury, the Inter-American Court has distinguished between beneficiaries. As to heirs, it applies the principle of transmissibility of damage, subject to contrary proof by the respondent State.61 In a case concerning persons belonging to a tribal society which accepted polygamy and in which there existed no register of births and deaths, the Court identified the heirs by interpreting local customs in the light of general principles of law governing the identification of heirs; 62 on that basis, the Court decided to award compensation to the different spouses of the victims.63 As for persons who, although not qualifying as heirs, are in a situation of ‘dependency’ vis-à-vis the victim, the Court has considered that material damage could not be presumed in their case. Such persons must therefore provide evidence of their financial dependence.64 On the other hand, for parents who do not qualify as successors, the Court presumes the existence of moral damage caused by the death of their children.65 In another judgment, the Inter-American Court relied on two arbitral awards dating back to the beginning of the 19th century in order to conclude that the moral suffering of a victim of a grave violation of human rights requires no specific proof.66 Though they do not belong to general international law, the rules relating to State responsibility in the Inter-American system substantially draw their inspiration from it, partly because those rules have been applied by institutions empowered to apply them by reference to customary international law. The applicable rules do not modify the content of the latter and, consequently, do not exclude its application. The consequences of a violation of an Inter-American obligation are therefore governed by Inter-American law as well as by customary international law.

2 The implementation of Inter-American State responsibility Even though Inter-American State responsibility is engaged independently of it being invoked, it is nevertheless necessary to point out the different options open to States and the individual beneficiaries of guarantees, and the likely outcomes of those options. The contribution of InterAmerican law to the protection of human rights and international

References (p. 752) State responsibility is most significant in terms of its implementation. It goes beyond classical solutions both as to the establishment of responsibility and to the consequences attaching to it.

(a) Establishing Inter-American responsibility The Inter-American system comprises a mechanism of dispute resolution which makes the concept of the responsible State an objective one, such as even to exclude general international law. Indeed, that mechanism organizes the techniques by which Inter-American State responsibility may be established, and complements them with a largely open-ended cause of action. (i) The objective and exclusive character of Inter-American responsibility The rule which sets out the conditions for the existence of responsibility enables identification of the responsible State. The rule enumerates the necessary characteristics which must be present in order for a State to fall within the category of responsible States and does not require any form of

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legal act as a precondition to that responsibility arising. In the event of litigation, any judgment which decides that a State is responsible in law is therefore only declaratory of that state of affairs and is not constitutive of responsibility. However, it is not merely because the responsibility of a State is objectively engaged under international or Inter-American law that its responsibility is established. Accordingly, to affirm that a judgment making a finding of responsibility is only declaratory of that condition does not mean that it has no effect. If the judgment holds that the State is responsible, the latter can no longer claim that it is under no obligation to make reparation; its responsibility is beyond doubt. And if the judgment denies any responsibility, the State will no longer have to prove that it is not responsible. Thus, while the rule imposing responsibility is selfstanding, it is only realized through those organs empowered to apply it. The rule supposes that in a particular situation the responsibility of one State or another will be acknowledged. Under general international law State responsibility may, in certain circumstances, be a question of subjective appreciation of States. However, by establishing a procedure whereby an organ has power to interpret the law by means of binding decisions and can be called upon to adjudicate on the responsibility of State parties to the Inter-American Convention, Inter-American responsibility becomes an objective concept. Further, by recog nizing the right of individuals to initiate proceedings before the Commission, as well as in recognizing that the latter may appear before the Court in representing common interests, it removes the implementation of that responsibility from the classical purely inter-State framework. Does this therefore mean that these methods of dispute resolution are exclusive of those under general international law? The general rules on international responsibility co-exist with those on Inter-American responsibility, which do not supplant but rather complement them. The responsibility of a State for a violation of the American Convention can therefore be engaged under general international law. Nevertheless, by providing for the competence of organs ‘with respect to matters relating to the fulfilment of the commitments made by the States Parties to this Convention’, should article 33 of the Convention be understood as excluding the establishment of the responsibility of a State for a violation of the Convention under general international law? Would a State party to the American Convention be entitled,

References (p. 753) basing itself on another jurisdictional basis, to claim reparation for harm which it has suffered following the violation of the Convention by another State party? May one State take action against another by way of representation of the interests of one of its nationals, which lacks procedural capacity, before an international court having general competence? By contrast to some other international treaties which affirm that their provisions are without prejudice to rules on dispute resolution already in force between the State parties, the American Convention does not specify whether the mechanisms it sets up to establish responsibility co-exist with other more general techniques of settlement of disputes. If one considers the underlying reasons for the commitment of State parties to the American Convention, which lies in the regime of collective guarantees of rights which they have established in favour of the subjects of the State, rather than of the States themselves,67 one might think that the means of protection provided by the InterAmerican Convention exclude the rules of settlement of disputes under general international law. If that is correct, the American Convention therefore clarifies and limits the rights of the State such that the responsibility of a State for violation of the American Convention can only be held to be established under Inter-American law. It is only within the Inter-American system that such responsibility may be realized. (ii) Mechanisms for the establishment of Inter-American responsibility The Inter-American Commission of Human Rights is competent to receive and examine individual petitions alleging a violation by an OAS member State of the rights proclaimed in the American Declaration. The American Convention also confers on the Commission competence to examine From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

individual petitions and inter-State communications relating to the violation of the Convention of a State party.68 While the competence it derives from article 44 in relation to individual petitions is mandatory, that conferred by article 45 in relation to inter-state complaints is conditional, insofar as it is subject to acceptance by both the claimant and respondent States. Within the exercise of its functions, the Inter-American Commission is therefore frequently called upon to determine whether the conditions for the existence of Inter-American responsibility are present. However, the responsibility of a State cannot be held to be established by this mechanism for two reasons. First, the Commission does not necessarily come to a decision on the basis of law, given that its competence extends to the American Declaration of 1948, whose mandatory scope is sometimes contested. Accordingly, in numerous cases in which the obligations of the respondent State were uncertain, the Commission has relied, with disconcerting assurance, on bodies of external rules in order to conclude that the American Declaration contains rules opposable to OAS member States. For instance, reliance on jus cogens enabled it to conclude that the United States was internationally responsible for having applied the death sentence to minors, based on a prohibition that the United States had refused to recognize as a customary rule, or even as having the characteristics of a rule of law.69 Second, the American Convention does not specify the effects in law of a report adopted by the Commission. Admittedly, such reports are an acknowledgment

References (p. 754) by an authority on which the American Convention confers competence to monitor the way in which the State parties discharge their obligations. However, even if the Inter-American Commission officially establishes the existence of responsibility, its recommendations do not have any binding force and, even less, definitive authority. Indeed, the Inter-American Court has the power to entirely review and reopen any findings by the Commission. Action by the Commission therefore does not permit the responsibility of a State to be held to have been established and the accused State is entitled to contest that its responsibility is engaged, and therefore to deny that it is under an obligation to make reparation. When its jurisdiction has been recognized by the respondent State, the Inter-American Court is competent to hear disputes relating to the interpretation and application of the American Convention and which have not been previously resolved following recommendations by the Commission. The judgments of the Inter-American Court are made on the basis of law and are binding. A judgment of the Court that a State is responsible cannot be contested by the responsible State, which is bound to comply with the judgment. Even though a judgment of the Court is the only unilateral means of establishing Inter-American responsibility, it is subsidiary and not exclusive, given that, in accordance with the terms of article 61(2) of the American Convention, the intervention of the Court depends on the failure to produce a settlement in proceedings before the Inter-American Commission. Accordingly, as a matter of Inter-American law, responsibility will be held to be established where the respondent State has recognized its responsibility during the proceedings before the Inter-American Commission, or, in default thereof, that responsibility is declared by a judgment of the Inter-American Court. Nevertheless the judicial route for the establishment of responsibility, although subsidiary, offers a not unimportant guarantee of objectivity, to which is to be added the purposive and constructive method of interpretation adopted by the Inter-American in order to ensure the effective protection of the rights under the American Convention. Accordingly, the Inter-American Court has found violations of rights which are not included in the text of the American Convention; this is most obviously the case in relation to the practice of forced disappearances, which the Inter-American Court has characterized as constituting a ‘multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee’,70 a definition which appears to have influenced the European Court of Human Rights.71

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Above all, the Inter-American Court has extended the situations in which State responsibility can be engaged by giving precise and concrete content to the duties of prevention and repression. Relying on article 1(1) of the American Convention, the Inter-American Court has made the doctrine of positive obligations to ensure human rights systematic, requiring the State not only to control its own activities, but also to protect individuals against acts which it does not directly control. Coupled with the method of attribution discussed above, such reasoning has the advantage of rendering possible the engagement of the responsibility of the State for acts committed by private persons against other individuals, where the ‘direct’ responsibility of the State might have been engaged only with

References (p. 755) difficulty. This reasoning has subsequently been transposed to all similar situations and in particular has been applied to the practice of forced disappearances.72 Based on article 1 of the American Convention, the Court has therefore been able to build a large and efficient system of protection, from which other specific treaties concluded within the framework of the OAS have drawn inspiration. Article 1 of the 1985 Inter-American Convention,73 the 1994 Inter-American Convention on Forced Disappearances,74 and article 7 of the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women75 contain the same notion relating to the guarantee of rights. (iii) Causes of action alleging responsibility The individual right of recourse recognized by the American Convention and the OAS Charter enables individuals under the jurisdiction of a State party to bring a claim before the Inter-American Commission alleging that a State is responsible for a violation of its Inter-American obligations, as a result of which the individual has suffered harm. Within the framework of the American Convention, ‘any person, group of persons, or any nongovernmental entity legally recognized in one or more Member States of the Organisation’ is capable of filing a complaint.76 The exercise of the individual right of recourse is subject to certain conditions, including, among others, the exhaustion of local remedies; this is a manifestation of the subsidiary character of international proceedings and gives the State an opportunity to remedy the alleged international violation. The Court has rigorously applied this condition.77 The admissibility of requests also depends on the locus standi of the applicant. On this point, Inter-American law does not differ from general international law relating to international disputes. However, by granting to the individual the capacity to bring a claim directly before the Inter-American Commission, Inter-American law makes the individual the holder of a subjective right: that of obtaining reparation for harm suffered by him or her in consequence of a State’s unlawful conduct. The individual must therefore show that he or she is personally affected by the acts or omissions of the State. In this respect, Inter-American responsibility departs from typical inter-State relations of international responsibility. By virtue of article 45 of the American Convention, any Contracting State may seise the Commission in relation to a violation of the provisions of the Convention by another State

References (p. 756) party, whoever the victims may be and therefore even if they are nationals of the defendant State. In practice States are reluctant to consent to this procedure: only 11 States have recognized the Commission’s competence to deal with inter-State requests. It was used for the first time in 2006, although the application, brought by Nicaragua against Costa Rica, was dismissed as inadmissible, inter alia on the basis of non-exhaustion of domestic remedies.78 But nevertheless its existence is significant, insofar as it is an example of a situation in which the Member States of a collective body are (subject to their provision of the necessary consent in that regard) given a right to commence an action to defend superior goals established by a treaty to which they have all From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

signed up, implying that each State has an interest to act in order to ensure respect for objective legality. Such a mechanism is not entirely consistent with the classic law relating to the settlement of international disputes, according to which the capacity to bring a claim depends on the personal interest of the claimant State in having the defendant observe the violated obligation. By providing for a means of action open to all Member States, the American Convention makes clear that a violation of its provisions affects the subjective right of each of them, in such a way that the capacity of each State party coincides with that of an injured State. This extension of standing before the Inter-American Commission indicates a willingness to protect a defined common interest. The general interest is protected by means of subjective rights conferred on the different States, such that each one may individually request respect for the guaranteed rights. In this way, the American Convention sets out obligations having effect erga omnes partes. This was affirmed by the Inter-American Commission, which extended this to all Inter-American obligations: ‘the obligations assumed by each Member State toward the Inter-American community, represented by its organizations and toward each and every one of the Member States of the Union … are obligations erga omnes’.79 All the participating States therefore hold an individual subjective interest that human rights, erga omnes partes obligations, are respected. By commencing an action before the Inter-American Commission against another State which violates an InterAmerican obligation, a State does not represent the interests of the Inter-American community. It introduces an action with a view to ensure respect for an interest, which although collectively designated, is an individual interest of the applicant State: to see a rule which has the force of law between itself and the State respected. Only States and the Inter-American Commission can seise the Inter-American Court; private individuals do not have a direct right of access to the court.80 Similarly, a respondent State before the Inter-American Commission can decide to refer the case before the Court.81 However, is the admissibility of the action before the Court linked to the capacity of the State as party to the proceedings before the Commission? In other words, and subject to reciprocal acceptances of jurisdiction, can any State party to the Convention submit to the Court a case against another State party, as soon as proceedings before the

References (p. 757) Commission exhausted? If the American Convention recognizes that all its participants have an individual subjective interest that its provisions are respected, why should it then restrain their procedural capacity? Article 61 simply provides that ‘States Parties’ to the Convention have ‘the right to submit a case to the Court’. The Inter-American Court has not had the opportunity to consider the question. The American Convention further authorizes the Inter-American Commission to submit cases which cannot be settled amicably following its intervention to the Court, whatever the origin of the case, whether arising from an individual petition or an inter-State complaint. It further provides for the mandatory participation of the Commission in any contentious procedure brought before the Court: The Convention … in addition to giving the Commission formal standing to submit cases to the Court and to request advisory opinions and to giving it in proceedings before the Court a quasijudicial role, like that assigned to the ‘Ministerio Público’ of the inter-American system, obligated to appear in all cases before the Court (Article 57 of the Convention).82 The Commission is an authority not to be confused with the member States of the organization; it acts, not as a representative of those from whom the claim originates, whether a State or an individual. It appears before the Court as a representative of community interests, as a third party agent. In this way the Inter-American system also departs from the classical inter-state framework of responsibility.

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(b) The consequences attaching to the establishment of Inter-American responsibility Whilst the European Court of Human Rights does not have the power to decide what measures should be taken in execution of its judgments, the Inter-American Court possesses powers of injunction and monitoring of the execution of its judgments, enabling it to impose on the responsible State the means by which it must discharge its secondary obligations. The situation of the responsible State is therefore objective, determined by a binding judicial decision. Further, by attaching to the establishment of responsibility consequences going beyond those under customary law, and sometimes not relating to responsibility as perceived under general international law, the Inter-American Court has made full use of the latitude conferred upon it by article 63 of the American Convention. (i) Moves beyond classical solutions While many of the aspects of reparation are borrowed from general international law, it is nevertheless an area in which the creativity of the Inter-American Court has manifested itself. Hence the Court has made use of the wide margin of appreciation permitted in the American Convention in order to grant non-pecuniary measures. For example, it has not hesitated to order Suriname to re-open a school and a medical dispensary,83 thereby dispensing with the requirement of a causal link between the harm suffered and the violation found. The Inter-American Court has also demonstrated that its injunctive power of was of considerable importance when it came to granting compensation, providing directions as

References (p. 758) to the destination of payments ordered as reparation. For instance, in the early Honduran cases, it did not limit itself to making an order for payment of compensation: it also required that the sums granted to the children of the victims be placed in a blocked account at the Central Bank of Honduras and managed by a fiduciary,84 who was placed under a further duty to enhance the purchasing power of the sum allocated by the Court.85 The Inter-American Court repeated the process in the Aloeboetoe case, ordering the appointment of two fiduciaries upon whom it conferred the administration of a foundation; Suriname was required to contribute to the costs of setting up the foundation and prohibited from hindering its activities.86 Starting with the first contentious case in which it found that a violation of the American Convention had occurred, the Court has imposed on the responsible State a mandatory time limit of three months for compliance with its obligations. Even more remarkable is the fact that the Inter-American Court has recognized a power to supervise the manner in which effect is given to its judgments, even though no provision of the American Convention expressly empowers it to do so. In that regard, the Court has held that compliance with its judgments relating to compensation requires the maintenance of the original purchasing power of the award. If the responsible State does not abide by the judgment, as was the case with Honduras in relation to payment within the time limit originally set by the judgments, the Inter-American Court will order the payment of interest in order to protect the value of the compensation awarded.87 Such interest will cover not only the delay in payment but also the loss of value of the sum as from the date on which payment of the compensatory sum awarded should have been made.88 (ii) Moves away from classical solutions In a number of judgments against Peru relating to its treatment of civilians before military tribunals in conditions found by the Inter-American Court to be incompatible with the requirements of due process, the Court annulled domestic judicial acts which were otherwise compatible with Peruvian legislation; ordered that applicants be guaranteed a new trial compatible with the principles of due process; and required the adoption of measures reforming Peruvian law.89 Those measures were

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ordered by way of reparation. In doing so, the Court attached consequences to that concept clearly going beyond those flowing from general international law on responsibility. In order for the Inter-American Court to have the power to nullify a domestic judgment, it would be necessary to demonstrate that that nullity followed as a result of the violation of an international rule dealing with the validity of domestic judicial acts. Further, it would be necessary to show that the Inter-American Court was in fact competent to

References (p. 759) order such measures. However, the American Convention is only concerned with the acts and omissions of States; it contains no rules dealing with domestic judicial decisions, nor does it expressly confer any power upon the Inter-American Court permitting it to annul domestic judgments or quash their effects. The highest domestic courts of Peru adopted a position consistent with the text of the American Convention. In June 1999, the Sala Plena of the Supreme Council of Military Justice and the Second Transitional Criminal Chamber declared that the judgment on the merits in Castillo Petruzzi and the remedial sentence in Loayza Tamayo, respectively could not be executed; in their view, the domestic judgments remained valid despite the judgments rendered by the Inter-American Court. Given the affirmation that the domestic judgments in question were valid under Peruvian law, the Inter-American Court was limited to holding that those decisions constituted illegal acts and to concluding, in application of article 63(1) of the Convention, that it remained incumbent upon Peru to restore the victims’ rights in compliance with the original judgments.90 It is of course true that restitution is dependent upon stringent conditions; if the act giving rise to responsibility is a judicial act, restoration of the previous position presupposes that the act in question can be withdrawn or be declared null and void. However, in addition it must be established that the domestic judgment, or the material conduct which it formalizes, is in fact the act giving rise to the violation, an unlikely scenario. The alternative, more plausible, hypothesis is that the act from which the violation arises is an omission, the failure to guarantee them right to due process by the organs and agents of the Peruvian State at all stages of the proceedings. In any case, and even if the domestic judgments cannot be distinguished from such an omission, their annulment or withdrawal can only be carried out by a domestic decision. The approach of the Inter-American Court contributes to an erosion of the principle of responsibility, which on this approach operates not by ensuring reparation of the harmful consequences of an internationally wrongful act, but by affecting the validity of a domestic act. But the Court had gone further, ordering Peru to modify its legislation which provided for the competence of military tribunals so that new judgments would be delivered by civil courts. That injunction, purportedly made as part of reparation, raises the question of the extent to which such measures may in fact be regarded as reparation for the breach of the primary obligation. To the extent that they may not, the Inter-American Court would appear to be embarking on a mission beyond that conferred on it by the American Convention, as was in fact argued by Peru. In its two Orders relating to enforcement, the Inter-American Court however considered that its judgments bound ‘all of the authorities and organs of the State’,91 relying in that regard on the rule according to which a State may not invoke its own domestic law to justify the violation of an international rule.92 Peru

References (p. 760) decided to withdraw, with immediate effect, its acceptance of the compulsory jurisdiction of the Inter-American Court; the Court subsequently held that action to be ineffective.93 This substantial extension of the potential consequences for the responsible State of an internationally wrongful act derives results from an effort by the Inter-American Court to consolidate From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

and enhance the guarantee of human rights. The exercise by the Inter-American Court of its contentious powers nevertheless tends to divert the purpose of responsibility from its remedial function, therefore operating to blur the line between international responsibility and the international dispute. In that regard, one may postulate that State responsibility in the InterAmerican system is now to be understood as governed by a self-sufficient special body of law, providing not only for consequences not envisaged by general international law, but also excluding some aspects of general international law in order to achieve its objective of the protection of human rights. Further reading E Abad Martínez, ‘Ciudadanía protección internacional de los derechos humanos: el caso del Perú y la Corte interamericana de derechos humanos’ (2000) 16 Anuario de derecho internacional 449 J Benzimra-Hazan, ‘Disparitions forcées de personnes et protection du droit à l’intégrité: la méthodologie de la Cour interaméricaine des droits de l’homme’ (2001) 47 Revue Trimestrielle des droits de l’homme 765 A Cançado Trindade, ‘Le système inter-américain de protection des droits de l’homme: état actuel et perspectives d’évolution à l’aube du XXIe siècle’ (2000) 46 AFDI 548 A Cançado Trindade, ‘Co-existence and Coordination of Mechanisms of International Protection of Human Rights’ (1987) 202 Recueil des cours 21 D Cassel, ‘El Perú se retira de la Corte: afrontará el reto el sistema interamericano de derechos humanos?’ (1999) 29 Revista instituto interamericano de derechos humanos 69 C Cerna, ‘The Structure and Functioning of the Inter-American Court of Human Rights (1979– 1992)’ (1992) 63 BYBIL 135 C Cerna, ‘Questions générales de droit international examinées par la Cour interaméricaine des droits de l’homme’ (1996) 42 AFDI 715 G Cohen-Jonathan, ‘L’arrêt Velasquez’ (1990) 94 RGDIP 455 G Cohen-Jonathan, ‘Responsabilité pour atteinte aux droits de l’homme’, in La responsabilité dans le système international (Colloque du Mans 31 mai–2 juin 1990, Paris, Pedone, 1991) 101 H Dipla, La responsabilité de l’Etat pour violation des droits de l’homme—problèmes d’imputation (Paris, Pedone, 1994) P Frumer, ‘La réparation des atteintes aux droits de l’homme internationalement protégés— Quelques données comparatives’ (1996) 27 Revue trimestrielle des droits de l’homme 329 P Frumer, ‘Entre tradition et créativité juridiques: la jurisprudence de la Cour interaméricaine des droits de l’homme’ (1995/2) RBDI 514 H Gros Espiell, ‘La Convention américaine et la Convention européenne des Droits de l’Homme. Analyse comparative’ (1989-VI) 218 Recueil des Cours 171 J Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge, CUP, 2003) M Pinto, ‘La réparation dans le système interaméricain des droits de l’homme; A propos de l’arrêt Aloeboetoe’ (1996) 42 AFDI 733

References (p. 761) V Rodríguez Rescia, ‘Las reparaciones en el sistema interamericano de protección de derechos humanos’ (1996) 23 Revista instituto interamericano de derechos humanos 129 B Santoscoy, La Commission interaméricaine des droits de l’homme et le développement de sa compétence par le système des pétitions individuelles (Paris, PUF, 1995) D Shelton, ‘Reparations in the Inter-American System’, in D Harris & S Livingstone (eds), The Inter-American System of Human Rights (Oxford, Clarendon Press, 1998), 151

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H Tigroudja, ‘L’autonomie du droit applicable par la Cour interaméricaine des droits de l’homme: en marge d’arrêts et avis consultatifs récents’ (2002) 49 Revue trimestrielle des droits de l’homme 67(p. 762)

Footnotes: ∗ This piece was originally finalized in April 2002. 1 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 23, citing Factory at Chorzów: Jurisdiction, 1927, PCIJ, Series A, No 9, p 21; Merits, 1928, PCIJ, Series A, No 17, p 29; and Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174, 184. 2 American Convention on Human Rights, San José, 22 November 1969, OAS TS No 36; 1144 UNTS 123. 3 Cf art 1, ARSIWA. 4 Charter of the Organization of the American States, Bogotá, 30 April 1948, 119 UNTS 3, as subsequently amended by the Protocol of Buenos Aires, 27 February 1967, the Protocol of Cartagena de Indias, 5 December 1985, the Protocol of Washington, 14 December 1992 and the Protocol of Managua, 10 June 1993. 5 Art 106, Charter of the OAS (as subsequently amended). 6 Statute of the Inter-American Commission on Human Rights; approved by Resolution 447 of the General Assembly of the OAS, 9th Regular Session, October 1979; subsequently modified by Resolution 1098 of the General Assembly of the OAS, 21st Regular Session, June 1991. 7 American Declaration of the Rights and Duties of Man, OAS Resolution XXX, Final Act of the Ninth International Conference of American States, Bogotá (1948), reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007). 8 See Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights (Advisory Opinion OC10/89), Inter-Am Ct HR, Series A, No 10 (1989), paras 43–47. 9 Inter-American Convention to Prevent and Punish Torture, Cartagena de Indias, 9 December 1985, OAS TS, No 67, reproduced in Basic Documents Pertaining to Human Rights in the InterAmerican System, OAS/Ser.L/V/I.4 rev.12 (2007). 10 Durand and Ugarte v Peru, Merits, Inter-Am Ct HR, Series C, No 68 (2000), para 73ff. 11 Las Palmeras v Colombia, Preliminary Objections, Inter-Am Ct HR, Series C, No 67 (2000), para 33. 12 See International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts 1 and 2 of the American Convention on Human Rights)(Advisory Opinion OC-14/94), Inter-Am Ct HR, Series A, No 14 (1994), para 50; Loayza-Tamayo v Peru, Merits, InterAm Ct HR, Series C, No 33 (1997), paras 24; 51–55. 13 Cf art 78(2), American Convention on Human Rights. 14 See eg the observations of the Inter-American Commission in relation to the responsibility by Cuba as the result of omissions: Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser. L/V/II.97, Chapter V, para 58. 15 Blake v Guatemala, Merits, Inter-Am Ct HR, Series C, No 36 (1998), paras 65 and 67; see previously Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 155, and Godínez Cruz v Honduras, Merits, Inter-Am Ct HR, Series C, No 5 (1989), para 163. 16 See art 14(2) ARSIWA. 17 Blake v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 27 (1996), para 34; From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Merits, Inter-Am Ct HR, Series C, No 36 (1998), para 53. 18 Blake v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 27 (1996), para 40; Merits, Inter-Am Ct HR, Series C, No 36 (1998), para 67. 19 Certain Attributes of the Inter-American Commission of Human Rights, (Advisory Opinion OC13/93), Inter-Am Ct HR, Series A, No 13 (1993), paras 26–27. 20 Garrido and Baigorria v Argentina, Reparations and Costs, Inter-Am Ct HR, Series C, No 39 (1998) para 38; The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (Advisory Opinion OC-16/99), Inter-Am Ct HR, Series A, No 16 (1999), paras 138–140. 21 Las Palmeras v Colombia, Preliminary Objections, Inter-Am Ct HR, Series C, No 67 (2000), para 32. 22 Ibid. 23 The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), (Advisory Opinion OC-2/82), Inter-Am Ct HR, Series A, No 2 (1982), para 29. 24 Cf art 50(1)(b), ARSIWA. 25 See, inter alia, Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 160. 26 Ibid, para 172. 27 Ibid, para 170. 28 Ibid, para 171. 29 Ibid, para 173. 30 Ibid, para 183. 31 Ibid, para 184. 32 Ibid, para 172. 33 Ibid, para 166. 34 Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev. at 127, paras 80–96. 35 See United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Report 1980, p 3, 31–33 (paras 63–67); see also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, p 14. 36 Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev. at 127, para 76. 37 Arges Sequeira Mangas v Nicaragua (Case 11.218), Inter-Am Com HR, Report No 52/97 of 18 February 1998 Annual Report of the Inter-American Commission on Human Rights 1997, OEA/Ser.L/V/II.98, Doc. 6, para 142. 38 Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., 127 para 104. 39 International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts 1 and 2 of the American Convention on Human Rights) (Advisory Opinion OC14/94), Inter-Am Ct HR, Series A, No 14 (1994), para 50. 40 Ibid, paras 41–43.

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41 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25, quoting Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29. 42 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 25. 43 Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29. 44 Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 44. 45 Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 134. 46 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 38. 47 Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994). 48 Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 43. 49 Ibid, para 49. 50 Ibid; see also Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 189; Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 16 (1994), para 69; Neira Alegría et al v Peru, Merits, Inter-Am Ct HR, Series C, No 20 (1995), para 89; Caballero Delgado and Santana v Colombia, Reparations and Costs, Inter Am-Ct HR, Series C, No 31 (1997), paras 15–17. 51 Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, 47. 52 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), paras 24–26. 53 Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 46. 54 See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 34; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 32. 55 El Amparo v Venezuela, Reparations and Costs, Inter-Am Ct HR Series C No. 28 (1996), para 61. 56 Case of the ‘White Van’ (Paniagua Morales et al v Guatemala), Merits, Inter-Am Ct HR, Series C, No 37 (1998). 57 See art 29, ARSIWA. 58 Caballero Delgado and Santana v Colombia, Merits, Inter-Am Ct HR, Series C, No 22 (1995), para 69. 59 See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), paras 26–27, 30–31; Castillo Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series C, No 43 (1998), para 69. 60 See Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 51; Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), paras 87–90. 61 Ibid, para 54. 62 Ibid, paras 61–62. 63 Ibid, paras 65–66 64 Ibid, para 68.

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65 Ibid, para 76. 66 Castillo Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series C, No 43 (1998), para 86, referring to Maal, 1 June 1903, 10 RIAA 730, 732, & 733; Campbell, 10 June 1931, 2 RIAA 1145, 1158. 67 See Ivcher Bronstein v Peru, Competence, Inter-Am Ct HR, Series C, No 54 (1999), para 42; Case of the Constitutional Court v Peru, Competence, Inter-Am Ct HR, Series C, No 55 (1999), para 41. 68 Arts 44 and 45, American Convention on Human Rights. 69 See eg Pinkerton and Roach v United States (Case 9647), Inter-Am Com HR, Report No 3/87 of 22 September 1987, Annual Report of the Inter-American Commission on Human Rights 1986–87, OEA/Ser. L/VII. 71, Doc. 9, Rev. 1, 146–147, paras 50–56. See also Coard et al. v United States (Case 10.951), Inter-Am Com HR, Report No 109/99 of 29 September 1999, Annual Report of the Inter-American Commission on Human Rights 1999, OEA/Ser.L/V/II.106 doc. 6 rev, paras 38–40. 70 Velásquez Rodríguez v Honduras, Merits, Inter-Am Ct HR, Series C, No 4 (1988), para 155. 71 See eg Timurtaş v Turkey (App No 23531/94), ECHR, Reports 2000-VI, para 103. 72 See Godinez-Cruz v Honduras, Merits, Inter-Am Ct HR, Series C, No 5 (1989); Case of the ‘White Van’ (Paniagua-Morales et al) v Guatemala, Preliminary Objections, Inter-Am Ct HR, Series C, No 23 (1996); Castillo Páez v Peru, Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996); Loayza Tamayo v Peru, Preliminary objections, Inter-Am Ct HR, Series C, No 25 (1996); Garrido and Baigorria v Argentina, Merits, Inter-Am Ct HR, Series C, No 26 (1996). 73 Inter-American Convention to Prevent and Punish Torture, Cartagena de Indias, 9 December 1985, OAS TS, No 67, reproduced in Basic Documents Pertaining to Human Rights in the InterAmerican System, OAS/Ser.L/V/I.4 rev.12 (2007). 74 Inter-American Convention on Forced Disappearances, Belém do Pará, 9 June 1994, reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007). 75 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, Belém do Pará, 9 June 1994, reproduced in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (2007). 76 Art 44, American Convention on Human Rights. 77 See In the matter of Viviana Gallardo et al., Inter-Am Ct HR, Series A, No 101/81, decision of 13 November 1981, paras 26–27; Velázquez Rodríguez v Honduras, Preliminary Objections, InterAm Ct HR, Series C, No 1 (1987), paras 60–68, 88; Fairén Garbi-Solís Corrales v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 2 (1987), para 8; Godínez Cruz v Honduras, Preliminary Objections, Inter-Am Ct HR, Series C, No 3 (1987), para 90; Gangaram Panday v Suriname, Preliminary Objections, Inter-Am Ct HR, Series C, No 12 (1991) para 39; Castillo-Páez v Peru, Preliminary Objections, Inter-Am Ct HR, Series C, No 24 (1996), para 43. 78 Nicaragua v Costa Rica (Interstate Case 1/06), Inter-Am Com HR, Report No 11/07 of 8 March 2007, Annual Report of the Inter-American Commission on Human Rights 2007, OEA/Ser.L/V/II.130, Doc. 22, rev. 1. 79 Victims of the Tugboat ‘13 de Marzo’ v Cuba (Case 11.436), Inter-Am Com HR, Report No 47/96 of 16 October 1996, Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95 Doc. 7 rev., 127, para 78. See also Coard et al v United States (Case 10.951), Inter-Am Com HR, Report No. 109/99 of 29 September 1999, Annual Report of the InterAmerican Commission on Human Rights 1999, OEA/Ser.L/V/II.106 doc. 6 rev, para 39; Arges Sequeira Mangas v Nicaragua (Case 11.218), Inter-Am Com HR, Report No 52/97 of 18 February 1998, Annual Report of the Inter-American Commission on Human Rights 1997, OEA/Ser.L/V/II.98, doc. 6, paras 143–144.

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80 Art 61(1), American Convention on Human Rights. 81 Ibid, arts 51(1) and 61(1). 82 In the matter of Viviana Gallardo et al, Inter-Am Ct HR, Series A, No 101/81, decision of 13 November 1981, para 22. 83 Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), para 96. 84 Velásquez Rodríguez v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 7 (1989), para 58; Godínez Cruz v Honduras, Reparations and Costs, Inter-Am Ct HR, Series C, No 8 (1989), para 31. 85 Velásquez Rodríguez v Honduras, Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 9 (1990), para 31. 86 Aloeboetoe et al v Suriname, Reparations and Costs, Inter-Am Ct HR, Series C, No 15 (1993), paras 99–108. 87 Velásquez Rodríguez v Honduras, Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 9 (1990), paras 40–42. 88 See also Godínez Cruz v Honduras, Interpretation of the Judgment of Reparations and Costs, Inter-Am Ct HR, Series C, No 10 (1990), para 40. 89 Loayza Tamayo v Peru, Reparations and Costs, Inter-Am Ct HR, Series C, No 42 (1998), para 192; Castillo Petruzzi et al v Peru, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No 52 (1999), paras 221–222, 226; Cesti Hurtado v Peru, Merits, Inter-Am Ct HR, Series C, No 56 (1999), paras 151, 199. 90 Castillo Petruzzi et al v Peru, Compliance with Judgment, Order of November 17, 1999, InterAm Ct HR, Series C, No 59 (1999); Loayza Tamayo v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 60 (1999). 91 Castillo Petruzzi et al v Peru, Compliance with Judgment, Order of November 17, 1999, InterAm Ct HR, Series C, No 59 (1999), para 3; Loayza Tamayo v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 60 (1999), para 6. 92 Castillo Petruzzi et al v Peru, Compliance with Judgment, Order of November 17, 1999, InterAm Ct HR, Series C, No 59 (1999), para 4; Loayza Tamayo v Peru, Compliance with Judgment, Order of November 17, 1999, Inter-Am Ct HR, Series C, No 60 (1999), para 7. 93 Ivcher Bronstein v Peru, Competence, Inter-Am Ct HR, Series C, No 54 (1999), Case of the Constitutional Court v Peru, Competence, Inter-Am Ct HR, Series C, No 55 (1999).

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Part IV The Content of International Responsibility, Ch.51.3 Responsibility for Violations of Human Rights Obligations: European Mechanisms Jean-Paul Costa From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 763) Chapter 51.3 Responsibility for Violations of Human Rights Obligations: European Mechanisms 1 Responsibility of States under the European Convention on Human Rights 764 (a) The notion of the breach of rights and freedoms of the Convention 765 (b) The notion of ‘jurisdiction’ of defendant States and the problems of extra-territorial responsibility 765 (c) Individual applications to the European Court of Human Rights 768 (d) Consequences of the responsibility of States: just satisfaction and other forms of execution of the judgments of the Court 770 (e) The devices resorted to by States to limit their responsibility: reservations, derogations, and immunities 771 2 Responsibility of States under the revised European Social Charter 772 Conclusion 773 Further reading 774 The European Convention on Human Rights,1 signed in Rome on 4 November 1950, established mechanisms of State responsibility for breaches of human rights which were unique at that time. This responsibility has particular characteristics which will be analysed in this Chapter. It will also be necessary to say a few words on another international instrument which was also signed in the context of the Council of Europe, the European Social Charter.2 The responsibility of States under the European Convention on Human Rights (and incidentally under the European Social Charter) thus entails specific characteristics which are not found in the law of State responsibility more generally. One of these characteristics is the fact that it is not From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

generally an inter-State resort, but it is mainly individual applications or complaints which oblige States to answer for their acts or omissions with regard to natural (or legal) persons who are the victims of injury caused by a State’s acts or omissions.

References

(p. 764) 1 Responsibility of States under the European Convention on Human Rights The European Convention on Human Rights originally foresaw a complex institutional mechanism which would operate through three institutions: the European Commission of Human Rights, the Committee of Ministers of the Council of Europe, and incidentally, even though its role was already fundamental, the European Court of Human Rights. Since Protocol No 11 to the Convention came into force on 1 November 1998,3 this mechanism has been profoundly changed and also simplified. The European Commission of Human Rights, which previously ruled on the admissibility of claims and had a filtering function, disappeared. The European Court of Human Rights became a single and permanent organ taking decisions on both admissibility and substance. Finally, the Committee of Ministers of the Council of Europe retained a role which is not jurisdictional or quasi-jurisdictional; it supervises the execution of final judgments of the European Court of Human Rights.4 The European Court of Human Rights is thus the oldest international court in the field of human rights. It is currently composed of 47 judges, one judge for each High Contracting Party to the Convention. These judges are elected by the Parliamentary Assembly of the Council of Europe, which elects one candidate from a list of three proposed by the government of that State. The Court only sits in plenary to discuss administrative and budgetary issues, to amend the Rules of Court and to conduct internal elections or in order to elect the Registrar and Deputy Registrar. The Court’s judicial formations comprise committees of three judges, whose only power is to strike out applications which are inadmissible or manifestly ill-founded; Chambers of seven judges who rule on admissibility and merits, and a Grand Chamber of 17 judges, which has the same function as Chambers but deals with the most sensitive applications, or applications which raise important questions of interpretation and application of the Convention. A Grand Chamber can be involved either if a Chamber decides to relinquish jurisdiction in favour of it5 or if, after a judgment has been delivered by a Chamber, the case is referred to the Grand Chamber.6 In the very great majority of cases the applicants are natural or legal persons, and even though the inter-State procedure exists, it has only been used in a few cases, although those cases are usually of great political importance. The last inter-State application decided by the Court was Cyprus v Turkey,7 which gave rise to a judgment of the Grand Chamber in May 2001. Two interState applications by Georgia against Russia, introduced in March 2007 and August 2008, are pending. The judges of the Court are assisted in their task by the registry which is composed of lawyers of all nationalities and has highly qualified and specialized staff. The Court gives decisions and judgments on the basis of the report of a judge rapporteur. By virtue of a rule contained in the Convention itself, the judges elected in respect of a State always sit in cases concerning that State in the Chambers and Grand Chamber; if they are absent or unable to sit, the State is invited to designate an ad hoc judge.8

References (p. 765) Article 19 of the Convention provides that ‘[t]o ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall

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be set up a European Court of Human Rights’. It should be added that the Court has the competence to interpret and apply the Convention. This is provided for in article 32 of the Convention, and article 32(2) reads: ‘[i]n the event of dispute as to whether the Court has jurisdiction, the Court shall decide.’ Finally, pursuant to article 46, the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. The final judgment of the Court is transmitted to the Committee of Ministers of the Council of Europe, which supervises its execution.

(a) The notion of the breach of rights and freedoms of the Convention It must be recalled that the rights and freedoms listed in the Convention and its Protocols are mainly civil and political; economic and social rights are principally contained in the European Social Charter. It must be added that State responsibility affects all State authorities, whether executive or legislative or the national judicial authorities. Furthermore, the more or less decentralized nature of a State, including the fact that a State may or may not have a federal structure, is of no importance to the issue of State responsibility overall. An act by any State authority can thus engage the responsibility of a State. For example, in Selmouni v France,9 France was held responsible for torture by reason of the actions of certain police officers who had committed such acts against persons in police custody who were subsequently imprisoned for drug trafficking. In principle, the Court abstains from examining in the abstract the compatibility of legislative or constitutional provisions with the articles of the Convention and its Protocols. Rather, it exercises concrete review over the breach of these articles by legal acts or practical actions of the defendant States. Nevertheless, legislation may be indirectly but necessarily censured by the European Court of Human Rights for incompatibility with one of the guaranteed rights or freedoms. For example, in Dudgeon v United Kingdom,10 a law which punished homosexual activities between adults that was in force in Northern Ireland at the time was condemned by the Court. The question of violation is evidently a question of substance that implies that the application presented to the Court is admissible. The concept of admissibility will be analysed in subsection (c).

(b) The notion of ‘jurisdiction’ of defendant States and the problems of extra-territorial responsibility The jurisdiction of defendant States within the meaning of article 1 of the Convention (‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’) seems to limit the responsibility of the High Contracting Parties to persons within their jurisdiction, and has given rise to some difficulties in interpretation. It must first be noted that, according to the settled case law of the Commission and the Court, it is not only the nationals of a State but also foreigners residing on its territory that come within a State’s jurisdiction. This follows from the term ‘everyone’ in article 1.

References (p. 766) However, contracting States have the right to control entry, stay and removal of nonnationals under a well-established principle of international law (see for example Ahmed v Austria,11 which indicates that neither the Convention nor its Protocols establish the right to political asylum which is protected by the Geneva Convention of 1951). But foreigners who reside on the territory of a State party to the Convention must in principle benefit from all the other rights and freedoms which are guaranteed by the Convention and its Protocols. Thus, the Court has decided that only very compelling reasons can lead it to regard a difference in treatment that is exclusively based on nationality as compatible with the Convention (see Gaygusuz v Austria12 and Koua Poirrez v France,13 which concerned social benefits). As for the international responsibility of the defendant State for acts of judicial authorities or

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breaches by the national legislator of the obligation resulting from article 1, see the cases of Lukanov v Bulgaria14 and Young, James and Webster v United Kingdom.15 The expression ‘within their jurisdiction’ often poses difficult problems in international law, however. The first is whether the responsibility of a State can be engaged by the fact that another State, even one that is not a party to the Convention, violates or risks violating the rights and freedoms guaranteed by the Convention and its Protocols. In the important Soering v United Kingdom16 judgment the Court held that the extradition of a foreigner to a State that is not a party to the Convention may, if it is carried out, breach article 3 of the Convention, which prohibits inhuman and degrading treatment (the case concerned ‘death row’ in American prisons for prisoners waiting to be executed or pardoned). The Court, with a certain audacity, ruled that the responsibility of the United Kingdom would be engaged under article 3 if it extradited the applicant to the United States. Similarly, the deportation of a person to another State, even if it is not a party to the Convention, can engage the responsibility of the deporting State (see Cruz Varas and others v Sweden17 and Vilvarajah and others v United Kingdom18 ). In all these cases, the deported person resided in the territory of the State party. In a very different set of circumstances, in Pellegrini v Italy the Court had to rule on an application against Italy by a person who considered that the judgments of the Vatican courts had violated her rights under article 6(1) of the Convention.19 After recalling that the responsibility of the Vatican, not a Contracting Party to the Convention, could not be engaged, the Court ruled that the responsibility of Italy could be engaged under article 6(1) because the Italian courts, by granting exequatur, had failed in their duty to ensure that these judgments respected the right to a fair trial, which had not happened in the case. In these cases, Soering on the one side, Pellegrini on the other, the Court in a way affirmed the principle of State responsibility as a sort of side effect of breaches of Convention standards by a State which has not ratified the Convention.

References (p. 767) Similarly, in Drozd and Janousek v France and Spain,20 a case which concerned Andorra and which led to a judgment in June 1992, the Court indicated that the term ‘jurisdiction’ is not limited to the national territory of the High Contracting Parties; their responsibility can be triggered by acts emanating from their organs and having effect outside their national territory. Even though the judgment concluded that there was no violation of the Convention, it established an important principle which broadens the responsibility of States. The issue of Cyprus has given rise to several decisions and judgments of the Commission and the European Court of Human Rights. The most important of these cases, Loizidou v Turkey,21 found that the responsibility of Turkey was engaged for breaches of human rights in the northern part of the island, since the continuous presence of the Turkish military demonstrated that it fell ‘within the jurisdiction of Turkey’ which in practice exercised total control over the territory; all the more so since the Turkish Republic of Northern Cyprus (TRNC) had not been recognized as a State by the international community, apart from Turkey. On the other hand, both in Loizidou and Cyprus v Turkey, the Court considered that, in conformity with international law, some arrangements and legal transactions (for example, the civil registration of births, marriages and deaths in the northern part of the island) were valid, since not to recognize them would be detrimental to the inhabitants of this territory. Also, the courts of Northern Cyprus must in principle be considered as judicial authorities, before which, at least in some cases, local remedies must be exhausted before resorting to the organs of the Convention. In this regard, the European Court of Human Rights drew upon the Advisory Opinion of the International Court of Justice in Namibia.22 The Commission and the Court have also dealt with other cases concerning the extraterritorial exercise of the competence of a State, for example in cases concerning acts committed abroad by diplomatic or consular agents, or on board aircraft registered in the State in question, or a vessel flying its flag. As the Court stated in Banković,23 in these situations ‘customary international law and treaty provisions have recognized the extra-territorial exercise of jurisdiction by the relevant 24

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State’.24 It was in the case of Banković and others v Belgium and others that the Court had the opportunity to confirm, following the principles of interpretation set out in the Vienna Convention on the Law of Treaties,25 that article 1 of the Convention imposes an ‘essentially territorial’ responsibility. In its decision on admissibility, delivered by the Grand Chamber in December 2001, the Court sought to put a stop to excessive extra-territorial interpretations of State responsibility. The case concerned the bombing of Belgrade by NATO forces during the Kosovo conflict. The Court decided that the applicants, victims of these bombings or relatives of victims, did not come within the jurisdiction of States

References (p. 768) that are parties of the Convention and members of NATO. In a statement of principle, the Court recalled that: the Convention is a multi-lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.26 Furthermore, the application in Senator Lines GmbH against member States of the European Union27 raised the important question whether the responsibility of States parties to the Convention could be engaged by breaches of the Convention by organs of an international organization of which they are members. However, because the applicant company had lost its victim status (following the cancellation of the fine that was imposed by the European Commission), the application was declared inadmissible. It is further accepted that an application that questions acts or omissions resulting from United Nations Security Council Resolutions is not admissible (missions of KFOR and UNMIK in Kosovo).28

(c) Individual applications to the European Court of Human Rights As has been mentioned, individual applications must fulfil certain conditions for admissibility, which are set out in articles 34 and 35 of the Convention. First, the applicant must be a victim within the meaning of article 34. In principle, the applicant must be the personal and direct victim of the breaches of the Convention rights and freedoms complained of. This principle has been frequently cited in the case law of the Court, for example in Otto-Preminger-Institut v Austria.29 But the Court did not limit this notion of a personal victim in a way that would be absurd or contrary to human rights. It has always held that the parents or family of a deceased person must have the quality of a victim and must be able to substitute the deceased person, even if it was that person who introduced the application (see for example X v France,30 which concerned an application by a haemophiliac who had been infected with AIDS and died during the proceedings), provided that the parents or family take up the proceedings. Nevertheless, there must be a sufficient link between the alleged breach and the person of the applicant. This person must have directly suffered the effects of the breach (see for example Norris v Ireland31). There can be exceptions to this principle, such as in Dudgeon v United Kingdom,32 mentioned above,

References

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(p. 769) where the criminal proceedings against the applicant were abandoned and where he showed that the existence of the law posed a potential threat that could materialize. Another example is the case Association Ekin v France,33 which concerned the compatibility with article 10 of the Convention—the guarantee freedom of expression—of a decree allowing the Minister of the Interior to ban foreign publications. Although the applicant company had obtained satisfaction at the domestic level in that the Conseil d’Etat had annulled the ban on one of its publications, the Court found that it had retained its victim status because the Conseil d’Etat’s refusal to declare the decree incompatible with the Convention meant that there was still a law in the domestic order which posed a threat to its freedom of expression in future. On the other hand, the Court has ruled that an actio popularis is inadmissible, ie an application by a person who is not directly affected by the act of the defendant State (see for example Klass and others v Germany34 ). Applicants must also exhaust domestic remedies, exhaustion being understood according to the generally recognized principles of international law. Further, they must apply to the Court within six months of the final internal decision being taken.35 The rule of exhaustion of domestic remedies, which applies to both inter-State cases and individual applications,36 reflects the principle of subsidiarity: it is up to the States themselves to respect their obligations and thus to prevent or redress human rights violations. The Court is only a final resort, and only exercises ‘European control’ over the measures taken by States to this effect. But the remedies must be accessible and adequate, and therefore effective, not only in theory but also in practice. The case law on this point is abundant and consistent (see for example Stögmüller v Austria37 or Akdivar and others v Turkey38 ). As for the six-month time limit, it constitutes a limitation which calls for a restrictive interpretation, according to the general principles of law.39 The other conditions of admissibility require hardly any comment. Applications must not be anonymous, they must not be essentially the same as an application already examined by the Court or one already submitted to another body of inquiry or settlement (such as the United Nations Human Rights Committee where the defendant State has accepted the Optional Protocol40 ); and they must not be incompatible with the European Convention on Human Rights ratione materiae, loci, personae, or temporis, or manifestly unfounded. As already stated, committees of three judges reject applications as inadmissible or manifestly illfounded, provided that the three judges are unanimous. The Chambers (or the Grand Chamber as in the Banković case) can also take decisions of inadmissibility. Decisions which declare an application inadmissible, or which strike it out, are final. This is not the case for Chamber judgments: under article 43, the private party or the State can, within three months and ‘in exceptional cases’, request that the case be referred to the Grand Chamber. This is not a referral as of right, though. A panel of five judges will accept

References (p. 770) the referral ‘if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance’.41

(d) Consequences of the responsibility of States: just satisfaction and other forms of execution of the judgments of the Court States are responsible for the violation of rights and freedoms which they have undertaken to guarantee to persons within their jurisdiction; those persons are the beneficiaries of this treaty obligation. Therefore, if a final judgment in its operative provisions finds that there has been a violation of one or several articles of the Convention or its Protocols, the State must in principle provide just satisfaction to the injured party (usually the applicant or otherwise his successors) under article 41

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of the Convention. It is necessary that the applicant party requests this and that the Court in the operative provisions grants, in whole or part, what has been claimed, although sometimes the Court declares that the finding of a violation constitutes sufficient satisfaction in the case in issue. The compensation awarded under article 41, which is set by the Court in equity, can comprise material damage if there is a causal link between the breach or breaches and the material prejudice suffered by the victim; nonpecuniary damage which can be the result of emotional suffering, pain, distress, or other similar elements; and, finally, costs and expenses, particularly legal fees. As a matter of case law, the Court has decided that if the State does not pay this award within three months of the judgment, the amount will be increased by the legal interest rates in the State in question. However, this is moratory interest: it is not capitalized to produce interest itself. The compensation which is due under article 41, however, grave the breach of human rights may be, is justifiably important for the victims or their successors. In some cases, it is unfortunately the only possible form of reparation, since certain breaches are irreversible. Yet it is not always the only possible form of reparation. First, if the breach stems from the application of laws or regulations which are held to be incompatible with the Convention, it is up to the State to repeal or modify these provisions to bring bring them into conformity with the Convention. For example, following the judgment in Inçal v Turkey,42 in which the Court ruled that the composition of the Turkish security courts was contrary to article 6(1)—which requires that tribunals be independent and impartial—Turkey modifi ed the law and even revised its Constitution to execute the judgment. Similarly, France repealed an article of the Civil Code which reduced by half the inheritance of adulterine children in order to comply with the Mazurek43 judgment of 2000. The Court had held that this article was incompatible with article 14 of the Convention (nondiscrimination) in combination with article 1 of the Protocol No 1 (protection of property). Many other examples could be given. Despite the fact that the authority of res judicata under article 46(1) is only relative, in practice it also happens that States modify their laws in order to transpose the solutions resulting from a judgment against another State into their system, as a preventive measure. Second, some States (especially France with its law on the presumption of innocence of 15 June 2000) have instituted mechanisms which require or allow the revision of internal

References (p. 771) proceedings (most often, and this is the case for this French law, in criminal proceedings) when the Court finds that they have breached the rules of a fair trial set out in article 6(1) of the Convention, or, more generally, where the procedure before the national courts has revealed a violation of the Convention. Finally, wherever possible—for example, but this is only an example, where the applicant has been deprived of his or her property in violation of article 1 of the First Protocol—the best way of executing the judgment is to proceed to a restitutio in integrum, ie to restore the property to its owner.44 It is for the Committee of Ministers of the Council of Europe to supervise the execution of judgments. This generally works well. Sometimes, States will put forward financial or even political considerations in order to postpone the execution, but fortunately these cases are rare.

(e) The devices resorted to by States to limit their responsibility: reservations, derogations, and immunities First of all, when States sign or ratify either the Convention or its Protocols, it is quite common that they enter reservations to particular provisions, as permitted by article 57 of the Convention. Nevertheless, this article specifies that this only applies insofar as a law already in force on the territory of that State is not in accordance with the provision in question; it prohibits reservations of

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a general character and it requires that any reservations include a short summary of the law in question. Furthermore, the Court has held that it has a general power of review over these three conditions and thus over the validity of reservations, whether they are denominated as such or are classified by the State as interpretive declarations.45 The jurisprudence of the Court interprets the validity of these reservations strictly.46 Second, without it being a reservation in the technical sense, States can limit (or enhance) the extent of their territorial responsibility. By virtue of article 56, which is sometimes called ‘the colonial clause’, States can at any time notify the Secretary General of the Council of Europe that the Convention will apply to one or all of the territories for whose international relations they are responsible. Under the same article, the provisions of the Convention are applied taking into account local requirements.47 For example, article 3 of the First Protocol (right to free elections) applies to Gibraltar (see Matthews v United Kingdom,48 where the State was held responsible for not having organized elections for the European Parliament for British nationals residing in Gibraltar, even though the government referred to an act of the Council of the European Communities of 1976 which excluded this territory from the elections for the Parliament). Third, article 15 of the Convention allows States to take measures derogating from it in ‘time of war or other public emergency threatening the life of the nation’ (with the exception of articles 2, 3, 4(1), and 7), but only ‘to the extent strictly required by the exigencies of the

References (p. 772) situation’ and provided that they do not contradict other obligations under international law. They must inform the Secretary General of these measures, of the reasons and the date when they cease to be in force. According to its case law, the Court reviews the exercise of this right of derogation—especially the notion of the ‘extent strictly required’.49 Finally, the jurisdictional immunities of States, whether derived from international or internal law, are quite often invoked by defendant States before the Court to escape responsibility in whole or in part (see for example Al Adsani,50 Mc Elhinney,51 and Fogarty,52 three applications which led to judgments in November 2001). Nevertheless, the tendency of the Court is to limit the scope of both types of immunity.53

2 Responsibility of States under the revised European Social Charter The European Social Charter, signed in Turin on 18 October 1961, is another instrument which was elaborated within the framework of the Council of Europe, like the European Convention on Human Rights. It has been the subject of a long process of revision: the revised European Social Charter54 was opened for signature in 1996 and came into force on 1 July 1999. As of 29 June 2007 it had been signed by 43 States and ratified by 14 States. The Charter comprises an ambitious catalogue of social and economic rights and thus completes the European Convention on Human Rights. Nevertheless, it differs from the Convention in several ways. First, these rights are not accepted en bloc by the States that have ratified the Social Charter. Under a mechanism that is both original and complex, States undertake to accept first that their social policies have the aim of establishing conditions that will allow them to implement the rights and principles listed in the first part of the Charter. Then, they accept to be bound by at least six of the nine main articles of the second part, and finally to be bound by those of the other numbered articles or paragraphs of the second part that they choose, provided that they are bound by in total a minimum of 16 articles or 63 numbered paragraphs.

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Second, the European Social Charter is not justiciable before the European Court of Human Rights. Nothing prevents the Court from being inspired by the Charter, and it is so inspired (for example in matters of freedom of association, which is also recognized under article 11 of the Convention), just as it is inspired by other international instruments; but applicants cannot invoke the responsibility of States that breach their obligations under the Charter before the Court. Nevertheless, there exists an institutional mechanism in the form of a committee of independent experts, which since 1999 is called the European Committee of Social Rights. This committee is composed of 15 experts, elected by the Committee of Ministers of the Council of Europe with a mandate of six

References (p. 773) years, which can be renewed once. They sit individually and must be independent and impartial and be available for their function. The Committee meets seven times a year, each of its sessions lasting a week. Third, the Committee does not rule on individual (or inter-State) applications, as the European Court of Human Rights does. Rather it rules on the basis of reports, which States must present every year. It therefore takes decisions of compatibility or non-compatibility with the Charter. In the case of non-compatibility, a committee composed of representatives of the States and observers (the representatives of the European social partners) examines the decision. Then, the Committee of Ministers may, by a two-thirds majority, adopt a recommendation calling on the State concerned to take suitable measures to remedy the breach. Additionally the European Committee of Social Rights can examine collective complaints by European social partners, national employer and workers’ organizations and, under certain conditions, national or international non-governmental organizations, on the basis of the Additional Protocol providing for a system of collective complaints, which came into force in 1998. It considers the admissibility of the collective complaint and then whether it is well-founded. If it is well-founded, the Committee of Ministers can adopt a resolution and/or a recommendation against the State. Between 1 July 1998 and 1 May 2008, 51 collective complaints were registered at the secretariat of the European Social Charter. The European Committee of Social Rights has ruled on 46 of them, and the Committee of Ministers has adopted 31 resolutions and one recommendation (which concerned France). It is clear that State responsibility in this area is at an embryonic stage. But it is under development, and it can be assumed that responsibility with regard to the Charter will develop in the years to come, which is certainly desirable considering the ever-increasing importance of economic and social rights.

Conclusion In the greater Europe, the responsibility of States in the area of human rights breaches has already —mainly as far as rights and freedoms guaranteed under the Convention are concerned—attained a high degree of sophistication and protection. But after more than half a century’s existence for these mechanisms, four unknown factors remain. First, the European Court of Human Rights is the victim of its own success. 1000 applications were registered in Strasbourg in 1988, 10,000 in the year 2000, and almost 50,000 in 2008! It is high time to introduce reforms to allow the Court to confront the most serious human rights violations and to play the role of a constitutional instrument of the European order that it recognizes in itself.55 This is the aim of Protocol No 14; its provisions should bring about increased efficiency by affording the Court the procedural means and the necessary flexibility to consider all applications within an acceptable timeframe, while at the same time allowing it to concentrate on the most important matters that require thorough examination.56

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References (p. 774) Second, social and economic rights are insufficiently protected. Both at the domestic and European levels, States are reluctant to engage their responsibility in this area. This is without doubt one of the challenges of the 21st century. Third, the Charter of Fundamental Rights of the European Union, signed in Nice in 2000, only acquired binding force on 1 December 2009. How will this instrument, that belongs to the Europe of 27, interact with the Convention and the Social Charter, which cover the greater Europe, with its 47 States, including Russia? And when will the European Union adhere to the European Convention on Human Rights? And what consequences will this have on the responsibility of the European Union and its members in the area of human rights violations? Finally, how will these European mechanisms, of which we can be proud, fare when confronted with grave human rights violations, such as in the Balkans, Kurdistan, or Chechnya? And how will they supplement and interact with the international criminal courts that are in developmental stages? None of these queries should in any case tarnish the record of what has been the world’s first mechanism of international judicial control of States in the area of human rights, bringing about an extension of State responsibility and the progress of rights and freedoms in Europe. Further reading A Bultrini, ‘La responsabilité des Etats membres de l’Union européenne pour les violations de la Convention européenne des droits de l’homme imputables au système communautaire’ (2002) 49, Revue trimestrielle des droits de l'homme 5 JP Costa, ‘La responsabilité de l’Etat au regard de la Convention européenne des droits de l’homme à raison d’actes accomplis en vertu de ses obligations internationals’, in P Tavernier (ed), La France et la Cour européenne des Droits de l’Homme: la jurisprudence en 2005: présentation, commentaires et débats (Brussels, Bruylant, 2006), 35 F Commans and MT Kamminga, Extraterritorial Application of Human Rights Treaties (Oxford, Intersentia, 2004) P D’Argent, ‘Le droit de la responsabilité internationale complété? Examen des principes fondamentaux et directives concernent le droit à un recours et à réparation des victimes de violations flagrantes du droit international des droits de l’homme et de violations graves du droit international humanitaire’ (2005) 51 AFDI 27 C Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention: Facts, Jurisprudence and the Banković case’ (2006) European Human Rights Law Review 391 I Panoussis, ‘L’obligation générale de protection des droits de l’homme dans la jurisprudence des organes internationaux’ (2007) 70, Revue trimestrielle des droits de l'homme 427 A Randelzhofer and C Tomuschat (eds), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague, Nijhoff, 1999) A Sanjosa Gil, ‘La responsabilité internationale des Etats pour les violations des droits de l’homme’, in F Ainsa (ed), Karel Vasak amicorum liber: les droits de l’homme à l’aube du XXIe siècle (Brussels, Bruylant, 1999), 783 P Tavernier, ‘La contribution de la jurisprudence de la Cour européenne des droits de l’homme relative au droit de la responsabilité internationale en matière de réparation. Une remise en cause nécessaire’ (2007) 72, Revue trimestrielle des droits de l'homme 945

References

Footnotes: 1 ETS No 5. 2 ETS No 35. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

3 ETS No 155. 4 Art 46 (2) European Convention on Human Rights. 5 Ibid, art 30. 6 Ibid, art 43. 7 Cyprus v Turkey (App No 25781/94), ECHR Reports 2001-IV [GC]. 8 Art 27(2), European Convention on Human Rights. 9 Selmouni v France (App No 25803/94), ECHR Reports 1999-V [GC]. 10 Dudgeon v United Kingdom (App No 7525/76), ECHR, Series A, No 45 [GC] (1981). 11 Ahmed v Austria (App No 25964/94), ECHR Reports 1996-VI. 12 Gaygusuz v Austria (App No 17371/90), ECHR Reports 1996-IV. 13 Koua Poirrez v France (App No 40892/98), ECHR Reports 2003-X. 14 Lukanov v Bulgaria (App No 21915/93), ECHR Reports 1997-II. 15 Young, James and Webster v United Kingdom (App Nos 7601/76; 7806/77), ECHR Series A, No 44 (1981). 16 Soering v United Kingdom (App No 14038/88), ECHR, Series A, No 161 [GC] (1989). 17 Cruz Varas and others v Sweden (App No 15576/89), ECHR, Series A, No 201 [GC] (1991). 18 Vilvarajah and others v United Kingdom (App Nos 13163/87; 13164/87; 13165/87; 13447/87; 13448/87), ECHR, Series A, No 215 (1991). 19 Pellegrini v Italy (App No 30882/96), ECHR Reports 2001-VIII. 20 Drozd and Janousek v France and Spain (App No 12747/87), ECHR, Series A, No 240 (1992). 21 Loizidou v Turkey Jurisdiction (App No 15318/89), ECHR, Series A, No 310 [GC] (1995) and Loizidou v Turkey, Merits (App No 15318/89), ECHR Reports 1996-VI [GC]. 22 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16. 23 Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), ECHR Reports 2001-XII [GC]. 24 Ibid, para 73. 25 1155 UNTS 331. 26 Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Spain, Turkey and United Kingdom (App No 52207/99), ECHR Reports 2001-XII [GC], para 80. 27 Senator Lines GmbH v Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and United Kingdom (App No 56672/00), ECHR Reports 2004-IV [GC]. 28 Behrami and Behrami v France and Saramati v France, Germany and Norway (App Nos 71412/01 and 78166/01), ECHR, Decision on Admissibility, 2 May 2007 [GC]. 29 Otto-Preminger-Institut v Austria (App No 13470/87), ECHR, Series A, No 295-A (1994). 30 X v France (App No 18020/91), ECHR, Series A, No 234-C (1992). 31 Norris v Ireland (App No 10581/83), ECHR, Series A, No 142 [GC] (1988). 32 Dudgeon v United Kingdom (App No 7525/76), ECHR, Series A, No 45 [GC] (1981). 33 Association Ekin v France (App No 39288/98), ECHR Reports 2001-VIII. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

34 Klass and others v Germany (App No 5029/71), ECHR, Series A, No 28 [GC] (1978). 35 Art 35(1), European Convention on Human Rights. 36 Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 [GC] (1978). 37 Stögmüller v Austria (App No 1602/62), ECHR, Series A, No 9 (1969). 38 Akdivar and others v Turkey (App No 21893/93), ECHR Reports 1996-IV [GC]. 39 De-Becker v Belgium, (App No 214/56), European Commission of Human Rights, Decision on Admissibility, 9 June 1958. 40 Calcerrada Fornieles and Cabeza Mato v Spain, (App No 17512/90), European Commission on Human Rights, Decision on Admissibility, 6 July 1992. 41 See eg the judgment of the Grand Chamber in Burden v United Kingdom (App No 13378/05), ECHR, Judgment of 29 April 2008 [GC]. 42 Inçal v Turkey (App No 22678/93), ECHR Reports 1998-IV [GC]. 43 Mazurek v France (App No 34406/97), ECHR Reports 2000-II. 44 See eg Papamichalopoulos v Greece (App No 14556/89), ECHR, Series A, No 260-B (1993) and Papamichalopoulos v Greece (Article 50) (App No 14556/89), ECHR, Series A, No 330-B (1995). 45 Belilos v Switzerland (App No 10328/83), ECHR, Series A, No 132 (1988). 46 Ibid, for a reservation that was ruled incompatible with art 57; see also Chorherr v Austria (App No 13308/87), ECHR, Series A, No 226-B (1993) for a reservation that was rated compatible; or Gradinger v Austria (App No 15963/90), ECHR, Series A, No 328-C (1995) for a reservation that was rated incompatible. 47 See Tyrer v United Kingdom (App No 5856/72), ECHR, Series A, No 26 (1978) (concerning the Isle of Man). 48 Matthews v United Kingdom (App No 24833/94), ECHR Reports 1999-I [GC]. 49 See Ireland v United Kingdom (App No 5310/71), ECHR, Series A, No 25 [GC] (1978); Brannigan and McBride v United Kingdom (App Nos 14553/89; 14554/89), ECHR, Series A, No 258B [GC] (1993); Aksoy v Turkey (App No 21987/93), ECHR Reports 1996-IV. A and other's v United Kingdom (App No 3455/05), ECHR Judgment of 19 February 2004 [GC]. 50 Al Adsani v United Kingdom (App No 35763/97), ECHR Reports 2001-XI [GC]. 51 McElhinney v Ireland (App No 31253/96), ECHR Reports 2001-XI [GC]. 52 Fogarty v United Kingdom (App No 37112/97), ECHR Reports 2001-XI [GC]. 53 See Osman v United Kingdom (App No 23452/94), ECHR Reports 1998-VIII [GC]; Z and others v United Kingdom (App No 29392/95), ECHR Reports 2001-V [GC]; Cordova v Italy (No 1) (App No 40877/98), ECHR Reports 2003-I; Cordova v Italy (No 2) (App No 45649/99), ECHR Reports 2003-I. 54 ETS No 163 55 See eg Loizidou v Turkey, Jurisdiction (App No 15318/89), ECHR, Series A, No 310 [GC] (1995). 56 Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, 13 May 2004, ETS No 194 (in force 1 June 2010).

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Part IV The Content of International Responsibility, Ch.51.4 Responsibility for Violations of Human Rights Obligations: African Mechanisms Habib Gherari From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 775) Chapter 51.4 Responsibility for Violations of Human Rights Obligations: African Mechanisms 1 The mechanisms of protection 776 (a) Non-judicial protection: the African Commission on Human and Peoples’ Rights 777 (i) Organization of the African Commission 777 (ii) The system of communications 778 (b) Judicial protection: the African Court on Human and Peoples’ Rights 780 (i) Organization of the African Court 781 (ii) Functioning of the African Court 782 2 The implementation of protection of human rights in the African system 782 (a) Admissibility 783 (b) Examination of the merits of communications 786 Further reading 788 African States, preoccupied by decolonization and the consolidation of their newly-regained political and economic independence, took some time to adopt a specific regional instrument for the protection of human rights. The Charter of the Organisation of African Unity (OAU), adopted on 25 March 1963 at Addis Ababa, made only a brief and limited reference to human rights as being one factor which should inspire their cooperation.1 However, human rights do not appear among the guiding principles of the OAU, nor in the policies which member States are bound to coordinate

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and harmonize, since this would be contrary to the principles of non-interference and sovereignty.2 In contrast, the Constitutive Act of the African Union, the successor to the OAU, refers to human rights as an objective and principle of the Organisation itself.3 In the period from 1983 (when the OAU Charter was adopted) to 2000 (when the Constitutive Act of the African Union was adopted), the number of human rights violations multiplied, and in particular some particularly grave violations occurred, including genocide. In these circumstances, the adoption of human rights norms and protective

References (p. 776) mechanisms was vital. Initially African States increased their commitment to universal4 and regional instruments.5 These are not, strictly speaking, relevant to this Chapter because they are not African regional instruments.6 Subsequently, African States moved in the direct of a regional system, with the adoption of the African Charter on Human and Peoples’ Rights (‘the Charter’) in 1981.7 The Charter is the most important text relating to human rights in Africa: it binds the 53 member States of the African Union,8 and it has been supplemented by the Ouagadougou Protocol creating the African Court on Human and Peoples’ Rights,9 as well as the Protocol on the Rights of Women.10 Mention must also be made of two other agreements: the Convention Governing the Specific Aspects of Refugee Problems11 and the African Charter on the Rights and Welfare of the Child.12 The text of the Charter is innovative in that it promotes a specifically African conception of human rights.13 It proclaims both civil and political rights (including non-discrimination, the right to life and prohibition of torture, inviolability of the person, equality before the law, the right to a fair hearing, and various other liberties) and economic, social and cultural rights (such as fair working conditions, education, health). In addition to these rights, the Charter includes rights to a satisfactory environment, to peace and security, and to development. Finally, the Charter adds collective rights (people’s rights) to individual rights, and it incorporates duties of the individual, in particular, towards the family, the State and the international community. The Charter adopts a more classical approach in relation to the structures for the protection of rights.14 These mechanisms will be examined in detail, including the establishment of State responsibility for violation of rights and its consequences. What framework of international responsibility applies? Accordingly, Section 1 of this Chapter is devoted to the mechanisms for protection and Section 2 discusses implementation of that protection.

1 The mechanisms of protection The Charter provides for the creation of an African Commission on Human and Peoples’ Rights. The Commission was established soon after the Charter came into force and commenced its operations on 2 November 1987. Recently, the Commission has been supplemented by the African Court on Human and Peoples’ Rights.15 Some of the other African

References (p. 777) human rights conventions confer jurisdiction on the mechanisms established under the Charter and its protocols. For example, the Protocol on the Rights of Women provides that all disputes relating to its interpretation and application may be submitted to the African Court (and to the African Commission, pending the establishment of the Court).16 Other human rights conventions establish separate mechanisms for enforcement. For example, the African Charter on the Rights and Welfare of the Child establishes a Committee to oversee and promote its application,17 consisting of 11 experts elected by the Conference of the Heads of State and Governments of the OAU.18 The functions of this Committee include the confidential examination of communications

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submitted by any individual, group, or non-governmental organization recognized by the OAU, a member State, or by the United Nations.19 There are few details available about the functioning of this aspect of the Committee’s work and it is too early to form a view as to its effectiveness. However, the focus on this part is on the African Commission and the African Court, as the principal bodies for enforcement of human rights obligations in Africa.

(a) Non-judicial protection: the African Commission on Human and Peoples’ Rights (i) Organization of the African Commission The Commission consists of 11 members, who meet the criteria of competence, integrity, impartiality and morality. Members are elected for six-year renewable terms from a list drawn up by the State parties to the Charter and by the Conference of the Heads of State and Governments of the OAU. Members of the Commission sit in a personal capacity and enjoy various privileges and immunities, and may only be removed from their position upon a unanimous vote of the Commission.20 The Commission elects its President and Vice-President and is assisted by a Secretariat. There are two sessions each year of two weeks’ duration: the practice of the Commission is to hold one session at its seat in Banjul, Gambia and the other in another African country. By the end of 2005, 38 ordinary sessions (some of which were shortened, in particular for budgetary reasons) and two extraordinary sessions had been held. The African Union is responsible for the running and financing of the Commission. There has been a serious and continual lack of resources in respect of personnel, finance, and administration. The Commission has been in a position where it has only been able to fulfil its functions because of the assistance of a range of institutions (such as inter-governmental organizations, NGOs and national bodies for the promotion of human rights). It is in these difficult conditions that the Commission must fulfil its role. Various functions are assigned to the Commission, which, in essence, has the task of ensuring the promotion and protection of human and people’s rights. With regards to promotion, the Commission is tasked with collecting documentation, carrying out studies, organizing conferences and seminars, drafting proposals of legislative texts for African governments, cooperating with other institutions competent in the area of human rights,

References (p. 778) and so on. These are important activities to which the Commission devotes much time, particularly given the misunderstanding prevailing in respect of the content of the relevant rights. In practice, each Commissioner is responsible for a certain number of African States in relation to which he or she carries out these activities. The Commission also examines the reports which the States parties must submit every two years. It should be noted that although the Charter does not make clear precisely who should be responsible for the examination of such reports, since 1988 the Commission has had responsibility for this task. Nevertheless, this function has been difficult to fulfil, primarily due to the late filing of reports or failure to provide reports and the poor quality of reports, which the Commission has so far been unable to remedy. The Commission also designates special rapporteurs with regard to specific issues, including summary and extra-judicial executions; prisons and conditions of detention; women’s rights in Africa; defenders of human rights; and freedom of expression. The Commission has also been given a mandate to interpret the Charter. Finally, the Commission has the task of ensuring the protection of Human and Peoples’ Rights. It is this function which is of principal interest to this Chapter, in particular the proceedings before the Commission which are instituted by ‘communications’. (ii) The system of communications The Charter distinguishes between inter-State communications and what are referred to as ‘other

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communications’. Inter-State communications consists of two types of communications, both of which allow a State to invoke the responsibility of another State for breach of the provisions of the Charter.21 The two types of communications are ‘negotiation communications’22 and ‘complaint communications’.23 In the first category, a State which has reason to believe that another State has violated the provisions of Charter may draw that State’s attention to the violation; a copy of this communication is provided to the Secretary-General of the OAU and to the President of the Commission (whose secretary keeps a record of the communications received).24 The respondent State should provide an explanatory reply within three months, indicating any steps that have been taken and applicable internal procedures and remedies. The process therefore constitutes a strong incentive to negotiate, as regulated by the applicable provisions. However, if the respondent State does not respond within three months, if the response is unsatisfactory, or if the issue is not resolved to the satisfaction of both parties, either of the parties may refer the matter to the Commission. The communication then becomes a ‘complaintcommunication’, in relation to which a separate register is also kept. A ‘complaint-communication’ may therefore be commenced either following an unsuccessful negotiation or directly.25 The communication is examined by the Commission in a closed meeting, in an attempt to encourage an amicable settlement based on respect for human rights and fundamental liberties. If this fails, the Commission has twelve months in which to write a report in which it sets out the facts and conclusions it has reached. That

References (p. 779) document is sent to the States concerned and to the Conference of the Heads of State and Governments, along with the Commission’s recommendations. The mechanism of inter-State complaints is essentially conciliatory. The report of the Commission is not binding and only the AU (previously the OAU) is able, if it considers it appropriate, to give it a more formal quality. But the procedure has never been used; this is hardly surprising given the experience of other international bodies with similar procedures. However, it should be mentioned that the Report of Activities of the 30th session of the Commission (13–27 October 2001) refers to a communication26 from the Democratic Republic of the Congo against Burundi, Rwanda and Uganda.27 It seems that the Commission decided to hold an extraordinary session in order to examine this communication, but the reports on the following sessions mention neither this communication nor the session which was to have been devoted to it. This affair relates to the dispute between the same States before the ICJ.28 Article 55 of the Charter, which refers to ‘communications other than those of States parties to the present Charter’, provides a mechanism by which non-State entities—whether individuals, companies, NGOs, more or less formal groups and associations, etc—may file communications. It is precisely these individual communications which have fuelled the activity of the Commission, despite the fact that the Charter appears to restrict examination to the most serious complaints. The first indication of this restriction, which is not found in other instruments and mechanisms of protection, is that the Commission is not automatically seized of a case by deposit of a communication. Rather, a majority of the commissioners must declare themselves in favour of hearing the case, having studied the list of communications prepared by the Secretary of the Commission. At this point the commissioners can request to see the entire communication. The second considerable obstacle is that article 58 appears only to allow an analysis of the substance of a communication when it ‘reveals the existence of a series of serious or massive violations of human and peoples’ rights’. If this requirement is fulfilled, the Commission brings the situation in question to the attention of the Conference of the Heads of State and Governments of the African Union, or to its President if the matter is urgent. The Conference may then ask the Commission to carry out an in-depth study and to prepare a report including its conclusions and recommendations.

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The Commission has, however, managed to overcome this restriction: since 1988 the Commission has through the adoption of internal rules of procedure, which go well beyond the Charter in this regard, examined individual communications regardless of whether they are based on a series of serious or massive violations of human and peoples’ rights.29 Pursuant to article 59 of the Charter, all measures taken by the Commission in the course of its activities relating to protection are to be kept confidential unless the Conference of the Heads of State and Governments decide otherwise. However, since 1994 the Commission has attached to the reports of its activities an annex containing its examination of

References (p. 780) communications. The Report of Activities is published by the President of the Commission once it has been examined by the supreme organ of the African Union. It is evident that the practice of the Commission in certain areas has enabled it to alleviate some of the constraints imposed upon it by the Charter. That being so, the structural weakness of the role of the Commission derives from the value of its findings of violation of rights: the Commission is only empowered to recommend measures and its recommendations carry no binding force. This is perhaps one of the reasons why the Commission has favoured attempts to build a ‘constructive dialogue’ between the complainant and the respondent state in order to reach an amicable solution.30 The limits on effectiveness of the procedures before the Commission led African States to finally accept the principle of judicial protection of human rights.

(b) Judicial protection: the African Court on Human and Peoples’ Rights The idea of guaranteeing human rights through a true judicial mechanism has been advocated since 7 January 1961 with the famous ‘Law of Lagos’, which called for ‘the creation of a court of appropriate jurisdiction and that recourse thereto be made available for all persons under the jurisdiction of the signatory States [of the then-unwritten African Convention on Human Rights]’. The refusal to create such a judicial procedure can be explained by the fact that at the time, African States were not ready to do so and secondly, due to the fact that traditional African justice was conciliatory and not judicial.31 This explains the decision to establish a Commission effectively geared towards achieving mutually acceptable solutions and with limited powers. It was only in 1998 that the Ougadougou Protocol on the creation of the African Court on Human and Peoples’ Rights was adopted.32 The preamble of the Ougadougou Protocol clearly sets out the reasons for the Court, which stem from the shortcomings of the protection provided by the Commission. Indeed, the preamble states that the Court was established in order to ‘enhance the efficiency of the Commission’ and to ‘complement and reinforce’ the Commission’s function of protection.33 The Ouagadougou Protocol came into force on 1 January 2004 upon ratification by 15 member States. The first judges were elected on 22 January 2006. However, the Court is not yet operational. It has no pending cases and it has not yet promulgated rules of procedure. In 2005, the African Union decided to merge the African Court on Human and Peoples’ Rights with the Court of Justice, which constitutes the judicial organ of the African Union, whose organization and rules are established by a Protocol of 11 July 2003. The merger—already envisaged at the time of preparation of the Protocol creating the Court of Justice, in particular in relation to the question of specialist chambers—was finally decided in 2005 by the Conference of Heads of State and Government and the Executive Council of the African Union.34 The principal, if not exclusive, reason given was

References (p. 781) rationalization and the pressure of economic constraints. As Mohamed Bedjaoui, Minister of State and Algerian Minister for Foreign Affairs, recently indicated, the merger ‘is not an option. It is a 35

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necessity. This merge is desirable. It is realistic and realisable’.35 For their part, NGOs appear to be opposed to the proposal, at least in the form in which it was originally announced.36 Some advocate other solutions: for example, the two courts could share the same buildings and administrative and material facilities. The lack of transparency in the reform process is to be regretted, since it appears that only experts and governmental representatives are taking part, and NGOs and the African Commission are excluded. Finally, on 1 July 2008 a new Protocol was adopted which created the African Court of Justice and Human Rights. It will abrogate the two protocols establishing the two courts and replace them with a new Court. This agreement has not yet come into force (15 ratifications are necessary), and in the meantime the African Court on Human and Peoples’ Rights will continue to function, since its Protocol came into force in 2004 and its judges have been elected. (i) Organization of the African Court With regard to its organization and working, the African Court has several characteristics in common with the Inter-American Court of Human Rights and the former European Court of Human Rights prior to the entry into force of Protocol 11. The Court consists of 16 judges, elected for a term of six years, renewable once. The election takes place within the Executive Council, and thus all member States of the African Union take part, regardless of whether they are party to the Ougadougou Protocol; however, the list of candidates is drawn up only by the States party to the Protocol. Each judge should have the qualifi cations, competence and moral qualities usually required for such a position, and collectively the judges should represent all the major judicial systems, reflect a fair geographic spread and ensure a satisfactory representation of both genders. With the exception of the President, the judges carry out their functions on a part-time basis, apparently for budgetary reasons. Although this is understandable, it may give rise to problems of incompatibility of other roles and of independence, of which those who negotiated the Protocol were aware. It is to be hoped that the Court does not experience problems similar to those encountered by the Commission due to other duties (for example, diplomatic) of some of its members. As regards judicial independence, the Protocol opts for a curious solution in that, having stated the principle that only the Court can suspend or relieve a judge of his office, it further provides that the Conference of the Heads of State and Govern ment may review the decision of the Court and decide otherwise. The Court sits in two Sections: the General Affairs section, composed of eight judges; and the Human Rights section, also composed of eight judges. The Human Rights section deals with all cases concerning human rights and/or rights of peoples. A possibility of referral to the plenary Court nevertheless exists. The formation of chambers is also possible. Finally, the Court has a certain amount of functional independence given that it names its own registrar, fixes its own internal rules of procedure, and is consulted as to its budget before its adoption by the Conference of the Heads of State and Governments.

References (p. 782) (ii) Functioning of the African Court The African Court of Justice and Human Rights has both consultative and contentious roles, which it fulfils by applying a range of sources of law: the African Charter and the Ouagadougou Protocol, as well as all other relevant instruments concerning human rights which have been ratified by the State against which a complaint has been made. Consultative opinions may be requested by the Assembly; the Parliament; the Executive Council; the Peace and Security Council; the Economic, Social and Cultural Council (ECOSOC); the Financial Institutions; or any other organ of the Union as may be authorized by the Assembly, and must not be related to a pending application before the African Commission or the African Committee of Experts. Given that the Commission is also authorized to interpret the Charter, clarification is necessary to determine the respective From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

competences of the Court and the Commission. The contentious competence of the Court aims to reinforce the protection guaranteed by the Commission and to provide judicial rulings in relation to the violation of human and peoples’ rights, binding upon the State party to the Ougadougou Protocol. In respect of standing, a distinction is drawn between two categories of applicants. The first, which might be called ‘privileged’ applicants, are able to bring matters directly before the Court concerning the responsibility of a State. These include (a) State parties; (b) the African Commission on Human and Peoples’ Rights; (c) the African Committee of Experts on the Rights and Welfare of the Child; (d) African intergovernmental organizations accredited to the Union or its organs; and (e) African national human rights institutions. Individuals or relevant NGOs accredited to the African Union or to its organs can bring matters to the Court only if the respondent State has issued a declaration accepting the competence of the Court for that type of application. Each State party also has an option to intervene if it considers that it has an interest in a case, but this option is not explicitly extended to NGOs, who may, for example, wish to be involved as amicus curiae. Until the Court adopts comprehensive rules of procedure, it is unclear how these practical problems will be resolved. The bifurcation of conditions for standing according to the identity of the applicant is not unusual in this type of instrument: for example there are similar distinctions in the Inter-American system.37 However, it is possible that a majority of African States will not recognize the competence of the Court to receive petitions lodged by individuals or NGOs. Practice before the African Commission has shown that individuals and NGOs are (virtually) the only whistleblowers in respect of violations of human rights. Because the individual and NGO complaint procedures are dependent on specific consent by a State party, the policy of the Commission in referral of matters may assume a greater importance. This is particularly the case because the Court’s judgments are binding.

2 The implementation of protection of human rights in the African system Having examined the general framework of the Charter and the Protocol, it is necessary to consider how the remedies are put into practice, what conditions need to be fulfilled in this regard, and the consequences which they imply for international responsibility of the

References (p. 783) respondent State. Since the Court is not yet operative, the only source of information is the practice of the Commission.

(a) Admissibility The conditions of admissibility are set out in article 50 of the Charter for inter-State communications, and article 56 of the Charter for ‘other communications’. In relation to inter-State communications there is a single condition, namely that local remedies be exhausted where they exist and are not unduly prolonged. In relation to ‘other’ communications, there are six conditions. Prior to considering the content of these conditions, it is necessarily to briefly mention the procedure for examination of communications. First, the communication is not entered on the list drawn up by the Secretary if it concerns a non-State party. This is an important point, since under the previous version of Rules of Procedure38 this constituted a relatively common reason for a declaration of inadmissibility, since there were many communications made which targeted African States which were not party to the Charter, African states which were not members of the OAU (for example, Morocco), or even non-African States. Second, at the time of the examination of the communication, the Commission may adopt 39

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provisional measures in order to avoid irreparable prejudice to the victim of the alleged violation.39 Such measures have on occasion had little effect since the States concerned have not taken any notice of them.40 Third, once registered, the communication is examined either by a single commissioner (by far the most frequent occurrence) or by a working group of three commissioners charged with making recommendations on the issue of admissibility. The Commission may request further information and/or observations from the claimant or from the State concerned, within a period of three months. Failure to reply by one or other of the parties may entail severe consequences.41 More generally, it should be noted that a decision of inadmissibility is not necessarily definitive, since the Commission may reconsider the decision at a later date, in particular if the elements on the basis of which the decision was based have changed or disappeared. The first condition for admissibility for ‘other communications’ is that the complainant must reveal his identity, although the complainant may request to remain anonymous. This is an important issue on a continent where violations of human rights may be irreparable. In the case of a massive violation of human rights it is not necessary to name every complainant. It is, however, remarkable that the complainant need not be the victim of the alleged violation, with the result that NGOs and even individuals may bring complaints in relation to injury suffered by others. In practice, many communications are brought

References (p. 784) by NGOs acting on behalf of victims. Here the African system most closely resembles the Inter-American system and can be distinguished from the European model which requires that the individual claimant be the victim of the violation the object of the claim.42 In practice, the illegal act complained of could therefore consist of the enactment of a law contrary to the Charter, which could be challenged in abstracto.43 The second condition for admissibility is that the communication is compatible with the Charter of the OAU and the Banjul Charter. This requirement leads to an initial examination of the merits of the communication in order to verify that the Commission has prima facie competence. As a consequence, the right allegedly violated should be found in one of other of the two texts.44 In addition, the complaint must concern an alleged violation which took place after the entry into force of the Charter in relation to the State against which the complaint is made, or a continuing violation beginning before the State became a party to the Charter and continuing after it entered into force. Further, the alleged violation should, in principle, have been committed on the territory of the respondent State in question, in another area under its control, or by its agents. The jurisprudence of the Commission, in comparison with European jurisprudence, is scarce if not inexistent on this point. With regard to the fact that the defendant State should be a party to the Charter, it will be recalled that, as explained above, since 1995 a communication is not even registered if this requirement is not met. Third, the communication should not contain outrageous or insulting terms directed at the respondent State, its institutions or the OAU. This condition, which is unknown in other regional systems, may have a restrictive effect on communications. Similarly restrictive is the fourth condition, requiring that the communication should not be limited exclusively to information gathered from the mass media. However, in this regard the Commission has justifiably held that information obtained from such sources may justify the institution of proceedings, unless the proceedings depend ‘exclusively’ upon that information.45 This can be explained by the fact that serious or massive violations may form the subject of a communication and thus a minimum level of credible proof should be expected in such cases. Fifth, communications should not concern cases which have already been dealt with in accordance either with the principles of the United Nations Charter, or in accordance with the Act of the African Union or the Banjul Charter. This stems from the well-known principle of res judicata 46

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which can be found in other regional systems.46 Questions remain in relation to the issue of simultaneous examination of a case by the African Commission and another organ of protection (for example, the Human Rights Committee). The old version of the Rules of Procedure47 made it appear that the absence of pending proceedings before another body was a condition of admissibility. This is not the case with the new

References (p. 785) Rules of Procedure,48 although they are ambiguous insofar as they provide that the Commission may request clarification in this regard. The issue of lis pendens has been raised in a communication: on the basis that the issues raised by the complaint had already been submitted by the States concerned to a Claims Commission created by bilateral agreement49 and that the powers enjoyed by that Commission were more appropriate to examine the issues in question, the African Commission decided to stay its proceedings until the decision of the Claims Commission had been rendered.50 Sixth, all existing local remedies must have been exhausted if, in the view of the Commission, they are not unduly prolonged. In addition, the Commission has made clear that communications should be presented within a reasonable period from the end of the internal process or such a date as is decided by the Commission. With regard to that period, the flexibility of the Charter should be noted; other regional mechanisms set a time limit of six months. The African Commission has taken a pragmatic and realistic approach to the application of the local remedies rule. This is particularly important given that this requirement for admissibility applies both to inter-State communications and other communications, in relation to which it is by far the most common reason for a declaration of inadmissibility. The Commission has not hesitated to underline the importance of the requirement, emphasizing the subsidiary nature of its jurisdiction and the impossibility for it to transform itself into a ‘court of first instance’. At the same time, the Commission carries out an analysis which is based upon an evaluation of how the internal remedies are implemented in concreto. A first point to note in this regard is the requirement, enunciated by the Commission, that the local remedies in question should fulfil three criteria, namely that they must be available, effective and sufficient. According to the Commission, ‘a remedy is considered to exist when it can be exploited by the claimant without facing an obstacle, it is effective if it offers the prospect of success and it is sufficient if it is able to provide satisfaction to the claimant’.51 The Commission evaluates these characteristics in concreto, which has led it, for example, to accept communications where the failure to exhaust local remedies is imputable to the absence of legal aid provided by the State. This opens up real possibilities for claimants in States which do not have any system of legal aid.52 A second point to be noted is that, in a whole range of situations, a failure to exhaust local remedies does not necessarily lead to inadmissibility of the complaint. This is the case where there are serious or massive violations of human rights; where the courts which would normally be competent are stripped of their powers; where the available remedies are not of a judicial kind; and where the people concerned are deceased, irregularly detained, have been expelled under conditions which prevent them from making use of any remedy, or are on the run and in fear for their lives.53 This flexibility of the Commission is not entirely unique, but it is particularly adapted to the reality of the conditions of individuals in Africa who wish to complain about violation

References (p. 786) of their rights. In order to appreciate the importance of this procedural stage, it should be noted that, by the end of May 2002, the Commission had received some 251 non-State communications—or an average of 16 communications per year—of which 80 had been declared admissible.54

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These are the same conditions relating to admissibility which the African Court should ‘take into account’, although it should be noted that the Court may either rule on the issue itself or request the opinion of the Commission. The Ouagadougou Protocol is somewhat ambiguous as to the relation between the Commission and the Court: article 2 of the Protocol requires the Court to ‘complement the protective mandate of the African commission’. When promulgated, the Rules of the Procedure of the Court will hopefully assist in clarifying the relationship and coordination between the two bodies.

(b) Examination of the merits of communications The Commission, in its examination of the merits, follows an adversarial procedure on the basis of equality between the parties, which gives a distinctly judicial feel to the proceeding. Once a finding of admissibility has been made, the parties are informed and the State should reply as to the merits. In general, each of the parties has a period (normally of three months) within which it may forward its position. A failure to make any submission results in the Commission rendering its decision on the basis of the evidence before it. This rule has proved fatal to several States which considered its failure to respond would prevent the Commission from proceeding. Once the period for responses has passed, the Commission attempts to find an amicable settlement.55 In this regard, it should be noted that the Commission sometimes sends a delegation to the State in question in order to investigate and to attempt to bring the parties together, although this is always with the permission of the relevant State, which is not always easily obtained; accordingly, it has not proved possible to send a number of delegations. These missions are of particular value where there is an allegation of large-scale violations of human rights. However, the need for the consent of the State concerned, the lack of resources, and the lack of political will of the OAU or the African Union have become, at times, insurmountable obstacles. Special Rapporteurs may also be used to achieve a better examination of a communication. As regards the merits, and particularly as regards the law of State responsibility, it may be noted that the Commission has been faced with, and has rejected, the argument according to which an alleged violation cannot be held to be wrongful because the criticized behaviour was in conformity with domestic law.56 Similarly, the question of succession to international responsibility has been raised and upheld.57

References (p. 787) If the Charter has been breached, the Commission follows a procedure which is also used by the Human Rights Commission. When confronted with serious or massive violations of human rights, the Commission brings this to the attention of the Conference of the Heads of State and Governments, although that body has not systematically acted upon such communications.58 In these situations the Commission may also make recommendations to the State against which the complaint was lodged.59 If the communications reveal a breach of the complainant’s rights, the Commission in the first place generally ‘declares’, ‘states’, or ‘upholds’ (and if appropriate ‘reiterates’) the breach of the applicable disposition or dispositions of the Charter. The Commission then makes recommendations to the State: in essence, the State is requested to cease the wrongful behaviour and, in addition, to undertake various corrective steps. Thus, depending on the case in question, the Court may request that the State adopt appropriate measures; abrogate or amend a given law and replace it with legislation in conformity with the Charter; request that the State provide certain services or create an institution to examine cases similar to that which is the object of the communication; 60 prosecute those responsible for the breaches complained of; 61 facilitate the safe return of the applicant who had fled in fear for his life; 62 take appropriate measures in order to recognize the citizenship of the petitioner; 63 release64 or re-try the applicants, and allow them to chose their defence team; and improve the conditions of detention.65 In the same manner, the Commission has even specified that an order not in conformity with the 66

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Charter ‘can be annulled’.66 If warranted, the Commission may also order compensation for the harm suffered,67 without however fixing either the quantum of the reparation, its composition or its modalities, instead leaving these issues to the national authorities.68 However, on occasion although a claim for breach of the right to property is upheld, it does not entail any consequences in the dispositif of the Commission’s rulings.69 The precise nature of the operative paragraphs of the Commission’s decisions is striking, and give the impression of a judicial decision. This impression is strengthened by the fact that the procedure followed resembles a judicial trial (in particular, due to the application of the principle of the

References (p. 788) equality of arms, and rules as to the incidence of the burden of proof). Yet, as has been noted above, the Commission’s findings of breach and recommendations calling for cessation of the wrongful act70 are devoid of any binding force. States are well aware of this fact. It might be asked whether the Commission compensates for this weakness through the way in which it expresses its findings, almost as injunctions.71 Conscious of its limitations, the Commission has created various procedures: the Commission asks States found to have breached their obligations to inform it of the measures taken in that regard in their next reports72 or to keep it informed of the measures adopted.73 The Commission has also sometimes made use of delegations to the relevant country, in order to verify that the recommended corrective measures have been put in place.74 This situation should change when the African Court of Justice and Human Rights becomes functional. The Court may, if it considers that there was a violation of a human or people’s right, order any appropriate measures in order to remedy the situation, including granting fair compensation. The Court will issue judgments which are binding and final,75 and State parties have undertaken to ensure implementation of those judgments within the time limit set by the Court. The parties will be informed of the decision, which is also transmitted to the member States of the African Union as well as to the Commission. The Executive Council of the African Union will also be notified: it oversees execution of the judgment, although the Protocol does not specify the modus operandi of this surveillance. Where a party fails to comply with a judgment, the Court shall refer the matter to the Assembly, which shall decide upon measures to be taken to give effect to that judgment, and may impose sanctions. Moreover, the Court will prepare an annual report on its activities for the attention of the Conference of the African Union, in which it will draw attention to cases of non-compliance with its judgments. It remains to be seen whether this technique of ‘nameand-shame’ will be sufficient to encourage recalcitrant States to abide by the decisions. In any case, the experiences of the European Court of Human Rights and the Committee of Ministers of the Council of Europe should assist in finding appropriate solutions. Further reading E Ankrumah, The African Commission on Human Rights and Peoples’ Rights, Practice and Procedure (The Hague, Martinus Nijhoff, 1996) JG Bello, ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, (1985) 194 Recueil des Cours 9 H Boukrif, ‘La Cour africaine des droits de l’homme et des peuples: un organe judiciaire au service des droits de l’homme et des peuples en Afrique’ (1998) 10 RADIC 61 N Chaouachi, ‘La Cour Africaine des droits de l’homme et des peuples’ in Justice et juridictions internationales (Paris, Pedone, 2000) 271

References (p. 789) MD Evans & R Murray (eds), The African Charter on Human and Peoples’ Rights: The System in Practice, 1986–2000 (Cambridge, CUP, 2002) H Gherari, ‘La Commission africaine des droits de l’homme et des peuples: bilan d’un From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

jurisprudence’, in P Tavernier (ed), Regards sur les droits de l’homme en Afrique (Paris, L’Harmattan, 2008), 131 H Gherari, ‘La Cour africaine des droits de l’homme et des peuples: entre espoirs et invertitudes’, in G Lebreton (ed), Valeurs républicaines et droits fondamentaux de la personne humaine en 2003 et 2004 (Paris, L’Harmattan, 2006), 169 J Matringe, Tradition et modernité dans la Charte africaine des droits de l’homme et des peuples (Brussels, Bruylant, 1996) K Mbaye, Les droits de l’homme en Afrique (Paris, Pedone, 2002) M Mubiala, ‘La Cour africaine des droits de l’homme et des peuples: mimétisme institutionnel ou avancée judiciaire?’ (1998) 102 RGDIP 768 M Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342 R Murray, The African Commission on Human and Peoples’ Rights and International Law (Oxford, Hart Publishing, 2000) F Ouguergouz, La Charte africaine de droits de l’homme et des peuples (Paris, PUF, 1993) AI Sow, ‘Les juges de la Cour africaine des droits de l’homme et des peuples’ (2001) 1 RJPIC 38 P Tavernier (ed), Recueil juridique des droits de l’homme en Afrique 1996–2000 (Brussels, Bruylant, 2002) E Yema, La Charte africaine des droits de l’homme et des peuples (Paris, L’Harmattan, 1996)(p. 790)

Footnotes: 1 Article II(1)(e), Charter of the OAU, 25 May 1963, 47 UNTS 45. 2 Ibid, art III. 3 Constitutive Act of the African Union, Lomé, 11 July 2000, 2158 UNTS 3, preamble, para 9 and arts 3(e), (g), (h), and 4 (l), (m). 4 For example, the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3; and the Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195. 5 See eg Constitutive Act of the African Union, Lomé, 11 July 2000, 2158 UNTS 3. 6 For discussion of these questions, see P Tavernier (ed), Recueil juridique des droits de l’Homme en Afrique (Brussels, Bruylant 2002); K Mbaye, Les droits de l’Homme en Afrique (Paris, Pedone, 2002). 7 African Charter on Human and People’s Rights (also known as the Banjul Charter), Nairobi, 27 June 1981, 1520 UNTS 363. 8 Excluding Morocco, since its withdrawal from the OAU in 1984. 9 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)). See now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm ElSheikh, 1 July 2008. 10 11 July 2003, reprinted in 1 African Human Rights Law Journal 1. 11 Addis Ababa, 10 September 1969, 8 ILM 1228. The convention has been ratified by almost all African States. 12 11 July 1990, in force 29 November 1999, OAU Doc CAB/LEG/24.9/49 (1990). 13 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363 (‘Banjul Charter’), preamble, para 5.

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14 Ibid, arts 30ff. 15 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)). See now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-Sheikh, 1 July 2008. 16 11 July 2003, reprinted in 1 African Human Rights Law Journal 1. 17 11 July 1990, in force 29 November 1999, OAU Doc CAB/LEG/24.9/49 (1990). 18 Ibid. 19 Ibid, art 44 20 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363, arts 30– 44. 21 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363, art 47; see Communication 223/98, Forum of Conscience v Sierra Leone; Communication 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria. 22 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363, art 47; and arts 88–92, Rules of Procedure. 23 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363, arts 48– 49; and arts 93–101, Rules of Procedure. 24 African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, 1520 UNTS 363, art 47. 25 Ibid, art 49. 26 Communication No 227/99. 27 15th Activity Report, 2001–2002, para 42; see also the final communication of the 30th Session, para 20. 28 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Burundi), Order of 30 January 2001, ICJ Reports 2001, p 6; Armed Activities on the territory of the Congo (Democratic Republic of the Congo v Rwanda), Order of 30 January 2001, ICJ Reports 2001, p 3; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v Rwanda), ICJ Reports 2006, p 6; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168. 29 See arts 102ff of the Internal rules, and the Commission’s Fact Sheet No 2 ‘Guidelines for the Submissions of Communications’. See also Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia. 30 Joint Communications 16/88 and 17/88 Comité culturel pour la démocratie au Bénin, Hilaire Badjogoume, El Hadj Boubacare Diwara v Bénin, 25/89, 47/90, 56/91 and 100/93, World Against Torture, Lawyers’ Committee for Human Rights, Union africaine des droits de l’homme, Les témoins de jéhovah v Zaïre. 31 K Mbaye, Les droits de l’homme en Afrique (Paris, Pedone, 2002), 189. 32 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)), in force 25 January 2004; see now the Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-Sheikh, 1 July 2008. 33 Ibid, preamble; see also, in the same sense, art 2. 34 See, respectively, EX.CL/Dec. 165 (VI) of the Executive Council (Ministers of Foreign Affairs), Abuja, January 2005 and Dec. 83 (V) of the Sirte Summit of the Conference of the Heads of State and Government, Sirte, July 2005. 35 Speaking at the opening of a Meeting of Experts of the African Union on the merger of the

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Courts of Justice and of Human and Peoples’ Rights, Algiers, 22 November 2005. 36 See, among others, the declarations and press releases of FIDH and Amnesty International. 37 See above, Chapter 51.2. 38 Adopted in 1988 and modified in 1995. 39 Article 111, Rules of Procedure; the same power has been granted to the Court: see art 27(2), Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, Ouagadougou, 9 June 1998 (Doc OUA/LEG/MIN/AFCHPR/PROT (III)), in force 25 January 2004 and see now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-Sheikh, 1 July 2008. 40 See eg Communications 137/94, 139/94, 154/96, and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr, Civil Liberties Organisation v Nigeria; Communication 212/98, Amnesty International v Zambia. 41 See eg the decisions of inadmissibility in Communications 198/97, SOS Esclaves v Mauritania, and Communication 252/2002, Stephen O Aigbe v Nigeria. 42 See art 34, European Convention on Human Rights, 4 November 1950, ETS No 5 (as subsequently amended); see also art 1, (First) Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 271. 43 See Communication 211/98, Legal Resources Foundation v Zambia, relating to a constitutional amendment. 44 For example, between peoples’ rights and territorial integrity. For a finding of violation of peoples’ rights, see Communications 147 and 149/96, Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia, and, contra, Communication 75/92, Congres du Peuple katangis v Zaire. 45 Communications 147 and 149/96, Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia. 46 See art 35(2), European Convention of Human Rights; art 47(d), American Convention on Human Rights. 47 Art 114(3)(f ) of the previous Rules of Procedure. 48 Art 104(1)(g), Rules of Procedure. 49 Eritrea-Ethiopia, Algiers Agreement, 12 December 2000, 40 ILM 260. 50 Communication 234/99, Interights (on behalf of the Pan African Movement and Inter Africa Group) v Eritrea. 51 Communications 147 and 149/96, Sir Dawda K Jiwara v Gambia. 52 Communication 241/101, Purohit and Moore v Gambia. 53 For further details see NJ Udombana, ‘So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples’ Rights’ (2003) 97 AJIL 1; and F Viljoen, ‘Admissibility under the African Charter’, in MD Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights 1986–2000 (Cambridge, CUP, 2002), 61. 54 The figures are taken from NJ Udombana, ‘So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples’ Rights’ (2003) 97 AJIL 1, 14, who estimates that 32% of cases are declared admissible, which lies between the same statistics in relation to the Human Rights Committee and the European Court of Human Rights. 55 For examples involving the liberation of the victims, see Communication 16/88 Comité culturel pour la démocratie au Bénin v Bénin; Communication 67/92, Civil Liberties Organisation v Nigeria; Communication 133/94, Association pour la défense des droits de l’homme et des libertés v Djibouti, in which the Commission verified the terms of the agreements reached.

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56 See Communications 147/95 and 149/96, Sir Dawda K Jiwara v Gambia and Communication 211/98 Legal Resources Foundation v Zambia, in which the Commission also referred to art 27 of the Vienna Convention on the Laws of Treaties; see also ARSIWA, art 3. 57 See Communications 218/98, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria; Communications 64/92, 68/92 and 78/92, Achutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi in which the Commission emphasized that the new government inherited the international obligations of the previous regime, including those obligations in the field of State responsibility. 58 For example, see Communications 64/92, 68/92, and 78/92 Achutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi. 59 See Joint Communications 27/89, 46/90, 49/91, and 99/93 Organisation mondiale contre la torture and others v Rwanda. 60 Communication 241/01, Purohit and Moore v Gambia; Communication 228/99, Law Office Suleiman v Sudan. 61 Communication 204/97, Mouvement burkinabé des droits de l’homme et des peuples v Burkina Faso. 62 Communication 232/99, John D Ouko v Kenya. 63 Communication 97/93, John K Modise v Botswana. 64 Communication 64/93, Constitutional Rights Project (on behalf of Lekwot and others) v Nigeria. 65 Communication 151/96, Civil Liberties Organisation v Nigeria. 66 Communication 101/93, Civil Liberties Organisation (on behalf of L’association des barreaux) v Nigeria. 67 Communication 103/93, Abudakar v Ghana; Communication 218/98, Civil Liberties Organisation, Legal Defence Assistant Project v Nigeria. 68 ‘[T]o compensate the victims as required’, see Communication 218/98, Civil Liberties Organisation, Legal Defence Assistant Project v Nigeria. 69 Cf Communications 140/94, 141/94 and 145/95, Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria. 70 In this regard, see ARSIWA, art 30. 71 In this regard, the recommendations of the Commission may be compared with the pronouncements of the European Court of Human Rights, which are essentially declaratory, apart from those which concern just satisfaction or an infringement of the right to property. 72 Communication 211/98, Legal Resources Foundation v Zambia, and Communication 241/01, Purohit and Moore v Gambia. 73 Communication 155/96, Social and Economic Rights Action Centre, Centre for Economic Rights v Nigeria. 74 For example, in relation to Nigeria after Communication 87/93, Constitutional Rights Project (on behalf of Lekwot and others) v Nigeria. 75 Although susceptible, under certain conditions, to revision and interpretation.

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Part IV The Content of International Responsibility, Ch.52 Responsibility and the World Trade Organization Joanna Gomula From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of international organizations — Attribution — Responsibility of states — World Trade Organization (WTO)

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(p. 791) Chapter 52 Responsibility and the World Trade Organization ∗ 1 Introduction 791 2 Elements of WTO responsibility 793 (a) Attribution to WTO Members 795 (b) The WTO system of remedies 797 3 Conclusion 801 Further reading 801

1 Introduction There is no question that the obligations resulting from the Marrakesh Agreement Establishing the World Trade Organization (the WTO Agreement) are State obligations. The WTO Agreement is an international agreement, membership in which is open primarily to States.1 The obligations resulting from the numerous agreements within the WTO system, found in four annexes to the WTO Agreement, are inter-State obligations.2 Members are subject to dispute settlement proceedings within the WTO and are obliged to implement the recommendations and rulings resulting from such proceedings. There is also little doubt that WTO rules are part of general public international law. The debate as to whether the WTO should be treated as a ‘self-contained regime’,3 especially

References (p. 792) given its specific dispute settlement system,4 seems to have subsided. The prevailing view is that WTO law is part of general public international law,5 although the WTO agreements themselves do not explicitly link the WTO regime with the regime of public international law. One notable exception6 is article 3.2 of the Dispute Settlement Understanding (DSU). It provides that one of the objectives of the dispute settlement system is to clarify WTO provisions ‘in accordance with customary rules of interpretation of public international law’. Panels and the Appellate Body have read this as a reference to the Vienna Convention on the Law of Treaties, which they apply when interpreting the relevant provisions of the WTO agreements. In one of the earliest WTO disputes, the US—Gasoline case, the Appellate Body found that article 3.2 ‘directs it’ to apply customary rules of public international law when seeking to clarify WTO agreements and ‘[t]hat direction reflects a measure of recognition that the General Agreement is not to be read in clinical isolation from public international law’.7 This statement has been understood to be relevant not only to the interpretation of the GATT (which was at stake in US— Gasoline), but to all WTO agreements.8 The nature of the WTO regime and its relationship to general public international law is not without consequence for the relationship of WTO law to the rules on State responsibility. If the WTO were a self-contained regime, the general rules of State responsibility would be displaced in favour of the rules of State responsibility contained in the system itself. If, however, WTO law is part of public international law, the rules on State responsibility will apply. This means that the ILC Articles on State Responsibility will be of relevance to the resolution of issues relating to State responsibility arising within the realm of the WTO. This is not to suggest that the ILC Articles must be applicable to WTO law in their entirety. On the contrary, like many other subsystems of international law, WTO law and dispute settlement have their specificities. Although WTO agreements contain no explicit

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References (p. 793) derogation from general rules on State responsibility, some of the general rules are clearly not applicable. That situation is expressly envisaged in article 55 (Lex specialis) of the ILC Articles, which excludes the application of the ILC Articles ‘where and to the extent that the conditions for the existence of an internationally wrongful act of an internationally wrongful act or the content of the implementation of the international responsibility of a State are governed by special rules of international law’. The WTO system of remedies is mentioned in the commentary to article 55 as an example of lex specialis: It will depend on the special rule to establish the extent to which the more general rules on State responsibility set out in the present articles are displaced by that rule. In some cases it will be clear from the language of a treaty or other text that only the consequences specified are to flow. Where that is so, the consequence will be ‘determined’ by the special rule and the principle embodied in article 56 will apply. In other cases, one aspect of the general law may be modified, leaving other aspects still applicable. An example of the former is the World Trade Organization Dispute Settlement Understanding as it relates to certain remedies.9 Article 56 provides that ‘[t]he applicable rules of state responsibility continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles’. There is no reason for this principle not to extend to the WTO.10 The extent of the applicability of the general rules of State responsibility, as expressed in the ILC Articles, will be reviewed below in three important aspects: elements of WTO responsibility, attribution and remedies.

2 Elements of WTO responsibility As explained in the commentary, the ILC Articles seek to regulate the responsibility of States for internationally wrongful acts. However, the commentary recognizes that ‘[t]here may be cases where States incur obligations to compensate for the injurious conduct which is not prohibited, and may even be expressly permitted, by international law’. Responsibility for acts which are not wrongful is a special feature of WTO law. Although it remains outside the scope of the ILC Articles and cannot even be treated as lex specialis, this issue merits a few comments. The general rule from the ILC Articles, that a breach of an international obligation on the part of a State gives rise to a duty to make reparation, is reflected in article XXIII.1(a) of the General Agreement on Tariffs and Trade 1994 (GATT 1994).11 This provision is the basis for complaint by a Member for ‘the failure of another Member to carry out its obligations under this Agreement’ and is known as a ‘violation’ complaint. Article XXIII.1 also allows for two other types of complaints: ‘nonviolation’ complaints (where a Member applies a measure, regardless of whether or not it conflicts with provisions of the GATT) and ‘situation’ complaints (the existence of ‘any other situation’). Hence, the WTO establishes

References (p. 794) international liability for certain consequences of acts and situations which are not the result of an internationally wrongful act.12 As noted, these would, in any event, have remained outside the scope of the ILC Articles. The majority of the provisions of the DSU have been drafted with violation complaints in mind. Only

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one article, article 26 of the DSU, sets special rules for non-violation and situation complaints, modifying the general DSU principles applicable to violation complaints. The existence of three types of complaints in WTO law is a result of yet another specificity of its dispute settlement system. A WTO Member’s complaint is triggered not by ‘damage’ or ‘injury’, as in other systems, but by ‘nullification or impairment of a benefit’ under a WTO agreement. The WTO has not adopted the notion of injury, material or moral, predominant in general law on State responsibility and defined in article 31(2) of the ILC Articles. This is one of the reasons why it would be difficult for WTO Members to make ‘full reparation for the injury caused’, as required under general rules in article 31(1) of the ILC Articles, which is also reflected in the remedies available under the WTO system. Although nullification or impairment remains the primary cause of action in the WTO,13 the evolution of the system into a rule-oriented regime has caused a procedural modification of this concept. Under article 3.8 of the DSU, in case of a breach the complaining Member need not demonstrate lost benefits: there is a prima facie case of nullification or impairment.14 This presumption applies only with respect to the nullification or impairment as such, and not to the existence of a breach of WTO obligation. With respect to the latter, the general rules on burden of proof apply. There is a further consequence of the presumption set out in article 3.8, this time developed in the jurisprudence. In case of breach of a covered agreement, the complaining State does not have to show any ‘legal interest’ in the dispute. In EC—Bananas (III), the Appellate Body endorsed the view of the panel that ‘neither article 3.3 nor 3.7 of the DSU nor any other provision of the DSU contain any explicit requirement that a Member must have a “legal interest” as a prerequisite for requesting a panel’. The Appellate Body also rejected the need for such a legal interest to be implied into the DSU or in any other provision of the WTO Agreement.15 Notwithstanding the specific elements relating to the burden of proof under article 3.8 of the DSU, it appears that in light of article 55 of the ILC Articles, there is no lex specialis with respect to the determination of the existence of an internationally wrongful act under the WTO law. In WTO law, the ‘internationally wrongful act’, referred to in article 1 of the ILC Articles, takes the form of the ‘failure of a Member to carry out its obligations’, within the meaning of article XXIII of the GATT.16 The two elements of an internationally

References (p. 795) wrongful act (attribution and breach), listed in article 2 of the ILC Articles, must be demonstrated before a Member is held responsible under WTO law. Nor do there seem to be any problems with the application of Chapter III of Part One of the ILC Articles to the WTO system, although there are some specificities, for example, relating to such issues as termination or amendments of contested measures.17

(a) Attribution to WTO Members The WTO Agreements do not contain any special provisions on attribution. This question has arisen only occasionally in WTO dispute settlement but panels and the Appellate Body, as well as parties to the disputes, have recognized that the general rules of State responsibility apply in this area.18 In reaching their conclusions, WTO dispute settlement bodies have often invoked draft articles of the ILC (though not always the most current versions). Problems of attribution have included ‘classical’ issues of State responsibility, as well as issues more likely to arise in the WTO, such as where action of private parties or entities created as a result of customs unions is involved. In Korea—Government Procurement, Korea attempted to deny its responsibility for certain statements of one of its ministries by arguing that at the time of making those statements it had been unaware of the actions of another ministry. The panel emphasized that ‘actions or omissions of State organs acting in that capacity are attributable to the State and

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engage its responsibility under international law’, pointing out ‘long established international law principles of State responsibility’, as expressed in the ILC first reading draft.19 In Australia-Salmon (Article 21.5—Canada) the panel, faced with the question whether a ban imposed by Tasmania could be attributed to Australia, ruled that ‘it is a measure for which Australia, under both general international law and relevant WTO provisions, is responsible’, supporting its conclusion, among others, with the ILC draft.20 In US—Gambling the panel found that statements made by the United States International Trade Commission in an explanatory document could be attributable to the United States. The panel invoked article 4 of the ILC Articles and commentaries thereto, noting that the former is ‘based on the principle of the unity of the State’ and ‘not binding as such, but does reflect customary principles of international law concerning attribution’.21 The Turkey—Textiles dispute is an example of attribution to a State of actions taken in implementation of a customs union, in this case, of the decisions of an Association Council set up as part of the EC—Turkey agreement. The panel made a detailed analysis of

References (p. 796) the problem of attribution, relying on the ILC Articles, and rejected Turkey’s defence that it could not be held responsible for the trade restrictions in question.22 Occasionally, private parties may be involved in measures or actions whose WTO consistency is questioned. As a rule, such involvement does not limit the responsibility of a Member. Commenting on a number of GATT 1947 cases where conduct of private parties was at issue, the panel in Japan —Film remarked that ‘the fact that an action is taken by private parties does not rule out the possibility that it may be deemed to be governmental if there is sufficient government involvement with it’.23 However, in this case, as well as in most other instances where this problem has arisen, the panels’ approach to attribution has been to treat it as an element in the interpretation of a term or provision of a WTO agreement, rather than as a problem of attribution by operation of law. For example, in Canada—Autos24 the panel examined the issue whether discrimination against imported products resulting from commitments made in Letters of Understanding, submitted by four Canadian auto producers, could be attributed to the Canadian government. The panel focused on the interpretation of the term ‘requirement’ under article III.4, but stressed the need for a ‘nexus’ between private action and the action of a government, so that the government could be held responsible for that action.25 Despite the formally non-binding status of the Letters of Understanding, the panel identified several factors indicating that such a ‘nexus’ did indeed exist. In Argentina—Bovine Hides the EC challenged the presence of representatives of private leather manufacturers during customs control of bovine raw hides intended for export, as explicitly authorized by the Argentinean government, alleging that this constituted an ‘export restriction’ within the meaning of article XI:1 of GATT. The panel concluded that the EC had not met its burden of proof, but noted (in a footnote) that as an additional matter the EC would ‘also need to prove that this private action was attributable to the Argentinean government under the doctrine of state responsibility’.26 Governmental action and private action are inter-related particularly in the area of subsidies. In Canada—Dairy, Canada opposed the qualification of its provincial milk marketing boards, in which private producers played an important role, as ‘government agencies’ within the meaning of article 9.1(a) of the Agreement on Agriculture. In a finding upheld by the Appellate Body, the panel concluded that the boards operated under

References (p. 797) the explicit authority delegated to them by either the federal or a provincial government and therefore could be presumed to be an agency within the meaning of (then draft) article 7 (now article 5) of the ILC Articles.27 On the other hand, in Canada—Periodicals28 the Appellate Body

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concluded that the conduct of two private bodies could not be attributed to the government, in respect of providing payments to Canadian producers. Some specificity in the area of attribution may be noted in the context of state-trading enterprises. Pursuant to article XVII of GATT 1994, WTO Members undertake that State enterprises (or private enterprises to which exclusive or special privileges have been granted) will act in a nondiscriminatory manner in their purchases or sales involving either imports or exports. Such purchases or sales should be made solely in accordance with commercial considera tions. This is a ‘reverse’ of the situation anticipated in the ILC Articles: under ILC article 5, it would be necessary for a separate entity such as a statetrading enterprise to be acting in the exercise of governmental authority; otherwise, there would be no attribution and therefore no responsibility. Here, in effect, acting on commercial considerations is a defence on the merits under article XVII, whereas under the general law it goes to the issue of attribution.29 To summarize, although not too frequent, attribution is an important issue in WTO jurisprudence. Both panels and the Appellate Body have recognized that the general principles of State responsibility apply to determine attribution to WTO Members.

(b) The WTO system of remedies As the commentary to the ILC Articles points out, the WTO system of remedies is lex specialis to general rules of State responsibility in this area. The commentary seems to limit the displacement of general rules to ‘certain remedies’ only, but in truth the whole WTO dispute settlement system is specific. The elements of the system are outlined in article 3.7 of the DSU.30 According to this provision, the basic aim of the WTO dispute

References (p. 798) settlement mechanism is ‘to secure a positive solution to the dispute’, where a ‘solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred’. Only in the absence of a mutually agreed solution (which can be reached by the parties at any point during and after dispute settlement proceedings) does the system of remedies come into play. Thus, the WTO dispute settlement clearly prefers an agreement between the parties to sanctions for any breach of obligations. Article 3.7 specifies that the first objective of the dispute settlement system is usually the withdrawal of the contested measures, if they are found to be inconsistent with WTO provisions. The focus here is on cessation, not reparation.31 However, the qualification of this objective by the term ‘usually’, read in light of the remaining provisions of the DSU, supports the view that there is no immediate and unconditional obligation to withdraw the measure, comparable to the obligation to ‘cease the internationally wrongful act’, within the meaning of article 30 of the ILC Articles. Failure to withdraw the contested measure opens the possibility of application of two WTO remedies: voluntary compensation and suspension of concessions and other obligations. The latter, as described by article 3.7 of the DSU, is a measure of ‘last resort’ and, as such, the least preferable of all outcomes. Both these sanctions are temporary measures, applicable only until the WTO Member fully implements recommendations and rulings from dispute settlement proceedings. As mentioned above, the WTO does not rely on the traditional concept of ‘injury’. As a result, there is no obligation on WTO Members to make ‘full reparation for injury caused’, in accordance with article 31(1) of the ILC Articles. Nor is there much similarity of WTO remedies to the forms of reparation for injury, described in Chapter II of Part Two of the ILC Articles. Despite the identity of name, compensation in the WTO bears no resemblance to the remedy envisaged in article 36 of the ILC Articles.32 It is voluntary (that is, the respondent Member cannot be forced to offer compensation) and is subject to negotiations between the parties concerned. Only if no ‘mutually acceptable compensation’ is negotiated within a specified period, can the prevailing Member request authorization for the ultimate sanction: suspension of concessions or other obligations. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

level of suspension must be equivalent to the level of nullification or impairment (article 22.4 of the DSU). Another characteristic feature of the WTO system of remedies is the prohibition of unilateral countermeasures.33 In fact, the term ‘countermeasures’ is not used as such in

References (p. 799) the DSU (however, it is used in articles 4.10 and 7.9 of the Agreement on Subsidies and Countervailing Measures). Article 23.1 of the DSU obliges Members to seek ‘the redress of a violation of obligations’ through recourse to the rules and procedures set forth in the DSU. Paragraph 2 specifies that Members shall not make a determination to the effect that a violation has occurred, except through recourse to WTO dispute settlement, and obliges Members to follow the implementation and remedy procedures under articles 21 and 22 of the DSU.34 The obligation of WTO Members resulting from article 23 of the DSU not to have recourse to unilateral action has been confirmed in a number of disputes.35 In EC—Commercial Vessels the panel went so far as to say that any measure taken by a Member, which seeks redress of a violation by another Member, is contrary to article 23.1, even if it is otherwise consistent with WTO rules.36 The panel rejected the application of general rules of State responsibility to the interpretation of this provision: ‘While the Panel realizes that in a number of dispute settlement and arbitration cases reference has been made to the public international law concepts invoked by the European Communities, the Panel can see no basis for using these concepts to read into article 23.1 a limitation that is unsupported by an interpretation based on its text, context and object and purpose’.37 In Mexico—Tax on Soft Drinks countermeasures were involved, but in a different context. Mexico argued that its WTO-inconsistent action qualified as countermeasures taken as a result of another State’s wrongful conduct under a different jurisdiction (NAFTA) and sought justification under article XX(d) of GATT. The Appellate Body rejected that argument.38 In Canada/US—Hormones (Suspension) the EC challenged the continued suspension of concessions by the United States and Canada, which these members had been authorized to take when the original EC ban on hormones was found to be inconsistent with the Agreement on Sanitary and Phytosanitary Measures. The EC argued that it had fully implemented the original ruling by carrying out a new risk assessment and replacing the original directive with a new one, based on new scientific evidence. The EC invoked the ILC Articles, pointing out the requirement that ‘countermeasures be suspended if the internationally wrongful act has ceased and the dispute is pending before a tribunal that has the authority to make decisions binding upon the parties’.39 The Appellate Body rejected these arguments, finding that the mere replacement of the original measure with

References (p. 800) another one (which did not constitute a full withdrawal of the ban) was insufficient for the measure to be considered ‘removed’ for the purposes of article 22.8 of the DSU. The Appellate Body indicated that the issue of implementation of the original recommendations and rulings should first be resolved through recourse to compliance proceedings under article 21.5 of the DSU.40 Some WTO agreements contain specific procedures and remedies. In particular, the Agreement on Subsidies and Countervailing Measures (SCM Agreement) allows Members to take countermeasures against prohibited or actionable subsidies. In the case of the former, the countermeasures should be ‘appropriate’ (article 4.10 of the SCM Agreement); in the case of the latter, they should be ‘commensurate with the degree and nature of the adverse effects determined to exist’ (article 7.9). The wording of these provisions seems to indicate that the drafters were inspired by general rules on State responsibility. Indeed, arbitration panels established under article 22.6 of the DSU and article 4.11 of the SCM Agreement to determine the level of ‘appropriate’ countermeasures, in US— 41

42

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FSC (22.6)41 and Brazil—Aircraft (22.6),42 have relied on the rules on State responsibility, in particular, on the principle of proportionality. Moreover, although WTO agreements other than the SCM Agreement do not use the term ‘countermeasures’, panels and the Appellate Body have applied the concept of countermeasures, as encompassed in the ILC Articles, also outside the scope of the SCM Agreement. In EC—Bananas III (22.6-EC) the arbitration panel established pursuant to article 22.6 of the DSU to determine the level of nullification or impairment under GATT and GATS considered the effects of cumulative suspension of concessions or obligations, to conclude that: ‘cumulative compensation or cumulative suspension of concessions by different WTO members for the same amount of nullification or impairment would run counter to the general international law principle of proportionality of countermeasures’.43 Proportionality has also been an issue in safeguard disputes. In US—Cotton Yarn the Appellate Body, in an examination of attribution of Members’ imports to serious injury, invoked article 51 of the ILC Articles and the principle that ‘countermeasures in response to breaches by states of their international obligations be commensurate with the injury suffered’.44 In US—Line Pipe Safeguards the Appellate Body again relied on article 51 and recalled that ‘the rules on general international law on State responsibility require that countermeasures in response to breaches by States of their international obligations be proportionate to such breaches’.45 This time its task was to

References (p. 801) determine the maximum possible extent of the application of safeguard measures, as defined in article 5.1 of the Agreement on Safeguards. On this basis, one may venture the following comments on the relationship between WTO law and the general rules of State responsibility in the area of WTO remedies. While the first impression is that the WTO regime is a clear example of lex specialis, with its own principles and unique concepts (such as those of ‘nullification or impairment’ or ‘voluntary compensation’), there is an uncontested link to the general rules of State responsibility. Above all, the WTO system of remedies is based on, or at least firmly rooted in, the structure of the general law on State responsibility. As a result, WTO dispute settlement bodies have had no problems in applying the general rules to fill gaps or strengthen their analyses (with some exceptions, such as the panel in EC—Commercial Vessels). This is particularly striking in the areas of attribution and countermeasures.

3 Conclusion The relationship between the law on State responsibility and WTO law is a complex and perhaps still ‘unsettled’ one. However, there is no doubt that the general rules on State responsibility have had a strong impact on the development of WTO law. The principles and concepts found in the ILC Articles have in many instances been either adopted by the WTO system or adapted thereto. WTO jurisprudence has played an important role in asserting this unique relationship. Further reading C Carmody, ‘Remedies and Conformity under the WTO Agreement’ (2002) 5 JIEL 307 S Charnovitz, ‘Rethinking WTO Trade Sactions’ (2001) 95 AJIL 792 M Gracia-Rubio, ‘On the Application of Customary Rules of State Responsibility by the WTO Dispute Settlement Organs’ (Graduate Institute of International Studies, Geneva 2001) P Grané, ‘Remedies under WTO Law’ (2001) 4 JIEL 755 P Mavroidis, ‘Remedies in the WTO Legal System: Between a Rock and a Hard Place’ (2000) 11 EJIL 763 J Pauwelyn, ‘Enforcement and Countermeasures in the WTO: Rules are Rules—Toward a More Collective Approach’ (2000) 94 AJIL 335

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S Villalpando, ‘Attribution of Conduct to the State: How the Rules of State Responsibility May Be Applied Within the WTO Dispute Settlement System’ (2002) 5 JIEL 393

References (p. 802)

Footnotes: ∗ The author wishes to thank Sandy Sivakumaran for his assistance. 1 Membership in the WTO is also open to any separate customs territory possessing full autonomy in the conduct of its external commercial relations. 2 Art XVI:4 of the WTO Agreement places an obligation on Members to ensure the conformity of their laws, regulations and administrative procedures with the obligations resulting from the agreements. 3 The idea of the existence of self-contained regimes is not a new one. The PCIJ in the case of the SS Wimbledon, found the provisions in the Treaty of Versailles that related to the Kiel Canal to be self-contained: 1923, PCIJ Reports, Series A, No 1, p 4, 23–4. In the Tehran Hostages case, the International Court of Justice stated that the rules of diplomatic law ‘constitute a self-contained régime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse’, United States Diplomatic and Consular Staff in Teheran (USA v Iran), ICJ Reports 1980, p 3, 40 (para 86). However, as Pauwelyn has noted, ‘the Court did not find that diplomatic law was a self-contained regime in the sense of a regime that is completely detached from other rules of international law. It only concluded that in the particular circumstances of the Teheran Hostages case the remedies to be resorted to for breach of diplomatic law had to be limited to those available under diplomatic law, not any other remedies such as occupation of the embassy’, J Pauwelyn, Conflict of Norms in Public International Law (Cambridge, CUP, 2003), 36. 4 On this subject see eg PJ Kuiper, ‘The Law of GATT as a Special Field of International Law. Ignorance, Further Refinement or Self-Contained System of International Law?’ (1994) 25 NYIL 227; G Marceau, ‘A Call for Coherence in International Law: Praises for the Prohibition Against “Clinical Isolation” in WTO Dispute Settlement’ (1999) 33 Journal of World Trade 87; JP Trachtman, ‘The Domain of WTO Dispute Resolution’ (1999) 40 Harvard ILJ 333. 5 See eg P Mavroidis & D Palmeter, ‘The WTO Legal System: Sources of Law’ (1998) 92 AJIL 413; J Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 AJIL 535; J Pauwelyn, Conflict of Norms in Public International Law (Cambridge, CUP, 2003), 34–40. 6 Although there do exist other ‘links’ to systems of international law. For example, the TRIPS Agreement incorporates obligations from a number of intellectual property conventions, thus connecting the WTO system with another specialized branch of international law. 7 United States—Standards for Reformulated and Conventional Gasoline (WT/DS2), Appellate Body and panel reports adopted on 20 May 1996, Appellate Body Report, DSR 1996:I, 16. This view may be contrasted with the approach adopted 10 years later by the panel in the EC—Biotech dispute. The panel refused to take into account certain international environmental agreements, arguing that ‘the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members’, raising the question whether this is a requirement that all WTO Members be parties to such agreements, European Communities—Measures Affecting the Approval and Marketing of Biotech Products (WT/DS291, DS292, DS293), panel report adopted on 21 November 2006, para 7.68. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

8 In one panel’s opinion: ‘Customary international law applies generally to the economic relations between the WTO Members. Such international law applies to the extent that the WTO treaty agreements do not “contract out” from it. To put it another way, to the extent there is no conflict or inconsistency, or an expression in a covered WTO agreement that implies differently, we are of the view that the customary rules of international law apply to the WTO treaties and to the process of treaty formation under the WTO’, Korea—Measures Affecting Government Procurement (WT/DS163), panel report adopted on 19 June 2000, para 7.96. 9 Commentary to art 55, para 3. 10 There has been no explicit or implicit derogation of the general rules on State responsibility in the WTO. See M Gracia-Rubio, ‘On the Application of Customary Rules of State Responsibility by the WTO Dispute Settlement Organs’ (Geneva, Graduate Institute of International Studies, 2001), 35–39. 11 The previously binding agreement was the GATT 1947. The GATT 1994 formally incorporated the provisions of the GATT 1947, without actually reproducing them in its text. 12 For more on this issue see eg EU Petersmann, The GATT/WTO Dispute Settlement System (The Hague, Kluwer, 1997), 135–142. 13 Art XXIII of GATT 1994 also allows a Member to complain if the attainment of any objective of the GATT is being impeded. 14 As explained further in art 3.8 DSU, ‘there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge’. 15 European Communities—Regime for the Importation, Sale and Distribution of Bananas (WT/DS27), Appellate Body and panel reports adopted on 25 September 1997, Appellate Body report, para 132. In addressing this issue the panel noted that a Member’s ‘potential interest in trade in goods or services’ is sufficient to pursue a WTO dispute settlement proceeding. The panel referred in all four reports to Part II, art 40 (e)–(f ) of the 1996 draft of the ILC Articles, see eg panel report (Ecuador), para 7.50, fn 361. 16 The terminology is inconsistent, eg art 3.8 of the DSU refers to ‘infringement of the obligations under a covered agreement’, art 23.1 to ‘violation of obligations under the covered agreements’. 17 See eg Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (WT/DS207), Appellate Body and panel reports adopted on 23 October 2002, Appellate Body report, para 144; EC—Selected Customs Matters (WT/DS315), Appellate Body and panel reports adopted on 11 December 2006, Appellate Body report, para 184, confirming findings in panel report, para 7.36; Mexico—Taxes on Soft Drinks (WT/DS308), Appellate Body and panel reports adopted on 24 March 2006, panel report, paras 8.143–8.144. 18 As noted by Villalpando, ‘there is no major lex specialis on attribution in international trade law’, S Villalpando, ‘Attribution of Conduct to the State: How the Rules of State Responsibility May Be Applied Within the WTO Dispute Settlement System’ (2002) 5 JIEL 393, 395. The author points out that in the WTO there is usually no doubt as to attribution, because most disputes concern legislative or governmental measures, ibid, 397. 19 Korea—Measures Affecting Government Procurement (WT/DS163), panel report adopted on 19 June 2000, para 6.5. The panel referred to the ILC draft as published in the 1973 volume of the ILC Yearbook. 20 Australia—Measures Affecting Importation of Salmon. Recourse to Art. 21.5 by Canada (WT/DS18), panel report adopted on 20 March 2000, paras 7.12–7.13. 21 United States—Measures Affecting Cross-Border Supply of Gambling and Betting Services (WT/DS285), panel report adopted on 10 November 2004, para 6.128. 22 Turkey—Restrictions on Imports of Textile and Clothing Products (WT/DS34), Appellate Body and panel reports adopted on 31 May 1999, panel report, paras 9.41–9.43.

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23 Japan—Measures Affecting Consumer Photographic Film and Paper (WT/DS 44), panel report adopted on 2 April 1998, para 10.56. The panel did not undertake an examination of this type of attribution. The focus of the case was rather whether certain governmental action (administrative guidance) could be considered to be a measure within the meaning of art XXIII:1(b) of GATT 1994. 24 Canada—Certain Measures Affecting the Automotive Industry (WT/DS 139, DS/142), Appellate Body and panel reports adopted on 19 June 2000. 25 Ibid, paras 10.106–10.107. The panel elaborated further: ‘We do not believe that such a nexus can exist only if a government makes undertakings of private parties legally enforceable … or if a government conditions the grant of an advantage on undertakings made by private parties … The word “requirements” in its ordinary meaning and in light of its context in Art. III:4 clearly implies government action involving a demand, request or the imposition of a condition but in our view this term does not carry a particular connotation with respect to the legal form in which such government advice is taken. In this respect, we consider that, in applying the concept of “requirements” in Art. III:4 to situations involving actions by private parties, it is necessary to take into account that there is a broad variety of forms of government of action that can be effective in influencing the conduct of private parties’. Ibid, para 10.107. 26 Argentina-Measures Affecting the Export of Bovine Hides and the Import of Finished Leather (WT/DS155), panel report adopted on 16 February 2001, fn 342. 27 Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products (WT/DS103, DS113), Appellate Body and panel reports adopted on 27 October 1999, panel report, para 7.77. In a follow-up compliance report, where the Appellate Body was again faced with involvement of private parties, it explained: ‘However, under Art. 9.1(c) of the Agreement on Agriculture it is not solely the conduct of the WTO Members that is relevant. We have noted that Art. 9.1(c) describes an unusual form of export subsidy in that “payments” can be made and funded by private parties, and not just by government. The conduct of private parties, therefore, may play an important role in applying Art. 9.1(c). Yet, irrespective of the role of private parties under Art. 9.1(c), the obligations imposed in relation to Art. 9.1(c) remain obligations imposed on Canada. It is Canada, and not private parties, which is responsible for ensuring that it respects its export subsidy commitments under the covered agreements’, Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products. Second Recourse to Art. 21.5 of the DSU by New Zealand and the United States (WT/DS103, DS113), Appellate Body and panel reports adopted on 17 January 2003, Appellate Body report, paras 94–95. 28 Canada—Certain Measures Concerning Periodicals (WT/DS31), Appellate Body and panel reports adopted on 30 July 1997. 29 On this problem, see eg Canada—Wheat, where the United States alleged that the Canadian wheat export regime was inconsistent with art XVII:1 of GATT, in that it resulted in sales, which were not in accordance with commercial considerations, because of government involvement. Ultimately, however, the US arguments did not relate to attribution, but rather to the effects of the regime, which in its opinion were inconsistent with this provision. Canada—Measures Relating to Exports of Wheat and Treatment of Imported Grain (WT/DS276), Appellate Body and panel reports adopted on 27 September 2004. 30 For a comprehensive discussion of the WTO dispute settlement system, see eg D Palmeter & PC Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure (2nd edn, The Hague, Kluwer, 2004). See also P Mavroidis, ‘Remedies in the WTO Legal System: Between a Rock and a Hard Place’ (2000) 11 EJIL 763. 31 As one panel explained, in the context of withdrawal of a prohibited subsidy, such withdrawal ‘was intended by the drafters of the SCM Agreement to be a specific and effective remedy for violations of the prohibition in Art. 3.1(a). However, we do not understand it to be a remedy intended to fully restore the status quo ante by depriving the recipient of the prohibited subsidy of the benefits it may have enjoyed in the past. Nor do we consider it to be a remedy intended to

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provide reparation or compensation in any sense. A requirement of interest would go beyond the requirement of repayment encompassed by the term “withdraw the subsidy”, and is therefore, we believe, beyond any reasonable understanding of that term’, Australia—Subsidies Provided to Producers and Exporters of Automotive Leather. Recourse to Art. 21.5 of the DSU by the United States (WT/DS126/RW), panel report adopted 11 February 2000, para 6.49. 32 The WTO does not offer the possibility of ‘traditional’ compensation or restitution, although there was some question as to whether Members could claim the revocation of anti-dumping and countervailing duties. This had occasionally occurred under GATT 1947. However, there seems to be little doubt that this practice is not permissible under the WTO rules. See EU Petersmann, The GATT/WTO Dispute Settlement System (The Hague, Kluwer, 1997), 139–140; D Palmeter & PC Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure (2nd edn, The Hague, Kluwer, 2004), 263–264. 33 ‘The prohibition of unilateral countermeasures has been one of the cornerstones of the GATT and the WTO’, M Gracia-Rubio, ‘On the Application of Customary Rules of State Responsibility by the WTO Dispute Settlement Organs’ (Geneva, Graduate Institute of International Studies, 2001), 54. 34 Thus, not only are Members prevented from taking countermeasures in lieu of initiating dispute settlement proceedings, but even in circumstances envisaged in art 52(4) of ARISWA, that is, if the responsible State fails to implement the dispute settlement procedures in good faith. 35 See eg United States—Import Measures on Certain Products from the European Communities (WT/DS165), Appellate Body and panel reports adopted on 10 January 2001, Appellate Body report, para 111. In its report the panel referred to the ILC Articles in the context of countermeasures and proportionality, ibid, panel report, para 6.23, footnote 100. Art 23 was the focus of United States— Sections 301–310 of the Trade Act of 1974 (WT/DS152), panel report adopted on 27 January 2000. The panel referred to rules on State responsibility: paras 7.80–7.81, 7.126. 36 The EC claimed that the purpose of art 23 was to prevent ‘countermeasures’ within the meaning of general international rules on State responsibility, but the panel ruled that the ‘obligation to have recourse to the DSU when Members “seek the redress of a violation …” covers any act of a Member in response to what it considers to be a violation of a WTO obligation of another Member’, European Communities—Measures Affecting Trade in Commercial Vessels (WT/DS301), panel report adopted on 20 June 2005, para 7.207. 37 Ibid, para 7. 205. 38 Mexico—Taxes on Soft Drinks (WT/DS308), Appellate Body and panel reports adopted on 24 March 2006, Appellate Body report, paras 75–77. 39 Canada/United States—Continued Suspension of Obligations in the EC—Hormones Dispute (WT/DS320, WT/DS321), Appellate Body and panel reports adopted on 14 November 2008, panel report, para 213. 40 Ibid, Appellate Body report, paras 340–345. The Appellate Body noted that the principles in ARSIWA ran contrary to the EC’s position because the wrongful act had not ceased: ibid, para 382. 41 United States—Tax Treatment for ‘Foreign Sales Corporations’; Recourse to Arbitration by the United States under Art. 22.6 of the DSU and Art. 4.11 of the SCM Agreement (WT/DS108 ARB), Decision of the Arbitrator, 30 August 2002, paras 5.58–5.60 (noting Crawford’s opinion that ‘countermeasures are taken as a form of inducement, not punishment’). 42 Brazil—Export Financing Programme for Aircraft; Recourse to Arbitration by Brazil under Art. 22.6 of the DSU and Art. 4.11 of the SCM Agreement (WT/DS46/ARB), Decision by the Arbitrators, 28 August 2000, paras 3.44–3.45. 43 European Communities—Regime for the Importation, Sale and Distribution of Bananas, Recourse to Arbitration by the European Communities Under Art. 22.6 of the DSU (WT/DS27/ARB), Decision by the Arbitrators, 9 April 1999, para 6.16. 44 United States—Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(WT/DS 192), Appellate Body and panel report adopted on 5 November 2001, Appellate Body report, para 120. 45 United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (WT/DS202), Appellate Body and panel report adopted on 8 March 2002, Appellate Body report, para 259.

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Part IV The Content of International Responsibility, Ch.53 Responsibility and International Environmental Law Céline Nègre From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Responsibility of individuals — Precautionary principle — Marine environment, protection — War crimes

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(p. 803) Chapter 53 Responsibility and International Environmental Law 1 From responsibility for a wrongful act to objective responsibility 804 (a) The consolidation of State responsibility for breach of obligations of prevention 804 (i) The ‘traditional’ responsibility of the State 804 (ii) The role of the new ‘principles’ 805 (b) Facilitating reparation through objective responsibility 806 (i) The characteristics of the regime of objective responsibility 806 (ii) Difficulties in the identification of environmental damage 808 2 New forms of responsibility in the framework of environmental law 808 (a) The appearance of new forms of responsibility 808 (i) The need for new regimes of responsibility for new types of damage 808 (ii) The founding regime: the ‘non-compliance’ procedure of the Montreal Protocol 809 (b) The criminalization of damage to the environment 811 (i) The establishment of war crimes against the environment 811 (ii) The emergence of a State ‘crime’ against the environment? 812 Further reading 813 In the case of violations of international law relating to the protection of the environment, international responsibility is complicated by specific elements applicable in that field.1 These difficulties relate first and essentially to the special characteristics of ecological damage. In practice, the idea of international responsibility in the field of the environment arose, and is today still largely conceived, on the basis of the existence of damage. Beyond its abstract existence, the implementation of international responsibility also raises special difficulties in this field. The fact that there is no general consensus as to the notion of ‘environment’ constitutes a fundamental obstacle. It is not a simple question of terminology, since its definition has a direct influence on the extent of responsibility. Environmental damage raises a second difficulty related to the fact that, in modern society, damage to the environment cannot be completely avoided. It is inherent in industrial development. The question of the threshold of damage thus becomes significant. After (p. 804) long-standing attempts, a consensus seems to have been reached concerning the notion of ‘significant’ harm, notably due to the work of the ILC relating to non-navigational use of international watercourses.2 A third difficulty relates to the great variety of manifestations of environmental harm, which make it difficult to identify damage. International responsibility is thus not well-adapted to the environmental field, due not only to the reasons mentioned, but also due to the ‘diffused feeling of disgraceful solidarity of States in front of the degradation of the human environment to which they all contribute’.3 Moreover reparation, as the traditional consequence of responsibility, corresponds only partially to responsibility in relation to the environment, because the damage caused will often be irreparable. Yet, despite the specific obstacles and the reservations of States in relation to responsibility in general, responsibility is very frequently referred to in the context of environmental law. Opinions differ according to the activities in question and the different origins of the harm. Two tendencies

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may be identified. Initially, the danger perceived from significant environmental catastrophes has led to the construction of a responsibility inspired by the necessity of reparation. Subsequently, the difficulties encountered in the field of environmental protection led to the drafting of new forms of responsibility aimed at, first, a better application of the norms beyond reparation and, second, criminalization of the most serious breaches.

1 From responsibility for a wrongful act to objective responsibility (a) The consolidation of State responsibility for breach of obligations of prevention (i) The ‘traditional’ responsibility of the State International responsibility within the framework of environmental law is above all generated by the breach of customary obligations. These obligations relate to the principle of non-injurious use of territory, by derivation from the general adage sic utere tuo ut alienum non laedas. After the award of the arbitral tribunal in Trail Smelter,4 where it was stipulated that a State could not allow an activity in its territory entailing harmful fumes affecting the territory of the neighbouring State,5 the International Court of Justice confirmed twice in two years that the: … general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.6 The content of the obligation of prevention is not limited to the supervisory aspect of the activities carried out in the territory or under the jurisdiction of each State. It is in fact only the first of multiple obligations. Thus, to the obligation to supervise—a type of

References (p. 805) obligation of means—corresponds an obligation of result according to which every State is prohibited from voluntarily causing significant ecological harm to the environment of another State. There may also be an obligation to engage in environmental impact assessments before granting any authorization of hazardous activities which are susceptible of causing transboundary ecological harm.7 The same applies, for instance, in relation to the obligation to inform immediately States susceptible of being affected by significant transboundary consequences of industrial incidents. The principal difficulty linked to responsibility for a violation of an obligation of means is proof of the internationally wrongful act. Practice also shows how difficult it is to go from theory to the implementation of responsibility for breach of an obligation of prevention, even in the case of the most serious ecological harm. In the case of the explosion of the nuclear plant at Chernobyl in 1986, and of the radioactive cloud which it generated, the failure of the USSR was evident. Even before the accident, it was known that surveillance and security of the plant by Soviet authorities was clearly insufficient, bearing in mind the dangerous nature of the activity. But if the breach of the general obligation of vigilance could be established without great difficulty, no inter-State action for responsibility was ever brought against the USSR. This is in part because of the difficulty of establishing a breach of an obligation of prevention, not to mention the difficulty of establishing the causal link between the wrongful act and the harm suffered. The International Court will in all likelihood have to pronounce again on this matter in Pulp Mills on the River Uruguay.8 The Court’s refusal to order the provisional measures requested by Argentina on the basis of alleged irreversible damage likely to be caused to the environment could lead one to think that the Court

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will maintain its usual reserve and will not make any significant progress on this point in its treatment of the merits.9 But this was only a preliminary phase in the procedure and the consolidation of norms in this field could bring the Court to take a step forward concerning international responsibility for ecological damage. (ii) The role of the new ‘principles’ Even more than in other fields of international law, international environmental law rests on a number of ‘principles’. These include the principles of sustainable development, the ‘polluter pays’ principle, the precautionary principle, or even the principle of common but differentiated responsibility. Yet the inter-relationships between these principles and international responsibility are not as clear as the relationships between the precautionary principle and the obligations which are derived from it. The principles affirmed in recent instruments are of a different content and character, as among themselves and also in relation to ‘first generation’ principles.10 The delicate distinction between principle and obligation makes it difficult to address the issue of responsibility. The content itself of the principles, or rather the absence of a definitive content, which tends to confer on the principles protean meanings is challenged.

References (p. 806) Now, if the content of the principle is not understood in a clear and unequivocal way in all the instruments which refer to it, the obligations attached to it will necessarily be surrounded by confusion. And the ambiguity thus created will entail real difficulties in the identification of the internationally wrongful act. The example of the precautionary principle is particularly enlightening. The symbol of an era, it is evidence of an infatuation which makes it difficult to distinguish what results from the expression of a value from a simple temporary and popular phenomenon. All decision-makers make reference to the principle, and it is confirmed in most recent instruments on international environmental law. And yet no real consensus can be found on the content of the principle. In its most general meaning, it designates a common-sense approach which must inform the decisions of States in relation to action in areas where scientific knowledge is limited.11 But the precautionary principle is equally understood as a pure and simple prohibition of any activity which is potentially hazardous for the environment. It is thus difficult to affirm, as Judge Weeramantry does, that there exists in general international law a solidly-anchored principle according to which the threat of any ecological damage entails a shift of the burden of proof.12 International courts and tribunals have always opposed recognition of the customary nature of the precautionary principle, despite having had several opportunities to do so.13 The precautionary principle appears first of all as a guiding principle. Just like the principle of sustainable development, it rather constitutes a ‘conceptual matrix defining the general perspective within which the already established principles of good management of the environment must be relocated’.14

(b) Facilitating reparation through objective responsibility (i) The characteristics of the regime of objective responsibility Although reparation is only the second-best solution to respond to harm which it would be better to anticipate than to repair, it is necessary if environmental harm occurs. But due to the fact that the regime of international responsibility for wrongful acts is ill-adapted to the specific case of environmental harm, the special mechanism of objective responsibility has provided solutions for this type of harm.

References

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(p. 807) The preferential treatment which was accorded to objective responsibility in international conventions relating to ecological harm for several decades follows from three essential characteristics of this type of responsibility. First, the objective character of the responsibility: it is not engaged by the commission of a wrongful act, but by the occurrence of harm. Thus, the victim does not have to establish the existence of a breach of the law, which often does not exist or is difficult to prove, especially in cases of accidents. The victim only need demonstrate harm suffered, as well as the causal link with its alleged origin. The ‘objective’ responsible subject is not necessarily the direct author of the damage, but it is under an obligation to assume the consequences of it by virtue of its determinant position in relation to the relevant activity at the origin of the harm. It is responsible, automatically and independently of any wrongful act.15 The second characteristic concerns the channelling of conventional objective responsibility: it concerns a sole person, determined by the text itself of the treaty. Only this person will have to respond for the damage. Having said this, the web of relationships between entities and persons carrying out the potentially harmful activities is often so confusing that the channelling of the responsibility is not always sufficient in practice to identify the responsible person.16 The essential obligation to take out insurance is incumbent only on the sole responsible person, insurance which must be proportionate to the risks incurred. But this form of guarantee of reparation has as its counterpart the setting of an upper limit on the amount which the responsible person must pay. Despite the criticism often voiced by victims, the reason for this limitation is understandable. It corresponds to economic necessities of activities which also benefit potential victims. On the other hand, one can question the amount reserved for reparation, taking account of the growing scale of events harmful to the environment and the economic power of the persons who undertake the activities. The third characteristic is that conventional objective responsibility is privatized. With the sole exception of the space domain,17 privatization of objective responsibility responds to the fact that both authors and victims are in the majority of cases private persons, and it borrows from techniques of civil responsibility. An inevitable overlap occurs here between public and private international law. But the link between the two is narrow: if the harm is caused by an internationally wrongful act attributable to the State, the traditional international responsibility can be implemented, in parallel to the invocation of the objective responsibility of the private operator. In addition, the State can play the role of guarantor of the private operator, where the operator is not sufficiently solvent.18 The proliferation of conventions on objective responsibility applicable in cases of environmental harm—which today cover the quasi-totality of hazardous activities—reveals that a great part of responsibility in this field is internationalized rather than international. The automatism of regimes of objective responsibility allows operators to profit from private insurance. But, in parallel, it is likely that the proliferation of this type of instrument contributes to the consolidation of international norms relating to prevention, thus raising the possibility of implementation of the responsibility of States for wrongful acts in cases of

References (p. 808) breach. The work of the ILC on this topic testifies to this: the work on liability, entrusted to Special Rapporteur Rao, was split into two different projects. The first one logically addresses the obligation of prevention, whereas the second initially aimed at establishing a form of objective responsibility in customary law, could only produce an ensemble of ‘principles’ (and not articles), which are extremely vague, encouraging States to co-operate and provide equitable reparation in case of transboundary damage.19 This result reveals that the conditions of objective responsibility require a conventional framework. (ii) Difficulties in the identification of environmental damage

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Traditionally, environmental harm is considered in international law in a utilitarian, and thus restrictive, way. It is understood as the damage suffered by the State, directly or through its nationals, either through damage to the use of natural resources or to human health.20 Some developments are however perceptible. A first step was taken in the case of Zoe Colocotroni, relating to an oil tanker beached on 18 March 1973 off the coasts of Puerto Rico, spilling 500 tonnes of crude oil in an uninhabited zone, soiling a mangrove swamp and destroying a great part of the ecosystem over an area of about 10 hectares. The Appeals Court overruled the first instance judge, imposing the assessment of the damage on the basis of the cost of the recovery of the ecosystem. The decision is all the more important for it establishes that reparation for environmental damage is possible even if it is not linked to the economy or human health.21 The amounts in question suggest that the development of the law in this regard will take a long period of time. There remains a reluctance to take into account environmental damage outside of any economic activity. Thus, while the claims initiated following the black tide caused by the oiltanker Erika were initially marked by the persistence of the strict understanding of reparable environmental damage, the judgment of the Tribunal Correctionel of Paris of 16 January 2008 awarded €75 per dead bird to the Ligue de Protection des Oiseaux. This cost does not correspond (as it used to do) to the costs engaged in cleaning-up the soiled birds, but to the cost of their replacement (including livestock farming and nesting costs).

2 New forms of responsibility in the framework of environmental law (a) The appearance of new forms of responsibility (i) The need for new regimes of responsibility for new types of damage The tendency of States since the 1980s to concentrate on a better application of the conventions concerning the protection of the environment has led to the development of control mechanisms for the implementation of these instruments. The most successful

References (p. 809) of these mechanisms are linked to conventions concerning newly discovered forms of ecological damage, which affect either a common and necessary resource shared by all or a complex ecosystem. This damage is situated more in a temporal dimension than in a territorial one. It is constituted by damage in the making or future damage (depletion of the ozone layer, climate change, loss of biodiversity, etc). A priori this type of damage is not susceptible to being dealt with through traditional regimes of responsibility, for, at least in the majority of cases, a breach of an international obligation cannot be established and the damage is a product of the normal development of lawful activities. It is also impossible to distinguish the author State from the victim State: each of them perform both roles at the same time. Conventional obligations are based on the prevention of the damage, achieved through cooperation and solidarity between the parties. But, contrary to obligations of prevention, and the international responsibility which could follow from breach in the framework of general international law (confronted with transboundary pollution of the classical type), the question here is not sanctioning the conduct of a State which does not respect its obligations, but the organization of legal mechanisms for the State to succeed in complying with its obligations. In the case of harm caused to the global environment, reparation loses all its meaning. It does not necessarily follow that a State’s breach of its conventional obligation would not give rise to its international responsibility under generally applicable principles. But responsibility remains a theoretical

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possibility, for the legal mechanisms established in the relevant conventions have been drafted precisely to supersede it. Yet, if international responsibility is ruled out, it nevertheless reappears in cases of persistent failure, although in a more flexible form adapted to damage to the global environment in the framework of ‘non-compliance’ procedures. These procedures appear to be different from State responsibility. The language itself is different.22 The choice of a neutral or ‘administrative’23 wording is justified by the desire not to discourage States from participating in a mechanism seen as efficient in its contribution to a better application of the Protocol. Nonetheless, the majority of legal scholarship agrees on the point that the ‘situation of non-conformity’ refers to a wrongful act.24 (ii) The founding regime: the ‘non-compliance’ procedure of the Montreal Protocol The Montreal Protocol is the first international environmental law instrument which has set out a mechanism for response to States’ non compliance with the obligations established

References (p. 810) therein.25 Under this model, procedures of non-compliance have multiplied and are now included in the quasi-totality of international instruments for the protection of the environment. It is, however, only in the framework of the non-compliance procedure of the Montreal Protocol that there is sufficient practice to warrant detailed examination. The relaxing of the traditional forms of responsibility in the non-compliance procedure of the Montreal Protocol can be analysed in essentially three aspects. First, the beginning of the procedure: the Implementation Committee, entrusted with the establishment of the existence of a ‘situation of non-compliance’ can be accessed by a party to the Protocol which wishes to draw the Committee’s attention to the conduct of another Party. Similarly, the procedure may be initiated in this way by the Secretariat. More importantly, the procedure can be initiated by any party which considers itself unable to comply with the obligations of the Protocol. This possibility, which would be senseless in general international law, is extremely valuable in this context. It is particularly well suited to ensuring effectiveness in implementation of the relevant instruments: since the implementation of the non-compliance procedure, this mechanism has only been initiated by noncomplying States themselves. Second, the flexibility with which the conditions of responsibility are applied is evident in the determination of the wrongful act. In conformity with the pragmatic purpose of the non-compliance procedure, circumstances are largely taken into account. Thus when failure to comply is due to simple administrative deficiencies, non-compliance will not be considered as entailing a wrongful act. The same occurs when the finances or the mastery of necessary techniques is insufficient. The procedure is aimed at a determination of compatibility rather than one of conformity.26 The measures which may be adopted against the relevant State constitute the third level of analysis. The Indicative List of Measures that Might be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol, adopted by consensus during the Parties’ Meeting in Copenhagen,27 is distinct from international responsibility in that it mixes positive and negative measures. The State whose situation of non-compliance is established may be offered financial and/or technical assistance (transfer of technology and information, training) assistance as well as being given a warning. Alternatively, sanctions may take the form of suspension of the rights and privileges derived from the Protocol. Depending on the situation, the measures adopted could be mixed. If the failure is due to bad faith of the State, the Meeting of the Parties can decide to impose stricter sanctions than those included in the Indicative List. This was, for example, the case with Russia in 1996, where a commercial embargo was imposed.28 The Montreal Protocol is one of the few examples of success in the implementation of an international instrument for the protection of the environment and the effectiveness of the noncompliance procedure is certainly one of the reasons for its success. Initially From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

References (p. 811) somewhat confusing, it has been clarified with practice. Without ever leaving behind the spirit of flexibility and pragmatism that inspires the Protocol, the reports of the Implementation Committee reveal the strict surveillance to which States parties are individually subjected. Although initially it only concerned certain States, the procedure is nowadays largely used by States parties, for the advantages of the procedure eventually overtook the sometimes fierce initial reactions of States to the possibility of being the subject of sanctions.29 This form of ‘neo-responsibility’30 constitutes the emblematic example of soft responsibility.31 Confronted with damage to the global environment, the transformation of responsibility was incontrovertible. It is not surprising that this type of procedure has been considerably developed.32 Its future however raises certain questions, especially concerning the observance mechanism adopted in the framework of the Kyoto Protocol. The effectiveness of the non-compliance procedure of the Montreal Protocol has in fact always been related to its flexibility. Its adaptability is in great part due to the voluntarilymaintained grey areas. In organizing an extremely precise procedure, clarifying all the possible hypotheses, the observance mechanism of the Kyoto Protocol adopted a rigid and complex character which could be prejudicial to its effectiveness. Its first period runs from 2008 to 2012, during which practice will quickly demonstrate whether there is a will to improve the existing procedure by developing it and making it more specific, and whether it is in fact a beneficial development.

(b) The criminalization of damage to the environment (i) The establishment of war crimes against the environment The final form of responsibility applicable in the framework of international environmental law is also the most discussed. This is criminal responsibility, essentially for war crimes. Armed conflicts can often cause massive destruction of the environment: past examples have demonstrated this, especially the Vietnam war33 and the Iraq-Kuwait war.34 Two instruments now recognize the possibility of prosecuting individuals for war crimes when they cause severe and non-justifiable harm to the environment. This result has been the product of vivid debate, and is today still challenged by numerous States and legal scholars.

References (p. 812) First, the Draft Code of Crimes against the Peace and Security of Mankind establishes in article 20 that: Any of the following war crimes constitutes a crime against the peace and security of mankind when committed in a systematic manner or on a large scale: … (g) In the case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long-term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs.35 The wording finally retained constitutes the unsatisfactory result of a compromise between the members of the Commission who were in favour of recognition of an autonomous crime against the environment and those who were firmly opposed to the inclusion of breaches relating to the environment, even of extreme gravity, in a code concerning ‘crimes against the peace and security of mankind’. In addition to the nearly insurmountable conditions it set out, this provision marks a clear backward step in the understanding of ecological damage, once more reduced only

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to direct human impact (health and survival). It follows that acts such as the voluntary and largescale destruction of forests, waters, and land during the conflict in Vietnam would not be considered war crimes, as long as the population is not directly affected.36 Given that the provision as adopted was largely deprived of any content, it would have been better to simply exclude it from the text. This major difficulty is not found in the Statute of the International Criminal Court,37 the second international instrument which recognized war crimes against the environment. According to article 8(2)(b)(iv) of the Rome Statute a war crime includes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. Under this provision, in contrast to the Draft Code of Crimes, an isolated act of sufficient gravity could be considered as a war crime against the environment. An explanation of the terms ‘widespread, long-term and severe’ is not found in the Statute itself, nor in its preparatory work.38 The interpretation of these criteria has never been clearly resolved, but this is only a relative weakness: the terms would fall to be interpreted according to the general principles of interpretation. The same can be said of the proportionality requirement. The Statute also takes into account the damage caused to natural resources, without requiring any direct impact on humans. (ii) The emergence of a State ‘crime’ against the environment? The establishment of a State ‘crime’ against the environment poses even more difficulties. Article 40 ARSIWA does not retain any mention of environmental breaches as was included in the famous draft article 19. The fact that the Commentary to article 40 quotes

References (p. 813) in extenso the text of the draft article 19 does not mean that these are included in article 40. This would have required their clear identification in the text of the commentary, as was done in the cases of aggression, genocide or apartheid. However, certain specific consequences are attached, in the field of responsibility, to the breach of obligations considered fundamental to the international community. Thus there needs to be a consensus of the existence of a peremptory norm relating to protection of the environment. International legal scholarship is in disagreement on the existence, in international environmental law, of such a peremptory norm. State practice is not of assistance. It seems impossible to recognize that a general obligation of prevention of ecological damage incumbent upon every State has a jus cogens character, even in its strict formulation, under which severe voluntary harm is prohibited.39 Despite the fact that international norms concerning the environment are situated at an elevated level in the normative hierarchy,40 it is uncertain whether they constitute peremptory norms. The same can be said of the hypothesis of an act causing severe ecological damage on the territory of another State. After 11 September 2001, this type of threat is certainly more present, but would be integrated into the notion of a terrorist act, rather than constituting a separate international crime. Further reading P Birnie, A Boyle, & C Redgwell, International Law and the Environment (3rd edn, Oxford, OUP, 2009) L Pineschi, ‘Non-compliance Procedures and the Law of State Responsibility’, in T Treves (ed) Non-compliance procedures and mechanisms and the effectiveness of international

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environmental agreements (The Hague, TMC Asser, 2009) 483 C Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law 1 VJ Foley & CR Nolan, ‘The Erika Judgment: Environmental Liability and Places of Refuge: a Sea Change in Civil and Criminal Responsibility that the Maritime Community Must Heed’ (2008) 33 Tulane Maritime Law Journal 41 R Wolfrum, C Langenfeld, & P Minnerop, Environmental Liability in International Law— Towards a Coherent Conception (Berlin, Erich Schmidt Verlag, 2005) I Dramé, ‘Recovering Damage to the Environment per se Following an Oil Spill: the Shadows and Lights of the Civil Liability and Fund Conventions of 1992’ (2005) 14 Review of European Community and International Environmental Law 63 F Orrego Vicuña, ‘Current Trends in Responsibility and Liability for Environmental Harm under International Law’, in K Koufa (ed), Protection of the Environment for the New Millenium: Thesaurus Acroacium (Thesalonika, University of Tesalloniki Law School, 2002), 127(p. 814)

Footnotes: 1 See P-M Dupuy, ‘L’Etat et la réparation des dommages catastrophiques’, in F Francioni & T Scovazzi (eds), International Responsibility for Environmental Harm (London, Graham & Trotman, 1991), 141–145. 2 See, notably, art 7 of the Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, entitled ‘Obligation not to cause significant harm’. GA Res 51/229, 21 May 1997, Annex. 3 P-M Dupuy, ‘L’Etat et la réparation des dommages catastrophiques’, in F Francioni & T Scovazzi (eds), International Responsibility for Environmental Harm (London, Graham & Trotman, 1991), 142. 4 Trail Smelter (United States/Canada), 11 March 1941, 3 RIAA 1938. 5 Ibid, 1965. 6 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 241–242 (para 29); Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 41 (para 53). 7 P-M Dupuy, ‘Où en est le droit international de l’environnement à la fin du siècle?’ (1997) 101 RGDIP 873, 884. See also the separate opinion of Vice-President Weeramantry in GabcíkovoNagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 111ff, and the resolution of the Institut de Droit International on the environment, Strasbourg Session, Ann IDI 1998, 67-II, 478, art 5. 8 Hearings on the merits in Pulp Mills were held in September 2009. 9 See Pulp Mills on the River Uruguay (Argentina v Uruguay), Request for the Indication of Provisional Measures, Order of 13 July 2006, para 87. 10 P-M Dupuy, ‘Où en est le droit international de l’environnement à la fin du siècle?’ (1997) 101 RGDIP 873, 889. 11 See eg United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, 3–14 June 1992, 31 ILM 874, principle 15. 12 Dissenting opinion of Judge Weeramantry, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, ICJ Reports 1995, p 288, 320, 348. See also N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution (Brussels, Bruylant/AUF, 1999). 13 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, ICJ Reports

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1995, p 288, 306 (para 64); WTO Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS48/AB/R, 16 January 1998; EC—Measures Affecting the Approval and Marketing of Biotech Products, WTO Appellate Body, Reports of the Panel, 29 September 2006, WT/DS291/R & Corr.1, WT/DS292/R & Corr.1, WT/DS293/R & Corr.1; Canada—Continued Suspension of Obligations in the EC—Hormones Dispute, WTO Appellate Body, Report of the Panel, 31 March 2008, WT/DS321/R; ITLOS, MOX Plant (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001. On the MOX Plant case see S Maljean-Dubois & JC Martin, ‘L’affaire de l’usine Mox devant les tribunaux internationaux’ (2007) 134 JDI 437. See also the absence of the precautionary principle in the ILC Articles on the Prevention of Transboundary Damage from Hazardous Activities, in Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2); only very little discussion was included in the Commentary to art 10. 14 P-M Dupuy, ‘Où en est le droit international de l’environnement à la fin du siècle?’ (1997) 101 RGDIP 873, 886. 15 See notably the 1969 International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 973 UNTS 3, art III(1). 16 It took several weeks to determine the identity of the owner of the oil tanker Erika: see eg . 17 See Chapter 59. 18 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 125–128. 19 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, Report of the ILC, 58th Session, 2006, A/61/10, 101ff. 20 See, notably, the refusal of the Tribunal de Grand Instance of Bastia in the case of the Boues rouges to recognize the damage caused to the French marine ecosystem by the discharge from an Italian-American factory; reparation for environmental damage was ordered only in relation to the interest represented by the environment for the claimants: TGI, Bastia, 4 July 1985, No 123/76, Judgment 422, 4. 21 Commonwealth of Puerto Rico et al v The SS Zoe Colocotroni et al, 628 F 2d 652 (1st Cir, 1980), cert den 450 US 912 (1981). See also M Rèmond-Gouilloud, Du droit de détruire—essai sur le droit de l’environnement (Paris, PUF, 1989); P Point, ‘Principes économiques et méthodes d’évaluation du préjudice écologique’, in SFDI, Le dommage écologique en droit interne, communautaire et comparé (Paris, Economica, 1992), 123–141. 22 See, notably, the non-compliance procedure of the Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 ILM 1550, which speaks of ‘situations of noncompliance’ and not of ‘wrongful act’; ‘Party whose implementation of a particular provision of the Protocol is at issue.’ rather than ‘author State’; ‘concerned Party’ rather than ‘injured State’, etc: see Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Annex IV, UNEP/OzL.Pro4/15. 23 P-M Dupuy, ‘Protection internationale de la couche d’ozone et spécificité relative des régimes spéciaux de contrôle de l’application du Droit International’, in Währung und Wirtschaft, Das Geld im Recht, Festschrift für Hahn (Baden-Baden, Nomos Verlag: 1997), 539, 546–547. 24 See S Maljean-Dubois, ‘Un mécanisme original: la procédure de ‘non-compliance’ du Protocole de Montréal relatif aux substances appauvrissant la couche d’ozone’, in C Impériali (ed), L’effectivité du droit international de l’environnement—Contrôle de la mise en œuvre des conventions internationales (Paris, Economica, 1998), 239; P-M Dupuy, ‘A propos des mésaventures de la responsabilité internationale des Etats dans ses rapports avec la protection internationale de l’environnement’, in Mélanges A Kiss. Les hommes et l’environnement (Paris, Frison-Roche, 1998), 278; L Boisson de Chazournes, ‘La mise en œuvre du droit international dans le domaine de la protection de l’environnement: enjeux et defies’ (1995) 99 RGDIP 63; M

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Koskenniemi, ‘Breach of Treaty or Non Compliance: Reflections on the Enforcement of the Montreal Protocol’ (1992) 3 YIEL 128. 25 Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 26 ILM 1550, art 8. The details of the procedure were definitively adopted in 1992, see Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Annex IV, UNEP/OzL. Pro4/15, complemented by an ‘Indicative List of Measures that Might be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol’, Annex V, UNEP/OzL.Pro4/15. 26 See C Laly-Chevalier, La violation du traité (Thèse: Lille II, 2000), 116. 27 ‘Indicative List of Measures that Might be Taken by a Meeting of the Parties in Respect of NonCompliance with the Protocol’, in Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, 1992, Annex V, UNEP/OzL.Pro4/15. 28 Report of the Seventh Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, 1995, Decision VII/18, UNEP/OzL.Pro 7/12. 29 S Maljean-Dubois & C Nègre, ‘La procédure de non-respect du Protocole de Montréal relatif à des substances qui appauvrissent la couche d’ozone’, in S Maljean-Dubois (ed), Changements climatiques—Les enjeux du contrôle international (Paris, La Documentation française, 2007), 345– 355. 30 P-M Dupuy, ‘Responsabilité internationale pour manquement à des traités d’environnement et modes de règlement des différends interétatiques’, in Environnement sans frontière, L’application renforcée du droit international de l’environnement—Harmonisation et développement des procédures internationales de contrôle, de sanction et de règlement des différends (Paris, FrisonRoche, 1999), 123. 31 See Chapter 14. 32 Among the numerous examples, see the Compliance Procedure adopted within the framework of the Kyoto Protocol on Climate Change during the First Meeting of Parties in December 2005, Decision 27/CMP.1, ‘Procedures and mechanisms relating to compliance under the Kyoto Protocol’, FCCC/KP/CMP/2005/8/Add.3, 96–108, and the procedure adopted within the Cartagena Protocol on Biosafety, Decision BS-I/7 ‘Establishment of procedures and mechanisms on compliance under the Cartagena Protocol on Biosafety’, 2004. 33 See Actes du colloque international sur les conséquences à long terme pour l’homme et l’environnement de l’utilisation d’herbicides et de défoliants comme agent de guerre, 14–19 January 1983, Hô Chi Minh City, A/38/161, 20 April 1983, 2–15. 34 See P Fauteux, ‘L’utilisation de l’environnement comme instrument de guerre au Koweït occupé’, in B Stern (ed), Les aspects juridiques de la crise et de la guerre du Golfe (Paris, Montchrestien, 1991), 227–271. 35 Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 15. 36 See K Mollard-Bannelier, La protection de l’environnement en temps de conflit armé (Paris, Pedone, 2001), 436–454. 37 Rome Statute of the International Criminal Court, 17 July 1998, UN Doc A/CONF. 183/9 (1998). 38 See, essentially, Additional Protocol I to the Geneva Conventions of 12 August 1949, 8 June 1977, 1125 UNTS 3, and the 1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, 1108 UNTS 151. 39 See, notably, C Yamada, ‘Rights and duties of States for the protection of the human environment’, ILC Yearbook 1993, Vol II(1), 247ff; A Gómez Robledo, ‘Le jus cogens international, sa genèse, sa nature, ses fonctions’ (1981-III) 172 Recueil de cours 9, 172. 40 B Stern, ‘Les problèmes de la responsabilité posés par la crise et la ‘guerre’ du Golfe’, in B Stern (ed), Les aspects juridiques de la crise et de la guerre du Golfe (Paris, Montchrestien, 1991), 354. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

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Part IV The Content of International Responsibility, Ch.54.1 Other Specific Regimes of Responsibility: Investment Treaty Arbitration and ICSID Zachary Douglas From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Diplomatic protection — Wrongful acts — Attribution — Circumstances precluding wrongfulness — International Centre for the Settlement of Investment Disputes (ICSID) — United Nations (UN) — Treaties, interpretation — Vienna Convention on the Law of Treaties — Immunity from jurisdiction, ratione materiae

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(p. 815) Chapter 54.1 Other Specific Regimes of Responsibility: Investment Treaty Arbitration and ICSID∗ 1 The International Centre for the Settlement of Investment Disputes 815 2 The State/State and investor/State regimes distinguished 816 (a) The State/State regime of international responsibility 816 (b) The investor/State regime of international responsibility 817 3 The notion of a ‘sub-system’ of State responsibility 819 (a) Content of the sub-system of responsibility under the ICSID Convention 820 (b) Non-applicability of inter-State rules for invocation of responsibility 821 (c) Partial applicability of inter-State forms of reparation for injury 829 (d) The law applicable to the substance of the investment dispute 832 (e) The law applicable to the tribunal’s procedure 840 Further reading 842

1 The International Centre for the Settlement of Investment Disputes The International Centre for Settlement of Investment Disputes (ICSID) was established under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States.1 Provision for ICSID arbitration of foreign investment disputes is now frequently included in bilateral investment treaties, foreign investment laws, and investment agreements. In addition to its regular arbitration procedures, ICSID has also established an Additional Facility for the administration of arbitrations in which the parties do not fulfil the normal jurisdictional requirements under the ICSID Convention. This chapter examines the arbitration mechanism established by the ICSID Convention and governed by the ICSID Arbitration Rules within the framework of the law on the responsibility of States for international wrongs. Arbitration under the Additional Facility Rules is not considered separately.

References

(p. 816) 2 The State/State and investor/State regimes distinguished The ICSID Convention embodies two distinct spheres of rights and obligations: one applicable to the legal relationships between the Contracting States, the other applicable to the legal relationships between an investor with the nationality of one Contracting State and the Contracting State that is host to the investment.2 Each of these spheres of rights and obligations gives rise to different regimes of State responsibility, which will be referred to as the ‘State/State’ and the ‘investor/State’ regimes.

(a) The State/State regime of international responsibility Within the State/State regime, the Contracting States have committed themselves both to the general obligation to adhere to the law of treaties in the interpretation and application of the ICSID Convention (whether by virtue of the Vienna Convention on the Law of Treaties or by customary international law) and to the specific primary obligations set out in the ICSID Convention itself which

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are properly classified as treaty obligations opposable by one Contracting State to another. These include the obligations upon a Contracting State: (a) to accord various immunities and privileges to the property, assets and communications of the ICSID and to its officers and staff and to persons appearing in ICSID proceedings (articles 18–24); 3 (b) to desist from giving diplomatic protection or bringing an international claim with respect of a dispute involving one of its nationals that has been submitted to ICSID arbitration, save in the case of non-compliance by the respondent Contracting State with the award (article 27); 4

(c) to desist from appealing against ICSID awards or pursuing any other remedy with respect thereto save those remedies envisaged by the Convention itself (article 53); 5 (d) to recognize an ICSID award as binding and enforce the pecuniary obligations imposed by the award within its territory as if it were a final court judgment but subject to the applicable rules on sovereign immunity from execution (articles 54 and 55); 6 (e) to adopt such legislative or other measures as may be necessary to make the provisions of the ICSID Convention effective in its territory (article 69). 7 In addition to these specific inter-State obligations arising under the ICSID Convention, the structure and purpose of the Convention necessitates the implication of a further general obligation upon Contracting States: (f) to desist from invoking procedures in their municipal courts or passing laws or adopting executive acts that have the effect of frustrating an investor’s recourse to ICSID arbitration. The general rules of State responsibility for international wrongs govern the consequences of any violation of these inter-State obligations. Although there is no precedent to date, the most likely scenario would be the invocation of the international responsibility

References (p. 817) of the Contracting State which is host to the investment in question by the Contracting State of the national investor. This bilateral dispute would be subject to the jurisdiction of the International Court of Justice in accordance with article 64 of the ICSID Convention. The waiver of diplomatic protection or other remedies in article 27 of the Convention should not be interpreted to prevent recourse by one Contracting State against another with respect to obligations (a) to (e) as described above, even if the dispute touches upon an existing claim by an investor. This should also be the case with respect to obligation (f) so long as the purpose of the Contracting State’s application to the ICJ is to protect the integrity of the ICSID system rather than to achieve compensation on behalf of its national investor. This purpose could be readily discerned from the remedy requested by the claimant Contracting State (ie a request for a declaratory judgment rather than damages assessed by reference to the prejudice suffered by the investor). The wording of article 64 of the Convention also leaves upon the possibility that a plurality of injured Contracting States might bring proceedings against another Contracting State in a single claim before the International Court in the sense of article 46 of the ILC Articles. Article 64 is not as unequivocal as other treaty provisions about the possibility of a plurality of interest in the invocation of responsibility. For instance, the Treaty of Versailles allowed ‘any interested Power’ to apply in the event of a violation of the provisions concerning transit through the Kiel Canal, and four States brought proceedings before the Permanent Court of International Justice on this basis in The SS Wimbledon.8 Nevertheless, it might be envisaged that where, for example, a Contracting State declares that its own courts will henceforth exercise an appellate jurisdiction with respect to existing ICSID awards, a plurality of other Contracting States would have the requisite interest under

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ILC article 42 to invoke the responsibility of that State for a violation of articles 53, 54, and 69 of the Convention, whether or not their nationals were currently award creditors.

(b) The investor/State regime of international responsibility Within the realm of investor/State disputes, an ICSID tribunal can have jurisdiction to decide claims founded upon: (i) international standards of investment protection in an investment treaty; 9 (ii) contractual undertakings in an investment agreement; 10 and (iii) relevant municipal law enactments of the host State. 11 There is no particular symmetry between the juridical character of the instrument conferring jurisdiction on an ICSID tribunal and its ratione materiae jurisdiction. An ICSID tribunal can, for instance, have jurisdiction by virtue of an investment treaty but nevertheless be competent to decide claims founded upon all three sources of rights and obligations.

References (p. 818) The important point is that the legal quality of an ICSID arbitration in investor/State cases is the same regardless of the substantive law applied by the tribunal to the claims or the juridical nature of the instrument conferring jurisdiction. An ICSID award is an ICSID award, whether it settles a contractual claim or a claim for expropriation. Likewise, the status of the procedural rules governing ICSID arbitrations does not fluctuate depending on the legal nature of the dispute. Paradoxically perhaps, an ICSID tribunal with jurisdiction founded upon an arbitral clause in an investment agreement to determine contractual claims can be more ‘internationalized’ or ‘selfcontained’ vis-à-vis municipal legal systems than an arbitral tribunal with jurisdiction by virtue of Chapter 11 of NAFTA but operating under the UNCITRAL Arbitration Rules or the ICSID Additional Facility Rules. The sui generis character of the ICSID regime12 for investor/State disputes does generate certain complexities for the assimilation of the law of State responsibility into that regime.13 What is the trigger or the connecting factor for the rules and principles of State responsibility to apply in the context of an ICSID arbitration? Is it the application of international law as the substantive law governing the determination of a particular claim? That would appear to be the consensus revealed in ICSID awards that have decided claims based on investment treaty obligations. But suppose an investment agreement between the investor and host State contains a governing law clause selecting international law or the tribunal decides to apply international law in accordance with article 42. The investor brings claims for breach of the agreement and for expropriation of its assets invested pursuant to the agreement. Is the investor required to exhaust local remedies for the expropriation claim? Surely not, because article 26 is interpreted so as to reverse the presumption that the exhaustion rule applies; viz it does not apply unless there is a specific provision in the instrument conferring jurisdiction which says that it does apply. But article 26 of the Convention concerns the jurisdiction of the tribunal. Article 44(b) of the ILC Articles, which recognizes that the exhaustion rule applies unless is excluded, concerns the invocation of State responsibility. We have previously assumed that the law of State responsibility applies when the substantive law governing the claim is international law. So does a rule of the applicable substantive law (article 44(b) of the ILC Articles) trump the applicable procedural rule (article 26 of the ICSID Convention) or vice versa? Or, contrary to our original assumption, is article 44(b) of the ILC Articles properly classified as a procedural rule that must give way to the lex specialis in article 26 of the ICSID Convention? Suppose further that the national State of the investor has formally waived its right to demand reparation for the losses caused to its nationals by the expropriation in question. Article 45

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of the ILC Articles provides that ‘the responsibility of a State may not be invoked if … the injured State has validly waived the claim’. Is this waiver by the injured State effective in relation to claims governed by international law that are brought by its nationals? Suppose finally that the ICSID tribunal upholds both the contractual claim and the expropriation claim. Does the finding of liability (international responsibility) with respect to the expropriation claim entail that countermeasures may be employed by the national State of the investor against the host State in accordance with article 49 of the ILC Articles? Some of these questions might not appear to be critical in practice having regard to the existing ICSID jurisprudence. But there is evidence that the difficulties that plague any

References (p. 819) rationalization of the relationship between the secondary rules of State responsibility and ICSID arbitration are producing controversial outcomes. For instance, investors have attempted to bypass the principle of privity of contract to sue the central government, rather than a local agency which was party to the investment agreement, simply by pleading a claim based on an investment treaty and relying upon international rules of attribution.14

3 The notion of a ‘sub-system’ of State responsibility The first step in resolving these conceptual difficulties is to differentiate the State/State regime of international responsibility from the investor/State regime. It has been proposed by the present writer that the investor/State regime should be conceptualized as a ‘subsystem’ of State responsibility.15 International law does not contain a single body of secondary rules of State responsibility for all wrongful acts committed by a State.16 This is particularly evident in the case of international treaties that confer rights directly upon non-State actors, such as the European Convention on Human Rights, the Algiers Accords establishing the Iran/US Claims Tribunal, bilateral investment treaties, NAFTA, the Energy Charter Treaty, and the ICSID Convention. These treaties create mechanisms for non-State actors to invoke the international responsibility of contracting States which transcend the traditional dichotomy between public and private international law. The secondary obligations generated by the implementation of State responsibility in these cases are different in juridical character from secondary obligations that arise on the inter-State plane. It is thus appropriate to consider them as sub-systems of State responsibility that share a distinctive feature in that the new legal relationship which arises upon the commission of the wrongful act is between a State and a non-State actor rather than between two or more States. Unlike in the traditional domains of public international law, the obligations created in special regimes involving non-State actors, such as in the investor/State sphere of the ICSID Convention, ‘are not simply based on the separation of States, and consequently not focused on the anti-parallel exercise of sovereignty by interference of one State in the sovereignty of another State …’.17 The ILC Articles recognise the existence of sub-systems of State responsibility by incorporating an important lex specialis reservation in article 55: These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.

References (p. 820) The commentary to article 55 refers to the examples of the World Trade Organization Dispute Settlement Understanding and the European Convention on Human Rights as regimes that, 18

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in varying degrees, displace the rules contained in the Articles on State Responsibility.18 ICSID is another such regime.

(a) Content of the sub-system of responsibility under the ICSID Convention It is useful to commence our investigation into the actual content of the secondary rights and obligations established by the ICSID sub-system of State responsibility by determining the extent to which the general rules for the mise-en-oeuvre of responsibility as between States can be transplanted into it. For the purposes of this discussion, those general rules will be taken to be accurately reflected in the ILC Articles. The ILC Articles carve out the institution of secondary obligations owed to non-State actors in the form of a reservation in article 33 to the scope of obligations set out in Part 2 to the Articles: 1 . The obligations of the responsible State set out in this Part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach. 2 . This Part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State. Investment treaties are mentioned explicitly in the commentary to article 33(2) as giving rise to a situation where a ‘primary obligation is owed to a non-State entity’ and such entity has the possibility of invoking State responsibility ‘on its own account and without the intermediation of any State’.19 The ICSID Convention, although not conferring substantive primary rights upon non-State entities, does nevertheless provide non-State entities with a procedural mechanism for invoking State responsibility. With respect to any violation of this mechanism by a respondent Contracting State, the secondary consequences are not, therefore, governed by Part 2 of the ILC Articles on the ‘Content of the International Responsibility of a State’ by virtue of article 33.20 Furthermore, Part Three on ‘The Implementation of the International Responsibility of the State’ is also inapplicable by its own terms, insofar as it relates exclusively to the invocation of responsibility by an injured State rather than any non-State actor. The non-applicability of Parts 2 and 3 of the ILC Articles to the ICSID sub-system of State responsibility and the general lex specialis reservation in article 55 have several important consequences.21 First, the rules for the invocation of responsibility in Chapter I of Part Three, including the admissibility of claims, cannot be uncritically transplanted into the ICSID sub-system. Secondly, it cannot be assumed that ICSID tribunals are competent to order the different forms of reparation set out in Chapter II of Part Two. Thirdly, an ICSID award does not create a truly ‘international’ liability at the inter-State level of responsibility such as would be the case, for example, with a judgment of the International Court of Justice. If this were otherwise, then a respondent Contracting State might, for instance,

References (p. 821) resist the enforcement of an ICSID award in the territory of a non-Contracting States by appealing to sovereign immunity from jurisdiction. The liability created by this subsystem of international responsibility is perhaps more adequately described as having a transnational commercial nature in view of the commercial interests at the heart of the dispute, although in itself this label is in practice unlikely to be of great utility. Fourthly, it is arguable that the lex specialis reservation in article 55 might have the effect of rendering various provisions of Part One of the ILC Articles inapplicable to the ICSID regime. For instance, a measure taken by the host State that causes prejudice to a foreign State might not be internationally wrongful vis-à-vis the national State of the investor because it is a lawful countermeasure directed against a breach of an international obligation by the national State of the investor. The investor might nevertheless argue that the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

prejudice caused to its private interests by the countermeasures is both justiciable before an ICSID tribunal and liable to attract a remedy in damages. The investor would argue that an investment treaty obligation is owed to the investor directly and any rule precluding wrongfulness as between the host State and the national State of the investor is res inter alios acta.22

(b) Non-applicability of inter-State rules for invocation of responsibility The preconditions for the mise-en-oeuvre of responsibility in the inter-State system are set out in Part Three of the ILC Articles and include article 44 on the ‘Admissibility of Claims’: The responsibility of a State may not be invoked if: (a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims; (b) the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted. The ILC’s commentary to article 44 makes it clear that the rules on the nationality of claims and the exhaustion of local remedies are not merely relevant to the ‘jurisdiction or admissibility of claims before judicial bodies’ but are of a ‘more fundamental character’ insofar as ‘[t]hey are conditions for invoking the responsibility of a State in the first place’.23 The relationship between these rules in article 44 of the ILC Articles and the investor/ State subsystem will be explored in more detail with reference to the natio n ality of claims. The ICSID Convention contains a specific provision regulating the ratione personae jurisdiction of ICSID tribunals in article 25:

References (p. 822) (1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State … and a national of another Contracting State … (2) ‘National of another Contracting State’ means: (a) any natural person who had the nationality of a Contracting State other than the State party to the dispute [on the relevant date] […]; and (b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute [on the relevant date] […] and any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention.’ Suppose that the investor asserts claims based on a contractual breach of its investment agreement with the host State and a violation of an investment treaty obligation. The host State files an objection to the ratione personae jurisdiction of the ICSID tribunal and/or objects to the admissibility of the claims on the basis of the tenuous link between the investor and the Contracting State whose nationality is invoked.24 Should the tribunal defer to general international law on the invocation of State responsibility to supplement article 25 of the Convention with respect to both claims? Or only with respect to the claim alleging a violation of an investment treaty obligation? In other words, is the connecting factor to the general international law on the admissibility of claims (i) the submission of a claim governed by international law, or (ii) the status of article 25 of the Convention as a rule of international treaty law? Or (iii) is there no connecting factor that would justify an ICSID tribunal’s reference to general international law on the admissibility of claims? If the general international law on the admissibility of claims were to supplement article 25 of the

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Convention by reason of the investor’s reliance on a cause of action grounded in international law, this would produce an asymmetry between the ICSID tribunal’s ratione personae jurisdiction in relation to contractual and investment treaty claims. This cannot have been the intention of the drafters of the autonomous test of nationality in article 25. The second possibility, that the status of article 25 as a provision of an international treaty attracts the supplementary application of other international rules on the nationality of claims, is no more appealing. The experience of the Iran-US Claims Tribunal is informative in this respect. In the Dual Nationality Case25 Iran had contended that arbitrations before the Tribunal were an instance of diplomatic protection so that a solution to the admissibility of claims by dual nationals ‘must be found in public international law and not disputes between one State and nationals of the other, which could be resolved by the application of private international law’.26 The Tribunal rejected this contention because the object and purpose of the Algiers Accords was not to ‘extend diplomatic protection in the normal sense’.27 The rules of customary international law did not, therefore, prevent the Tribunal from exercising jurisdiction ratione personae over United States nationals that simultaneously held Iranian citizenship.28 ICSID tribunals have often been sensitive to the sui generis role of the nationality test in article 25 for the ICSID regime, which is not comparable to the object and purpose of

References (p. 823) the nationality of claims rule of diplomatic protection. In Československá Obchodni Banka, AS v Slovak Republic,29 an ICSID Tribunal was confronted with a jurisdictional challenge by the Respondent to the effect that the Claimant was no longer the real party in interest because it had assigned the beneficial interest of its claims to its national State, the Czech Republic, after the arbitral proceedings had commenced.30 The Tribunal did not rely upon the rule of customary international law that an alien must have beneficial ownership over the contractual claim that provides the factual basis of a diplomatic protection claim by its national State.31 Instead it held that: absence of beneficial ownership by a claimant in a claim or the transfer of the economic risk in the outcome of a dispute should not and has not been deemed to affect that standing of a claimant in an ICSID proceeding, regardless whether or not the beneficial owner is a State Party or a private party.32 It is informative to consider the approach taken by ICSID tribunals to the nationality requirement for individuals and juridical persons set out in article 25(2)(a) and (b) respectively. Have tribunals interpreted the nationality requirements in the ICSID Convention against the background of the principles underpinning the nationality of claims rules in diplomatic protection? Or have tribunals proceeded on the basis that the ICSID nationality requirements serve an autonomous function in a Convention that confers rights directly upon non-State actors? The analysis that follows reveals a large measure of contradiction and uncertainty to the extent that, for the time being, no clear trend in favour of either approach can be discerned. The diplomatic protection rule with respect to natural persons was propounded by the International Court of Justice in the Nottebohm case.33 The Court imposed a requirement for the admissibility of diplomatic protection claims that there must be an ‘effective’ or ‘genuine’ link between the individual who has suffered the injury and the national State espousing the claim and thereby rejected the conferral of nationality under municipal law as definitive for this purpose. The Court was concerned to ensure that only one State could have standing to bring a diplomatic protection claim on the basis that the individual ‘is in fact more closely connected with the population of the State conferring nationality than with that of any other State’.34 This is a primary concern of the nationality of claims rule in diplomatic protection because of the risk that individuals and corporate entities may shift their allegiances to powerful States to take up their grievances at the international 35

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level.35 Resort to such contrivances will inevitably cause friction between States. In Soufraki v United Arab Emirates,36 the claimant, Soufraki, had lost his Italian nationality automatically in 1991 by operation of Italian law upon his acquisition of Canadian nationality. Thereafter, he could have reacquired his Italian nationality automatically either by making an application or taking up residence in Italy for one year. He maintained that he

References (p. 824) fulfilled the latter residency requirement37 and thus was an Italian national for the purposes of article 25(2)(a) and the corresponding definition of an investor in the Italy/UAE BIT. The Italian authorities confirmed by a series of certificates that they regarded him as an Italian national at the relevant times. The Tribunal did not import a ‘genuine link’ requirement from the law of diplomatic protection and then seek to identify his dominant or effective nationality (the UAE had claimed that his dominant nationality was Canadian).38 Instead, the Tribunal decided that the pronouncements of the Italian authorities could not be treated as dispositive of the question; in particular because there was no evidence that they had conducted an investigation into his assertion of residency before issuing the confirmation.39 The Tribunal in essence approached the issue as a question of fact rather than a question of law by undertaking its own investigation of the evidence pertaining to Soufraki’s alleged residence in Italy for a year following his acquisition of Canadian nationality.40 If the issue had been approached as a question of law, then the nationality test in article 25(2)(a) and the BIT would have had to be resolved by renvoi to Italian law. As the Italian certificates and Soufraki’s possession of a valid Italian passport confirmed his status in the Italian legal order, these instruments would have had to be treated as dispositive of the question of law, unless they had been procured by fraud, which was not addressed by the Tribunal. It was not open to the Tribunal to treat the nationality requirement in article 25(2)(a) and the BIT as a question of fact and thereby to consider Soufraki’s status in the Italian legal order as an evidential matter that could be suppressed by reference to other evidence. For the Tribunal to decline jurisdiction in spite of Soufraki’s status in the Italian legal order, it had to rule that the nationality requirement in article 25(2)(a) and the BIT is an autonomous test so that factors in addition to Soufraki’s possession of Italian nationality should be taken into account. This was the approach taken by the International Court in the Nottebohn case when it imported a ‘genuine link’ requirement into the nationality of claims rule in diplomatic protection. In other words, it was not permissible for the tribunal to question Soufraki’s status in the Italian legal order, but it was open to the tribunal to decide whether his Italian nationality could be invoked against the UAE for the purposes of an international claim under the ICSID Convention. But although this route was open, it would not have been a welcome precedent either. There is little evidence that the drafters of the ICSID Convention had envisaged that the nationality requirements for natural or juridical persons should be interpreted against the background of diplomatic protection rules or any other notion of ‘dominant’ or ‘effective’ nationality. As will be discussed with respect to the nationality of juridical persons, there are compelling reasons not to investigate the quality of the factual connections between the corporate entity and the Contracting State of incorporation. Indeed, one of the disquieting ramifications of the decision in Soufraki is that it widens the gulf between the position of a natural person and a juridical person vis-à-vis the ICSID arbitration mechanism. The Tribunal was alive to this problem but was content to articulate it rather than confront it: [The Tribunal] appreciates that, had Mr Soufraki contracted with the United Arab Emirates through a corporate vehicle incorporated in Italy, rather than contracting in his personal capacity, no problem of jurisdiction would now arise.41 (p. 825) Annulment proceedings have upheld this award.42 In particular, the Annulment Committee in Soufraki addressed the issue of whether the ICSID tribunal ‘could make an independent determination of the nationality of the Claimant or whether it was bound by the determination made

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by the Italian municipal and consular authorities through the different documents, such as passports and certificates of nationality, issued to the Claimant’.43 The ad hoc Committee first distinguished the act of granting nationality at domestic level from the act of recognizing nationality on an international level. The Committee concluded that: Summarizing, the Tribunal had the power to determine whether it had jurisdiction to hear the dispute. In determining whether the jurisdictional requirements of the ICSID Convention and the BIT have been satisfied, the Tribunal is empowered to make its own investigation into the nationality of parties regardless of the presence of official government nationality documents. Certificates of nationality constitute prima facie—not conclusive—evidence, and are subject to rebuttal. In fine, the Tribunal did not manifestly exceed its powers in deciding that it had to determine for itself Mr. Soufraki’s nationality.44 Turning now to juridical persons, the International Court in Barcelona Traction did not follow Nottebohm by adopting the same ‘genuine link’ criterion for identifying the national State eligible to bring a diplomatic protection claim on behalf of the corporation. But the Court achieved the same objective of channelling the interests in the subject matter of the claim into a single rubric of nationality by determining the nationality of the claim as belonging to the State where the aggrieved corporate entity is incorporated and rejecting the separate jus standi of the State whose nationals comprise the majority of shareholders.45 Although declining to follow Nottebohm, the Court emphasised that a ‘close and permanent connection’ had been established between the company Barcelona Traction and Canada as the State of incorporation insofar as Barcelona Traction had its registered office there with its accounts, share registers and listing with the Canadian tax authorities and board meetings had been held in Canada for many years.46 (Indeed, Brownlie’s review of Barcelona Traction and State practice generally led him to the conclusion that ‘a doctrine of real or genuine link had been adopted, and, as a matter of principle, the considerations advanced in connection with the Nottebohm case apply to corporations’.47 ) In this way, the Court was able to identify both a single nationality for the claim and a real connection between the national State and the claim. The result was that Canada, as the State of incorporation, would have had standing against Spain for the latter’s alleged expropriatory acts vis-à-vis the company; however, a claim by Belgium, whose nationals owned 88 per cent of the shares in Barcelona Traction, was held to be inadmissible. The ICSID Convention does not identify a threshold link between the Contracting State and its national beyond the connection of nationality. The question is whether the conception of nationality for juridical persons employed by article 25(2)(b) should be understood to encompass the same objectives as for the nationality of claims rule in diplomatic

References (p. 826) protection. Is article 25(2)(b) concerned with the identification of a single nationality for the claim and a real connection between the Contracting State and the investor’s claim? This is the question that divided the Tribunal in Tokios Tokelės v Ukraine.48 The majority’s reasoning can be summarized as follows: (1) Article 25(2)(b) does not define corporate nationality but instead the outer limits within which disputes may be submitted to ICSID arbitration. The Contracting States are permitted to define corporate nationality in the instrument recording consent to ICSID arbitration subject only to those outer limits. 49 (2) The Ukraine/Lithuania BIT defines corporate nationality as ‘any entity established in the territory of the Republic of Lithuania in conformity with its laws and regulations’. The investor company, Tokios Tokelės, was a lawfully registered company in Lithuania. That is dispositive in satisfying the definition of corporate nationality in the BIT and such definition is within the outer limits of the requirements in article 25(2)(b) of the ICSID Convention. 50

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(3) The fact that 99 per cent of the shares of Tokios Tokelės were owned by Ukrainian nationals (ie nationals of the respondent Contracting State) is irrelevant to the definition of corporate nationality in the BIT (being focused exclusively on the municipal legal act of incorporation) and does not take the jurisdiction of the Tribunal outside the limits of article 25(2)(b) of the ICSID Convention. 51 The dissenting judgment of President Weil made the following points: (1) Whilst article 25(2)(b) does not define corporate nationality, it does not leave this matter to the discretion of the Contracting States either. Any definition agreed upon by the Contracting States in bilateral instruments cannot offend the object and purpose of the ICSID Convention. 52 (2) The object and purpose of the ICSID Convention is to regulate the settlement of international investment disputes. Article 25(2)(b) cannot be interpreted to allow nationals of a Contracting State to invoke an international dispute resolution mechanism against that State through the subterfuge of a company incorporated in another Contracting State, thereby evading the jurisdiction of municipal courts and tribunals. 53 (3) The fact that 99 per cent of the shares of Tokios Tokelės were owned by Ukrainian nationals is therefore a relevant factor for the requirement of nationality in article 25(2)(b)—a criterion of public international law which is concerned with the economic reality of the investment structure rather than treating the municipal legal acts of the investor as conclusive. 54 Which of these approaches to the conception of nationality for juridical entities in article 25(2)(b) is correct? As the dissenter noted, much turns upon the perception of the ‘philosophy’ underlying the ICSID Convention.55 The interest of the Contracting States

References (p. 827) in maintaining the jurisdiction of their courts and tribunals over their own nationals was repeatedly emphasized by the dissenter.56 In contrast, the majority purported to do no more than faithfully adopt the ordinary meaning of the applicable texts.57 Although not articulated by the majority, perhaps the principle favouring the ‘autonomous’ approach is the affirmation of a broad discretion vested in Contracting States to define nationality and extend the benefits of the Convention to the greatest number of potential investors, thereby increasing the likelihood that the ICSID Convention will achieve its objective of stimulating the inflow of capital. The majority did say: The investment would not have occurred but for the decision by the Claimant to establish an enterprise in Ukraine and to dedicate to this enterprise financial resources under the Claimant’s control. In doing so, the Claimant caused the expenditure of money and effort from which it expected a return or profit in Ukraine.58 There is no doubt that the majority’s approach in Tokios signals a departure from a diplomatic protection rationalization of the ICSID dispute resolution mechanism and permits a significant dilution in the bond between the Contracting State and the investor claiming its nationality. Indeed the ease with which the formal requirement of incorporation can be discharged has led to the growing practice of establishing investment vehicles in a jurisdiction which is ‘covered’ by an investment treaty with the host State of the investment. These investment vehicles may be corporate shells in a tax-friendly jurisdiction that are bound to transfer any commercial returns from the investment enterprise to the parent company in a different jurisdiction. The outer limit of the flexibility endorsed by the majority in Tokios is likely to be breached in situations where the investor is found to have engaged in forum shopping by restructuring its investment in order to gain the requisite nationality for recourse to ICSID arbitration. The crucial

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question is the timing of the restructuring. If it is after the dispute has arisen then the claim is clearly inadmissible. But what if the investment is structured in the first place so that the investor can avail itself of the ICSID arbitration procedure in the event that a dispute arises in the future? The majority seemed to indicate that this might render the claim to be inadmissible as the structure would be for an ‘improper purpose’: The Claimant manifestly did not create Tokios Tokelės for the purpose of gaining access to ICSID arbitration under the BIT against Ukraine, as the enterprise was founded six years before the BIT between Ukraine and Lithuania entered into force. Indeed, there is no evidence in the record that the Claimant used its formal legal nationality for any improper purpose.59 If the primary objective of the ICSID Convention is to ‘stimulat[e] a larger flow of private international capital into those countries which wish to attract it’,60 then an investor’s decision to structure its investment to attract the protection of the ICSID Convention is an (p. 828) example, par excellence, of the Convention achieving its objective. Suppose the Ukrainian investors behind Tokios Tokelės would not have invested their capital in Ukraine but for the availability of ICSID arbitration due to the level of sovereign risk in that country. Would their Lithuanian investment vehicle be denied recourse to ICSID arbitration because of their decision to structure their investment in Ukraine to meet the nationality requirements of article 25(2)(b) of the ICSID Convention? If the essence of the ICSID Convention is simply a procedural adjustment to the mechanism of diplomatic protection, allowing nationals to step into the shoes of their sovereign State, there would be grounds for insisting upon the compatibility of the ICSID nationality requirement with the objectives of the nationality of claims rule. The approach taken by the Tribunal in Loewen v United States of America with respect to the nationality requirement in Chapter 11 of NAFTA would be generally endorsed for the ICSID Convention as well. The Tribunal stated that: It is that silence in the Treaty that requires the application of customary international law to resolve the question of the need for continuous national identity.61 If the ICSID Convention were to be interpreted against this background, then investors who have structured their investment to benefit from the ICSID Convention and thereby reduce sovereign risk to an acceptable level would probably be denied access to the ICSID dispute resolution mechanism insofar as the tribunal would be justified in examining the quality of the links between the corporate entity and the Contracting State whose nationality is relied upon. The interest of the Contracting States in avoiding international litigation for the ultimate benefit of its own citizens would also be paramount. But if the investor/State regime established by the ICSID Convention is autonomous in purpose and design to reduce sovereign risk for putative investors in developing economies, then it should be more resilient, if not impervious, to the influence of diplomatic protection. If this be the ‘philosophy’ of the ICSID Convention, then access to the ICSID dispute resolution mechanism would be open to an investor who structures its corporate affairs to ensure that its investment vehicle qualifies as a national of a Contracting State, whether or not, as an individual, the investor has the same nationality of the Contracting State that is host to the investment. A broad interpretation of the nationality requirements does potentially cause difficulties with respect to diplomatic protection claims. If, for example, Latvia were to bring a claim against Ukraine for the failure to enforce an ICSID award rendered in favour of Tokios Tokelės, there would no doubt be objections to Latvia’s locus standi before an international tribunal as the real beneficiaries of the claim would be Ukrainian nationals. Latvia, however, as a party to the ICSID Convention has its own interest in Ukraine’s compliance with articles 53 and 54 of the Convention. Another problem would arise where the investor has more substantial links to a non-Contracting State than the Contracting State whose nationality has been invoked. If the host State obtains an award in its favour, then it might be compelled to enforce the award in the courts of the non-Contracting State (where the investor has its primary assets), which is not bound by the enforcement obligation in article 54(1). These difficulties have not yet arisen in practice, but their theoretical possibility is a factor that From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

admittedly goes against the broad interpretation favoured by the majority in Tokios Tokelės v Ukraine.

References

(p. 829) (c) Partial applicability of inter-State forms of reparation for injury Article 34 of the ILC Articles specify restitution, compensation and satisfaction as the forms of reparation for an injury available under the general law of State responsibility. An investor is unlikely to petition an ICSID tribunal for satisfaction from the host State in the form of ‘an expression of regret’ or be any more tempted by the other modalities for satisfaction listed in article 37(2) of the ILC Articles. That satisfaction appears to be so foreign to the remedial priorities of an investor does, nonetheless, provide an important insight relevant to the question of whether the other forms of reparation are appropriate. In truly international cases, the declaratory judgment is the most frequently requested remedy for the reasons articulated by Judge Hudson in Diversion of Water from the Meuse: 62 In international jurisprudence, however, sanctions are of a different nature and they play a different role, with the result that a declaratory judgment will frequently have the same compulsive force as a mandatory judgment; States are disposed to respect the one not less than the other. Unlike diplomatic protection in customary international law, ICSID proceedings are concerned with the vindication of private interests and the principal advantage of ICSID arbitration for investors is that the fate of their claims is not dependent upon the vicissitudes of the diplomatic relationship between States. The corollary of this essential feature of the ICSID investor/State regime is that forms of reparation that have evolved in inter-State cases cannot be assumed to be part of the remedial arsenal of ICSID tribunals. The most important question in this context is whether an ICSID tribunal is competent to grant restitution. (Restitution should not be confused with specific performance, the latter being confined to the enforcement of contractual obligations. There does not appear to be a single instance of an international tribunal ordering specific performance of a treaty obligation.63 ) The preferable view is that an ICSID tribunal is not competent to order restitution. First, even in general international law, the status of this remedy is very doubtful. The ubiquitous references to Chorzów Factory in ICSID awards do not acknowledge the existence of a specific provision for restitution in the treaty conferring jurisdiction upon the Permanent Court of International Justice in that case, nor the fact that restitution was not actually claimed by Germany. The statement about the primacy of restitution as a remedy for an international wrong was strictly obiter and the validity of this statement is certainly not confirmed by the paucity of instances when restitution has been awarded by international tribunals. Secondly, there are acute difficulties with such a remedy that an ICSID tribunal is ill-equipped to resolve. Juridical restitution requires specific legislative, executive or judicial acts on the part of the host State to restore the antecedent legal position of the investor under its municipal law where such acts might contravene constitutional norms or affect the rights of third parties. Material restitution is also problematic due to the limited ability of ad hoc tribunals to supervise and enforce transfers of property between the parties. Consistent with the observation about the difficulty associated with the award of restitution in the ICSID regime is the fact that the Contracting States are only obliged to enforce the pecuniary obligations arising out of an ICSID award (article 54(1)). This

References (p. 830) implies that non-pecuniary obligations are not enforceable.64 In some Contracting States 65

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this principle features in local legislation.65 The discussion of non-pecuniary remedies in Enron v Argentina66 obscures rather than clarifies the issue. Several Argentine provinces had made tax assessments on various operations of Enron’s investment in Argentina. Enron considered that the tax assessments were unlawful and expropriatory, but payment of the taxes had been suspended by the Argentine Supreme Court to await a final judicial decision. Enron requested that the Tribunal declare the taxes assessed to be expropriatory (and therefore in breach of the US/Argentina BIT) and ‘that they be annulled and their collection permanently enjoined.’67 The tribunal upheld its jurisdiction to award ‘specific performance and an injunction’ should it determine on the merits that Enron’s request was justified.68 Turning first to the remedy of specific performance, it is impossible to fathom which obligation the tribunal (or Enron) had in contemplation. The assessment of taxes, if found to be contrary to an international obligation on the merits, could be declared by the tribunal to be a nullity. That is not specifi c performance of the international obligation; that is rather the secondary consequence of a breach of a primary obligation of international law. The usefulness of such a declaration would be limited because there would be no sanction in the event that Argentina did not adopt the relevant executive or legislative acts to annul the tax assessments, assuming that there would be no constitutional impediment for the relevant State organ to do so. But if the tax assessments were raised by Argentina in a counterclaim, then a declaration of nullity would mean that a damages award in favour of Enron (on the basis of a different primary claim) would not be set off against that amount. Alternatively, a declaration of nullity might be useful to Enron in resisting the collection of the taxes in the courts of a different jurisdiction, although most municipal legal systems would refuse to enforce a claim for foreign revenues in any case under domestic conflict of laws rules. So much for a declaration of nullity. Next, if Enron had in fact paid over the amounts due under the tax assessment, then it might claim restitution. That would be a form of juridical restitution, requiring Argentina to adopt specific acts to restore the antecedent status quo (again by annulling the tax assessments) and returning the sums paid by Enron. If this is what the tribunal meant by ‘specific performance’, then (laxity in relation to the correct terminology aside) the justificatory reasoning is sparse indeed. First, no mention is made of article 54(1), which requires Contracting States only to enforce pecuniary obligations arising out of an award. As previously stated, this can only mean that non-pecuniary obligations awarded by ICSID tribunals are not enforceable. Second, if Enron does ultimately pay the taxes assessed by the Argentine provinces, and such tax assessments are later adjudged to be internationally unlawful by the tribunal on the merits, then what interest does Enron have in claiming restitution of the antecedent status quo when it can simply claim damages for breach of an international obligation? Finally, with respect to the requested ‘injunction’ to ‘permanently enjoin’ Argentina from enforcing the tax assessments, there is again

References (p. 831) no reference to article 54(1) or mention of the futility of such a remedy in the tribunal’s decision. Given that an ICSID tribunal only has the power to recommend temporary injunctions under article 47, then, regardless of article 54(1), it would be surprising if it had the authority to order a permanent injunction in the final award. Again, no reference is made to article 47 or Rule 39 dealing with provisional measures in the tribunal’s decision. In relation to the remedy of compensation, some international authorities suggest that a punitive element might feature in the assessment of damages in recognition of the detriment caused to the relationship between the State litigants. This might well explain the notorious distinction between lawful and unlawful takings in Chorzów Factory, which appears to rest on the premise that unlawful takings attract a higher level of reparation on the basis that an international delict has been committed. In Amco v Indonesia,69 the investor suffered a denial of justice before an administrative body of the host State. But for that denial of justice, however, the substantive decision of the administrative body would not have been different because there was a legitimate and compelling

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basis for the decision to revoke the investor’s licence despite the violation of the investor’s procedural rights. The ICSID Tribunal nevertheless awarded compensation to the investor for the detriment produced by the revocation; the implicit principle being that any breach of an international obligation demands compensation regardless of a causal link between the violation and the damage.70 If the investor/State arbitration mechanism created by the ICSID Convention is really directed to the vindication of private rights, then the award of damages beyond the realm of compensation for actual loss caused to the investor is beyond the jurisdiction of the tribunal. Unless the decision in Amco represents a camouflaged award of punitive damages in the absence of a causal link to a compensable loss suffered by the investor, which is barely conceivable, then the damages award can only be justified by reference to distinct prejudice caused to Amco’s national State; perhaps rationalized as the general concern of a Contracting State that the minimum standards of treatment of aliens found in customary international law are upheld with respect to its own nationals. An investor engaged in a singular battle for compensation with respect to private economic activities is an unlikely and inappropriate champion of this wider public interest, especially given the often tenuous connection between the investor and its national Contracting State. To take a hypothetical example, it would be untenable for an investment treaty tribunal to increase the amount of damages to account for the fact that the host State had breached its obligations under a BIT on several occasions in relation to different investors of the same nationality. Damages in an investment treaty claim are assessed purely on the basis of the harm caused to the economic interests of the investor by the host State, without regard for any factors in the relationship between the host State and the national State of the investor. This distinction between the distinct forms of reparation owed to the investor and the national State is actually endorsed in a much overlooked passage in the Permanent Court’s decision in Factory at Chorzów: The reparation due by one State to another does not however change its character by reason of the fact that it takes the form of an indemnity for the calculation of which the damage suffered by a private person is taken as the measure. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations

References (p. 832) between the State which has committed a wrongful act and the individual who has suffered the damage. Rights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State.71 This passage highlights that there is a substantive difference between the reparation for wrongs done to individuals and to States and thus compels a measure of caution in approaching the Court’s classic statement on restitution as the primary remedy in international law and the measure of damages in lieu in the context of the investor/State regime.

(d) The law applicable to the substance of the investment dispute The investor/State regime of responsibility created by the ICSID Convention implicates a plethora of legal relationships that gives rise to a diverse range of applicable laws. The investor is often a corporate entity established under a municipal law of one Contracting State, whereas its investment is generally a bundle of rights acquired pursuant to the municipal law of a different Contracting State. The public law or international regulatory obligations of the Contracting State that is host to the investment may have an impact upon this bundle of private law rights, and the public acts of

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the Contracting State might attract its international responsibility upon a breach of the minimum standards of treatment in investment treaties or customary international law. The investor/State regime thus summons the metaphorical image of a kaleidoscope of applicable laws, unlike the State/State regime where public international law is destined to play an exclusive role, and questions of municipal law are treated as questions of fact.72 The approach to the choice of law for investment disputes submitted to ICSID has given rise to a great deal of controversy, not in the least due to textual ambiguities in article 42(1).73 The problem can be resolved by returning to first principles relating to choice of law in general and adapting such principles to the sui generis nature of the investment treaty regime. The basic rule must be that an ICSID tribunal should decide a dispute in accordance with the proper laws of the issues raised by the dispute. If the investor’s claim rests upon a particular interpretation of a clause in an investment agreement, then the proper law of this issue is the law governing the contract. An express choice of law clause in the investment agreement will naturally be dispositive of the proper law in this instance. If the host State defends the claim by reference to an environmental regulation that purports to modify the investor’s contractual rights then the tribunal will interpret the regulation in accordance with its law and assess its impact on the contractual rights of the parties by reference to the law governing the contract. If the investor anticipates this defence with an argument to the effect that the regulation is incompatible with international law and thus should be considered a nullity, the tribunal will apply international law to this issue. The proper laws of the issues raised by the dispute must in each case be determined by the ICSID tribunal through an objective analysis of their juridical foundation and by reference to appropriate connecting factors.

References (p. 833) An example of the utility and necessity of characterizing the issue in dispute is the English Court of Appeal’s judgment in Macmillan Inc v Bishopsgate Investment Trust Plc (No 3).74 The claimant, Macmillan, was a publicly listed company in which Robert Maxwell and his family had an interest. Macmillan in turn had a majority shareholding in the New York company Berlitz and these shares were registered in Macmillan’s name. Upon the instructions of Maxwell, Macmillan’s shares in Berlitz were transferred to Bishopsgate, a company owned and controlled by Maxwell, to be held as nominee for the account and for the benefit of Macmillan. The Berlitz shares were then fraudulently pledged to secure debts of companies privately owned by Maxwell and his family. After the collapse of the Maxwell empire, the shares were held as security by three banks, which were co-defendants in the case. Macmillan claimed that the banks had been unjustly enriched by receipt of the shares as security in breach of the trust relationship between Macmillan and Bishopsgate. The banks defended the claim by asserting that they were bona fide purchasers for value without notice of the breach of trust. (If this were the case, then the banks’ title to the shares would defeat Macmillan’s claim in unjust enrichment.) Macmillan argued that insofar as its claim was in unjust enrichment, any defence raised by the defendant banks should be governed by the law applicable to that claim. That law would be English law. The Court of Appeal rejected this approach. It was not the claim that required characterization, but the particular issue concerning the banks’ defence; namely, whether they had priority of title over the interest asserted by Macmillan. This issue related to property: had the banks acquired good title over the Berlitz shares? Berlitz was a New York company and thus the issue of title to shares in Berlitz was governed by the law of the place of its incorporation—the law of New York. According to this law, the defendant banks had acquired good title to the Berlitz shares. The ‘proper law of the issue’ approach to the applicable law in ICSID arbitrations is preferable to the inference of a single choice of law from the nature of the legal instrument which embodies the consent of the parties to ICSID jurisdiction. According to this approach, if consent is recorded in an ICSID arbitration clause in an investment agreement, then any dispute submitted to ICSID arbitration on the basis of this arbitration clause will be governed by the proper law of the investment agreement in its entirety. But there is no reason in principle to adhere to such an inflexible choice

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of law rule. For instance, consider an example where that the parties have selected the UNIDROIT Principles of International Commercial Contracts as the rules of law to govern their investment agreement pursuant to article 42(1) and a dispute arises about a clause in that agreement exempting the foreign investor from liability to pay VAT. The interpretation of the text of that clause is governed by the proper law of the investment agreement, viz the UNIDROIT Principles. But the State might raise a defence based upon the application of VAT legislation in force at the time the investment agreement was concluded. The proper law of the taxation issue is clearly the municipal law of the host State and it is inconceivable that the UNIDROIT Principles could apply to this issue. Likewise, the investor might rely upon a double taxation treaty to bolster its claim to the VAT exemption. In this case it will be international law, and most certainly not the UNIDROIT Principles, that determines whether the State parties intended to confer rights directly upon non-State actors by concluding a double tax treaty and whether that treaty has the effect of exempting the investor from VAT liability in the host State.

References (p. 834) The same situation arises when the consent to ICSID arbitration is embodied in an investment treaty. The investor might claim a breach of the national treatment obligation with respect to the host State’s refusal to accord the foreign investor a VAT exemption where it has done so for all the national investors in the same industry. That issue is governed by international law. But if the State defends by relying upon the contractual bargain, which accorded the investor other benefits on the understanding that it would be liable for VAT, then it is the proper law of the investment agreement that applies. The national treatment obligation under international law would not override the contractual treatment specifically negotiated by the investor with the host State in this context. Consistent with this approach is the statement of principle from the very first decision of an ICSID tribunal with jurisdiction founded upon a bilateral investment treaty. In Asian Agricultural Products Ltd v Sri Lanka, the complex nature of the choice of law approach to investment disputes was identified with great insight: … the Bilateral Investment Treaty is not a self-contained closed legal system limited to provide for substantive material rules of direct applicability, but it has to be envisaged within a wider juridical context in which rules from other sources are integrated through implied incorporation methods, or by direct reference to certain supplementary rules, whether of international law character or of domestic law nature …75 Several tribunals have since recognized that disputes submitted to ICSID arbitration concerning investment treaty obligations give rise to issues governed by a diverse range of laws. Thus, for instance, in CMS Gas Transmission Company v Argentina, the Tribunal remarked that, with respect to choice of law in ICSID arbitrations: a more pragmatic and less doctrinaire approach has emerged, allowing for the application of both domestic law and international law if the specific facts of the dispute so justifies. It is no longer the case of one prevailing over the other and excluding it altogether. Rather, both sources have a role to play.76 The next stage in the evolution of the choice of law methodology in investment disputes will be for tribunals to develop a set of choice of law rules to determine the proper law of different types of issues that arise. The basic framework for this methodology can be simply stated. First, threshold questions about the existence, scope or nature of an investment frequently arise in investment disputes within the jurisdictional, liability and quantum phases of the proceedings. The proper law of the rights or interests relating to property that comprise the investment is the law of the host State. Second, the proper law of the issue of whether the rights and interests qualify as an investment is

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the treaty itself. Third, the proper law of whether the conduct of the host State is violative of the minimum standards of treatment encapsulated in the investment treaty is the treaty and general principles of international law.77 The judicial development of an objective set of choice of law rules to determine the proper law of the contentious issues in an investment dispute will demand greater

References (p. 835) transparency from tribunals in their reasoning as to a particular choice of law in any given situation. This in turn will prevent injustices caused by an unprincipled selection of rules by tribunals from different sources of law to fit a particular preordained result in the particular case. Reisman has identified one paradigm of injustice that could be avoided by the approach advocated here: the case where the tribunal searches in vain for a remedy in national law and so appeals to the more amorphous principles of international law to fashion a remedy regardless: The question is whether or not the law of the host State addresses the issue at hand. If it does and, as part of its law, has decided not to grant remedies in such matters then there is no remedy, as none is provided in the law that must be applied … If an ICSID tribunal takes the claimant’s demand for a remedy as the framework of inquiry and assumes that if that remedy is not provided by the host State’s law, the Tribunal must then proceed to search for it in international law, the Tribunal will subvert the propose of the dispositive choice of law in Article 42(1) and create a new regime: national law is applied insofar as it provides a particular remedy, but if it does not, international law is then searched for the remedy.78 The present writer would ask a slightly different threshold question than the one posited by Reisman. Rather than determine ‘whether or not the law of the host State addresses the issue at hand’, the approach advocated here would question whether the law of the host State is the proper law of the issue at hand. If the investor advances its case on the basis of a contractual breach, then the proper law of the contract applies. If the proper law so determined provides no remedy, then, as Reisman intimates, it is impermissible for the tribunal to search for one in a different law. On the other hand, if the investor maintains that the host State abused its executive power to frustrate the performance of the contract and thereby violated an international treatment obligation in an applicable investment treaty, then the investor may be entitled to a remedy even where the proper law of the contract would not provide one, but only if the host State’s conduct is found to have breached its international treatment obligation. Such an approach does not subvert the purpose of article 42(1), which surely is concerned with ensuring that the law that objectively governs an issue is applied. Article 42(1) repels the fallacy of a singular governing law. The impermissible approach to choice of law is aptly demonstrated in Wena v Egypt.79 Wena alleged in ICSID proceedings that Egypt breached several provisions of the UK/Egypt BIT when a State-owned company, the Egyptian Hotel Company (‘EHC’), seized two hotels (the ‘Luxor Hotel’ and the ‘Nile Hotel’) which were the subject of separate lease agreements between Wena and EHC. The lease agreements between Wena and EHC stipulated that disputes between the parties must be submitted to ad hoc arbitration in Cairo.80 Following the seizure, Wena had brought a contractual arbitration against EHC for breach of the Nile Hotel lease on 2 December 1993.81 Wena was awarded EGP 1.5 million in damages as compensation for the seizure of the Nile Hotel; however, this ad hoc tribunal simultaneously ordered that Wena surrender the hotel to EHC due to its own breaches of the lease agreement.82 Wena continued to operate the Nile hotel until 1995 when it was evicted pursuant to the tribunal’s decision. Wena brought similar contractual

References

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(p. 836) arbitration proceedings against EHC with respect to the Luxor Hotel lease on 12 January 1994. The second ad hoc tribunal also found in favour of Wena and awarded EGP 9.06 million in damages and also ordered Wena to surrender the hotel to EHC.83 The award was subsequently annulled by the Cairo Court of Appeal.84 Wena remained in occupancy until 1999, when the Luxor Hotel was placed in judicial receivership on account of Wena’s failure to pay rent. Before the ICSID tribunal, Wena maintained that its investment in Egypt was the lease agreements for the two hotels. Egypt raised an objection to this submission on the basis that the leases had been terminated in accordance with their applicable law by tribunals established pursuant to the contractual dispute resolution mechanism. The proper law of this issue is undoubtedly Egyptian law. International law has nothing to say about whether Wena’s breaches of the agreements entailed the termination of the leases. It was open to Wena in the ICSID proceedings to assert a claim based upon a denial of justice with respect to the annulment of the second arbitral award by the Cairo Court of Appeal, but it failed to do so. The ICSID tribunal completely sidestepped the issue of the validity of the leases, merely recording that: [i]t is sufficient for this proceeding simply to acknowledge, as both parties agree, that there were serious disagreements between Wena and EHC about their respective obligations under the leases.85 That was the end of the analysis. The ad hoc Committee hearing the subsequent annulment application filed by Egypt endorsed this approach with the following reasoning: The leases deal with questions that are by definition of a commercial nature. The [BIT] deals with questions that are essentially of a government nature, namely the standards of treatment accorded by the State to foreign investors.86 This rigid dichotomy between the subject matter of the leases and the investment treaty is disingenuous because the sine qua non of investment treaty protection is the investor’s attainment of private law rights which comprise an investment pursuant to the definition contained in the treaty. If there is no investment, there is no investment treaty protection. One can be left in no doubt about the ad hoc Committee’s erroneous endorsement of the tribunal’s approach to the relevance of the leases: [T]he Tribunal declared irrelevant to consider the rights and obligations of the parties to the leases for the purpose of reaching a decision on the dispute submitted to it. The Award confirms that Wena has been expropriated and lost its investment, and this irrespective of the particular contractual relationship between Wena and EHC. The explanation thus given for not determining the respective obligations of Wena and EHC under the leases is sufficient to understand the premises on which the Tribunal’s decision is based in this respect.87 Quite simply, there can be no expropriation without something to expropriate. The tribunal was obliged to first apply the proper law of the lease contracts (Egyptian law) to determine whether they remained valid and binding. If they had been lawfully terminated in accordance with their proper law, and the procedure that led to such termination was

References (p. 837) unimpeachable from the perspective of international law, then that should have been the end of the matter. Subject to an affirmation of their continued validity on this basis, the tribunal was then required to determine whether Egypt’s conduct violated the minimum standards of treatment in the investment treaty in accordance with the proper law of this issue (international law).88

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Before moving on to an analysis of the procedural law of ICSID arbitrations it is necessary to anticipate two criticisms that might be made of the choice of law methodology advocated here. It might first be argued that a dispute implicating an issue governed by international law is not within the ratione materiae jurisdiction of the ICSID tribunal when the legal instrument containing the consent of the parties to ICSID arbitration is an investment agreement. Such an argument would necessarily rely upon the words used in the arbitration clause, which in the standard form reads ‘any dispute arising out of or relating to this agreement for settlement by arbitration’. The use of the qualifiers ‘any’ and ‘relating to’ appears to cast the jurisdictional net wide enough to cover disputes that give rise to issues which are governed by laws different to the proper law of the investment agreement. There would be little disagreement that such wording would extend jurisdiction to an issue in tort, and there is no compelling reason to deny that issues of international law would be covered as well. If semantic considerations were to have the draconian effect of preventing an ICSID tribunal from applying the proper law of certain issues arising in a dispute, the words chosen would have to be unequivocal indeed. Far from explicitly dictating such a result, the standard ICSID arbitration clause is formulated to cover any dispute relating to the investment agreement. If, for example, the foreign investor’s shares in a company established on the basis of the investment agreement are expropriated by the host State, then the investor’s cause of action, and the resulting issues governed by international law, is within the ratione materiae jurisdiction of the ICSID tribunal. It might next be argued this approach to the choice of law for investment disputes submitted to ICSID is not consistent with the text of the applicable law provision in article 42(1): The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable. Let us first consider the situation where the parties have expressly chosen rules of law to govern their relationship in an investment agreement. Can the tribunal in that instance apply international law if it determines from the parties’ pleadings that, in order to dispose of a claim or counterclaim, it must rule upon an issue governed by international law? The answer must be that it can because a choice of law by the parties does not extend to matters beyond their contractual relationship. Just as municipal conflict of laws does not generally permit parties to select the law governing their conduct arising outside the contractual context (such as upon the commission of a tort),89 the autonomy of parties to an investment agreement with an ICSID arbitration clause is similarly constrained.

References (p. 838) Returning to the previous example, the choice of the UNIDROIT Principles to govern an investment contract does not have the effect of removing the investment activities contemplated by the contract from the regulatory system in place at the host State. If the host State justifies withholding sums due to the investor under the investment contract on the basis of the tax legislation in force, then, assuming this issue is not specifically dealt with by the contract, the tribunal cannot rule upon this issue by reference to the UNIDROIT Principles. The issue cannot be characterized as a contractual issue and is thus outside the scope of the parties’ choice of rules of law under the first sentence of article 42(1). The law chosen to govern a contract must be distinguished from the laws applicable to the dispute in this context. The law chosen to govern a contract will apply to issues concerning the interpretation and performance of the contract, the consequences of its breach and the assessment of damages. But it is generally accepted that it does not necessarily govern issues relating to the capacity of the parties, formal validity or the mode of performance.90 Similarly, in

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most legal systems, whether a contractual stipulation about tortious liability will be an effective defence to a tort claim is governed by the lex loci delicti and not the law chosen by the parties to the contract. Turning next to the default rule on the applicable law in article 42(1), it should be obvious that this provision does not provide any guidance as to when national law or international law should be applied by the tribunal. So much ink has been spilt on the import of the conjunction ‘and’ that appears between the references to the law of the host State and to the rules of international law. But the search for definitive guidance from the use of a single conjunction is surely in vain. The default rule does not purport to set out the connecting factors that would enable the tribunal to decide the proper law of a particular issue. Article 42(1) is not, therefore, a choice of law rule in the true sense of the term. It simply recognizes the competence of the tribunal to apply both national and international law. It is for ICSID tribunals to develop a coherent set of principles to guide the choice of either of these laws with respect to particular types of issues. These limitations of article 42(1) are implicit in the Report of the Executive Directors on the ICSID Convention, which simply notes that failing a choice of law by the parties: the Tribunal must apply the law of the State party to the dispute (unless that law calls for the application of some other law), as well as such rules of international law as may be applicable.91 The Executive Directors thus make no attempt to define the parameters of the tribunal’s competence to apply these sources of law. It is true that the original wording of article 42(1) was even more unequivocal as a statement of the competence of the tribunal to apply diverse sources of law rather than a choice of law rule. The preliminary draft of article 42(1) read: In the absence of any agreement between the parties concerning the law to be applied … the Arbitral Tribunal shall decide the dispute submitted to it in accordance with such rules of law, whether national or international, as it shall determine to be applicable.92

References (p. 839) It is certainly true that the capital-importing States voiced concern about the possibility that ICSID tribunals might resort to ignoring domestic rules and regulations wholesale if such a broad discretion with respect to the choice of law were to be conferred by article 42(1). The revised and enacted text of article 42(1) was designed to allay this concern, but it does not transform the article into a true choice of law rule. The early ICSID cases interpreting the default rule in article 42(1) emphasized a ‘complementary’ and ‘corrective’ function of international law vis-à-vis the national law of the host State.93 The ‘complementary’ function was said to allow an ICSID tribunal to resort to international law in the case of lacunae in the applicable national law. This role for international law must be rejected outright. Only adherence to an extreme form of positivism would permit the possibility of a finding of non liquet within a functional legal system. National judges are frequently confronted with situations where there are no specific rules from the corpus of positive law that address the particular contentious issue. In such cases, judges must arrive at a solution that best fits the existing body of decisions (legal enactments and case law) and is consistent with the fundamental principles of the legal system. The position is no different with respect to international law. The possibility of a finding of non liquet in relation to a concrete dispute arising under international law has been discredited by international scholars and tribunals for many decades.94 The purported ‘corrective’ function of international law under article 42(1) has been taken up by several ICSID tribunals.95 This explanation of the role performed by international law in accordance with the default position in article 42(1) must be treated with a measure of caution.

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If the host State obtains a judicial annulment of the investment agreement in its own courts through improper means, then the investor might seek to claim damages for breach of contract and at the same time request a declaration to the effect that the court judgment is a nullity because it constitutes a denial of justice in customary international law. There might, in investment treaty cases, be reasons for the investor to prefer to sue on the investment agreement rather than the investment treaty obligations (assuming the tribunal has jurisdiction over contractual claims), such as where the contractual sum of damages would be higher than a damages award based on a breach of the international obligation due to a contractual stipulation on damages which exceeds the compensatory principles under international law. In such a case, a declaration of nullity would be an appropriate remedy and perhaps international law might be said to perform a ‘corrective’ function. But this would not be a precise description of the role performed by international law because, if the proper law of the issue approach is accepted, international law would not be ‘corrective’ with respect to an issue that should objectively be determined by a municipal law. There is no overlap in the field of application of the different sources of law because international law does not purport to regulate the particular issue in question.

References

(p. 840) (e) The law applicable to the tribunal’s procedure Just as there is no single law that governs all the substantive issues arising out of disputes submitted to ICSID arbitration within the investor/State regime, there is no single law universally applicable to the procedural issues arising out of these disputes either. The search for a tidy pigeon hole in this respect is futile and one is reminded of the vast literature on the law governing arbitrations under the aegis of the Iran-US Claims Tribunal, which even in the twilight years of that institution has yet to produce a sustained consensus.96 Rather than seeking to identify a single applicable law to ICSID procedure, it is appropriate to distinguish between various elements of the procedure which attract different applicable laws. The ICSID Convention, in conjunction with the ICSID Arbitration Rules, seeks as far as possible to provide a comprehensive set of rules to govern the procedure of ICSID arbitrations. Among the procedural issues addressed by the Convention and Arbitration Rules are included matters relating to the constitution of the tribunal (articles 37–40, 56–58; Rules 1–12); matters relating to the conduct of the written and oral phases of the procedure (Rules 13–27, 29–32, 38) and the place of the proceedings (articles 62–3; Rule 13); the power to decide jurisdictional questions (article 41; Rule 41); evidentiary matters (article 43; Rules 33–37); the failure of a party to appear or present its case (article 45; Rule 42); the power to decide incidental claims or counterclaims (article 46; Rule 40); provisional measures (article 47; Rule 39); the procedure for rendering an award and for its interpretation, revision and annulment (articles 48–52; Rules 46–53); and costs (articles 59–61; Rule 28). Article 44 also confers upon the Tribunal the important power to decide procedural matters with respect to which the Convention and the Arbitration Rules are silent. Contrary, however, to a widespread conception of the ICSID regime, it is neither completely ‘selfcontained’, nor ‘autonomous’. The following examples demonstrate this point. First, the parties to an ICSID arbitration can apply to municipal courts and other authorities for provisional measures for the preservation of their rights and interests either before the institution of ICSID proceedings or thereafter. It is a matter of debate as to whether the parties must consent to such in the arbitration agreement, given the uncertainty as to whether the amendment to Rule 39 of the ICSID Arbitration Rules by the ICSID Administrative Council (by the insertion of a new paragraph 5 making resort to municipal courts for this purpose conditional upon the consent of the parties) was a ‘clarification’ of article 26 (providing for the exclusivity of ICSID arbitration vis-à-vis other remedies) or an attempt to modify its application, which would be ultra vires the Administrative Council. If consent is required, then it is likely to be found to be implicit in many of the investment treaty arbitrations submitted to ICSID insofar as investment treaties often contain a provision to the

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effect that the submission of an investment dispute is without prejudice to the parties’ rights to apply for injunctive relief before municipal courts. For instance, article 26(3) of the 2004 Model BIT for the United States of America provides that the investor: may initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of preserving the claimant’s or the enterprise’s rights and interests during the pendency of the arbitration.

References (p. 841) Any such application for injunctive relief will naturally be governed by the lex fori. There may be formidable reasons for a party to ICSID proceedings to petition municipal courts for injunctive relief in support of those proceedings and it cannot be assumed that adherence to an expansive interpretation of article 26 so as to rule out this possibility is likely to promote the effectiveness of the ICSID system. Interim measures to prevent assets from being dissipated or evidence from being destroyed, or to compel the production of documents or the attendance of witnesses, or to restrain a party from pursuing parallel proceedings in a municipal court, might play a decisive role in achieving justice in the reference to ICSID arbitration. Moreover, ICSID tribunals themselves are virtually impotent in this respect, having merely the power to ‘recommend’ (rather than to ‘prescribe’) provisional measures.97 Such non-binding ‘recommendations’ have a poor track record of compliance98 and are not generally enforceable in municipal courts. Second, the municipal rules for the enforcement and execution of final judgments apply to the enforcement and execution of ICSID awards in the territories of Contracting States.99 For example, in AIG Capital Partners v Republic of Kazakhstan,100 AIG and the joint venture company formed for its investment in Kazakhstan petitioned the English High Court to enforce an ICSID award rendered in their favour against assets in London held by third party custodians on behalf of the National Bank of Kazakhstan. The Claimants had registered the award as a judgment under section 1 of the Arbitration (International Investment Disputes) Act 1966 and sought a Third Party Debt and Charging Order under Part 72.2 of the English Civil Procedure Rules and the Charging Orders Act 1979 to enable the Claimants to recover their award debt directly from the custodians of the assets. The orders sought by the Claimants were denied because, inter alia, the assets of the National Bank of Kazakhstan were protected by sovereign immunity from execution pursuant to section 14(4) of the State Immunity Act 1978. Third, the law on sovereign immunity from execution (whether found in international custom, treaty or municipal law) applies to the execution of ICSID awards in the territories of both Contracting States (article 55) and non-Contracting States. Again, in AIG Capital Partners v Republic of Kazakhstan,101 the execution of an ICSID award was refused by an English court due to a blanket immunity attaching to the ‘property of a State’s central bank’ pursuant to section 14(4) of the State Immunity Act 1978. Fourth, in the territories of non-Contracting States, ICSID awards are likely to be enforced in accordance with the rules for the enforcement of foreign arbitral awards (such as, where applicable, those contained in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or in municipal enactments giving effect to this Convention). Fifth, where a party has instituted parallel proceedings in a municipal court in breach of article 26, municipal rules for the granting of a stay of court proceedings apply. In Attorney-General v Mobil Oil NZ Ltd, the New Zealand High Court stayed proceedings brought by the New Zealand Government because there was a ‘relevant relationship or nexus’ between the issues raised in these court proceedings and the pending ICSID

References 102

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(p. 842) arbitration that had been commenced by Mobil.102 The Court exercised its power to stay in accordance with its discretion under a domestic statute (s 8 of the Arbitration (International Investment Disputes) Act 1979).103 In MINE v Guinea, the US Court of Appeals left upon the possibility that US courts could compel an ICSID arbitration upon a petition by one of the parties under the Federal Arbitration Act. The Court ruled that MINE was estopped from raising this argument because in earlier court proceedings it had represented that the particular arbitration clause referring to ICSID arbitration was incapable of specific performance and thus American Arbitration Association (AAA) arbitration should instead be compelled.104 Sixth, some Contracting States have, by their implementing legislation passed in accordance with article 69, reserved the possibility of subjecting an ICSID arbitration to certain procedural rules contained in their municipal laws.105 To the extent that such municipal procedural rules supplement rather than modify the ICSID Arbitration Rules, it is doubtful that the Contracting State could be in violation of the ICSID Convention. Further reading P Muchlinski, F Ortino, & C Schreuer (eds), The Oxford Handbook of International Investment Law (Oxford, OUP, 2008) RD Bishop, J Crawford, & WM Reisman, Foreign Investment Disputes (The Hague, Kluwer Law International, 2005) J Crawford, ‘Treaty and Contract in Investment Arbitration’ (2008) 24 Arbitration International 351 R Dolzer & C Schreuer, Principles of International Investment Law (Oxford, OUP, 2008) Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009) Z Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151 C McLachlan, L Shore, & M Weiniger, International Investment Arbitration: Substantive Principles (Oxford, OUP, 2007) CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention (2nd edn, Cambridge, CUP, 2009)

References

Footnotes: ∗ The author would like to thank Dr Monique Sasson for her helpful assistance in the preparation of this Chapter. 1 575 UNTS 160. See, in general, CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention (2nd edn, Cambridge, CUP, 2009). 2 Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 6. 3 CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention (2nd edn, Cambridge, CUP, 2009), 58–70. 4 Ibid, 414–30. 5 Ibid, 1096–1114. 6 Ibid, 1115–1185. 7 Ibid, 1273–1275. 8 1923, PCIJ, Series A, No 1, 20. 9 See, among others, Maffezini v Spain (ICSID Case No ARB/97/7), Decision on Objections to Jurisdictions, 25 January 2000, 5 ICSID Rep 396; and Salini v Morocco (ICSID Case No ARB/00/4), Decision on Jurisdiction, 23 July 2001, 6 ICSID Reports 400. 10 See eg Duke Energy v Peru (ICSID Case No ARB/03/28), Decision on Jurisdiction, 1 February

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2006; World Duty Free v Kenya (ICSID Case No ARB/00/7), Award, 4 October 2006; and Noble Energy and Machalapower Cia v Ecuador (ICSID Case No ARB/05/12), Decision on Jurisdiction, 5 March 2008. 11 See, for example, Tradex Hellas SA v Albania (ICSID Case No ARB/94/2), Decision on Jurisdiction, 24 December 1996, 5 ICSID Reports 43; and Inceysa Vallisoletana v Republic of El Salvador (ICSID Case No ARB/03/26), Award, 2 August 2006. 12 Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 125. 13 Ibid, 96–106. 14 Noble Ventures Inc v Romania (ICSID Case No ARB/01/11), Award, 12 October 2005. In this case an umbrella clause was at issue, and the tribunal found that: ‘where the acts of a governmental agency are to be attributed to the State for the purpose of applying an umbrella clause … breaches of a contract into which the State has entered are capable of constituting a breach of international law by virtue of the breach of an umbrella clause’ (para 85). The tribunal held that the contracts were entered into by two instrumentalities on behalf of the State and that they were attributable to the State for the purpose of the umbrella clause (para 86). 15 See Z Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151, 184–193. 16 See eg B Simma, ‘Self-Contained Regimes’ (1985) 16 Netherlands Ybk of Int L 111, and above, Chapter 13. 17 W Riphagen, ‘State Responsibility: New Theories of Obligation in Interstate Relations’, in R Macdonald & D Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (The Hague, Nijhoff, 1983), 593. 18 Commentary to art 55, para 3. See also Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 97. 19 Commentary to art 33, para 4. 20 See also the Commentary to art 28, para 3. 21 See also Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 96– 98. 22 Countermeasures have been claimed by Mexico in three NAFTA disputes (before three separate NAFTA Tribunals) against alleged violations of NAFTA by the US, relating generally to access of Mexico’s surplus sugar produce to the US market. Three separate claims have been brought by US agricultural firms against Mexico, relating to the imposition of a 20% tax by Mexico on soft drink bottlers using the sweetener High Corn Fructose Syrup (HCFS). One of the Tribunals held that countermeasures could not be invoked for a claim under Chapter XI of NAFTA, on the basis that it conferred direct rights on investors and countermeasures taken in an inter-State dispute could not interfere with those rights: Corn Products International, Inc v United Mexican States (ICSID Case No ARB(AF)/04/01), Decision on Responsibility, 15 January 2008, paras 168– 169. Another of the NAFTA tribunals held that the conditions for taking countermeasures were not met in the circumstances, although in principle countermeasures might apply to a Chapter XI dispute: Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v United Mexican States (ICSID Case No ARB(AF)/04/05), Award of 21 November 2007, paras 161ff. The third NAFTA tribunal agreed with the Corn Products International tribunal: Cargill, Incorporated v United Mexican States (ICSID Case No ARB(AF)/05/2), decision of 18 September 2009, paras 420– 430. 23 Commentary to art 44, para 1. 24 See eg Tokios Tokelės v Ukraine (ICSID Case No ARB/02/18), Decision on Jurisdiction, 29 April 2004, 11 ICSID Reports 313. 25 Islamic Republic of Iran and United States (Case A/18) (1984) 5 Iran-US CTR 251.

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26 Memorial of the Islamic Republic of Iran in (Case A/18) (21 October 1983), 25–26. 27 Islamic Republic of Iran and United States (Case A/18) (1984) 5 Iran-US CTR 251, 261. 28 Accord: SEDCO v NIOC and Iran (1985) 9 Iran-US CTR 245, 256. 29 Československá Obchodni Banka, AS v Slovak Republic (ICSID Case No ARB/97/4), Decision on Objections to Jurisdiction, 24 May 1999, 5 ICSID Reports 330. 30 Ibid, 342 (para 28). 31 See eg American Security and Trust Company Claim (1958) 26 ILR 322. 32 5 ICSID Reports 330, 343 (para 32). 33 Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4. 34 Ibid, 23. 35 E Borchard, ‘The Protection of Citizens Abroad and Change of Original Nationality’ (1933–4) 43 Yale LJ 359, 377–380. 36 Soufraki v United Arab Emirates (ICSID Case No ARB/02/07), Award, 7 July 2004, 12 ICSID Reports 156. 37 Ibid, 162 (paras 26–27). 38 Ibid, 164 (paras 42–46). 39 Ibid, 167 (paras 66, 68). 40 Ibid, 166 (para 58). 41 Ibid, 169 (para 83). 42 Soufraki v United Arab Emirates (ICSID Case No ARB/02/07), Decision on Annulment, 5 June 2007. This decision was adopted by the majority of the Committee. 43 Ibid, para 18. 44 Ibid, para 76. 45 Ibid, para 70. 46 Ibid, para 71. 47 I Brownlie, Principles of Public International Law (6th edn, Oxford, OUP, 2003), 465; this passage is not in the 7th edn (2008), but the same basic position is taken: ibid, 484–486. 48 Tokios Tokelės v Ukraine (ICSID Case No ARB/02/18), Decision on Jurisdiction, 29 April 2004, 11 ICSID Reports 313. 49 Ibid, 319 (para 25), 322–323 (para 39). 50 Ibid, 320 (paras 28–9), 323 (para 40). 51 Ibid, 324 (para 46), 326 (para 52), 332 (para 77). 52 Dissenting Opinion, ibid, 345 (para 16), 346 (para 19), 349–350 (para 28). 53 Dissenting Opinion, ibid, 342 (paras 5, 8, 9), 346 (para 19), 347 (para 23). 54 Dissenting Opinion, ibid, 347–8 (paras 21, 23, 24). 55 Dissenting Opinion, ibid, 341 (para 1). 56 Dissenting Opinion, ibid, 342 (para 8), 350–351 (para 30). See further: A Broches, ‘The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States’ (1972) 136 Recueil des cours 331, 355, ‘There is no reason to have these international procedures be a substitute, even on an optional basis, for domestic procedures for the settlement of disputes between a State and its own citizens’; and Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 314–317. 57 Tokios Tokelės v Ukraine (ICSID Case No ARB/02/18), Decision on Jurisdiction, 29 April 2004, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

11 ICSID Reports 313, 320 (paras 28–29), 332 (para 77). 58 Ibid, 332 (para 78). 59 Ibid, 327 (para 56). 60 Report of the Executive Directors of ICSID, 1 ICSID Reports 23, 25 (para 9). 61 Loewen v United States of America (ICSID Case No. ARB(AF)/98/3), Award, 26 June 2003, 7 ICSID Reports 421, 486 (para 226). 62 1937, PCIJ Reports, Series A/B, No 70, p 4, 79. 63 See C Gray, Judicial Remedies in International Law (Oxford, OUP, 1987), 16. 64 Accord: A Broches, ‘The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States’ (1972) 136 Recueil des cours 331, 400. 65 See eg in the United States: s 3(a) of the Convention on the Settlement of Investment Disputes Act 1966, 22 USC § 1650a (1976), and the Statement of Intent of the US Department of State, (1966) 5 ILM 820, 824. 66 Enron v Argentina (ICSID Case No ARB/01/3), Decision on Jurisdiction, 14 January 2004, 11 ICSID Reports 273. 67 Ibid, 289 (para 77). 68 Ibid. 69 Amco v Indonesia (ICSID Case No ARB/81/1), Award, 5 June 1990, 1 ICSID Reports 569. 70 See J Paulsson, Denial of Justice in International Law (Cambridge, CUP, 2005), 218–225. 71 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 28 (emphasis added). 72 See Certain German Interests in Polish Upper Silesia, 1926, PCIJ Reports, Series A, No 7, p 4, 19. 73 CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention (2nd edn, Cambridge, CUP, 2009), 545–639. 74 [1996] 1 WLR 387. 75 Asian Agricultural Products Ltd v Sri Lanka (ICSID Case No ARB/87/3), Award, 27 June 1990, 4 ICSID Reports 250, 257 (para 21). See J Crawford, ‘Treaty and Contract in Investment Arbitration’ (2008) 24 Arbitration International 351. 76 CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/8), Award, 12 May 2005, 14 ICSID Reports 152, 176 (para 116). 77 See Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), ch 2. 78 WM Reisman, ‘The Regime for Lacunae in the ICSID Choice of Law Provision and the Question of its Threshold’ (2000) 15 ICSID Rev—FILJ 362, 371. 79 Wena v Egypt (ICSID Case No ARB/98/4), Award, 8 December 2000, 6 ICSID Reports 89. 80 Ibid, 94 (para 17). 81 Ibid, 106 (para 60). 82 Ibid, 106–107 (para 61). 83 Ibid, 107 (para 62). 84 Ibid. 85 Ibid, 94 (para 19). 86 Wena v Egypt (ICSID Case No ARB/98/4), Decision on Annulment, 5 February 2002, 6 ICSID Reports 129, 136 (para 31). 87 Ibid, 147 (para 86) (emphasis added).

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88 Further examples of a similar erroneous approach to choice of law in investment treaty disputes are provided in: Z Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151, 202–205, 207–211; Z Douglas, ‘Nothing if Not Critical for Investment Treaty Arbitration’ (2006) 22 Arbitration International 27. 89 See P North, ‘Choice in Choice of Law’ in Essays in Private International Law (Oxford, OUP, 1993), 171. 90 Eg Rome Convention on the Law Applicable to Contractual Obligations, 19 June 1980, 1605 UNTS 59, arts 2(a), 9, 10.2. 91 1 ICSID Reports 23, 31 (para 40) (emphasis added). 92 Working Paper in the Form of a Draft Convention (5 June 1962) in Convention on the Settlement of Investment Disputes between States and Nationals of other States: Documents Concerning the Origin and the Formulation of the Convention, Vol 2, 19, 21. 93 Klöckner v Cameroon (ICSID Case No ARB/81/2), Decision on Annulment, 3 May 1985, 2 ICSID Reports 95, 122 (para 69); Amco v Indonesia (ICSID Case No ARB/81/1), Decision on Annulment, 16 May 1986, 1 ICSID Reports 509, 515 (paras 20–22). 94 See H Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon Press, 1933), 65. 95 In addition to Klöckner and Amco, see: LETCO v Liberia (ICSID Case No ARB/83/2), Award, 31 March 1986, 2 ICSID Reports 358, 372; SPP v Egypt (ICSID Case No ARB/84/3), Award, 20 May 1992, 3 ICSID Reports 189, 207, 208 (paras 80, 83); Compañía del Desarollo de Santa Elena SA v Costa Rica (ICSID Case No ARB/96/1), Award, 17 February 2000, 5 ICSID Reports 153, 170 (paras 64–65). 96 Z Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151, 160– 162. 97 See ICSID Convention, art 47 and ICSID Rules, r 39. There is now some doubtful authority that ‘recommend’ actually means ‘prescribe’: see CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention (2nd edn, Cambridge, CUP, 2009), 764–765. 98 See eg CSOB v Slovakia (ICSID Case No ARB/97/4), Award, 24 May 1999, 5 ICSID Reports 330. 99 Arts 54(1), 54.3. 100 [2005] EWHC 2239 (Comm); 11 ICSID Reports 118. 101 Ibid. 102 Attorney-General v Mobil Oil NZ Ltd (1987) 118 ILR 620, 630. 103 See also, in England: s 3(2) of the Arbitration (International Investment Disputes) Act 1966, by which s 9 of the Arbitration Act 1996 applies to applications to stay in favour of ICSID arbitrations. 104 MINE v Guinea, 693 F.2d 1094, 1103–4 (12 November 1982). 105 See eg in England: s 3(1) of the Arbitration (International Investment Disputes) Act 1966, by which the Lord Chancellor can direct that ss 36, 38–44 of the Arbitration Act 1996 apply to ICSID arbitrations.

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Part IV The Content of International Responsibility, Ch.54.2 Other Specific Regimes of Responsibility: The Iran-US Claims Tribunal Daniel Müller From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 843) Chapter 54.2 Other Specific Regimes of Responsibility: The Iran-US Claims Tribunal 1 A special mechanism for international responsibility 844 (a) The specificity of the claims mechanism 844 (b) The limited content of the claims 845 2 The engagement and content of responsibility 846 (a) The internationally wrongful act and its attribution 846 (b) Compensation as a consequence of the internationally wrongful act 847 Further reading 848 The Iran-US Claims Tribunal was created after the revolutionary events in Iran which deeply disturbed the relationship between Iran and the United States at the end of the 1970s. The Algiers Declarations of 19 January 1981, which consisted of the General Declaration,1 the Claims Settlement Declaration,2 and several technical agreements, represent the settlement of all disputes between these two States, in addition to the settlement of the Tehran Hostages case.3 The Tribunal has jurisdiction to decide cases between the two States concerning the interpretation and execution of the Algiers Declarations, to decide commercial inter-State claims and, in particular, to deal with claims arising from allegations made by a national of one State relating to damage caused by the other. The Iran US-Claims Tribunal is unique. For one thing, it was created and worked in an environment that was politically difficult and unfavourable. Furthermore, it was given a broad and mixed jurisdiction, covering both public international law and private law claims, involving States and

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private actors. Finally, the great number of claims submitted and decisions given transformed this Tribunal into an exceptional arbitral mechanism.4 As such, the Tribunal has become one of the most significant arbitral mechanisms and its case law constitutes a rich and important source of public international and commercial law. The Tribunal has substantially contributed to the development and consolidation of the law on international responsibility. Its jurisdiction over and treatment of claims of private individuals nevertheless remains exceptional.

References

(p. 844) 1 A special mechanism for international responsibility Even though the claims mechanism instituted by the Algiers Declarations is not innovative, it remains special because of the circumstances and the objectives of the Tribunal. Despite the jurisdiction of the Tribunal over the interpretation and execution of the Algiers Declarations, which covers inter-State responsibility, only one award has expressly established the responsibility of the United States of America for violation of its obligations towards Iran.5 The great majority of claims concerning public international law do not concern inter-State responsibility and are closely linked to the question of injury caused to foreigners during or shortly after the revolutionary events in Iran. Thus, the Tribunal is a contemporary version of the claims commissions or mixed tribunals established at the beginning of the 20th century whose jurisprudence largely influenced the initial work of the ILC.6 Because of this peculiarity, the jurisprudence of the Iran-US Claims Tribunal concerning international responsibility shows original aspects, both with regard to the claims mechanism and the content of the claims.

(a) The specificity of the claims mechanism Apart from claims submitted by the United States of America or Iran, nationals of one of the two States could also file claims against the other State (claims had to be registered by the Iran-US Claims Tribunal before 19 January 1982).7 As far as individual claims are concerned, it was not for States to represent their nationals’ interests under the traditional mechanism of diplomatic protection.8 Individuals presented their claims directly in their own name and were, if appropriate, paid the allocated indemnity directly. Even claims for damages in an amount less than US$250,000, which were presented by government agents as a matter of efficiency, were never considered as cases of diplomatic protection in the traditional sense.9 This peculiarity of the claims mechanism is corroborated by the absence of a requirement to exhaust local remedies. To be admissible, a claim need not be brought before any municipal tribunal, but must simply exist at the critical date.10 Furthermore, the Tribunal has clearly expressed its conception of the mechanism established by the Algiers Declarations in Case A/18,11 which concerned the issue of double nationality. The United States had called upon the Tribunal to decide on the question whether individuals with American and Iranian nationality could enforce their rights against Iran before the Tribunal. The Tribunal clearly supported the view that it did not constitute a mechanism of diplomatic protection, despite its international character. In this way it ruled out the application of the rule of nonresponsibility of the State with regard to its own nationals expressed in article 4 of the Hague Convention of 1930 Concerning

References (p. 845) Certain Questions relating to the Conflict of Nationality Laws.12 The criterion of effective 13

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nationality has thus been consistently applied in the case law of the Tribunal.13 These peculiarities of the claims mechanism, which differ significantly from the traditional concept concerning the protection of the individual in international law, are due to the hybrid character of the Tribunal. The Iran-US Claims Tribunal is not an international tribunal with a jurisdiction limited to classic international law issues. The combination of a mechanism for the settlement of disputes under public international law and international commercial law disputes has required an adaptation of existing principles and concepts to the jurisdiction of the Tribunal. Furthermore, the desire of the negotiators of the Algiers Declarations to ‘terminate all litigation as between the government of each party and the nationals of the other’14 necessarily led to a softening of the diplomatic protection mechanism, and eventually to the establishment of a sui generis mechanism. This creation is consistent with recent developments in international law and recognizes an increasingly important role of the individual in the sphere of public international law.

(b) The limited content of the claims As for claims concerning State responsibility, the ratione materiae jurisdiction of the Tribunal was also adapted to the specific objectives of the arbitral mechanism and to the circumstances in which it was established. In cases concerning revolutionary movements or situations of social unrest, the main preoccupation of States is the fate of their nationals and their property. It is thus always the responsibility of a State for injury caused to foreigners which is invoked. The same is true for the Iran-US Claims Tribunal. The Claims Settlement Declaration sets out that the Tribunal should decide claims resulting from ‘expropriations or other measures affecting property rights’.15 Expropriation inconsistent with the requirements and conditions established under international law constitutes an internationally wrongful act, as had been recognized by García Amador in his reports to the ILC in the 1950s and 1960s,16 which applies particularly in the case of revolutionary events or the restructuring of the economic system of a State. The notion of ‘other measures affecting property rights’ has been the subject of more controversial decisions of the Tribunal. Even though it adopted a very restrictive interpretation of the notion, limiting it to measures comparable to an expropriation,17 Chamber 1 held that the decisive criterion for the existence of such a measure is its specific effects: it must affect the property rights of the claimant in a way comparable to an expropriation.18 Therefore ‘other measures affecting property rights’ are only ‘expropriations’ on a smaller scale, or measures aimed at diminishing the value or the use of property for the owner. The Tribunal also included measures of unlawful expulsion of foreigners, the consequence of which is often the indirect loss of property or economic advantage, in the concept of ‘other measures’. It is not the character of the measure but its specific effect which founds and noticeably enlarges the jurisdiction of the Tribunal.

References (p. 846) The work of the Tribunal has nevertheless been reduced to the compensation of economic loss, consistent with other dispute settlement mechanisms concerning individuals. For this reason its jurisdiction ratione materiae is largely oriented towards the existence of economic loss. On the one hand, expropriations are, under certain conditions, internationally wrongful acts which necessarily comprise material damage; on the other hand, the notion of ‘other measures affecting property rights’ includes a variety of internationally wrongful acts, but at the same time limits the jurisdiction of the Tribunal to acts which generate economic damage. Despite some incoherence in its case law, the Tribunal has respected the modern system of international responsibility which does not regard damage as a necessary condition to establish responsibility.19 Rather, the problem was that of distinguishing between the jurisdiction of the Tribunal and the substance of the claim. The existence of an expropriation or another measure affecting property rights are conditions for the jurisdiction of the Tribunal. Nevertheless, where the jurisdiction of the Tribunal was established, the judges contented themselves with the formulation of 20

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a claim concerning an expropriation or a measure affecting property rights20 which included an allegation of specific damage.21 A more classical approach was taken with regard to the examination of the substance and the engagement of responsibility: first of all, the Tribunal determined the existence of an internationally wrongful act, without taking into account the existence of damage; and then, it examined the allegations in relation to the damage, which was required to be material and to have been caused by the wrongful act.

2 The engagement and content of responsibility The international responsibility regime applied by the Tribunal is hardly innovative. Even though compensation may be the only possible measure of reparation, the internationally wrongful act and its attribution to the State are subject to the rules codified by the ILC.

(a) The internationally wrongful act and its attribution The definition of an internationally wrongful act caused hardly any debate within the Tribunal. The central issue in the case law was the finding of an expropriation. The issue of determining whether property rights have been violated in such a way as to be regarded as an expropriation was approached by the Tribunal taking into account exclusively the effects of the acts or omissions: this corresponds to the international case law in the area, which was not very developed at the time.22 As far as ‘other measures affecting property rights’ are concerned, the Tribunal decided on the expulsion of foreigners23 as well as on takings that are not equivalent to expropriations.24 The wrongfulness of the measures in question was generally established with regard to customary international law, but also, though more rarely, with regard to the treaty obligations of the two States under the Friendship Treaty of 1955. In order to establish the responsibility of the State it is further necessary that the internationally wrongful act can be attributed to the State. This condition of attribution has

References (p. 847) played an important role in the case law of the Iran-US Claims Tribunal. In its awards, the Tribunal relied on the rules now set out in articles 4 to 11 ARSIWA. Even though references to awards of the Iran-US Claims Tribunal in relation to attribution are rare in the ILC Commentary, the Tribunal has undoubtedly considerably enriched positive international law by applying rules and solutions which were formulated in abstracto to concrete situations. The added value of the jurisprudence of the Tribunal is particularly evident in the interpretation and application of the principle set out in article 10 ARSIWA, namely the attribution of the acts and omissions of revolutionary movements to the State. Even though the principle seems to be widely accepted in international law,25 as well as by the Tribunal,26 the judges were confronted with difficult issues concerning its application. Indeed, the deliberately broad definition of the notion of revolutionary movement now contained in article 10 ARSIWA27 does not resolve the question whether the act of a member of a revolutionary group can be imputed to the revolutionary movement, which nevertheless constitutes a preliminary condition in the application of article 10. Only the acts and omissions of the revolutionary movement may, under certain conditions, be attributed to the State. This does not include acts committed by individuals who do not belong to the movement and who do not act on its behalf. To fill this lacuna, the Tribunal simply consolidated the application of the principle in article 10 with the principles of the other rules on attribution to the State. In order for acts or omissions to be capable of being attributed to the State, they must first be attributable to the successful revolutionary movement, as if it already constitutes a State.28 This unpacking of the requirements nevertheless created great difficulties of evidence for some claimants29 and demonstrates the practical difficulty of applying article 10. The jurisprudence of the Tribunal has also shown the difficulties connected to the practical

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application of force majeure as a circumstance precluding wrongfulness (article 23 ARSIWA), which was frequently invoked by Iran. The Tribunal generally recognized that the situation of social unrest in Iran created a classic force majeure situation.30 This situation excluded the responsibility of the Iranian State for breaches of the obligations to protect foreigners committed by the Shah’s government during the revolution, because it lost effective control over the territory.31 But the same criterion of control over the situation has often rendered force majeure inapplicable given that, one way or the other, the acts in question were attributable to the revolutionary government.32 The practice of the Tribunal has thus shown that force majeure based on a loss of control of the situation is often influenced by the issue of attribution, especially in situations of revolution.

(b) Compensation as a consequence of the internationally wrongful act In the few awards concerning the interpretation and application of the Algiers Declarations, the judges often contented themselves with interpreting and specifying the respective

References (p. 848) obligations of the parties. While reminding the parties of the obligation to continue to respect their obligations, they practically never stated the consequences of a failure to do so.33 As far as the other cases of State responsibility for harms caused to foreigners are concerned, restitution or compensation seem to be the only possible and desirable consequences of the internationally wrongful act. The case law of the Iran-US Claims Tribunal has largely focused on compensation. This is simply because claimants mostly preferred that form of reparation over the restitution of expropriated property or assets damaged by other measures affecting property rights. As for the amount of compensation, the work of the Tribunal was largely prescribed by its jurisdiction ratione materiae which was limited to strictly economic loss, excluding moral damage, which is inconsistent with the rule set out in articles 31 and 36 ARSIWA.34 On the other hand, the standard of compensation for loss of property resulting from expropriation has been the subject of controversial and inconsistent awards on the notions of lawful and unlawful expropriation and adequate or integral compensation.35 But in the end, economic loss was generally compensated in full, including interest.36 Despite the unique character of the Iran-US Claims Tribunal, its jurisprudence has not provoked any major development or great upheaval in the area of international responsibility. The main contribution of the tribunal consists in the concrete application of the rules on international responsibility in a number of important cases. In this fashion, the judges of the Tribunal have been able to contribute to the elaboration of the law on international responsibility by considerably enriching the practice in an area that had remained, for many years, exclusively at the centre of doctrinal and theoretical debates. Furthermore, they have demonstrated that it is difficult to operate a clear distinction between different concepts and aspects of the law of international responsibility such as for example attribution, circumstances precluding wrongfulness and causation. Further reading GH Aldrich, Jurisprudence of the Iran-United States Claims Tribunal (Oxford, Clarendon Press, 1996) CN Brower and JD Brueschke, The Iran-United States Claims Tribunal (The Hague, Martinus Nijhoff Publishers, 1998) RB Lillich and DB Magraw, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (Irvington-on-Hudson, Transnational Publishers, 1998) B Stern, ‘Les questions de nationalité des personnes physiques et de nationalité et de contrôle des personnes morales devant le Tribunal des différends irano-américains’ (1984) 30 AFDI 425 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

D Lloyd Jones, ‘The Iran-United States Claims Tribunal: Private Rights and State Responsibility’ (1983–1984) 24 Virginia Journal of International Law 259 L Reed, ‘Mixed Private and Public International Law Solutions to International Crises’ (2003) 306 Recueil des cours 117 P Daillier, ‘Tribunal irano-américain de reclamations’ (1999) 45 AFDI 515; (2000) 46 AFDI 326; (2001) 47 AFDI 283; (2002) 48 AFDI 407; (2003) 49 AFDI 302

References

Footnotes: 1 1 Iran-US CTR 3. 2 Ibid, 9. 3 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3. 4 P Daillier, ‘Tribunal irano-américain de reclamations’ (1999) 45 AFDI 541. 5 Islamic Republic of Iran v United States of America (Case No A27), (1998) 34 Iran-US CTR 39. 6 See above, Chapter 8. 7 Art II, Claims Settlement Declaration, 1 Iran-US CTR 9. 8 See Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No 2, 12; PanevezysSaldutiskis Railway, 1939, PCIJ, Series A/B, No 76, 4, 16; Nottebohm (Second Phase), Judgment, ICJ Reports 1955, p 4, 24; Barcelona Traction, Light and Power Company Limited (Second Phase), ICJ Reports 1970, p 3, 32–33 (paras 35–36). 9 Esphanian v Bank Tejarat (1983) 2 Iran-US CTR 157, 165. 10 Art II(1), Claims Settlement Declaration, 1 Iran-US CTR 9; for an interpretation of this provision see Amoco Iran Oil Company v Iran (1982) 1 Iran-US CTR 493, 497. 11 Iran-United States, Case A/18 (1984) 5 Iran-US CTR 251. 12 Ibid, 261; Esphanian v Bank Tejarat (1983) 2 Iran-US CTR 157, 165. 13 P Daillier, ‘Tribunal irano-américain de reclamations’ (2000) 46 AFDI 349. 14 General Declaration, principle B, 1 Iran-US CTR 3. 15 Art II(1), Claims Settlement Declaration, 1 Iran-US CTR 9. 16 See eg FV García-Amador, Second Report on State Responsibility, ILC Yearbook 1957, Vol II, 117 (draft art 9). 17 Lillian Byrdine Grimm v Iran (1983) 2 Iran-US CTR 78. 18 Yeager v Iran (1987) 17 Iran-US CTR 92, 99; Rankin v Iran (1987) 17 Iran-US CTR 135, 137; Mohtadi v Iran (1996) 32 Iran-US CTR 124, 142. 19 See eg Mohtadi v Iran, ibid. 20 Stanwick Corporation v Iran (1990) 24 Iran-US CTR 102, 110–111; Dames and Moore v Iran (1983) 4 Iran-US CTR 212, 221–222. 21 Rankin v Iran (1987) 17 Iran-US CTR 135, 148. 22 Nazari v Iran (1994) 30 Iran-US CTR 123, 157–158; Petrolane, Inc v Iran (1991) 27 Iran-US CTR 64, 93. 23 See eg Short v Iran (1987) 16 Iran-US CTR 76, 83.

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24 Foremost Tehran, Inc v Iran (1986) 10 Iran-US CTR 228, 251–252. 25 See above, Chapter 19.2. 26 Short v Iran (1987) 16 Iran-US CTR 76, 84; Yeager v Iran (1987) 17 Iran-US CTR 93, 101. 27 See Commentary to art 10, para 9. 28 Yeager v Iran (1987) 17 Iran-US CTR 93, 101–103. 29 Etezadi v Iran (1994) 30 Iran-US CTR 23, 37–38; Petrolane, Inc v Iran (1991) 27 Iran-US CTR 64, 91–92; Short v Iran (1987) 16 Iran-US CTR 76, 85. 30 Gould Marketing, Inc v Ministry of National Defence (1983) 3 Iran-US CTR 147, 152–153; SeaLand Services, Inc v Iran (1984) 6 Iran-US CTR 149, 166. 31 Short v Iran (1987) 16 Iran-US CTR 76, 84–85; Rankin v Iran (1987) 17 Iran-US CTR 135, 147. 32 Phillips Petroleum Co Iran v Iran (1989) 21 Iran-US CTR 79, 109–111. 33 See Islamic Republic of Iran v United States of America (Case No A27) (1998) 34 Iran-US CTR 39 (where the Tribunal awarded an indemnity to Iran), but see also Islamic Republic of Iran v United States of America, (Case No A28) (2000) 36 Iran-US CTR 5. 34 Grimm v Iran (1983) 2 Iran-US CTR 78, 79; Haddadi v United States (1985) 8 Iran-US CTR 20, 22; Rankin v Iran (1987) 17 Iran-US CTR 135, 148. 35 Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189, 246; Phillips Petroleum Co Iran v Iran (1989) 21 Iran-US CTR 79, 121; Ebrahimi v Iran (1994) 30 Iran-US CTR 170, 197– 198. 36 Iran-United States (Case A/19) (1987) 16 Iran-US CTR 285, 289–290; see also P Daillier, ‘Tribunal irano-américain de réclamations’ (2003) 49 AFDI 308.

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Part IV The Content of International Responsibility, Ch.54.3 Other Specific Regimes of Responsibility: The UN Compensation Commission Dražen Petrović From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

(p. 849) Chapter 54.3 Other Specific Regimes of Responsibility: The UN Compensation Commission 1 Origin and legal basis 849 2 Structure of the UNCC 850 3 Procedure 851 4 Claimants 853 5 Competence ratione materiae 855 6 Compensable loss—an outline 857 Further reading 859

1 Origin and legal basis On 2 August 1990 Iraqi troops invaded Kuwait and commenced its occupation. This was a textbook example of an internationally wrongful act, indeed an act of aggression, and the Security Council, without using the word aggression, condemned it the same day (in Resolution 660 (1990)).1 A series of acts by Iraq were also subsequently condemned by the Security Council, especially concerning the fate of civilians in Iraq and Kuwait used as hostages and the fate of Kuwaiti civilians, due to violations of the Fourth Geneva Convention (Resolutions 664,2 666,3 670,4 and 6745), as well as violations of diplomatic immunities and obstacles for the functioning of consular services (Resolutions 6646 and 6747 ). In this general context the question of compensation for injury arose. In October 1990 the Security Council, ‘deeply concerned at the economic cost and the loss and suffering caused to individuals in Kuwait and Iraq as a result of the invasion and occupation of Kuwait by Iraq’, reminded Iraq that it was ‘under international law … liable for any loss, damage or injury arising in regard to Kuwait and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

third States, and their nationals and corporations, as result of the invasion and illegal occupation of Kuwait by Iraq’ and demanded that States collect relevant information ‘with a view to such arrangements as may be established in accordance with international law’.8 A similar reminder was made in

References (p. 850) Resolution 686 (1991) which was then clarified in Resolution 687 (1991).9 In Resolution 687, the Security Council reaffirmed: that Iraq, without prejudice to its debts and obligations arising prior to the 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage—including environmental damage and the depletion of natural resources—or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait.10 In order to put this paragraph into practice the Security Council created the Fund and the United Nations Compensation Commission (UNCC) on 20 May 1991.11 Even if the principle of compensation for loss caused by wrongful act is a classic principle of international law, notably confirmed by the PCIJ in Chorzów Factory12 and by the ICJ in GabcíkovoNagymaros Project,13 a process of compensation which finds its basis in Chapter VII of the UN Charter and is administered by a subsidiary organ of the Security Council marks a new approach to compensation for injury caused by war and represents a certain innovation in international law. The fact that Iraq subsequently accepted the obligations which followed from Resolution 687 (1991)14 increases that legitimacy of the UNCC, but the compensation mechanism remains founded on Chapter VII of the Charter. It must also be said that compensation is only one part of the measures which were introduced against Iraq by Resolution 687 (1991), which also included a demand to return all Kuwaiti goods and to meet its obligations with respect to service and reimbursement of its external debt. The UNCC thus does not have exclusive competence concerning claims that potential applicants may have against Iraq.

2 Structure of the UNCC Starting from the premise that it was to be an administrative commission and not a judicial body, the Security Council followed the proposal of the Secretary General15 with respect to the structure of the UNCC. The principal organ is the Governing Council, a body whose composition reflects that of the Security Council. It operates at the level of decision-making, not only for the global policy of the UNCC, but also for final decisions on the amount of compensation on the basis of propositions made by the Panels of Commissioners, as well as on the mechanism of payment of the awards. The Governing Council is accompanied by a professional (or functional, as the Secretary General suggests in his report) body: the Commissioners, who are organized in different Panels. Each Panel is composed of three members and examines the claims which are presented to them by the Executive Secretary of the UNCC, and make recommendations on the amount to be awarded for each claim. The Commissioners, who number 55, are

References (p. 851) nominated by the Governing Council.16 They must be experts in the subject matter and they act individually. As for the applicable law, they must apply: Security Council resolution 687 (1991) and other relevant Security Council resolutions, the criteria established by the Governing Council for particular categories of claims, and any

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pertinent decisions of the Governing Council. In addition, where necessary, Commissioners shall apply other relevant rules of international law.17 The Panels present their recommendations to the Governing Council in the form of a report which briefly explains the reason for their recommendations. Since the issue of Iraq’s responsibility for injury within the competence of the UNCC was resolved by Resolution 687 (1991),18 the Panel’s role was defined as comprising three main tasks: first, determining whether the presumed losses fall within the competence of the UNCC; second, verifying if the presumed losses have in fact been suffered by a given applicant; and third evaluating the losses that can be compensated in relation to the amount that has been claimed.19 Finally, there is an administrative body, the Secretariat, with the Executive Secretary at its head. The Secretariat, which is based in Geneva, was in its initial stages influenced by the experience of the Iran-US Claims Tribunal.20 For support it has employed more than 200 staff, mostly lawyers, accountants and information technology specialists. Apart from its role set out in the Provisional Rules, the Secretariat also maintains a database of claims; its role in the verification process, which depends on information technology, is of crucial importance.21 The relationship between these three organs is determined by the Provisional Rules. The Secretariat serves as a link between the Governing Council and the Commissioners, since those two organs are not directly connected. The Council directs the work of the Panels by guidelines set out in its decisions, and the reports of the Panels are presented to the Council through the intermediary of the Executive Secretary.22 The Council is not able to modify the reasons presented in a report; it can only change the proposed amount of compensation. The Council may increase or reduce the amount ‘where it determines circumstances require’.23 It may also ‘in its discretion’ return a claim or a group of claims to the Commissioners ‘for further review’.24

3 Procedure Two aspects of the procedure concerning claims against Iraq are significant. First, there is a procedure at the national level by which the government concerned identifies potential applicants and distributes claim forms which are then presented to the UNCC in a format

References (p. 852) determined by the Provisional Rules and in the time frame stipulated by the Governing Council. The government must also confirm that the applicants are nationals or residents of the country and that they have a priori no reason to believe that the information contained in the claim is inaccurate. The procedure of review by the UNCC is regulated by the Provisional Rules. It must always be put in the context of the character of the UNCC itself, as it has been described by the Secretary General of the United Nations in his report to the Security Council: 25 The Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved. Given the nature of the Commission, it is all the more important that some element of due process be built into the procedure. It will be the function of the commissioners to provide this element.26 The claims are first examined by the Secretariat, which officially receives and registers the claims and verifies that they fulfil the formal requirements relating to their form and submission within time. The Executive Secretary of the UNCC prepares, in accordance with article 16 of the Provisional

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Rules, a quarterly report that presents statistical information on the claims, especially on governments or international organizations that have presented them, the category and the amount claimed. The report, which is addressed to the Governing Council and distributed to all governments and international organizations which have presented claims, as well as to the Iraqi government, specifies the significant legal and factual issues raised by the claims. In response, governments and international organizations can make comments or add supplementary information and views. The reports and any comments are provided to the Panels of Commissioners. In the following step, the Executive Secretary submits the claims to the Panel concerned. The Panel must complete its report and recommendations within the time limit prescribed by the Provisional Rules: 120 days for urgent claims and 180 for any others, with the exception of ‘unusually large or complex’ claims which can be considered during the course of 12 months starting from the date when the claim was submitted, or in additional time where it is specifically granted by the Governing Council.27 Apart from some general indications on the work of the Panels contained in article 33 of the Provisional Rules, the Panels are free to organize their work. They are assisted by the Secretariat, which provides administrative, technical and legal support, including for the purposes of obtaining supplementary information. The Panels can request supplementary information from the claimants or from any other source, including expert opinions. Considering the complexity of the issues raised by the claims, nearly all the Panels have resorted to the possibility of involving experts in various areas. The Panels may, subject to certain criteria,28 also decide to send certain claims to Iraq and request it to comment. In very exceptional cases the Panels are also authorized to hold oral proceedings.29 Since December 2000, oral proceedings have been required for any claim over US$1 billion,

References (p. 853) with an exception for claims which are not prima facie compensable.30 Only five Panels have organized oral proceedings for very special and complex claims.31 As has already been indicated, the final decision on the claims lies with the Governing Council. Its decisions are definitive: there is no appeal. The only possibility of review is for computational, typographical and other errors of the same character.32 Apart from the possible oral proceedings, neither Iraq nor the applicants appear before the Panels. Iraq may only make comments on the reports under article 16 of the Provisional Rules, or on claims sent to it by the Panels. It may also address the Governing Council to try to influence a political process. Such a position has provoked a doctrinal debate on the existence of ‘due process’33 but it does not seem to embarrass the Commissioners, who are of the opinion that due process is ensured by their rigorous control at the stage of proof: they take great care in protecting the legitimate interests of both Iraq and the applicants and take into consideration the comments that Iraq may be invited to make.34 The expenses of the proceedings are not entirely covered by the compensation Fund. For the first part, which takes place at the national level and that can turn out to be very complex in some cases, the governments can deduct a maximum of 1.5 per cent of the amount awarded to ‘their’ applicants in categories A, B, and C, and 3 per cent for categories D, E, and F.35 Some governments have nevertheless presented claims directly concerning these charges also in their own name, which Panel ‘F1’ refused.36 These charges are deducted from the amount awarded to the individual claimant and are therefore not covered by Iraq. The costs of the UNCC itself are derived from the Compensation Fund. As for the admissibility of charges for the preparation of individual claims (‘claims preparation costs’), in Decision 250 the Governing Council decided not to take them into consideration, ‘[t]aking into account all relevant circumstances, in particular the imminent completion of the Compensation Commission’s claims processing programme and the 37

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unavailability of adequate funds’.37

4 Claimants Resolution 687 (1991) indicated that Iraq was responsible for injury directly suffered by ‘foreign Governments, nationals and corporations’.38 Thus, four claims categories were established for individuals: ‘A’ (claims for departure from Iraq or Kuwait during the period from 2 August 1990 to 2 March 1991); ‘B’ (claims for serious personal injury and death); ‘C’ (claims for damages up to $100,000); and ‘D’ (claims for damages above $100,000).

References (p. 854) These claims are presented by governments, but unlike traditional diplomatic protection claims, governments may present claims for both their nationals and, in its discretion, other persons residing in their territory. As for stateless persons, the Governing Council decided that their claims could be presented to the UNCC by certain international organizations, such as UNRWA, UNHCR, and the ICRC.39 Following the creation of the Palestinian Authority, the Governing Council also accepted late claims submitted by the Authority40 in the name of applicants who had not had a full and effective possibility of submitting their claims within the prescribed time limits. Category ‘E’ is open to claims presented in the name of corporations and other legal entities. This category has at least three large groups of specific claims, and is divided into several subcategories. First, there are claims relating to the oil sector (‘E1’); Kuwaiti private sector claims, excluding oil sector claims (‘E4’); claims relating to construction and engineering (‘E3’); and ‘E2’ claims relating to various areas of commercial activity, for example tourism, transport, banking and exports. The claims presented by insurance companies are regrouped with the claims of State entities; that is in between categories ‘E’ and ‘F’ (called ‘E/F’). The claims of all legal persons are, in principle, presented by the governments of the countries where they were incorporated or organized under their law at the time their claim arose. Nevertheless, it is possible that a government may present a claim in the name of relevant entities of other states if the interested government agrees. Finally, a corporation or other private law entity may, under certain conditions —especially where a competent government is lacking—present a claim directly to the UNCC, along with an explanation indicating the reasons why the claim has not been presented by a government. Claims which governments and international organizations present in their own name are classed in category ‘F’. This category is also divided into several groups. Particular attention was of course paid to the claims presented by the Government of Kuwait: its claims, with the exception of those relating to the environment, were classed in group ‘F3’. Another group was created for the claims of Jordan and Saudi Arabia (‘F2’). The claims of other governments and certain international organizations were attributed to the ‘F1’ Panel, while all the claims for damage to the environment and depletion of natural resources have been designated ‘F4’. Iraqi nationals who do not have ‘bona fide nationality of any other State’ cannot be considered claimants.41 To make this limitation more precise, Panel ‘A’ determined that claims may only be made by an Iraqi with dual nationality who had demanded or acquired his second nationality before 2 August 1991, the date on which the Governing Council promulgated the admissibility criteria.42 The second exclusion ratione personae concerns the members of the armed forces of the Allied Coalition for loss or injury attributable to their participation in the military operations of the Coalition against Iraq, apart from claims based on general criteria which have already been adopted; if they had been made prisoners for their participation in military operations; or if the loss or injury is imputable to mistreatment in violation of international humanitarian law.43 (p. 855) The third exclusion concerns shareholders of companies. The Governing Council raised the question in Decision 4, but explored it in more detail in Decision 123.44 Having been informed about claims filed by natural persons for losses suffered directly by Kuwaiti companies, it confirmed

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the principle that individuals cannot claim reparation in their own name for this type of loss, in accordance with the decision of the International Court in Barcelona Traction.45 Nevertheless, the Governing Council requested the Executive Secretary to regroup these claims together with potential claims on behalf of Kuwaiti companies and to submit them to bilateral committees established between Kuwait and the countries concerned in order to determine who is entitled to be compensated by Iraq.46 The UNCC does not have responsibility for the decisions of these bilateral committees.

5 Competence ratione materiae In order to set certain limits to compensation, the Security Council drew an notional distinction between direct losses, compensable by the UNCC as a consequence of the wrongful act; and indirect losses, which are not compensable, even if Iraq is responsible for them on a different legal basis. According to the words of Resolution 687 (1991), Iraq is responsible ‘for any direct loss, damage—including environmental damage and the depletion of natural resources … as a result of its unlawful invasion and occupation of Kuwait’.47 The Security Council and the Governing Council first indicated which losses are not direct. According to Resolution 687 (1991),48 the UNCC does not have the competence to examine claims based on debts and obligations of Iraq prior to 2 August 1990. This stance seems justified by the fact that these claims do not derive from the wrongful act, that is, the invasion and occupation of Kuwait. Nevertheless, the Security Council did not specify the UNCC’s competence more precisely; it was left to be determined by the Panels. The Panels considered that this restriction was applicable not only to the debts of Iraq,49 but also to debts of private Iraqi parties, especially because of the strict control of the authorities of payments in foreign currency.50 Then, considering that Iraq was a heavily indebted country after the war with Iran and having to examine a great number of claims, the different Panels, starting with Panel ‘E2’,51 determined that if the execution of the act that gave rise to the initial debt took place more than three months before 2 August 1990, so before 2 May 1990, then it was a debt and obligation of Iraq arising prior to 2 August 1990. For claims based on a letter of credit, Panel ‘E2A’ used the same date for the presentation of the necessary documents, but under the condition that the delivery of the goods should not have taken place more than 21 days before that date.52 In a special case concerning 1.2 million claims of Egyptian workers for the deposit and transfer of part of their salaries by Iraqi banks, the determinative date is 2 July 1990.53

References (p. 856) Another exclusion of competence of the UNCC concerns loss and harm exclusively attributable to the trade embargo imposed on Iraq and Kuwait on the basis of Resolution 661 (1990), and to related measures where the economic situation results from the embargo. In the words of Decisions 7, 9,54 and 1555 of the Governing Council, these losses do not give rise to compensation unless the applicant can prove that they were partially or entirely caused by the invasion or by occupation as a parallel cause. For example, Panel ‘E2A’ determined that the impossibility of carrying out a contract for delivery of goods to Iraq between 2 August 1990 and 2 August 1991 could have been caused by the embargo, and, independently from this, by military actions of Iraq, the breakdown of civil order in Iraq, or acts committed by Iraqi officials.56 Another significant group of expenses which are not admissible concern military expenses. Decision 19 of the Governing Council57 sets out that ‘the costs of the Allied Coalition Forces, including those of military operations against Iraq, are not eligible for compensation.’ In one of its previous decisions,58 the Governing Council enlarged the application of this restriction to all military expenses, including those which are not for the armed forces of the Allied Coalition. These expenses must be distinguished from losses caused by military operations that are compensable according to the five criteria mentioned below. On the basis of these decisions, some claims of Canada, Jordan, Saudi Arabia, Israel, Kuwait, Syria, and Turkey were rejected as far as they were

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expenses for military ends, ie expenses incurred through the preparation of activities of the armed forces of the Allied Coalition and their military counter-attack to the invasion and occupation of Kuwait, as well as those incurred through the participation or support for these operations. On the other hand, activities of military units in the framework of the protection of the civilian population were accepted.59 As far as the expenses of private entities are concerned, Panel ‘E2’ rejected claims for services provided to the coalition forces as military expenses.60 The question at the heart of each recommendation and decision is whether the loss is direct. To make the task of the Panels simpler, the Governing Council gave some indications in its first decision and determined that it covered all loss or injury suffered in consequence of: (a) military operations or threat of military action by either side during the period 2 August 1990 to 2 March 1991; (b) departure from or inability to leave Iraq or Kuwait (or a decision not to return) during that period; (c) actions by officials, employees or agents of the Government of Iraq or its controlled entities during that period in connection with the invasion or occupation; (d) the breakdown of civil order in Kuwait or Iraq during that period; or (e) hostage-taking or other illegal detention.61 (p. 857) Subsequently it took up the same criteria in the context of ‘D’, ‘E’, and ‘F’ claims. Iraq contested these indications and its responsibility for concrete losses by sometimes alleging that they were caused by the bombing by the Allied Forces or by individuals not controlled by Iraq. In response, the Panels simply referred to the instructions given by the Governing Council mentioned above.62 In the case of ‘D’, ‘E’, or ‘F’ claims, compensation remains also possible for reimbursement of payments made or relief provided to third parties in compensation for losses that correspond to one of the criteria adopted by the Governing Council. Decisions 7 and 9 provide more detail on commercial claims. As far as governments are concerned, direct losses are ‘loss of or damage to property of a Government, as well as losses and costs incurred by a Government in evacuating its nationals from Iraq or Kuwait.’63 In this category, the Governing Council also included indemnification for direct loss caused to the environment and the depletion of natural resources caused by the invasion and occupation of Kuwait by Iraq. One important issue that was left unresolved until March 2005 was the question of interest on the awarded amounts. In Decision 16, the Governing Council confirmed a principle according to which interest is part of the direct loss that is awarded as from the moment of the occurrence of the loss, but it did not approach the issue of the percentage. Iraq opposed this in principle, arguing that this was not direct loss.64 By Decision 243,65 taken in March 2005, the Governing Council finally decided not to follow up this issue, which meant not awarding interest, while at the same time confirming the principle established by Decision 16, but ‘[t]aking into account all relevant circumstances, in particular the unavailability of adequate funds and the imminent completion of the Compensation Commission’s claims processing programme’.

6 Compensable loss—an outline It is impossible in this brief survey to present all the jurisprudence of the UNCC on the question of the difference between direct and indirect losses. The large number of claims presented to the UNCC—more than 2.6 million—made it necessary to use certain methods and appropriate procedures, also known as ‘mass claims processing’,66 and to adopt some general presumptions in order to be able to conduct the process within the time limits imposed by the Governing Council. One of these presumptions assumes that the loss and injury inflicted on immovable goods and other tangible goods or by the breakdown of contractual relations between 2 August 1990 and 2 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

March 1991 were caused by the invasion and occupation of Kuwait. However, these dates are not restrictive. For example, as far as 2 March 1991 is concerned, it is evident that some types of loss did not cease at that moment and some (p. 858) loss, such as those caused by the explosion of anti-personnel mines, remain compensable.67 Given that Iraq’s infrastructure was seriously damaged by the military acts directed against it and that there was a breakdown of civil order in Iraq, Panel ‘E2A’ decided that 2 August 1991 is the final date at which the default of payment by Iraq for services would be considered as direct loss.68 As for loss of profits, Panel ‘E3A’ retained mid-1991 as the limiting date, even if the claim concerned profits lost up until 1994.69 Some expenses, such as those for the maintenance of a Kuwait office in Bahrain until October 1991 were also considered as direct loss.70 On the other hand, confiscation of goods by Iraq which occurred after 2 March 1991 is not considered as direct loss.71 As for the environment, the Governing Council indemnified with priority the cost of projects relating to the monitoring and assessment of loss caused to the environment and the depletion of natural resources. Subsequently, it also established a follow-up programme concerning the use of these funds.72 As for ratione loci competence, it is evident that direct losses could have been caused in Iraq or Kuwait during the period in question. Nevertheless, claimants allege losses outside these two countries. To establish some type of generalized rule, it was necessary to give a concrete interpretation of the expression ‘military operations or threat of military action’.73 After examining the circumstances, the Panels determined that there had been military operations or threats of military actions in different periods in Saudi Arabia and Israel, but also, in a lesser measure and in a relatively short period, in Bahrain, Qatar, and the air space of Jordan. The claims which gave indications as to the place of loss outside those countries were declared indirect. For example, losses connected to the tourist sector of Cyprus, Egypt, Morocco, or Tunisia were considered indirect.74 Nevertheless, the claimant can be indemnified for loss suffered outside the zone of military operations or threats of military operations if he can show that the cause for the loss is the invasion and occupation of Kuwait (for example, the loss suffered by an employee of the London branch of an Iraqi bank which ceased business after the invasion).75 In June 2005, the programme of treating claims was completed by the examination by the Governing Council of the final reports presented to it by the Panels. The application of simplified procedures in the case of individual claims and certain general rules applicable to the large groups of claims allowed the UNCC to resolve more than 2.68 million claims in the 14 years of its existence and to award close to US$52.4 billion to various claimants. This is a remarkable result, in some aspects not immune from criticism, but surely worthy of further analysis. (p. 859) Further reading On the official website of the UNCC there is a full bibliography (), as well as a complete collection of the decisions of the Governing Council and all the reports of the Panels of Commissioners. A Kolliopulos, La Commision d’indemnisation des Nations Unies et le droit de résponsabilité internationale (Paris, 2001) RB Lillich (ed), The United Nations Compensation Commission, Thirteenth Sokol Colloquium (Irvington, NY, Transnational Publishers, 1995) RB Lillich, ‘Claims Against Iraq: The UN Compensation Commission and other remedies’ (1992) 86 ASIL Proc 477 G Cottereau, ‘De la responsibilité de l’Iraq selon la résolution 687 du Conseil de Sécurité’ (1991) 37 AFDI 99 JR Crook, ‘The United Nations Compensation Commission—A New Structure to Enforce State Responsibility’ (1993) 87 AJIL 144 HM Fox, ‘Reparations and state responsibility: claims against Iraq arising out of the invasion and occupation of Kuwait’, in P Rowe (ed), The Gulf War 1990–91 in International and English law (London, Routledge, 1993) 261 MF Di Rattalma, ‘Le régime de responsabilité internationale institué par le Conseil From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

d’administration de la Commission de compensation des Nations Unies’ (1997) 101 RGDIP 45 B Graefrath, ‘Iraqi Reparations and the Security Council’ (1995) 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1 M Kazazi, ‘Environmental Damage in the Practice of the UN Compensation Commission’, in M Bowman and A Boyle (eds), Environmental Damage in International and Comparative Law (Oxford, Oxford University Press, 2002) 111 G Marchac, ‘La compensation des dommages subis du fait de l’invasion et de l’occupation du Koweït par l’Iraq’ (1996) 22 Droit et pratique du commerce international 450 C Romano, ‘Woe to the Vanquished? A Comparison of the Reparation Process after World War I (1914–18) and the Gulf War (1990–1)’ (1997) 2 Austrian Review of International and European Law 61 H Wassgren, ‘The UN Compensation Commission: Lessons of Legitimacy, State Responsibility and War Reparations’ (1998) LJIL 473 N Wühler, ‘The United Nations Compensation Commission’, in A Randelzhofer and C Tomuschat (eds), State Responsibility and the Individual (The Hague, Kluwer, 1999)(p. 860)

Footnotes: 1 SC Res 660, 2 August 1990. 2 SC Res 664, 18 August 1990. 3 SC Res 666, 13 September 1990. 4 SC Res 670, 25 September 1990. 5 SC Res 674, 29 October 1990. 6 SC Res 664, 18 August 1990. 7 SC Res 674, 29 October 1990. 8 Ibid. 9 SC Res 687, 3 April 1991. 10 Ibid, para 16. 11 SC Res 692, 20 May 1991 (para 3). 12 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 27. 13 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 78 (para 152). 14 SC Res 687, 3 April 1991. 15 Report of the Secretary-General pursuant to para 19 of Security Council Resolution 687 (1991), S/22559, 2 May 1991. 16 Articles 18–20, Provisional Rules for Claims Procedure. The Rules can be found in Decision 10 taken by the Governing Council of the UNCC at the 27th meeting, S/AC.26/1992/10, 26 June 1992. 17 Provisional Rules for Claims Procedure, art 31. 18 See the first report of the ‘E2’ Panel, Report and Recommendations made by the Panel of Commissioners concerning the First Instalment of ‘E2’ claims (‘Report E2/1’), S/AC.26/1998/7, 3 July 1998 (para 44). 19 Report E2/1, S/AC.26/1998/7, 3 July 1998, 16 (para 39); Report E3/3, S/AC.26/1999/1, 18 March 1999, 6 (para 5); Report E4/1, S/AC.26/1999/4, 19 March 1999, 9 (para 30). 20 C Alzamora, ‘The UN Compensation Commission: An Overview’, in RB Lillich (ed), The United Nations Compensation Commission: Thirteenth Sokol Colloquium (Irvington, NY, Transnational Publishers, 1995), 5. 21 See C Gibson, ‘Using Computers to Evaluate Claims at the United Nations Compensation Commission’ (1997) 13 Arbitration International, 167. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

22 Governing Council Decision 114, S/AC.26/Dec.114 (2000), 7 December 2000 (para 10). 23 Provisional Rules for Claims Procedure, art 40(1). 24 Ibid, art 40(2). 25 Report of the Secretary General pursuant to para 19 of Security Council Resolution 687 (1991), S/2 2559, 2 May 1991, 7. 26 Ibid, para 20. 27 Provisional Rules for Claims Procedure, art 39; Governing Council Decision 35, S/AC.26/Dec.35 (1995), 13 December 1995 (para (b)). 28 Governing Council, Decision 114, S/AC.26/Dec.114 (2000), 7 December 2000, paras 14, 18. 29 Articles 36(a) and 38(d) Provisional Rules of Procedure. 30 Governing Council Decision 114, S/AC.26/Dec.114 (2000), 7 December 2000, para 21. 31 Panels E1, E4, F3, F4 and Panel for Egyptian Workers’ Claims (available at ). 32 Provisional Rules, art 41. 33 See ME Schneider, ‘How Fair and Efficient is the United Nations Compensation Commission System?’ (1998) 15 Journal of International Arbitration 15 and a reaction by JP Gaffney, ‘Due Process in the United Nations Compensation Commission’ (2000) 15 Mealey’s International Arbitration Reports 40. 34 Report on Egyptian Workers Claims, S/AC.26/1997/3, 2 October 1997; Report E1/1, S/AC.26/1996/5 18 December 1996; Report E2/1, S/AC.26/1998/7, 3 July 1998; Report E3/1, S/AC.26/1998/13, 17 December 1998; Report E3/4, S/AC.26/1999/14, 30 September 1999; Report D1/2, S/AC.26/1998/3, 12 March 1998; Report F3/1, S/AC.26/1999/24, 9 December 1999; Report E1/4, S/AC.26/2000/16, 29 September 2000; Report F4/1, S/AC.26/2001/16, 22 June 2001 (available at ). 35 Governing Council Decision 18, S/AC.26/Dec.18 (1994), 1 (para 1). 36 Report F1/2, S/AC.26/1998/12, 12 March 1998 (paras 116–118); Report F1/3, S/AC.26/1999/7, 19 March 1999 (paras 133–135); Report F1/4, S/AC.26/2000/13, 15 June 2000 (paras 23–24). 37 Governing Council Decision 250, S/AC.26/Dec.250 (2005). 38 SC Resolution 687, 3 April 1991 (section E). 39 Governing Council Decision 5, S/AC.26/1991/5, 2 (para 5). 40 See the report on the first instalment of these claims, S/AC.26/2003/26, 18 December 2003. 41 Governing Council, Decision 1, S/AC.26/1991/1, 3 (para 17). 42 Report A/6, S/AC.26/1996/3, 16 October 1996, 9 (paras 27–33). 43 Governing Council Decision1, S/AC.26/1992/10, 26 June 1992. 44 Governing Council Decision 123, S/AC.26/Dec.123 (2001), 15 March 2001. 45 Barcelona Traction, Light and Power Company, Limited, Second Phase, ICJ Reports 1970, p 3. 46 Governing Council Decision 123, S/AC.26/Dec.123 (2001), 15 March 2001, 6, art 2. 47 SC Res 687, 3 April 1991 (section E). 48 SC Res 687, 3 April 1991. 49 For the definition of Iraq see Report E2/1, S/AC.26/1998/7, 3 July 1998, 38 (para 116), and Report E3/3, S/AC.26/1999/1, 18 March 1999, 10 (para 16). 50 Report E3/3, S/AC.26/1999/1, 18 March 1999, 10 (para 16), and Report E2/4, S/AC.26/2000/2, 22 March 2000, 24 (paras 86–88).

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51 Report E2/1, S/AC.26/1998/73 July 1998, 30 (para 90). 52 Report E2/4, S/AC.26/2000/2, 22 March 2000 (paras 94–96). 53 Report on Egyptian Workers’ Claims, S/AC.26/1997/3, 2 October 1997, 5 (para 21). 54 Governing Council Decision 9, S/AC.26/1992/9, 6 March 1991. 55 Governing Council Decision 15, S/AC.26/1992/15, 4 January 1993. 56 Report E2/4, S/AC.26/2000/2, 22 March 2000, 34 (para 124). 57 Governing Council Decision 19, S/AC.26/Dec.19 (1994), 24 March 1994. 58 Report F2/1, S/AC.26/1999/23, 18 December 1997, 34 (footnote 50); Report F1/5, S/AC.26/2001/15, 22 June 2001, 9 (para 23). 59 Reports F2/2, S/AC.26/2000/26, 7 December 2000, 16 (paras 41, 42); F1/5, S/AC.26/2001/15, 22 June 2001, 9 (para 25). 60 Report E2/2, S/AC.26/1999/6, 19 March 1999, 33 (para 107); Report E2/3, S/AC.26/1999/22, 9 December 1999, 13 (para 29), 38 (para 140); Report E1/4, S/AC.26/2000/16, 29 September 2000, 20 (para 69). 61 Governing Council Decision 1, S/AC.26/1991/1, 2 August 1991, 4 (para 18). 62 Report E1/1, S/AC.26/1996/5/Annex, 18 December 1996, 25 (para 80-86); Report E1/4, S/AC.26/2000/16, 29 September 2000, 27 (para 98); Report F3/2, S/AC.26/2001/7,15 March 2001, 14 (paras 10–11). 63 Governing Council Decision 7, S/AC.26/1991/7/Rev.1, 17 March 1992, 8 (para 36). 64 Letter dated 13 February 1993 from the chargé d’affaires A.I. of the Permanent Mission of Iraq to the United Nations addressed to the president of the Security Council, S/25305, 4. 65 Governing Council Decision 243, S/AC.26/Dec.243 (2005), 10 March 2005. 66 For more detail see Report A/6, S/AC.26/1996/3, 16 October 1996; Report C/7, S/AC.26/1999/11, 24 June 1999. 67 Governing Council Decision 12, S/AC.26/1992/12, 25 September 1992; Report D1/1, S/AC.26/1998/1, 3 February 1998, 42 (para 201); Report D2/1, S/AC.26/1998/11, 2 October 1998, 18 (para 61). 68 Report E2/4, S/AC.26/2000/2, 22 March 2000, 32 (paras 117–119). 69 Report E3/4, S/AC.26/1999/14, 30 September 1999, 48 (paras 184–186). 70 Report F3/1, S/AC.26/1999/24, 9 December 1999, 100 (paras 446–449). 71 Report E3/4, S/AC.26/1999/14, 30 September 1999, 43 (para 154). 72 Governing Council Decision 258, S/AC.26/Dec.258 (2005), 8 December 2005. 73 Governing Council, Decision 1, S/AC.26/1991/1, 2 August 1991, 4 (para 18); see also D PetroviĆ, ‘Threat of Use of Force and its Consequences: Recent Developments’, in V Crnic-GrotiĆ and M MatuloviĆ (eds), International Law and the Use of Force at the Turn of Centuries, Essays in honour of V. D. Degan (Faculty of Law University of Rijeka, 2005). 74 Report E2/2, S/AC.26/1996/6), 19 March 1999. 75 Report D1/1, S/AC.26/1998/1, 3 February 1998, 59 (para 306).

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Part IV The Content of International Responsibility, Ch.55 Responsibility in the Context of the European Union Legal Order Jean-Marc Thouvenin From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of individuals — Responsibility of states — Wrongful acts — Damages — Attribution — European Union (EU)

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(p. 861) Chapter 55 Responsibility in the Context of the European Union Legal Order 1 The responsibility of private persons 863 2 The responsibility of member States 864 3 The contractual responsibility of the Community 867 4 The non-contractual responsibility of the Community 867 (a) Attribution to the Community 867 (b) Responsibility for wrongful acts 868 (i) The wrongful act 868 (ii) The damage 871 (iii) The causal link 871 (c) Responsibility for lawful acts 871 5 Invoking Community responsibility before the Court 873 Further reading 874 The responsibility with which this Chapter is concerned finds its basis in Community treaties, the jurisprudence of the Luxemburg Court as well as, in certain respects, municipal procedural law. This is what characterizes it as ‘special’ compared to the responsibility established by general international law. That speciality is not only demonstrated by the formal sources just mentioned, but also by the fact that there is no mechanism in the European Union legal order equivalent to that which exists in the international order, permitting a State to invoke the responsibility of another State or to bring claims against private persons. Certainly, member States have the obligation to respect Community law, otherwise their liability will be engaged as soon as their non-compliant conduct causes harm. But the responsibility mechanism that will be discussed here has particularities that do not make it easy to compare it to international responsibility. First, responsibility of States can only be invoked by private persons and not by other States. Certainly, article 259 (ex 227) states that ‘A Member State which considers that another Member State has failed to fulfil an obligation under this Treaty may bring the matter before the Court of Justice.’ But this procedure does not permit invocation of the responsibility of the State in question; it is only an injunction to compel it to respect European law. In the same way the Union,1 via the European Commission, may bring

References (p. 862) proceedings for failure to fulfil an obligation before the ECJ against a member State for breach of a Treaty obligation, under article 258 of the Treaty on the Functioning of the European Union (ex 226 EC Treaty). Next, it is necessary to state that the only State liability mechanism in force for breach of Community law, a mechanism which comprises in particular all the rules on attribution of the wrongful acts or sanctions, belongs more to the internal legal order of each Member State than the Community legal order, and certainly not to the international legal order. Paradoxically, one could deduce from this a certain similarity with international law since domestic courts have for a long time also applied certain ‘primary’ rules of international law—human rights, rights of the child, or international criminal law, for example. In these cases, as in the case of Community law, the responsibility regime, or put differently, the secondary rules which domestic courts apply when the (international or Community) directly applicable primary rules are breached, only relates back to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

the internal order. There is thus a similarity between Community and international law, but not between responsibility in the international order and in the Community order: only the responsibility of States in the internal order for breach of international law works in a similar way to responsibility engaged for breach of Community law. So, in keeping with contemporary international law that develops direct effects, the implementation of Community law via a mechanism of responsibility rests largely on an internal regime of State responsibility, without trying to recreate such a regime from start to finish in the Community legal order. From here comes the quasi-ritual formula which may be found in the judgments on this subject: ‘it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss and damage caused’.2 The originality of Community law compared to international law consists in the fact that it tends to communitarize the responsibility regimes of internal legal orders, in order to guarantee a certain homogeneity. For the Luxembourg Court: [t]he full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.3 To guarantee this, the Community judge has laid down that the secondary obligation to make reparation which domestic judges are called upon to implement has its source in Community law. In short, ‘State liability is thus required by Community law’.4 It is rare to find the same kind of ‘requirement’ in public international law. An example is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: article 4 requires all State parties to establish a criminal responsibility regime for all acts of torture. Another example, from the reverse perspective, can be found in the law on dumping that is set out by the GATT agreement and the agreement on dumping, the rules of which limit the right of States to engage the responsibility of companies guilty of dumping by prohibiting any sanction other than through anti-dumping laws. But even with regard to these cases, a certain head start must be recognized for Community law: unlike the secondary international rules that we have just discussed, which must be transposed into the internal order to be applicable, the Community principle of internal State responsibility is to be applied directly by the judges, without any need for transposition.

References (p. 863) Even though there is no specific Community regime of State responsibility for the breach of Community law, the movement towards Communitarization of State regimes of responsibility undoubtedly justifies the discussion of developments discussed in Section 2 of this Chapter. But first it is necessary to clarify the potential responsibility of private persons with regard to Community law. Furthermore, if the personal responsibility of Union agents towards the Union is left aside, the study of which—even though fascinating—belongs to a course on the European Union Civil Service, the main interest of the study of responsibility in the Community legal order results from the fact that a specific Community regime for responsibility exists as far as acts of the Union itself are concerned. Without going into the ECSC and the EAEC, which do not need to be discussed in detail, we must refer to article 340 (ex 288) which states that: The contractual liability of the Community shall be governed by the law applicable to the contract in question. In the case of non-contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their

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duties. The preceding paragraph shall apply under the same conditions to damage caused by the ECB or by its servants in the performance of their duties. The personal liability of its servants towards the Community shall be governed by the provisions laid down in their Staff Regulations or in the Conditions of employment applicable to them. This Chapter refers to the responsibility of the Union from two perspectives: contractual responsibility on the one hand (see Section 3) and non-contractual responsibility on the other (Section 4). A reading of the article makes it clear that the modalities of an action in responsibility are not defined in it. For this we must turn to article 268 (ex 235) of the Treaty, which reserves cases of non-contractual responsibility to the Court (Section 5).

1 The responsibility of private persons In Community law, there is no general regime of responsibility for private, physical or legal persons. This is easy to understand: even though Community law overflows with rights which persons may enforce against member States, it imposes few obligations in return. And when it does, it is in the form of directives which are destined to become nationalized through transposition, so that the obligations become domestic, or through regulations which integrate directly into the domestic legal order. Under these conditions, it is difficult to see why a Community regime which imposes consequences for the breach of Community obligations of private persons should be established. In short, apart from the special case of Union agents whose responsibility may be engaged towards the Union, the issue of both civil and criminal responsibility of private persons pertains in principle exclusively to the internal legal order of each member State. Nevertheless, there are cases where Community law both imposes obligations on private persons and certain consequences which must be drawn from them. In particular, this is the case as regards the rules of competition law which apply to companies. The breach of these obligations gives rise to a double regime: it is susceptible of generating harms and interests in favour of the victims of anti-competitive behaviour on the one hand, if they resort to civil

References (p. 864) domestic courts, and administrative sanctions imposed by the European Commission or by national authorities on the other hand—but in that case according to the national framework of sanctions. It is clear that the civil responsibility regime at issue here belongs to the internal legal order of each member State and is thus in principle beyond the scope of this analysis. But here again the Community judge has a tendency to communitarize the domestic responsibility systems with a view to guaranteeing full effectiveness. For the judges, actions for damages ‘can make a significant contribution to the maintenance of effective competition in the Community’5 and thus can seriously help in achieving Community objectives. This is why the Court has specified that under the Community principles of effectiveness and equivalence, this regime must not be less favourable than that for similar purely domestic issues, and must not make the exercise of rights stemming from the Community law practically impossible or excessively difficult, even though it is recognized that it pertains to the domestic legal order of every member State to designate the competent courts and to regulate the procedural modalities of the provisions which aim to ensure that the rights drawn from the direct effect of competition law are safeguarded.6 As for the administrative sanctions which the Commission may impose, it is quite difficult to classify them as relating to a responsibility regime as such. Generally, there is a tendency to consider them as a system of purely administrative sanctions, applied by the ‘competition police’, the Commission. But there is debate, even doubt, whether heavy sanctions imposed in this framework are truly administrative, as the Court constantly affirms. Are they not rather criminal, since on the one hand they take into account the gravity of the breach, and on the other hand they have an exemplary

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purpose? It is evidently a delicate matter to go down this route because, unlike in American competition law, the sanctions are not imposed by a judge but by an administrative body. It would be a form of heresy to entrust an entity which is not a court with power to impose criminal sanctions, the gravity of which make it impossible to consider them as simple ‘contraventions’. But at the same time, the development of Community competition law in the last few years has, on the one hand, tended to confer autonomy on the competition directorate of the Commission in comparison with other directorates, as well as to restrain it by tough procedural restrictions such as those applied to domestic courts (meticulous respect for the judgment, strict obligation for justification), and on the other hand to decentralize the control and sanctioning of anti-competitive practices on the level of national authorities, which contributes to a substantial erosion of the issue. Is there not, in this double movement, a form of implicit confession that in fact these sanctions are objectively part of a criminal competition responsibility regime which does not want to be named as such?

2 The responsibility of member States It is established that the responsibility of member States of the Union may be engaged for harms deriving from their breaches of Community law. This is a principle of Community law that, in keeping with the principle of direct effect of certain directives, has

References (p. 865) developed through the case law with a view to causing member States to better respect Community law. In the words of the Court, this principle is furthermore both inherent in the legal order of the Community and laid down in the treaty law of the Community. It is especially with reference to the provisions of article 10 EC (repealed by the Treaty of Lisbon, but in substance taken up again in article 4 TEU), but also with regard to the system inherent in the Treaty, affirmed in the famous Francovich and Bonifaci case. It created the Community obligation for member States to implement a domestic regime for the reparation of harm caused to individuals through the breach of Community law.7 Coming from Community law, this principle was naturally outlined by the Court, but States do not have much to complain about. For the judges ‘[t]he protection of the rights which individuals derive from Community law cannot vary depending on whether a national authority or a Community authority is responsible for the damage’.8 Thus, the Community responsibility regime deliberately designs this responsibility in a ‘strict’ way,9 a restriction which also works to the advantage of States. The concrete result is that individuals only derive a right to reparation for harm by the State from Community law if three conditions are fulfilled: the rule breached must have the objective of conferring rights on the individual; the breach must be sufficiently serious; and there must be a direct causal link between the breach and the harm suffered.10 In order to determine whether a breach is sufficiently serious, the Court has specified that: [t]he factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.11 It has also stated that: where, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish 12

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the existence of a sufficiently serious breach.12 In any case, a breach of Community law is sufficiently serious when it has continued despite a judgment which finds the infringement to be established, or a preliminary ruling or well-established case law on the subject.13 Conversely, where Community law is generally unclear, responsibility of the State should not be engaged for its breach. This is why

References (p. 866) in an area such as direct taxation, the domestic court must appreciate the degree of clarity and precision of the rules which were not respected, as well as the excusable or inexcusable character of potential errors of law in light of the fact that the consequences that follow from the freedom of movement guaranteed by the treaty gradually appearing through principles deriving from the case law of the Court.14 The rest of the regime is determined by national laws. As it has already been said, the responsibility of States for breach of Community law is only in principle at Community level: the liability regime is domestic. One should consequently only approach all the subtleties by studying the way in which domestic judges in various member States have applied it, which leads us to the limit of this study. It has nevertheless been maintained that the State aid regime is an exception to this principle of the autonomy of domestic orders in the context of the determination of the responsibility regime that follows from it. It must be recognized that illegal State aid is in principle a source of competition harm. In fact, the restitution by the company to the State giving out the aid, imposed by Community law, could be presented as a form of restitutio in integrum.15 If this analysis were correct, it would illustrate a case where Community law determines both the principle of responsibility and the mode of reparation. The reasoning is nevertheless not very convincing: first, the so-called restitutio in integrum would consist of the reimbursement of the aid to the party that is the author of the breach, ie the State. If it in fact were a regime of responsibility, the victim of the breach of the law should be the beneficiary of any restitution, but this is not the case. Moreover, if the reimbursement guarantees the cessation of the harm in the future, it does not as such make reparation for that harm that has already occurred as a result of the aid. In other words, one cannot be convinced that the State aid regime is as special as it is sometimes portrayed. In conclusion, the reader should not be surprised that the proceedings for failure to fulfil a Community obligation by a member State established under article 258 (ex 226) of the EC treaty have not been discussed. This is for the good reason that they are generally not approached from the perspective of responsibility, since no damage is necessary for the action to be brought before the Court. Above all, it is not the aim of this action to seek to invite responsibility of the State which is to blame, but to make its future conduct compatible with Community law. Finally, the pronouncement of the Court that a member State has breached its obligations does not appear to be a form of reparation at all, in the form of satisfaction or in a pecuniary form. Recently, the Court has clearly confirmed that the condemnation resulting from a persistent breach is not equivalent to reparation. In Commission v France it indicated that: The procedure laid down in Article 228(2) EC has the objective of inducing a defaulting Member State to comply with a judgment establishing a breach of obligations and thereby of ensuring that Community law is in fact applied. The measures provided for by that provision, namely a lump sum and a penalty payment, are both intended to achieve this objective.16

References

(p. 867) 3 The contractual responsibility of the Community From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

It is hardly necessary to spend much energy on the principle itself to see that the responsibility of the Community as a legal person is invoked if it does not respect contractual obligations in respect of its contractors. That is the logical consequence of the internal legal capacity of the Community or of its legal personality, recognized in article 282 of the EC Treaty, according to which: ‘[i]n each of the Member States, the Community shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Community shall be represented by the Commission’. Since the Community is authorized to enter into contracts, it follows at the same time that the breach of its contractual obligations engages its responsibility in the legal order in which the contract in question is registered. There is therefore nothing strange about anticipating that the contractual responsibility of the Community is governed by the law applicable to the relevant contract, with the understanding that that latter could well refer to Community law. Proceedings concerning contractual responsibility will follow the explicit or implicit provisions of the contract in question. Those provisions may refer to the internal jurisdiction of a legal order or to a Community judge if a compromissory clause has been inserted.

4 The non-contractual responsibility of the Community The non-contractual responsibility of the Union extends, according to article 340(2) (ex 288(2)) of the Treaty, to injuries caused by its institutions or its agents in the exercise of their functions. For the rest, the text refers back to the general principles of the laws of member States. On that basis, the jurisprudence has laid down that responsibility can only be effectively engaged when the wrongful conduct is attributable to the Union. Therefore, it can be invoked when the act or the omission at the basis of the alleged damage is unlawful. On the other hand, the jurisprudence suggests, without however definitively answering the question, that responsibility cannot be engaged when no unlawful act as been committed.

(a) Attribution to the Community It is logical that the responsibility of the Union can only be engaged on the basis of damage that was caused by the acts of agents that acted in its name, or in that of one or several institutions which they represent, that is to say, essentially, the Council, the Commission, the Parliament and the Court itself, the Central European Bank, and the European Monetary Institute. The acts of organs to which powers have been delegated by Community institutions are also attributable to the Union. According to the same view, it is the Union which is liable for damage caused by norms which, although unlawful, are in force and have not been revoked, and which subsequently have been frequently applied by national authorities. On the other hand, the acts of individual member States cannot engage the responsibility of the Union. Therefore the latter could not be held responsible for damage stemming from the application of primary Community law, which is to say treaties, as those are inter-State acts and not acts of the Union.17

References (p. 868) In the case where the wrongful act is the act of an agent of the Union acting in the performance of his or her duties, the responsibility could be assumed by the latter, it being understood that if the agent in question has committed a ‘grave wrong’ the Union could turn against him or her by commencing a counter-claim. The Court has laid down jurisprudence which is not very protective of European Union agents, by stating that: ‘the Community is only liable for those acts of its servants which, by virtue of an internal and direct relationship, are the necessary extension of the tasks entrusted to the institutions.’18 Thus, when the act of the agent, despite being carried out when he was in office, can be distinguished from the performance of his duties, proceedings must be directed against the agent personally and brought before the competent municipal judge, ie at the place of the wrongful act. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

(b) Responsibility for wrongful acts Engaging the non-contractual responsibility of the Community for wrongful acts presumes that the claimant proves not only that the act in question is attributable to the Community, but also the wrongfulness of that act, the facts of the alleged damage as well as the existence of a causal link between the wrongful act and the alleged damage.19 (i) The wrongful act Not all wrongful acts entail Community responsibility. The European Court of Justice has clearly stated that there is no automaticity: its assessment of wrongful acts able to entail Community responsibility takes ‘into account, inter alia, the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and, more particularly, the margin of discretion available to the author of the act in question.’20 That is to say that the regime of Community responsibility should be distinguished from the mechanism in force in the law of international responsibility: whereas in the latter every wrongful act engages the responsibility of its author, in Community law only certain wrongful acts can have such an effect. More precisely, the relevant wrongful act must meet two conditions: on the one hand, it must be serious; on the other, the violation must concern rules conferring rights on individuals. The wrongful act must first of all be serious, which means that it must be manifest and grave. That restriction was previously reserved to a certain category of acts aimed at preserving the legislative freedom of action of the Community. It emerged from the jurisprudence that it applied when the act in question was legislative and had been adopted by an institution within the scope of its large power of discretion.21 Conversely, that condition was considered to be not met when the act in question was administrative and not legislative. Less important in the Community order than legislative acts, those acts, which are in

References (p. 869) principle by way of implementation, are able to entail Community responsibility as long as they are ‘simply’ contrary to Community law.22 That approach is now out-dated. The Court has clarified its jurisprudence in Bergaderm and Groupil, making clear that in any case the violation must be serious.23 But it stated that the requirement that that condition implies is proportional to the margin of appreciation the author of the act has. What is crucial, according to the Court, is not the nature of the wrongful act, administrative or legislative, but what margin of appreciation the institution responsible for the act had. And it is only when the margin of appreciation is considerably small, or even non-existent, that a simple breach of Community law can establish the existence of a sufficiently serious violation. The breach must not only be serious as discussed, but, as a second condition, it must also concern a rule of law whose purpose it is to confer rights on the individual.24 The concept of an ‘individual’ is not very precise, but it clearly aims at including both physical persons and legal persons in private law. It must also be noted that the jurisprudence has evolved in relation to the character of the rules whose breach engages the responsibility of the Community. In fact, up until Brasserie du Pêcheur in 1996, a normative act could only engage the responsibility of the Community if it breached a superior rule of law which protected individuals.25 This specification seemed a priori superfluous: it is normal to consider that a norm is only wrongful where it contradicts a norm which is superior to it. Nevertheless, according to the doctrine, the adjective ‘superior’ did not refer to a link of formal hierarchy, but to the particularly important substance of the breached norm. As a result, if all inferior norms which were contrary had to be annulled without exception through an annulment remedy, only an inferior norm contrary to superior norms would be susceptible to engage the

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responsibility of the Community. Under this approach, it is considered that the superior rules occupy the highest rank in the hierarchy of Community norms, which includes the rules set out in the constituent treaties, but also general principles of law, such as, for example, the principle of legitimate expectations, non-retroactivity, or respect for acquired rights. If this last principle is at issue, it has nevertheless been specified that, according to the jurisprudence, in cases where Community authorities have a large margin of appreciation, economic operators are not justified in invoking it to maintain an advantage that is the result of the Community regulation at issue, and from which they have benefited at a given moment.26 If this were the case, it would for example be very difficult to reform the Common Agricultural Policy. In passing it will also be noted that the rules laid down in the international treaties to which the Union is a party can be relevant as superior rules, but it is still required that they have the objective of protecting

References (p. 870) individuals. In this regard, it can be noted that the jurisprudence has already considered that the WTO agreement and its annexes do not aim to confer rights on individuals which those individuals could invoke, so that their potential breach is not susceptible to engage Communitarian responsibility.27 The same goes for the decisions of the dispute settlement body of the WTO.28 Brasserie du Pêcheur led to an abandonment of this condition stemming from the superior quality of the breached norm, in any case in its substantial acceptance,29 in favour of only requiring the breach of a rule which confers rights on individuals. Admittedly the notion of the superior rule can be found in certain judgments after 1996, but this is only the echo of a jurisprudence that is now out of date.30 It follows from these criteria that there can be acts that, even though considered as not valid since they were adopted in breach of Community law, do not generate responsibility. For example, a normative Community act the application of which leads to restrictions of the right to property and the freedom to pursue trade which: impair[s] the very substance of those rights in a disproportionate and intolerable manner, perhaps precisely because no provision has been made for compensation calculated to avoid or remedy that impairment, could give rise to non-contractual liability on the part of the Community.31 It seems that this explains why some French authors prefer to use the vocabulary of fault to refer to the act that generates responsibility.32 It may be preferable, however, to continue to use the terminology of wrongfulness or wrongful acts retained by the Court. It has for a long time not used ‘fault’ except on very rare occasions, for example to refer to a case not of wrongful acts but of ‘wrongful omissions’, which are subject to the same regime as wrongful acts.33 In any case, the term ‘fault’ is too closely linked to the idea of bad faith to be retained and that of unlawfulness or wrongfulness is to be preferred, while keeping in mind that wrongfulness entailing responsibility is not identical to that able to lead to the nullity of an act in Community law. This confusion will be much easier to avoid in practice, as proceedings reviewing the legality of acts and for compensation are autonomous from each other.34

References (p. 871) (ii) The damage The essential character of the compensable damage is that it be real and certain,35 and exceeds the economic risks inherent in activities in the sector in question.36 It is for the applicant to prove that its damage meets these conditions. It will be noted for example that an applicant did not succeed in proving that the debts owed to it by Iraq had become definitely

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unrecoverable following the decision taken by that country not to honour the debts by way of retorsion for the sanctions adopted against it by the Community; 37 it would have had to show that it had ‘exhausted all avenues and legal remedies open to it in order to recover its claims’.38 The judges have not had any difficulty in taking into account both the loss suffered from the incriminated conduct as well as loss of earnings.39 The loss of a chance is also capable of being invoked in certain cases concerning public markets, where the judge did not dismiss its relevance. Moral harm is also taken into account.40 (iii) The causal link There must be a direct link of cause and effect between the wrongful conduct that is complained of and the prejudice invoked and it is for the claimant who seeks to engage the responsibility of the Union to prove it. This is a classic condition in the law of responsibility. This link may be established by showing that the harm suffered constitutes an objectively foreseeable consequence of the criticized conduct, according to the normal course of events. If the victim has contributed to the harm through his own conduct, the causal link is affected, which can result in the exoneration or reduction of compensation imposed on the Union.

(c) Responsibility for the lawful acts The question whether the responsibility of the Union may be engaged for an act that has caused harm, even though no wrongful conduct may have been established, was tentatively answered in the affirmative by the Court of First Instance in 2005. Until then, where the judge had to decide this type of claim, it was generally held that even if such responsibility could be admitted in Community law, in the particular case the harm invoked could not engage responsibility. For example in Biovilać, the Court declared that the conditions relating to the indemnifiable harm which must be present for responsibility for a wrongful act ‘would have to be applied a fortiori if the concept of liability without fault were accepted in Community law’.41

References (p. 872) The Court of First Instance resolved the issue in 2005 in a series of judgments, ruling that: [w]hen damage is caused by conduct of the Community institution not shown to be unlawful, the Community can incur non-contractual liability if the conditions as to sustaining actual damage, to the causal link between that damage and the conduct of the Community institution and to the unusual and special nature of the damage in question are all met.42 In the context of responsibility for a lawful act, the only generating act is the harm. This is why it would have to fulfil certain characteristics. The harm which the claimant must prove to be real and certain, must also be actual, and above all it must be unusual and special.43 It is understandable that the harm must be actual since it is the only act that generates responsibility. By contrast, the absence of this condition can be highlighted in the area of responsibility for wrongful conduct. In such a case, it matters little to the judge whether the harm might occur in the future, the essential factor being that it is certain.44 Naturally, it is necessary, as in the area of responsibility for a wrongful act, that there is a sufficiently direct causal link between the conduct of the Community institutions and the harm. It will be noted with interest that it has already been ruled that: A direct link of that kind exists between the retention in force by the Council and the Commission of a banana import regime incompatible with the World Trade Organisation (WTO) agreements and the damage suffered by an economic operator by reason of

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imposition by the United States of America of increased customs duty on its products. The unilateral decision by the United States to impose the increased duty is not such as to break the causal link. The conduct of the institutions in question necessarily led to adoption of the retaliatory measure by the United States authorities in compliance with the WTO dispute settlement system accepted by the Community, so that their conduct must be regarded as the immediate cause of the damage suffered.45 The Court of First Instance established a clear synthesis of the concept of unusual and special prejudice in its judgment in Dorsch Consult,46 which is useful. It emerges from this that there is unusual prejudice where the prejudice affects a particular category of economic operators in a disproportionate manner compared to other operators. The prejudice is special if it exceeds the limits of economic risks that are inherent to the activities of the sector concerned. FIAMM gave the judge the opportunity to specify that the

References (p. 873) suspension of tariff concessions by way of retorsion is a measure envisaged by the WTO agreements and thus constitutes one of the inherent risks of the current international system of trade. From then on, this risk is necessarily ‘normally’ borne by any operator that decides to commercialize his production in the market of one of the WTO members. There is thus no unusual prejudice in such a case.47 Under this definition, the unusual and special damage is nevertheless not always decisive for responsibility for a lawful act. This is particularly not the case where the origin of the harm is found in a normative, lawful act which is justified by pursuing an objective of general interest. It is thus, for example, that the Court has already held that if the imposition of a commercial embargo against a third party can cause damage to parties which do not have any responsibility for the situation, the importance of the objective of the maintenance of international peace and security that underlies such an embargo justifies the negative consequences, even if these are considerable, for certain operators.48 In other words, economic operators must be willing to make sacrifices in the general interest. But this case law was partially neutralized by the judgment in FIAMM.49 In this judgment, the Court radically contradicted the Court of First Instance by recalling that its own case law has always refused to take a clear stance on the existence of responsibility in absence of illegal conduct under Community law.50 The Court ruled that in the present state of the Community law on responsibility, which largely reflects the general principles of law common to the laws of the Member States,51 ‘no liability regime exists [for lawful acts or omissions] under which the Community can incur liability for conduct falling within the sphere of its legislative competence’.52 The Court nevertheless left open the question whether there can be such responsibility for Community acts which do not arise from its normative competence.

5 Invoking Community responsibility before the Court Remedies for contractual responsibility do not pose major problems. It has emerged from practice that the implementation of this responsibility only escapes the competence of the national courts if an arbitration clause attributes competence to the Community judge. In all other cases, national courts will be well-versed in it, as the applicable law will be that of contract. Conversely of course, the remedy for non-contractual responsibility is exclusively before the Community judge. Article 268 (ex 235) of the Treaty states that: ‘The Court of Justice shall have jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288’, which can only be interpreted as implying an exclusive

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References (p. 874) competence, as it is unthinkable that the Union be condemned by national courts, at least in cases other than those where its contractual responsibility is at issue. Proceedings on non-contractual responsibility must in principle be brought before the Court of First Instance, if the applicant is an individual. Jurisdiction lapses after five years, a period which only starts to run from the moment when all conditions for reparation are met, which includes both the wrongful act and the damage.53 Those proceedings do not necessitate particular administrative prerequisites, contrary to, for example, those which are prescribed for insolvency proceedings. The jurisprudence has nevertheless given rise to complications for applicants when it is the application by national authorities of a wrongful legislative Community measure that is the immediate cause of the damage. In that case, even if responsibility lies with the Union, insofar as there has been intervention by national authorities, the Court refers the applicant to the principle of the exhaustion of local remedies. In fact the Court held that: [w]here an individual considers that he has been injured by the application of a Community legislative measure that he considers illegal, he may, when the implementation of the measure is left to the national authorities, contest the validity of the measure, when it is implemented, before a national court in an action against the national authorities.54 However, in any case a national judge can pronounce neither on the wrongfulness of a Community act—he or she will need to seize the Community Court by a preliminary reference for its opinion on the lawfulness in order to determine it—nor on responsibility of the Union. That is to say that adherence to the principle is only required by the ECJ if avenues of national law guarantee in an effective way the protection of individuals harmed by an act of a Community institution, as well as their compensation.55 Finally it should be stressed that following the establishment of the non-contractual responsibility of the Union, the judge is competent to impose all forms of reparation on it which are in conformity with the general principles common to the laws of the member States in the area of non-contractual responsibility, including, if it seems in conformity with these principles, reparation in kind and, if need be, in the form of an injunction.56 As far as historical matters are concerned, we could take note that the ECSC treaty only envisaged the possibility of pecuniary reparation. Further reading A Barav, ‘Injustice normative et fondement de la responsabilité extracontractuelle de la CEE’ (1977) 13 Cahiers de droit européen 435 JF Couzinet, ‘La faute dans le régime de la responsabilité non contractuelle des Communautés européennes’ (1986) 22 Revue Trimestrielle de droit européen, 367 T Debard, L’action en responsabilité extracontractuelle devant la CJCE (Thesis, Lyon, 1984) F Dumon, ‘La responsabilité extracontractuelle des Communautés et de leurs agents’ (1969) 5 Cahiers de droit européen 3

References (p. 875) F Fines, Etude de la responsabilité extracontractuelle de la CE (Paris, LGDJ, 1990) EW Fuss, ‘La responsabilité des Communautés européennes pour le comportement illégal de leurs organs’ (1981) 17 Revue trimestrielle de droit européen 1 F Grévisse, J-D Combrexelle, & EHonorat, ‘Responsabilité extracontractuelle de la Communauté et des États membres dans l’élaboration et dans la mise en oeuvre du droit communautaire: compétences respectives de la Cour de justice des Communautés

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européennes et des juridictions nationals’, in Hacia un nuevo orden internacional y europeo: estudios en homenaje al profesor Don Manuel Díez de Velasco (Madrid, Tecnos, 1991), 933 I Pernice, ‘Le recours en indemnité’ (1995) 31 Cahiers de droit européen 641 HG Schermers, T Heukels, & P Mead, Non-contractual Liability of the European Communities (Dordrecht, Brill, 1988) F Schockweiller, G Wivenes, & JM Godart, ‘Le régime de la responsabilité extracontractuelle du fait d’actes juridiques dans la Communauté européenne’ (1990) 26 Revue trimestrielle de droit européen 27(p. 876)

Footnotes: 1 The term ‘Union’ is used here, instead of ‘Community’, in view of the entry into force of the Treaty of Lisbon, the numbering of which is also used for references to treaty provisions. The word ‘Community’ is nevertheless maintained where its jurisprudence is mentioned, especially in the citations. We continue to speak of the ECJ in relation to the jurisprudence of the Court, since the mentioned judgments were delivered under this name. 2 Joined Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-5357 (para 42). 3 Ibid, para 33. 4 Ibid, para 38. 5 Case C-453/99, Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR I-6297 (para 27). 6 Ibid, para 29; see also Case C-261/95, Rosalba Palmisani v Istituto nazionale della previdenza sociale [1997] ECR I-4025 (para 27). 7 Cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-5357 (para 35). 8 Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I1029 (para 42). 9 Ibid (para 45). 10 Ibid (paras 50, 51) and more recently Case C-278/05, Carol Marilyn Robins and Others v Secretary of State for Work and Pensions [2007] ECR I-1053 (para 69). 11 Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029 (para 56). 12 Case C-5/94, The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 (para 28). 13 Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029 (para 57). 14 Case C-446/04, Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR I-11753 (para 215). 15 Case C-169/95, Kingdom of Spain v Commission of the European Communities [1997] ECR I135, para 47 mentions ‘restoring the previously existing situation’; see also J Verhoeven, Droit de la Communauté européenne (2nd edn, 2001, Larcier, Précis de la Faculté de droit de l’Université catholique de Louvain), 466, who talks of restitutio in integrum). 16 Case C-304/02, Commission of the European Communities v French Republic [2005] ECR I6263 (para 80).

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17 See eg Case T-113/1996, Edouard Dubois et Fils SA v Council of the European Union and Commission of the European Communities [1998] ECR-II 125. 18 Case 9-69, Claude Sayag and SA Zurich v Jean-Pierre Leduc, Denise Thonnon and SA La Concorde [1969] ECR 329 (para 7). 19 See eg Case 26/81, Oleifici Mediterranei v EEC, [1982] ECR 3057 (para 16). 20 Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1996] ECR I-1029 (para 43). 21 See eg Case 5/71, Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975 (para 11); Case C-352/98 P, Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the European Communities [2000] ECR I-5291 (paras 41, 42). 22 For the law before 2000, see eg D Simon, Le système juridique communautaire (Paris, PUF, 1997), 440 and the summary by C Blumann & L Dubouis, Droit institutionnel de l’Union européenne (Paris, Litec, 2007), 551. 23 Case C-352/98 P, Laboratories pharmaceutiques Bergaderm SA and Jean-Jacques Goupil Commission of the European Communities [2000] ECR I-5291 (para 44). 24 See eg Case T-351/03, Schneider Electric SA v Commission of the European Communities [2007] ECR II-2237 (para 114). 25 Case 5/71, Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975 (para 11). 26 Case 230/78, SpA Eridania-Zuccherifici nazionali and SpA Società Italiana per l’Industria degli Zuccheri v Minister of Agriculture and Forestry, Minister for Industry, Trade and Craft Trades, and SpA Zuccherifici Meridionali [1979] ECR 2749 (para 22). 27 Case T-18/1999, Cordis Obst und Gemüse Großhandel GmbH v Commission of the European Communities and French Republic [2001] ECR II-913 (para 51). 28 Joined cases C-120/06 P and C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc v Council of the European Union and Commission of the European Communities [2008] ECR I-6513. 29 Joined Cases C-46/98 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-1029 (paras 51–53). 30 Case T-222/97, Alfons Steffens v. Council of the European Union and Commission of the European Communities [1998] ECR II-4175 (para 27); Case T-178/98, Fresh Marine Company SA v Commission of the European Communities [2000] ECR II-3331 (para 57); Joined cases C-120/06 P and C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc v Council of the European Union and Commission of the European Communities [2008] ECR I-6513 (para 172). 31 Ibid, para 184. 32 See eg G Isaac, Droit communautaire général, (Paris, A. Colin, 1999) 274; C Blumann & L Dubouis, Droit institutionnel de l’Union européenne (Paris, Litec, 2007), 550. 33 Case 50/86, Les Grands Moulins de Paris v European Economic Community [1987] ECR 4833, (paras 9, 16); Case T-113/1996, Edouard Dubois et Fils SA v Council of the European Union and Commission of the European Communities [1998] ECR-II 125 (para 60). 34 See on this point E Cujo, ‘L’autonomie du recours en indemnité par rapport au recours en

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annulation’ (1999) 42 RMC 414. 35 Case 256/80, Birra Wührer SpA and others v Council and Commission of the European Communities [1982] ECR 85 (para 9). 36 Case 59/83, SA Biovilac NV v European Economic Community [1984] ECR 4057 (para 28). 37 Case T-184/1995, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [1998] ECR II-667 (para 60ff); Case C-237/98 P, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [2000] ECR I-4549 (para 26). 38 Ibid, para 27. 39 Case 74/74, Comptoir national technique agricole (CNTA) SA v Commission of the European Communities [1975] ECR 533. 40 Case T-203/96, Embassy Limousines & Services v European Parliament [1998] ECR II-4239 (para 108). 41 Case 59/83, SA Biovilac NV v European Economic Community [1984] ECR 4057 (para 28); in Case C-237/98, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [2000] ECR I-4549, para 19, the Court adopted a formulation that could lead one to think that it supports this theory, which it nevertheless denied in FIAMM (Joined cases C-120/06 P and C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc v Council of the European Union and Commission of the European Communities [2008] ECR I-6513 (para 169). 42 See especially Case T-383/00, Beamglow Ltd v European Parliament, Council of the European Union and Commission of the European Communities [2005] ECR II-5459 (para 174); Case T69/00, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies, Inc (FIAMM Technologies) v Council of the European Union and Commission of the European Communities [2005] ECR II-5393 (para 160). 43 Joined Cases 9 and 11-71, Compagnie d’approvisionnement, de transport et de crédit SA and Grands Moulins de Paris SA v Commission of the European Communities [1972] ECR 391 (paras 45, 46). 44 Case 33/59, Compagnie des Hauts Fourneaux de Chasse v High Authority of the European Coal and Steel Community [1962] ECR 719; Joined cases 56 to 60–74, Kurt Kampffmeyer Mühlenvereinigung KG and others v Commission and Council of the European Communities [1976] ECR 711. 45 Case T-383/00, Beamglow Ltd v European Parliament, Council of the European Union and Commission of the European Communities, [2005] ECR II-5459. 46 Case T-184/95, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [1998] ECR II-667 (paras 76–80). 47 Case T-69/00, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM) and Fabbrica italiana accumulatori motocarri Montecchio Technologies, Inc (FIAMM Technologies) v Council of the European Union and Commission of the European Communities [2005] ECR II-5393 (paras 205–209). 48 Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-3953; Case T-184/95, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities [1998] ECR II-667 (paras 86–88). 49 Joined cases C-120/06 P and C-121/06 P, Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), Fabbrica italiana accumulatori motocarri Montecchio Technologies LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc v Council of the European Union and Commission of

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the European Communities [2008] ECR I-6513. 50 Ibid, para 169. 51 Ibid, para 170. 52 Ibid, para 176. 53 See eg Case C-136/01, Autosalone Ispra dei Fratelli Rossi Snc v European Atomic Energy Community [2002] ECR I-6565 (para 30). 54 Case 281/82, Société à responsabilité limitée Unifrex v Commission and Council of the European Communities [1984] ECR 1969 (para 11). 55 Case 175/84, Krohn & Co Import—Export GmbH & Co KG v Commission of the European Communities [1986] ECR 753. 56 Case T-279/03, Galileo International Technology LLC and Others v Commission of the European Communities [2006] ECR II-1291 (para 63).

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Part IV The Content of International Responsibility, Ch.56 The ‘Polluter Pays’ Principle Régis Chemain From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of individuals — Responsibility of states — Reparations — Precautionary principle — Organization for Economic Cooperation and Development (OECD)

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(p. 877) Chapter 56 The ‘Polluter Pays’ Principle 1 The legal value of the ‘polluter pays’ principle 879 2 Implementation of the ‘polluter pays’ principle 881 Further reading 884 ‘Nous n’héritons pas la terre de nos ancêtre mais l’empruntons à nos enfants’. A. Saint Exupery Humankind has become conscious of the finite character of the world in which we live. Globalization has broadened our horizons, whilst also revealing inexorable limitations, and, curiously, narrowing our temporal view. Focusing on the short and medium term, we scarcely pause to consider the long-term effects of our actions on the planet. Human activity continues to cause increasing damage to the environment, yet the discourse of States in favour of better environmental protection remains limited. According to Dupuy, the ‘paradoxical separation’ between damage to the environment and responsibility bears witness to the infancy of international environmental law.1 The assertion of some environmental principles, although still uncertain in their substance and implementation, as illustrated by the development of the ‘polluter pays’ principle , evidences a real evolution of the international community whilst also bringing to light the limitations on their effectiveness and the restrictions of the framework within which these principles must operate. The ‘polluter pays’ principle was initially an economic principle. It could legitimately be questioned whether the principle would lead to the recognition of a right to pollute provided the polluter paid a fair price, as exemplified by the development of the ‘pollution permit’ following the conclusion of the Framework Convention on Climate Change of 9 May 1992.2 Be that as it may, in 1972 the principle was set out by the OECD. At the time, it was presented as a principle of economic policy and not as a legal rule. In its Recommendation of 26 May 1972, the OECD Council stated that:

References (p. 878) the polluter should bear the expenses of carrying out the … measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution …3 The principle thus stated barely responds to environmental concerns, and still less to concerns relating to the law of responsibility. It aimed partially to internalize the costs associated with environmental protection, which would in turn support healthier competition: it was not a question of finding a means of repairing the damage arising from pollution, but of encouraging States not to subsidize industry in the name of the fight against pollution in order to avoid significant distortions in international trade and investment. Hints of this rationale may also be found in the framework of WTO agreements.4 The ‘polluter pays’ principle thus has its origin in an essentially economic rationale, linked to the development of competition. According to the OECD, the act of forcing operators to build the cost of the fight against pollution into the price of their goods and services— thus passing the ultimate cost on to the end consumer—would encourage the sensible usage of resources. This internalization would guarantee healthy and active competition in all circumstances, preferable to an increase in State aid which could distort the freedom of the market in a similar fashion to anti-competitive practices, restricting efficiency and causing significant imbalances in trade and the flow of international investments. However, the ‘polluter pays’ principle has progressively evolved to protect the environment.5 During the 1980s and 1990s, the ‘polluter pays’ principle assumed another dimension. On a regional level, first and foremost, the European Community created one of the foundations of its 6

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environmental policy by inserting article 130R in the Single European Act.6 It then implemented the principle in the context of regimes of responsibility,7 which chiefly correspond today to the Environmental Liability Directive.8 In a more universal context, this principle began to acquire the status of an essential ‘rule’, or rather a ‘guiding principle’ of international environmental law through Principle 16 of the 1992 Rio Declaration, pursuant to which: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. At the same time, the inclusion of the principle in multilateral conventions relating to pollution increased to the point that making an exhaustive list of these provisions became difficult.9 The proliferation of conventional references to the ‘polluter pays’ principle

References (p. 879) have led to its emergence as a fundamental principle of environmental protection,10 the reality of which can no longer be denied.11 It is at this level that the principal issues now arise. The imprecision surrounding the conditions for implementing this principle weakens its status and from time to time causes doubt as to whether it has attained the quality of an effective norm of international law, capable of regulating the behaviour of States and their subjects in a manner favourable for the environment. The scope of the ‘polluter pays’ principle remains limited (Section 1) and its practical application proves delicate (Section 2).

1 The legal value of the ‘polluter pays’ principle International environmental law, founded on pre-emption,12 is a relatively new law which forms part of the new process for the creation of international law, where the rules less often finds a basis in practice but emphasize opinio juris. International environmental law is structured around a series of particularly complementary fundamental principles, often reaffirmed through resolutions or in conventions, but with varying degrees of precision and value. As Dupuy states, it consists of principles in the process of aggregation, the legal value of which may be disputed.13 Such is the case for the ‘polluter pays’ principle. According to Kiss and Beurier, it can, at the least, be said that Principle 16 of the Rio Declaration generates uncertainty in relation to the scope of the obligation for the polluter to bear the cost of the pollution he has caused.14 This is all the more so as the underlying economic stakes appear to remain crucial and must guide the implementation of the principle. Thus in Principle 16 of the Rio Declaration, the economic concerns of the OECD are present, connected to competition. The Rio Decla ration uses a non-binding formulation to indicate that ‘[n]ational authorities should endeavour to promote’ internalization of costs, as the ‘polluter should, in principle, bear the cost of pollution’.15 It is clear that the rule, thus expressed, belongs to the domain of soft law. Due to the flexibility of the obligation expressed and the doubts which remain in relation to its content and means of implementation, the ‘polluter pays’ principle leaves a margin of appreciation to States implementing it. The conventional texts which refer to the ‘polluter pays’ principle often do not establish effective enforcement mechanisms. Although it is not possible to undertake

References (p. 880) an exhaustive study of these conventions, it appears that they do not suffice to fill in the gaps in the Rio Declaration so as to clarify the content and improve the effectiveness of the ‘polluter pays’ principle in general international law. Article 2(5)(b) of the Convention of the

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Protection and Use of Transboundary Watercourses and International Lakes indicates that the acts of the parties are guided by certain principles including that of the ‘polluter pays’ principle by virtue of which ‘costs of pollution prevention, control and reduction measures shall be borne by the polluter’.16 The 1996 Protocol to the Convention on the Prevention of the Marine Pollution by Dumping of Wastes and Other Matter imposes on the parties an obligation to ‘endeavour to promote’ practices encouraging an approach whereby the polluter should ‘in principle, bear the cost of pollution’.17 The Convention on the Protection of the Alps obliges the parties to pursue a comprehensive policy for the preservation and protection of the Alps by applying various principles, including the ‘polluter pays’ principle.18 The Convention for the Protection of the Marine Environment of the North-East Atlantic, without doubt the most precise in its subject matter, provides that the parties should apply the precautionary principle19 and also the ‘polluter pays’ principle, by virtue of which ‘by the costs of pollution prevention, control and reduction measures are to be borne by the polluter’.20 The Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, signed on 21 May 2003, makes reference in its preamble to the ‘polluter pays’ principle as ‘a general principle of international environmental law’.21 Article 174(2) of the Treaty Establishing the European Community22 founded Community environmental policy on certain principles, including the ‘polluter pays’ principle. Without doubt, it has acquired a degree of constraint through consolidation in the framework of the European Union, but it must still be observed that the Treaty itself did not at all define the content of the obligations. Article 174(3) also obliged the Community to develop its environmental policy by taking into account, in particular, economic and social development. The proliferation of references to the ‘polluter pays’ principle in domestic law,23 as well as in international conventions supports its emergence as a principle of international environmental law. The flexibility of this ‘soft’ norm, however, is liable to work against its implementation and against respect for a uniform content.

References

(p. 881) 2 Implementation of the ‘polluter pays’ principle Poorly defined in terms of content, the ‘polluter pays’ principle ultimately takes shape in diverse forms, which limit its effectiveness. It encourages States to take measures (essentially the adoption of standards and taxes) which enable the prevention of pollution or the reduction of damage to the environment,24 and it supports attributing the cost to the actual polluter. However, it does not clarify essential questions such as the concept of pollution, the conditions for determining the polluter, the modalities of imputing the pollution to the polluter, and evaluating the costs which should be covered. The implementation of the ‘polluter pays’ principle, notably in the area of international responsibility, depends largely on specific conventional agreements concluded by States and organizations, so that the principle is implemented in domestic legal orders. Practice shows that where the principle goes beyond a mere economic function to reach an environmental goal, by implication, it shifts a greater measure of costs to the polluter.25 The costs of prevention and of the fight against pollution therefore tend to be added to the cost of rectifying the damage caused to the environment. In fact, the ‘polluter pays’ principle has evolved to encompass more than an ‘economic function’, but also a ‘preventative function’ and finally a ‘remedial’ function.26 The ‘polluter pays’ principle has strong ties to other principles, which it supplements without replacing, notably the principle of prevention and the well-established rule of international law which obliges States to ‘ensure that activities within their jurisdiction and control respect the environment of other States’.27 However, the ‘polluter pays’ principle will only gradually be able to develop to address issues relating to the law of responsibility.28 It was through the OCED Recommendation on the Application of the Polluter-Pays Principle to Accidental Pollution29 and the proposal for a Council Directive on Civil Liability for Damage Caused by Waste30 that the ‘polluter pays’ principle evolved to encompass questions of responsibility,31 a development ratified by the 32

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European Directive on Environmental Liability.32 As regards the Rio Declaration, it is significant to note that it only addresses questions of responsibility incidentally through Principle 13. Principle 13 encourages States to legislate regarding liability and compensation for victims of pollution and other environmental damage. It also calls on States to cooperate to develop further international rules regarding liability and compensation for adverse effects of environmental damage within their jurisdiction or under their control. The actions of States through these two mechanisms take account of the ‘polluter

References (p. 882) pays’ principle but bring no clarity to the regime of responsibility to be implemented, even as regards the efficacy of this principle. In the work of the ILC on State responsibility, the ‘polluter pays’ principle does not take further shape: it is generally conceded that State responsibility may be imposed for unlawful acts when the pollution arises from an act of State, or when a State has failed to observe its obligation of ‘due diligence’. However, the ILC encountered difficulties in extending this traditional regime to responsibility for danger to, and also protection of, the environment through fortification of the ‘polluter pays’ principle. Thus the ILC work concerning the prevention of transboundary damage from hazardous activities is based on the fundamental principle sic utere tuo ut alienum non laedas, which may also be found in Principle 21 of the Stockholm Declaration, imposing the following rule: ‘The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.’33 Mechanisms and schemes implemented by States should lead to the result that the operator of the activity bears the cost of prevention to the extent that he is responsible for the operation.34 States are consulted with a view to achieving acceptable solutions regarding measures to be adopted to prevent significant transboundary harm, solutions which must be founded on an equitable balance of interests.35 Relevant factors in achieving this equitable balance are listed in article 10, including paragraph (d), which provides ‘the degree to which the State of origin and, as appropriate, the State likely to be affected are prepared to contribute to the costs of prevention’. In the Commentary to this article, the ILC explains that the equitable balance of interests allows consideration of the ‘polluter pays’ principle to impute the cost of these measures of prevention first and foremost to the polluter and to the State of origin.36 However, it must be observed that little may be drawn from this principle: it is only considered indirectly and in its strictest meaning, rather than in its capacity as an instrument of prevention. Finally, broad room to manoeuvre continues to subsist in the implementation of this principle, which contributes to a lack of clarity as to its scope. Thus the ‘polluter pays’ principle may contribute to the advancement of the question of responsibility in environment matters. However to do so, it must be consolidated and achieve greater precision. As Kiss states, international responsibility in terms of the environment remains a ‘soft obligation’, on occasion concerned with ensuring compensation for damage without real consideration of the question of responsibility and often disposing of certain essential questions relating to inter-State relations.37 The ‘polluter pays’ principle supports civil liability, creating a direct link between the polluter and the pollution, which does not always guarantee real compensation for the damage caused to the environment and does not contribute to rapid development of public international law. Moreover, it can be questioned whether, in its current form, the ‘polluter pays’ principle leads to a

References (p. 883) dilution of responsibility rather than to its imposition. It may be observed that the principle directs modes of environmental responsibility towards private international law to the point that it may run the risk of exonerating certain subjects of international law from their share of responsibility for damage to the environment. One can, in this regard, highlight the preference of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

States for the development of conventional regimes establishing responsibility for private persons and their reluctance to implement a regime of the same order in respect of their own responsibility.38 The special regimes implemented may give rise to the same questions relating to their frequent imprecision, limitations and exceptions which surround the possibility of bringing into play the liability of the polluter; to reach the maximum or ‘mutualization’ of the amount of reparations to be paid. The Lugano Convention, which established a regime of civil liability for damage resulting from activities dangerous to the environment, is without doubt one of the most marked examples of the implementation of the ‘polluter pays’ principle.39 The Convention underlines the difficulties encountered in realising the ‘polluter pays’ principle. The European Commission has underscored the advances made by this Convention—by which it was inspired to elaborate its Environmental Liability Directive—but also its limits, such as its vague definitions and open scope, which provide too little legal certainty for States.40 Although it represents a considerable step forward in content, the Convention attests to the difficulties which may arise in relation to the implementation of a principle which is, as yet, barely defined. The Convention establishes, in effect, a regime of liability which objectively takes into account the ‘polluter pays’ principle. This confirms, according to certain writers, that the selection of such a regime is inherent in the application of the principle.41 The selection of such objective or ‘no fault’ liability, represents the interest in facilitating the reparation of the damage, which is always more delicate to guarantee when the victim bears the burden of proof of fault on the part of the polluter. The Environmental Liability Directive lays out, alongside no fault liability, which pertains only to specified activities, liability for fault covering all other activities. Within the framework of the Lugano Convention, the question of determining the polluter— particularly difficult in the case of delocalized pollution—is resolved by channelling responsibility to the operator of the causative activity as much as possible where he exercises control over the activity. It is understood that the identification of the polluter is an essential question for the proper implementation of the principle. Treaty practice seems to favour reference to the operator, however, liability may also rest on other people specifically identified as being at the origin of the damage, for example the owner of a ship,42 the transporter of merchandise, etc.43 The ‘polluter pays’ principle also fails to address the question of the definition of pollution capable of imposing obligations on the polluter. Pollution may be characterized as the violation of a standard, violation of a defined legal threshold, or by destruction of the

References (p. 884) environment.44 It seems that objective liability is preferable in the environmental domain, when the damage attains a certain level of gravity. The Environmental Liability Directive defines ‘environmental damage’ by making reference to a certain level of severity.45 The Lugano Convention defines both dangerous activity which can give rise to reparation and the damage in question (damage to persons or property, damages resulting from an environmental change), but also includes an exemption from liability for the operator, inter alia, where the damage ‘was caused by pollution at tolerable levels under local relevant circumstances’.46 The other exemptions from liability offered to the operator are more traditional, including acts of war, acts committed by a third party, acts committed in compliance with a specific order or compulsory measure of a public authority, and activity taken in the interests of the person who suffers the damage.47 Finally, the realization of the ‘polluter pays’ principle is rendered more difficult by the confusion surrounding the costs to be charged to the polluter. It has been suggested that these costs now tend towards recovering the amounts integral to prevention, to monitoring respect for antipollution norms and reparation of the damage caused. Again, the principle is imprecise on this point, and leaves a broad margin of appreciation to the subjects of international law, which they may exploit to limit the costs which are likely to be imposed on their essential economic activities. The cost of the obligation to make reparation placed on the polluter may moreover be limited, as the State or an From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

insurance agency contributed to the cost of reparation. In the Lugano Convention, it is simply stated that the contracting parties must be vigilant so that operators participate in financial security schemes and maintain financial guarantees.48 The 1992 Convention on Civil Liability for Oil Pollution Damage, like the 2003 Kiev Protocol, fixes a limit on the amount of available compensation, a rationale which may also be found in numerous other conventions.49 In its broadest form the ‘polluter pays’ principle may contribute to the development of a regime of international responsibility in environmental law, of which Professor Dupuy has demonstrated the limits.50 However, at present this principle remains too imprecise to cross the threshold necessary to form the basis of a rule of international law. Further reading N De Sadeleer, Les principes du pollueur-payeur de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999) N De Sadeleer & VX Thunis, ‘Le principe pollueur-payeur: idéal régulateur ou règle de droit positif?’ (1995) Aménagement-Environnement 9 P-M Dupuy, ‘A propos des mésaventures de la responsabilité internationale des États dans ses rapports avec la protection internationale de l’environnement’, in M Prieur & C Lambrechts (eds) Les hommes et l’environnement; Etudes en hommage à Alexandre Kiss (Paris, Frison-Roche, 1998)

References (p. 885) P-M Dupuy, ‘Où en est le droit international de l’environnement’ (1997) 101 RGDIP 874 SE Gaines, ‘The polluter-pays principle: from economic equity to environmental ethos’ (1991) 26 Texas Journal of International Law 243 M Kamto, ‘Singularité du droit international de l’environnement’, in M Prieur & C Lambrechts (eds) Les hommes et l’environnement; Etudes en hommage à Alexandre Kiss (Paris, FrisonRoche, 1998) L Kramer, ‘Le principe du pollueur-payeur en droit communautaire-interprétation de l’article 130 R du traité CEE’ (1991) Aménagement-Environnement 3 C London, ‘Le protocole de Kyoto: innovations sur le plan du droit international en général et du droit international de l’environnement en particulier’ (October 2001) Les petites affiches 4 M Prieur, ‘Vers un droit de l’environnement renouvelé’ (2003) 15 Les cahiers du Conseil constitutionnel 130 R Romi, ‘Les principes du droit de l’environnement et la charte constitutionnelle: “jouer le jeu” ou mettre les principes “hors—jeu”?’ (2003) Revue juridique de l’environnement 45 JAP Ridrujedo, ‘Le droit international à la veille du 21ème siècle: normes, faits et valeurs’ (1998) 278 Receuil des cours 289 J Shonle, ‘Irruption du droit de l’environnement dans la jurisprudence de la CIJ: l’affaire Gabcíkovo-Nagymaros’ (1998-I) 102 RGDIP 85 H Smets, ‘Le principe pollueur-payeur, un principe économique érigé en principe de l’environnement’ (1997-I) 101 RGDIP 5 H Smets, ‘Evolution du principe pollueur-payeur’, in M Cornu & J Fromageau (eds), Génèse du droit de l’environnement, Actes du colloque de decembre 1998, Faculté Jean Monnet, Sceaux Vol I (L’Harmattan, Paris, 2001), 203 C Stevens, ‘Interpreting the polluter pays principle in the trade and environment context’ (1994) 27 Cornell International Law Journal 577 B Vignon-Ollive, Le principel pollueur-payeur, un état du drot positif (Doctoral Thesis, U de Nice-Sophia Antipolis, 1998)(p. 886)

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Footnotes: 1 P-M Dupuy, ‘A propos des mésaventures de la responsabilité internationale des États dans ses rapports avec la protection internationale de l’environnement’, in M Prieur & C Lambrechts (eds) Les Hommes et l’environnement; Etudes en hommage à Alexandre Kiss (Paris, Frison-Roche, 1998), 270. 2 C London, ‘Le protocole de Kyoto: innovations sur le plan du droit international en général et du droit international de l’environnement en particulier’ (15 October 2001) Les petites affiches, 4ff. 3 Recommendation of the Council of 26th May 1972 on Guiding Principles concerning International Economic Aspects of Environmental Policies ([C(72)128], OECD, 1972). 4 Cf Environmental Principles and Concepts, [GD(95)124], OECD; C Stevens, ‘Interpreting the “polluter pays” principle in the Trade and Environment Context’ (1994) 27 Cornell International Law Journal 577. 5 N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 52. 6 New art 174§2. 7 L Kramer, ‘Le principe du polllueur-payeur en droit communautaire—interprétation de l’article 130 R du traité C.E.E.’ (1991/1) amen.-env. 3. 8 Environmental Liability Directive (2004/35/CE), 21 April 2004; JO L 143, 30 April 2004. 9 Eg International Convention on Oil Pollution Preparedness, Response and Cooperation, London, 30 November 1990, 1891 UNTS 77; Convention on the Protection of the Alps, 7 November 1991, 31 ILM 767; Convention of the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 ILM 1312; Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480; Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992, 32 ILM 1228. The brevity of this chapter does not allow citation of all relevant conventions, however, for a more complete study see N de Sadeleer, Les Principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 53–54; OB Vignon, ‘Le principle pollueur-payeur, un état du droit positif’, Thesis, University of Nice, 1998, 66–69; ‘Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities)’, A/CN.4/543, 2004, 89–219. 10 H Smets, ‘Le principe pollueur-payeur, un principe économique érigé en principe de l’environnement’ (1997) 101 RGDIP 5. 11 P-M Dupuy, ‘Où en est le droit international de l’environnement’ (1997) 101 RGDIP 874, 891. 12 M Kamto, ‘Singularité du droit international de l’environnement’, in M Prieur & C Lambrechts (eds) Les hommes et l’environnement; Etudes en hommage à Alexandre Kiss (Paris, FrisonRoche, 1998), 319. 13 P-M Dupuy, ‘Où en est le droit international de l’environnement’ (1997) 101 RGDIP 874, 892. 14 AC Kiss & JP Beurier, Droit international de l’environnement (3rd edn, Paris, Pedone, 2004), 144ff. 15 Emphasis added. 16 Convention of the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 17 March 1992, 31 ILM 1312. 17 1996 Protocol to the Convention on the Prevention of the Marine Pollution by Dumping of Wastes and Other Matter, 36 ILM 1, art 3(2).

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18 Convention on the Protection of the Alps, 7 November 1991, 31 ILM 767, art 2(1). 19 Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992, 32 ILM 1228, art 2(a). 20 Ibid, art 2(b). 21 Kiev Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 2003, Doc. MP.WAT/2003/1, CP.TEIA/2003/3. 22 Consolidated Version of the Treaty Establishing the European Community, OJ, C-325, 24/12/2002; see now, art 191-2, Consolidated version of the Treaty on the Functioning of the European Union, OJ C-115/47, 9/5/2008. 23 For example, the environmental charter incorporated in the Preamble to the French Constitution: R Romi, ‘Les principes du droit de l’environnement et la charter constitutionelle: “jouer le jeu” ou mettre les principes “hors-jeu”?’ (2003) RJE No spécial; M Prieur, ‘Vers un droit de l’environnement renouvelé’, Cahiers du Conseil Constitutionnel no 15. 24 N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 50ff. 25 H Smets, ‘Le principe pollueur-payeur, un principe économique érigé en principe de l’environnement’ (1997) 101 RGDIP 5, 340–355. 26 N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 69. 27 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 41 (para 53), quoting Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 241–242 (para 29). 28 JAP Ridrujedo, ‘Le droit international à la veille du 21ème siècle: normes, faits et valeurs’ (1998) 278 Recueil des cours 289. 29 OECD Recommendation C(89)88, 7 July 1989. 30 COM (89) 282 final, 15 September 1989. 31 S Gaines, ‘The Polluter-Pays Principle: from Economic Equity to Environmental Ethos’, 26 Texas Journal of International Law 482. 32 Directive 2004/35/CE of the European Parliament and of the Council, 21 April 2004. 33 See draft art 3, Draft Articles on prevention of transboundary harm from hazardous activities, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 146 and Commentary to draft art 3, para 1, ibid, 153. In 2006 the ILC also adopted Draft Principles on the allocation of loss in the case of transboundary harm arising from hazardous activities; these principles—indirectly—taking into account the polluter-pays principle See Report of the ILC, 58th Session, 2006, A/61/10, 101–182, especially 144–149; and see GA Res 61/36, 4 December 2006). 34 Draft Articles on prevention of transboundary harm from hazardous activities, Commentary to draft art 3, para 15, Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 155. 35 Draft art 9, ibid, 147, 36 Commentary to draft art 10, ibid, 162ff. 37 AC Kiss & JP Beurier, Droit international de l’environnement (3rd edn, Paris, Pedone, 2004), 377. 38 Cf P Daillier & A Pellet, Droit international public (Nguyen Quoc Dinh) (6th edn, Paris, LGDJ), 482ff.

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39 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480. 40 White Paper on Environmental Liability, COM(2000) 66 final, 9 February 2000, 25. 41 Cf N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 90. 42 International Convention on Civil Liability for Oil Pollution Damage. Brussels, 29 November 1969, 9 ILM 45. 43 Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels, 1 February 1990, UN Doc ECE/TRANS/79. 44 N de Sadeleer, Les principes du pollueur-payeur, de prévention et de précaution: Essai sur la genèse et la portée juridique de quelques principes du droit de l’environnement (Brussels, Bruylant, 1999), 70–72. 45 Eg ‘that has significant adverse effects’, ‘that significantly adversely affects’: art 2, Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Lugano, 21 June 1993, 32 ILM 480. 46 Ibid, art 8(d). 47 Ibid, art 8(a)–(e). 48 Ibid, art 12. 49 Cf. A/CN.4/543. 50 P-M Dupuy, ‘A propos des mésaventures de la responsabilité internationale des États dans ses rapports avec la protection internationale de l’environnement’, in M Prieur & C Lambrechts (eds), Les hommes et l’environnement; Etudes en hommage à Alexandre Kiss (Paris, Frison-Roche, 1998), 270.

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Part IV The Content of International Responsibility, Ch.57 Reparation in the Event of a Circumstance Precluding Wrongfulness Mathias Forteau From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Reparations — Circumstances precluding wrongfulness — Responsibility of states

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(p. 887) Chapter 57 Reparation in the Event of a Circumstance Precluding Wrongfulness 1 Legal basis for a potential obligation to make reparation where circumstances preclude wrongfulness 888 2 Categories of circumstances precluding wrongfulness to which a (potential) obligation to make reparation could be connected 892 Further reading 893 The idea that reparation may be due in the case where circumstances precluding wrongfulness arise is a priori logically incompatible with the underlying purpose of this legal institution. If wrongfulness is excluded, then, automatically, so is responsibility (see Chapter 32). No obligation to make reparation can therefore be imposed on the State that benefits from such a circumstance. The exclusion effect can of course only happen under certain circumstances. If for example the circumstance disappears, behaviour that continues after the disappearance cannot benefit any longer and will from then on be susceptible to engaging State responsibility if it is wrongful. This will give rise to an obligation to make reparation. If however such a circumstance arises after the behaviour in question has started, it will not preclude wrongfulness before the point in time when it occurred. Similarly, if damage is caused both by a wrongful act and an act that benefits from a circumstance precluding wrongfulness, this circumstance will in principle only preclude the reparation of the injured party that is linked to that circumstance.1 There is no exception to the rule in these different situations, just a simple application of the conditions that are specified by the rule. Since the preclusion of wrongfulness produces its effect in accordance with the law on responsibility, any obligation to make reparation is normally excluded. Once the ILC undertook the codification of the regime concerning circumstances precluding wrongfulness within the framework of State responsibility under the influence of Special Rapporteur Ago, the question arose whether an obligation to make reparation should be imposed on a State even if a circumstance precluding wrongfulness existed. The discussions held on first reading in 1979 and 1980 led the Commission to adopt a reserved position on (p. 888) this question. Without purporting to answer it either in the negative or positive, it decided to insert an article (draft article 35) as a saving clause which stated that precluding the wrongfulness of an act of State does not, in certain cases, prejudge ‘any question that may arise in regard to compensation for damage caused by that act’.2 The Commission maintained this cautious approach on second reading.3 According to article 27(b) of the Articles adopted in 2001, ‘[t]he invocation of a circumstance precluding wrongfulness … is without prejudice to … the question of compensation for any material loss caused by the act in question’. The caution exercised by the Commission is understandable, but the fact that it seems to recognize the possibility of compensation in cases where circumstances preclude wrongfulness without codifying this idea as such gives rise to questions. International practice is of course full of examples where States have compensated for losses caused by them while at the same time denying that their responsibility is engaged. These ex gratia compensations are nevertheless mostly based on motives of equity or are done for humanitarian reasons. But it is a different question whether international law requires this compensation where circumstances preclude wrongfulness, on which legal basis it rests and which categories of circumstances that preclude wrongfulness are concerned. It must be noted that international law is mostly uncertain on these two points.

1 Legal basis for a potential obligation to make reparation where circumstances preclude wrongfulness Some authors readily accept the idea of reparation where circumstances preclude wrongfulness.

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According to them, the circumstance in question does not preclude the wrongfulness, but simply leads to a mitigation of its effect. As a matter of logic, this reasoning means that they must base the reparation on the engagement of the responsibility, and limit the impact of the circumstances to the consequences that follow from it. These authors rely mainly on the judgment in Corfu Channel,4 where the Court classifi ed the state of necessity as an attenuating circumstance.5 In this case, it nevertheless does not seem that the Court properly defined the state of necessity as an attenuating circumstance. It rather seemed to consider that since in this sort of case the invoked circumstance did not by its character preclude wrongfulness, it could at least mitigate the effects.6 The Court moreover confirmed in Gabcíkovo-Nagymaros Project that the state of necessity does constitute a circumstance that precludes wrongfulness.7 If certain circumstances preclude wrongfulness of an act that is otherwise unlawful, can an obligation to make reparation subsist? In the subject area of social necessity, upholding

References (p. 889) such an obligation is easy to understand. It is appropriate to protect victims who have suffered harm however one classifies the event in question. This explains why the ILC limited this possibility of reparation among the different consequences that responsibility normally entails and among the different forms of reparation it is limited to compensation. Since we are not concerned with drawing consequences for the engagement of responsibility, but only with the protection of a victim against the harmful effect of a State act that is not wrongful, it seems legitimate to limit this protection to compensation only. On the second reading, the ILC limited this possibility even more, since it only envisages compensation for material loss, a narrower notion than ‘damage’ which was used in draft article 35 adopted on first reading.8 Even if some measure of reparation can be justified on these grounds, it still needs a legal basis in public international law. The case law is of little help in this area. The only precedent cited in the draft commentary on first reading was Company General of the Orinoco.9 Venezuela had granted concessions to a French company on a territory that was subsequently claimed by Colombia. In order to avoid an armed conflict, Venezuela had no other choice than to rescind the contracts. According to the ILC, the umpire ‘ruled that, in the exceptional circumstances of the case, it was lawful under international law … to rescind the concessions, although he agreed that the company was entitled to compensation for the consequences of an act which had been internationally lawful’.10 Nevertheless, there is another interpretation that seems to imply this. According to the umpire, the rescission of the contract ‘if necessary as an act of sovereignty, was none the less an attack upon the terms of the contract, when the Government is viewed in its proper position as the other party thereto’.11 The umpire thus distinguished two acts: the act by Venezuela, as a State, of terminating the contract, which was not unlawful due to the circumstances, and the consecutive act, by Venezuela, as contracting party, of not respecting its terms. This second act was unlawful and therefore entailed an obligation of reparation. The reparation does not follow from the first act but from the second. There was thus no reparation in a case of circumstances precluding wrongfulness in the strict sense. Whether or not for this reason, the second reading commentary does not cite Company General of the Orinoco. Instead it refers to the Court’s judgment in Gabcíkovo-Nagymaros Project. In this judgment, the Court effectively noted that ‘Hungary expressly acknowledged that, in any event, such a state of necessity would not exempt it from its duty to compensate its partner.’12 Hungary had emphasized in the pleadings that the state of necessity, as opposed to countermeasures, was not dependent on the existence of an unlawful act committed by the other party and that in consequence, it obliged the party invoking it to ‘provide compensation, generally in the form of an indemnity’.13 The Court nevertheless did not answer this specific question, in part no doubt because it refused to recognize the existence of any circumstance precluding responsibility in the specific case.14

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It was not until the ICSID arbitral award in CMS Gas Transmission Company v Argentine Republic that it was expressly admitted that the invocation of (some) circumstances

References (p. 890) precluding wrongfulness did not exonerate the State from all obligation to make reparation. Argentina had pleaded the existence of a state of necessity to exclude both the unlawfulness of its behaviour and any reparation.15 Not only did the Tribunal refuse to consider that there existed a state of necessity in this case; it also indicated very clearly by referring to the work of the ILC, the jurisprudence of the Court (even though the latter was ambiguous) and the practice of domestic systems that even if ‘the plea of state of necessity may preclude the wrongfulness of an act, … it does not exclude the duty to compensate the owner of the right which has to be sacrificed’.16 Even if this clarification is welcome in principle, it nevertheless remains that the basis for this obligation is hardly explained in the award. The ad hoc Committee, dealing with an application for annulment, was of the opinion on this point that the Tribunal had made an error of law, since, according to the Committee, article 27 ARSIWA is a ‘without prejudice’ clause and not a ‘stipulation’. This article ‘does not attempt to specify in which circumstances compensation could be due, notwithstanding the state of necessity’.17 The Annulment Committee usefully added that since the defence based on state of necessity was rejected, no question of reparation in case of circumstances precluding wrongfulness could arise.18 Reciprocally, if the defence based on the (primary) ‘security exception’ clause of the BIT (Article XI) was admitted, then there was no wrongful act at all, and therefore no necessity could have applied to exclude wrongfulness. In this case too, ‘there could be no possibility of compensation’.19 These uncertainties in the case law show the difficulty of identifying the legal basis for the (potential) obligation to make reparation. This obligation could be regarded as having its basis in the existence of a responsibility without any unlawful act. Even though the recog nition of such a responsibility remains controversial in the general international law of today, some treaty mechanisms make provisions for it. The saving clause introduced by the ILC thus seems justified, at least with regard to these mechanisms. This theory of responsibility for damage or risk was furthermore contemplated by the ILC when it discussed and adopted the article in question (even if, not without ambiguity, the ILC did not confine itself to this question).20 Such responsibility nevertheless follows from the existence of damage, what character the act that causes it may have. The existence of a circumstance precluding wrongfulness would not in itself affect the implementation of this type of responsibility. But to maintain this theory may not make much or any difference in the result. Crawford has also criticized the link that is made with responsibility without fault, since the issue of reparation in cases where wrongfulness is excluded ‘formally … falls within the scope of the secondary rules of responsibility, since it relates to a situation where State responsibility prima facie arises in terms of the draft articles, but the draft articles go on expressly to exclude that responsibility’.21 Therefore, there would be no ‘lawful act’ in the strict sense since there is a breach of an obligation, which may be justified later by the law

References (p. 891) on responsibility for wrongful acts. As the Court pointed out in Gabcíkovo-Nagymaros Project, the existence of a circumstance precluding wrongfulness does not necessarily mean that the State in question has acted according to its obligations; instead it simply prevents the engagement of its responsibility.22 Thus there seems to subsist a difference between the lawful act and an act the wrongfulness of which is excluded for the purpose of the law on responsibility.23 The idea of reparation in a case where circumstances preclude wrongfulness thus becomes particularly complex since it is neither based on responsibility without fault nor on responsibility for a wrongful act, but it is a half-way solution that is based on responsibility for an act that is not From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

conform to an obligation but benefits from a circumstance precluding wrongfulness. What then could be the basis of an obligation of reparation where circumstances preclude wrongfulness? A first solution could be to attach this obligation to the primary legal regime. The obligation of reparation can appear like an obligation that substitutes for the primary obligation, one no longer susceptible to execution in the case where a definite circumstance precluding wrongfulness exists. The obligation of reparation that, according to Hungary, weighed on it in Gabcíkovo-Nagymaros Project, could be justified in this way. Since the state of necessity that it invoked was definitive, this State had to compensate the inevitable termination of the treaty relation, especially since in this case the project in question constituted a joint investment.24 The obligation of reparation could for this reason be attached to the law of treaties, or, in any case, to the law of primary obligations where the circumstances lead to a definitive impossibility to execute the obligation.25 This idea of a substitution obligation is apparent in the award in Company General of the Orinoco.26 According to the umpire, Venezuela ‘considered the peril superior to [the execution of the contract] and substituted therefore the duty to compensation’.27 Another solution, not yet articulated in practice or case law, would consist in seeing the circumstance precluding wrongfulness from a double point of view. A secondary effect (the preclusion of wrongfulness) would be added to the primary effect: the creation of a (primary) obligation to make reparation. The circumstance precluding wrongfulness would have a double effect, excluding the responsibility on the one hand and imposing an obligation of reparation on the other hand. The commentary to article 27 seems to go in this direction since the State is only justified in invoking a circumstance precluding wrongfulness if it accepts to make reparation for the damage caused.28 This would be a legitimate condition for the invocation of such a circumstance, since otherwise ‘the State whose conduct would otherwise be unlawful might seek to shift the burden of the defence of its own interests or concerns on to an innocent third State’. The reparation would thus

References (p. 892) be integrated in the regime of the circumstance precluding wrongfulness. This circumstance would constitute an autonomous source of an obligation of reparation, just like unjust enrichment in domestic law.29 This interpretation is no different from that long proposed by the majority of French civil law commentators to explain certain decisions taken in the area of civil responsibility. The judges in effect refuse to impose the cost of consequential damage on the victim of an act that appears to be wrongful but benefits from an exonerating circumstance.30 These are considerations of justice that will eventually justify such an obligation to make reparation. It is true that this diminishes the utility of circumstances precluding wrongfulness since the State that wishes to escape its obligation will only be able to do so if it accepts to make reparation. Nevertheless this will allow it to at least prevent a formal finding of responsibility. It remains to determine which types of circumstances precluding wrongfulness this reparation could be connected to.

2 Categories of circumstances precluding wrongfulness to which a (potential) obligation to make reparation could be connected Draft article 35, adopted on first reading was not applied to all circumstances precluding wrongfulness; countermeasures and self-defence were excluded. The ILC did not really justify this choice, which seems to have been due to the fact that the State which benefi ts from one of these circumstances only reacts to another wrongful act. The damage it can cause is therefore not ‘unjust’ in the sense that it compensates in some way for the harm that the other wrongful act could have caused it (especially since the application of the principle of proportionality allows to maintain a balance between the two). There is therefore no need to compensate the victim since it is not innocent. Such a justification allows one to define a contrario the legal basis of reparation owed by the State whose act is in question: reparation is only justified in situations where the victim is not in 31

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any way involved with the harm, even if it does not incur any legal responsibility as a result.31 By excluding countermeasures and self-defence from the application of article 35 on the first reading, the ILC implicitly took a stance on what would justify reparation. In 1999 Crawford proposed that the application of this article should be further reduced. In the case of consent, reparation would derive from negotiation between the State that committed the act and the State that consented to it subject to compensation.32 Reparation would thus not be the consequence of an act of State, but would arise from the creation of a primary norm. As far as force majeure is concerned, where it is exterior to the will of States nothing justifies obliging the State that invokes it to make reparation for damage caused from the moment when it did not assume the risk of the occurrence of damage.33 The Special Rapporteur therefore proposed to limit the possibility of reparation to the cases of distress and state of necessity. The Commission did not follow him on this point and preferred, having regard to divisions among its members, to adopt a without prejudice clause worded in a general manner to include all circumstances precluding wrongfulness. (p. 893) It is true that the Special Rapporteur’s propositions could be debated. If the obligation to make reparation has its source in the idea that the victim of the harm should not have to bear the cost, then nothing justifies discriminating between necessity or distress on the one hand and force majeure on the other. Undoubtedly, in the latter case a division of the reparation must be imposed, since neither of the two States is responsible for the damage. Maintaining the exclusion of countermeasures from the application of the article was also worthy of criticism, as the European Community case law illustrates. In Dorsch Consult34 an applicant challenged a European Community regulation adopted against Iraq following the invasion of Kuwait since it had caused him loss. The applicant argued that the EC had to compensate him, even if the regulation could have been justified by the previous wrongful conduct of Iraq. In other words, the applicant argued that even if the EC regulation could be analysed as a countermeasure, which would preclude its wrongfulness, the EC would remain responsible for damage caused to third parties. The Court of First Instance interpreted this argument as once concerning responsibility without fault on the part of the EC and recognized this possibility, even though it held that the conditions for its application were not fulfilled in that case.35 Thus there are theories in which the qualification of the countermeasures excludes wrongfulness of the act but does not relieve the invoking party from its obligation to compensate certain victims on the basis of responsibility without fault. It is true that in the case of Community law, the potential responsibility of the EC rests on the idea of a breach of equality between economic actors before public bodies, which is difficult to transpose to international law. This example nevertheless raises the issue of damage that is caused to a third party by a countermeasure, a hypothesis that should be aligned with the regime for necessity.36 In both situations there is a voluntary act of a State in circumstances that justify imposing some measure of reparation for damage on that State. More generally, reparation seems justified wherever the circumstance precluding wrongfulness is no fault of the victim, ie in the case of force majeure, distress, state of necessity or even self-defence, as well as in the case of countermeasures where the victim is a third party. Further reading B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, Pedone, 1973) NJLT Horbach, ‘The Confusion about State Responsibility and International Liability’ (1991) 1 Leiden JIL 47 SP Jagota, ‘State Responsibility: Circumstances Precluding Wrongfulness’ (1985) 16 Netherlands YIL 249 J Salmon, ‘Les circonstances excluant l’illicéité’, in Responsabilité internationale (Paris, Pedone, 1987/1988), 89

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References (p. 894)

Footnotes: 1 See B Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Pedone, Paris, 1973) 265, 317; S Szurek, La force majeure en droit international (Thèse, Paris II, 1996), 385. 2 Report of the ILC, 32nd Session, ILC Yearbook 1980, Vol II(2), 61. 3 See J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, paras 336–347; Report of the ILC, 51st Session, ILC Yearbook 1999, Vol II(2), 84–85 (paras 402–410). 4 Corfu Channel, Merits, ICJ Reports 1949, p 4. 5 See J Combacau & S Sur, Droit international public (Paris, Montchrestien, 2008) 546; L Christakis, ‘Les ‘circonstances excluant l’illicéité’: une illusion optique?’, Droit du pouvoir, pouvoir du droit: mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007) 201; Yankov, ILC Yearbook 1980, Vol I, 174 (para 9); cf R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(2), 13 (para 18). 6 Corfu Channel, Merits, ICJ Reports 1949, p 4, 35. 7 Gabcíkovo-Nagymaros Project, ICJ Reports 1997, p 7, 40 (para 51); see the more cautious position of the ad hoc ICSID Committee (Guillaume, Elaraby, Crawford) in CMS Gas Transmission Company v The Argentine Republic, Case No ARB/01/08, award of 25 September 2007, 14 ICSID Reports 151, 179–180 (paras 132–135). 8 Commentary to art 27, para 4. 9 (1905) 10 RIAA 184. 10 See the Commentary to draft art 33, para 17, Report of the ILC, 32nd Session, ILC Yearbook 1980, Vol II(2), 40. 11 (1905) 10 RIAA 184, 283 (emphasis added). 12 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 39 (para 48). 13 P-M Dupuy, Oral Pleading, 4 March 1997, CR 1997/3 (Translation) 87 (para 4). 14 See however Commentary to art 27, para 5 which seems to deduce the existence of a positive rule of law from this precedent. 15 CMS Gas Transmission Company v Argentine Republic (ICSID Case No. ARB/01/08), Award of 12 May 2005, 14 ICSID Reports 151, 209 (para 306). 16 Ibid, 222–224 (paras 383–394); see also Enron Corporation Ponderosa Assets, LP v Argentine Republic, ICSID Case No ARB/01/3, award of 22 May 2007, 108–109 (paras 344–345). 17 CMS Gas Transmission Company v Argentine Republic (ICSID Case No. ARB/01/08), Decision on application for annulment of 25 September 2007, 14 ICSID Reports 251278 (para 147), see also the comment on this award, T Christakis (2007) 111 RGDIP 879. 18 Ibid (para 145). 19 Ibid (para 146). 20 See Commentary to art 35, paras 2, 4; also SP Jagota, ‘State Responsibility: Circumstances Precluding Wrongfulness’ (1985) 16 NYIL 249, 274. 21 J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 339. 22 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 39 (para 48).

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23 See contra P Weil, oral pleading in Oil Platforms (Islamic Republic of Iran v United States of America, 26 February 2003, CR 2003/12 (Translation), 17 (para 17.16): ‘The action taken under such circumstances is not an internationally wrongful act, it is an internationally lawful act’ (emphasis in original). 24 See the Memorial of the Republic of Hungary, 2 May 1994 (Volume 1), 333 (para 11.09); on the obligation to restore in the law of treaties see S Szurek, La force majeure en droit international (Thèse, Paris II, 1996), 230–233. 25 This often raises problems of articulation with arts 61 and 62 of the Vienna Convention on the Law of Treaties 1969, see Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 63 (para 102); commentary to Chapter V of Part I, para 4. 26 (1905) 10 RIAA 184. 27 Ibid, 280 (emphasis added); see also W Riphagen, ILC Yearbook 1979, Vol 1, 197 (paras 5–6). 28 Commentary to art 27, para 5. 29 See the comment by the United Kingdom in ‘Comments and observations received from Governments’, A/CN.4/488, 25 March 1998, 90. 30 See G Viney and P Jourdain, Traité de droit civil. Les conditions de la responsabilité (Paris, LGDJ, 1998), 512–514. 31 See (implicitly) J Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 342. 32 Ibid. 33 Ibid, para 343. 34 Case T-184/95, Dorsch Consult Ingenieurgesellschaft mbH v Council of the European Union and Commission of the European Communities, Court of First Instance, 28 April 1998. 35 Ibid, paras 25–89. 36 Report of the ILC, 51st Session, ILC Yearbook 1999, Vol II(2), 1, 85 (para 407).

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Part IV The Content of International Responsibility, Ch.58 Maritime Law Gabriel Nakhleh, Mikael Quimbert From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Compensation — Marine environment, protection

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(p. 895) Chapter 58 Maritime Law 1 The main international conventions establishing a principle of strict liability 896 (a) The legal framework for accidental pollution by oil 896 (i) Accidental oil pollution 896 (ii) Pollution by bunker oil 897 (b) Strict liability extended to the transport of hazardous and noxious substances 898 (c) Transport of passengers and the move to strict liability 899 2 The regime of strict liability 900 (a) Limitation of responsibility: perils of the sea, heritage of classical maritime law 900 (b) The obligation of insurance and the establishment of complementary compensation funds 900 Further reading 902 The international legal framework for maritime activities has greatly evolved over the last 15 years and can today be expressed as encompassing three principles. First, the ‘perils of the sea’, the basis for the limitation of civil responsibility of the owner, remains a traditional principle in maritime law. This is specifically linked to the dangerous character of the maritime adventure. Thus, the French Commercial Code in the edition of the First Empire, which was in force until the 1960s, stated that: any owner of a ship must bear the civil liability for the acts of the captain and is bound by obligations entered into by him. He may free himself of these obligations by abandoning the ship and the freight (i.e. the cost of the transport that is owed to him).1 This historic limitation isolated each vessel from the rest of the ship-owner’s assets. However, this is qualified by the obligatory contribution of a limitation fund in case of accidents. Second, liability in the area of maritime transport is increasingly defined in terms of an obligation to insure. Currently, civil liability insurance for pollution is only obligatory for vessels transporting more than 2000 tonnes of oil. The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous

References (p. 896) and Noxious Substances by Sea2 (‘the Convention’), the Convention on Civil Liability for Bunker Oil Pollution Damage3 and the draft protocol to the Convention on the Carriage of Passengers and their Luggage by Sea4 set out this obligation. Further, the international conventions concerning the activities of maritime transport confirm a complementary obligation in respect of a specific compensation fund giving priority to compensation for victims and making all actors engaged in sea transport responsible. This corpus juris nevertheless lacks homogeneity. The definition of the vessel owner, and thus the locus of liability, varies from one convention to another. There is also no consistency as between the definition of damage and the form or quantum of compensation. Third and finally, there has been movement towards strict liability. This is accompanied by a limitation of the responsibility of the owner and financial guarantees which aim to ensure compensation for victims.

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1 The main international conventions establishing a principle of strict liability The transport of oil has initiated the implementation of liability without fault for the owner of the vessel. This principle is applied today to all transport of dangerous commodities and should be progressively extended to other domains of maritime transport.

(a) The legal framework for accidental pollution by oil The Brussels Conventions of 29 November 19695 form a collection of treaties for harms caused by oil pollution. The public law convention establishes in article 1 a regime of common interest by recognizing a right of intervention for States in cases of oil pollution casualties. In this way, it permits a State to derogate from the law of the flag and to take measures against vessels flying a foreign flag in times of peace. These measures must be of an ‘exceptional character’.6 (i) Accidental oil pollution The Civil Liability Convention (CLC)7 has three protocols, adopted in 1976, 1984, and 1992 and lays down a well-defined area of application. According to article 1(6): ‘Pollution damage’ means loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may

References (p. 897) occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures. The Convention applies exclusively to pollution damage that occurs on the territory of a contracting State, including territorial sea and the exclusive economic zone (EEZ). Article III(1) provides that: the owner of a ship at the time of an incident, or where the incident consists of a series of occurrences at the time of the first such occurrence, shall be liable for any pollution damage caused by oil which has escaped or been discharged from the ship as a result of the incident. Nevertheless, there are circumstances which exonerate from liability, either in whole or in part, listed in article III(2) and III(3): if the owner establishes that the accident is the result of an act of war or hostilities, a natural phenomenon of an exceptional, inevitable or irresistible character, an act done with intent by another, the fault of a Government authority responsible for the maintenance of lights and other navigational aids or the fault of the victim. (ii) Pollution by bunker oil The diplomatic conference on the responsibility and compensation for harm by oil bunker pollution, which was held from 19 to 23 March 2001 at the International Maritime Organisation (IMO) resulted in the adoption of the International Convention on Civil Liability for Bunker Oil Pollution Damage.8 The Preamble indicates the Convention is required because of ‘the importance of establishing strict liability for all forms of oil pollution which is linked to an appropriate limitation of the level of that liability’. The Convention concerns bunker oil, defined as all hydrocarbon mineral oils, including lubricating oils, used or intended to be used for the operation or propulsion of the ship and any residues of such oil.9 Article 3 of the Bunker Oil Convention has provisions identical to the CLC as regards the definition

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of harm and implementation of responsibility. The Convention entered into force on 21 November 2008.10 To enter into force, it was required that 18 States ratifi ed it, including five States each with ships whose combined gross tonnage is not less than 1 million under the national flag. Unlike the CLC convention, the Bunker Oil Convention does not define ship-owners as only the registered owner, but includes the bareboat charterer, manager and operator of the ship. Article 1(3) constitutes a major innovation since it concerns the responsibility of the bareboat charterer. In the case of charter, he effectively controls the ship. He provides the crew, takes charge of the maintenance of the ships, determines the cargo to be transported and decides on the ports for loading and unloading. Nevertheless, by not precisely defining the rules of the engaging of the responsibility of persons or companies addressed in articles 1(3) and 1(4), the Convention remains open to various interpretations. It remains the case that this legal framework restricts to a minimum the situations where the responsibility of the ship-owner for oil pollution is not strictly applied.

References

(p. 898) (b) Strict liability extended to the transport of hazardous and noxious substances The HNS Convention links responsibility and compensation for harm to the transport of noxious and potentially dangerous substances by sea.11 The HNS Convention is a counterpart to the CLC, concerning certain oils and chemical products transported loosely or in bulk. The definition of noxious and potentially dangerous substances is set out in article 1(5). These may be: oils carried in bulk, noxious liquid substances and those substances and mixtures provisionally categorized as falling in pollution categories under the 1973 Convention for the prevention of pollution from ships (‘MARPOL Convention’),12 modified in 1978; dangerous liquid substances carried in bulk and liquefied gases listed in chapter 17 and 19 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk; liquid substances carried in bulk with a flashpoint not exceeding 60°C; and solid bulk materials possessing chemical hazards. The damage envisaged in article 1(6) comprises: (a) loss of life or personal injury on board or outside the ship carrying the hazardous and noxious substances caused by those substances; (b) loss of or damage to property outside the ship carrying the hazardous and noxious substances caused by those substances; (c) loss or damage by contamination of the environment caused by the hazardous and noxious substances, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and (d) the costs of preventive measures and further loss or damage caused by preventive measures. Article 1(6) specifies further that: [w]here it is not reasonably possible to separate damage caused by the hazardous and noxious substances from that caused by other factors, all such damage shall be deemed to be caused by the hazardous and noxious substances. Article 7(1) of the Convention states that the owner is liable at the time of the incident for any harm caused by noxious or potentially hazardous substances. This liability is modelled on a scheme incorporated in international oil conventions. The extent of the liability is the same as those conventions, as are the exceptions. Only the definition of the owner differs, since, in the words of

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article 1(3): ‘Owner’ means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the ship’s operator, ‘owner’ shall mean such company. This strict liability of the owner is linked to a limit of liability and to obligatory insurance on the one hand, and to a compensation fund paid for by the receivers of the product on the other.

References (p. 899) The HNS Convention is not in force. In fact, only 14 States representing less than 14 per cent of the world’s tonnage have signed it.13 This may be attributed to the fact that the implementation of the treaty provisions will cause many difficulties, such as the identification of products carried in bulk, in containers, or even the identification of the receivers of these products. The Convention sets out two definitions of ‘receiver’: (a) the person who physically receives contributing cargo discharged in the ports and terminals of a State Party; provided that if at the time of receipt the person who physically receives the cargo acts as an agent for another who is subject to the jurisdiction of any State Party, then the principal shall be deemed to be the receiver, if the agent discloses the principal to the HNS Fund; or (b) the person in the State Party who in accordance with the national law of that State Party is deemed to be the receiver of contributing cargo discharged in the ports and terminals of a State Party, provided that the total contributing cargo received according to such national law is substantially the same as that which would have been received under (a).14

(c) Transport of passengers and the move to strict liability The Athens Convention of 13 December 1974 on the Carriage of Passengers and Their Luggage by Sea and its Protocols of 1976 and 1990 regulate the responsibility of the transporter in case of physical or material harm suffered by passengers.15 This mechanism rests on the triptych of faultbased responsibility: fault, harm and a causal link. Nevertheless, a presumption of fault is placed on the transporter if the physical harm or the damage to cabin luggage results from a shipping accident. The difficulty of implementing this Convention led to the adoption of a further Protocol in November 2002 (‘2002 Protocol’ which substantially amends the Athens Convention. For shipping accidents (shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship), the 2002 Protocol establishes a system of responsibility of the transporter on two levels, which mirrors the existing system of responsibility for air transport.16 The first level consists of strict liability of the transporter from which there is no exoneration except in case of act of war, force majeure or an act of a third party. The second level imposes a simple presumption of liability. The transporter may be relieved from it if he can prove that he is not at fault and has not been negligent in relation to the cause of the harm. The 2002 Protocol retained the principle of a per capita limit (an option favoured by France) rather than a limit by ship. This way, the minimum amount for obligatory insurance cannot be lower than 250,000 SDR per passenger. From this ensues an obligation for insurance or deposit of guarantee for the transporter of passengers, in order to cover civil liability. The fulfilment of this obligation will be attested by a certificate—in paper or electronic form—issued by the State of the ship’s registry and controlled by State of the port. The victim will thus file a claim directly against the insurer or guarantor up to the first level limit. This logic of strict liability is limited and completed by mechanisms aimed at favouring the compensation of victims. The first of these mechanisms is the obligation of insurance.

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It is accompanied in some cases by the establishment of a compensation fund.

References

(p. 900) 2 The regime of strict liability (a) Limitation of responsibility: perils of the sea, heritage of classical maritime law The CLC17 sets out limits of liability which are higher than those in the 1976 Convention on Limitation of Liability for Maritime Claims.18 According to article V, the owner of the ship has the right to limit his responsibility to 3 million units of account for a ship measuring up to 5000 UMS (the Unified Measurement System replaces the measure of gross tonnage which was used to measure the useable volume of ships). For ships that have a tonnage over 5000 UMS, every UMS is equivalent to 420 units of account. The maximum limit since 1 November 2003 cannot exceed 89.77 million units of account. The unit of account mentioned in the Convention is the SDR, special drawing rights, as defined by the International Monetary Fund.19 Article V(2) specifies that the owner does not have the right to limit his liability if it has been proved that the pollution damage is the result from his personal act or omission, committed with the intention of causing such damage, or committed recklessly and in the knowledge that such damage would probably result. Furthermore, article V(3) states that the owner must constitute a fund to benefit from the limitation, representing the limit of liability, with the Court or other competent authority of any of the contracting States in which action is brought. Following the same logic, the Convention on Civil Liability for Bunker Oil Pollution Damage20 in article 6 specifies that no provision of the text can affect the right of the shipowner and the person providing the insurance or a financial security to limit their liability under any applicable national or international regime, such as the 1976 Convention on Limitation of Liability for Maritime Claims as amended.21 The HNS Convention22 establishes liability limits of 10 million SDR for up to 2000 units of tonnage, 1500 SDR per supplementary unit up to 50000 units of tonnage (UMS) and 360 units of account for each unit of tonnage in excess of 50, 000 units of tonnage. The maximum amount is 100 million SDR (article 9(1)).

(b) The obligation of insurance and the establishment of complementary compensation funds In respect of oil, the corollary of this limited strict liability is an obligation of insurance for ships carrying more than 2000 tonnes of oil in bulk as freight. This way, direct action is open to the victims against the insurer. This is required by the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of

References (p. 901) 18 December 1971.23 This Convention regulates compensation of harm by using the same definition as the CLC in order to ensure a homogenous system.24 The limit of liability for ships of less than 5000 UMS is increased to 4.51 million SDR. For ships between 5000 and 140000 UMS, 531 SDR per UMS in excess of 5000 UMS must be added. Finally, for ships of more than 140000 UMS, liability is limited to 89.7 million SDR. Under this Convention, the maximum amount is 203 million SDR, at 1 November 2003. After the accident of the Prestige, the insufficiency of compensation paid lead to the creation of a

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third level of compensation. The 2003 Protocol which created a supplementary international fund for the compensation of pollution by oil, which came into force on 3 March 2005, is optional. The supplementary fund will allow for a total maximum compensation of 750 million SDR.25 As far as bunker oil is concerned, the owner of a ship which measures more than a gross of 1000 UMS must take out insurance to cover liability for pollution damage for an amount that is equivalent to the applicable limits of liability.26 Only the registered owner has the obligation of insurance. Article 7(11) specifies that ‘[a] State Party shall not permit a ship under its flag to which this article applies to operate at any time, unless a certificate has been issued’. Nevertheless, upon ratification or at a later date a State may declare that this obligation does not apply to ships that exclusively operate in its territorial sea. Article 12 of the HNS Convention states that: The owner of a ship registered in a State Party and actually carrying hazardous and noxious substances shall be required to maintain insurance or other financial security, such as the guarantee of a bank or similar financial institution, in the sums fixed by applying the limits of liability prescribed in article 9, paragraph 1, to cover liability for damage under this Convention. An obligatory insurance certificate is issued to all ships after the competent authority of the State party has ensured that the ship satisfies the requirements mentioned above. The Convention establishes an international fund for noxious and potentially hazardous substances in article 13. The preamble of the Convention recalls that the creation of the HNS Fund allows for the sharing of the risk by associating the chain of the shipping industry and the cargo interests involved. It is its aim to ensure compensation for harm arising from the transport of noxious and potentially dangerous substances by sea insofar as the protection that is established in the first part of the Convention is insufficient or inapplicable. To fulfil this function, the HNS Fund compensates all persons that have suffered harm if this person has not been in a position to obtain integral and adequate reparation of the harm under Chapter II of the Convention. The coming into force of the mechanism of the compensation fund should ameliorate the situation of victims of pollution caused by the transport of dangerous products by completing the restrictive liability mechanism.

References (p. 902) Further reading E Du Pontavice, La pollution des mers par les hydrocarbures (Paris, LGDJ, 1968) E Du Pontavice & P Cordier, La mer et le droit—Droit de la mer: problèmes actuels (Paris, PUF, 1984) C Wu, La pollution du fait du transport maritime des hydrocarbures—Responsabilité et indemnisation des dommages (Paris, Pedone, 1994) A Bellayer-Roille, ‘Les réactions juridiques de la CE suite au naufrage du Prestige: étude d’une politique ambitieuse de sécurité maritime’ (2003) 21 Annuaire de droit maritime et océanique 133 M Jacobsson, ‘Le régime international d’indemnisation des victimes de marées noires en pleine evolution’ (2004) 56 DMF 793 AC Kiss, ‘L’affaire de l’Amoco Cadiz. Responsabilité pour une catastrophe écologique!’ (1985) 112 JDI 575 L Lucchini, ‘Le procès de l’Amoco Cadiz : présent et voies du future’ (1985) 31 AFDI 762 RM Malkassian, ‘Le fonds international d’indemnisation pour les dommages dus à la pollution par les hydrocarbures et le calcul des reparations’ (1981–1982) 15 RBDI 429 M Ndende, ‘Regard sur les procédures d’indemnisation des victimes de la catastrophe de l’Erika’ (2003) 21 Annuaire de droit maritime et océanique 89 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

A Vialard, ‘Faut-il réformer le régime d’indemnisation des dommages de pollution par hydrocarbures’ (2003) 55 DMF 435 OECD, Report of the Maritime Transport Committee on reform of the regulation of maritime transport: DAFFE/CLP 2000/31, 8 January 2001 OECD, Working document on the liability regime for maritime transport of goods, DSTI/DOT/MTC/2001/5 and 2001/8, 22 January 2001

Footnotes: 1 1807, 1st Empire Commercial Code, art 216, available at . 2 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 3 May 1996, 35 ILM 1406. 3 International Convention on Civil Liability for Bunker Oil Pollution Damage, 23 March 2001 (entry into force 21 November 2008), IMO Doc. LEG/CONF 12/19 of 27 March 2001, available at . 4 Convention on the Carriage of Passengers and their Luggage by Sea, Athens, 13 December 1974, 1463 UNTS 221; Draft Protocol available at . 5 International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969, 973 UNTS 331; International Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 970 UNTS 211. 6 International Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 970 UNTS 211, preamble. 7 The 1992 Protocol replaces the 1971 Convention among its signatories and has thus created two parallel liability schemes: see . 8 International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 23 March 2001, LEG/CONF 12/19 of 27 March 2001, available at . 9 Ibid, art 1(5). 10 See . 11 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), 9 May 1996, 35 ILM 1415 (not yet in force). 12 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 12 ILM 1319. 13 See . 14 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), 9 May 1996, 35 ILM 1415 (not yet in force), art 1(4). 15 Convention on the Carriage of Passengers and Their Luggage by Sea, 13 December 1974, 1463 UNTS 221. 16 Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, 1 November 2002, available at . 17 International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 973 UNTS 331. 18 Convention on Limitation of Liability for Maritime Claims, 19 November 1976, 1456 UNTS 221. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

19 The next review of the value of the SDR will take place in 2010. 20 International Convention on Civil Liability for Bunker Oil Pollution Damage, 23 March 2001 (entry into force 21 November 2008), IMO document(s): LEG/CONF 12/19 of 27 March 2001, available at . 21 Convention on Limitation of Liability for Maritime Claims, 19 November 1976, 1456 UNTS 221. 22 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS), 9 May 1996, 35 ILM 1415 (not yet in force). 23 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 11 ILM 284. 24 Ibid, art 1(2). 25 Art 4(2)(a) of the 2003 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. 26 International Convention on Civil Liability for Bunker Oil Pollution Damage, 23 March 2001 (entry into force 21 November 2008), IMO document(s): LEG/CONF 12/19 of 27 March 2001, available at , article 7(1).

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Part IV The Content of International Responsibility, Ch.59 Space Law Mathias Forteau From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Responsibility of international organizations — Reparations — Damages — Airspace

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(p. 903) Chapter 59 Space Law 1 The principles of responsibility 904 (a) Definition of the responsible agent 904 (b) Definition of the reparable damage 906 (i) Definition of space objects 906 (ii) Definition and extent of compensable damage 907 (iii) Definition of the reparation payable 909 2 The implementation of responsibility 909 (a) The claim for reparation 910 (b) The modalities for performing reparation 911 (c) The settlement of disputes relating to reparation 911 Further reading 913 The regime governing international responsibility for outer space is something of an exception amongst the various regimes on responsibility. It is the only system which expressly imposes an absolute obligation of reparation, both on States and on international organizations, in the absence of any wrongful conduct. The specificity of this regime is underlined by the fact that it is strongly oriented in favour of the victim.1 The regime is effectively organized so that the victim can most easily obtain reparation for the damage suffered. The legal regime governing outer space appears archetypal in this regard, and the ILC had reference to this regime in the course of its work on State responsibility.2 It is a very special regime nonetheless. In 1962 the UN General Assembly, through its Committee on the Peaceful Uses of Outer Space (COPUOS), began considering the development of a regime of responsibility applicable to outer space, in light of the gravity of the damage which may be caused by activity in this area.3 It became clear at this time that there was a need to reconcile the freedom to peacefully use outer space with the necessity for reparation of the damage which this usage could cause. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies of 27

References (p. 904) January 19674 is an example of this balance. This instrument combines a re-statement of the freedom to peacefully use outer space5 with the principle of responsibility for all damage which launched objects cause on the Earth, in air space or in outer space.6 The 1972 Convention on International Liability for Damage Caused by Space Objects7 would later clarify this provision. The latter convention (whose relevance was highlighted by the sharp increase in space activity) represents the core of the law in this area, around which more specific regimes have been subsequently constructed. The undoubted originality of the regime on responsibility in outer space must be put into perspective in three particular aspects. First, the definition of this regime remains somewhat vague.8 Second, this regime is problematic in terms of implementation. Finally, the regime is also somewhat inadequate in light of recent developments in the area of international environmental law. The legal regime on responsibility in outer space can thus be characterized by its originality, its equivocal and somewhat incomplete character, and its problematic implementation. These characteristics may be seen both in terms of the underlying principles (Section 1), and in terms of the implementation of this regime (Section 2).

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1 The principles of responsibility As compared to general international law, international space law is marked by a number of factors: its definition of the responsible party; its definition of the reparable damage; and the nature of reparation.

(a) Definition of the responsible agent The obligation to make reparation binds the ‘launching State’ of the space object which caused the damage.9 Both the 1967 Treaty10 and the 1972 Convention11 distinguish four categories of launching States: States who launch the space object; States who procure its launching; States from whose territory the object is launched; and States whose facilities are used to launch the object. Far from aiding precision, this mode of defining results in greater uncertainty, as each of the four categories must itself be defined. The ‘concept of the “launching State” ’ was added by the General Assembly to the agenda of the Legal Sub-Committee of the COPUOS. In 2002 the latter decided to create a working group charged with examining this question. The working group submitted its report the same year.12 In this report the working group examined problems relating to changes in the ownership of the space object, the status of activities undertaken by non-governmental

References (p. 905) organizations and the question whether the nationality of these organizations constituted a relevant criterion for attributing to a State responsibility for an act falling within the scope of the relevant conventions. The working group’s report emphasized that the various recommendations made did not represent authentic interpretations of the treaties in force. The General Assembly attached a similar caveat two years later when, as a result of the work of the Legal Sub-Committee of the COPUOS, it adopted Resolution 59/115 on ‘Application of the concept of the “launching State” ’.13 Such a caveat is of little significance, given that this Resolution is itself vague as regards the criteria for identifying the launching State. Clearly in practice there may be more than one type of launching State involved in respect of the same damage. All are jointly and severally responsible for damage caused by an object launched jointly. This extremely wide definition is open to criticism, as it places on equal footing States whose interests in the launch may not be identical. Still, this definition has the advantage that the victim can easily find a responsible State; all the more so in the case of a joint launch, as all the States involved are deemed jointly and severally responsible.14 This wide definition of launching State is reinforced by the expansive rules on attribution of conduct to a State. In contrast to the standard rules of international law, in the area of space law each State is in effect deemed responsible for the acts of all persons under its jurisdiction and control, including individuals.15 General Assembly Resolution 47/68 of 14 December 1992 on ‘Principles relevant to the Use of Nuclear Power Sources in Outer Space’ goes even further. This Resolution defines the launching State purely on the basis of the jurisdiction and control it exercises over the space object in question.16 States can nevertheless attenuate this responsibility by special agreement. Hence Chile, by way of a 1998 agreement with the UK, agreed to assume sole responsibility for damage caused by the launch of the Fasat-Bravo satellite and to compensate the UK for all claims made against the latter. This was because the satellite had been launched by a Russian space agency on behalf of Surrey Satellite Technology Limited, a UK company, which was acting as the representative of the Chilean Air Force.17 By providing for the responsibility of the launching States, space law radically distinguishes itself from other conventional regimes on responsibility in the absence of wrongful conduct, which impose responsibility on private actors rather than on States. In practice, however, the difference is less clear-cut than it may appear, as States generally oblige private bodies who are either

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launching an object themselves or using launched satellites to take out an insurance policy for civil responsibility in respect of third parties. However the insurance only covers a certain amount, with the relevant State committing to cover any additional amounts required.18

References (p. 906) The ‘launching State’ may be an international organization, in which case it is the organization that will be declared the responsible party. Pursuant to Article XXII(1) of the 1972 Convention, the applicability of provisions to international organizations is conditioned on their acceptance of the rights and obligations contained in that treaty and on the fact that a majority of their member States are parties to the 1967 Treaty and the 1972 Convention.19 The second of these conditions might seem somewhat odd, but it is justified by the fact that the international organization in question as well as the member States of that organization which are (also) parties to the 1972 Convention are deemed to be jointly and severally responsible in cases where the organization itself is responsible.20 The second condition thus provides the victim with a guarantee in case of default by the international organization. Article VI(1) of the 1972 Convention attenuates this regime of absolute responsibility somewhat, by allowing for the possibility of exoneration where the damage ‘resulted either wholly or partially from gross negligence or from an act or omission done with intent to cause damage’ on the part of the claimant. The reappearance of the concept of (‘gross’) negligence here is somewhat surprising, as it is absent from the general rules on responsibility for unlawful acts in other areas of international law.21 No exoneration shall be granted in cases where the damage has resulted from activities which are not in conformity with international law.22 The scenario envisaged here is quite noteworthy: the responsibility of a State is engaged by virtue of its unlawful act, yet that State is not permitted to exonerate itself of this responsibility for damage where another State has itself acted negligently or has participated in acts that led to said damage. The responsibility for damage exists in this case, therefore, because the responsibility for a wrongful act also exists.

(b) Definition of the reparable damage The launching State is deemed responsible as soon as the object which it launched causes damage. It is necessary to specify what exactly are (i) the objects, and (ii) the damage involved. (i) Definition of space objects Space law is somewhat oblique as regards the actual definition of a space object. The 1967 Treaty does not provide a definition. The 1972 Convention specifies that a space object includes: ‘component parts [of the space object] as well as its launch vehicle and parts thereof ’.23 This would cover all space objects, whatever their purpose. The lack of any further specification, however, leaves a range of questions unanswered. First, the distinction between space object and its constituent parts is less clear-cut than it might appear. The 1988 Agreement on the Permanently Manned Civil Space Station,24 for example, obliges

References (p. 907) each State party to register as space objects the constituent elements of the planned civil space station.25 Second, it is also open to question whether extra-terrestrial objects which are collected in space and sent back to earth should also be considered as space objects. From the perspective of the 1972 Convention, it appears that they are not.26 In addition, even if it appears accepted in the literature that the distinction between a space object and a simple aircraft, has to be based on functional criteria (that is, based on the direction of the object—towards outer space or not), the question remains as to the designation of those objects which are not launched from earth. Article From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

VII of the 1967 Treaty seems to exclude the possibility of such objects falling within the category of ‘space objects’, as it speaks of launching (space objects) ‘into’ outer space, rather than from outer space. Similarly, the concept of ‘launching’ is not defined in either of these two instruments. The 1972 Convention simply states that ‘launching’ includes also ‘attempted launching’.27 Even though this would appear to create a broader scope of application for the Convention, the concept of launching is itself not defined. Moreover, the designation of certain ‘objects’ is not addressed: what is the situation, for example, where damage is caused by the body of an astronaut, or by the activities of ‘space walkers’? The same questions may be raised in respect of objects constructed in outer space which do not appear to fall within the definition of ‘space object’. More broadly, the designation of space debris has been the subject of a considerable body of literature. While commentators agree that space debris should, as far as possible, be treated as component parts of the space object (not least because the primary goal of the 1972 Convention is to guarantee reparation for damage), the continuing debate indicates some uncertainty as to their actual designation.28 Even the Space Debris Mitigation Guidelines adopted by the COPUOS in 200729 and endorsed by the General Assembly in the same year30 does not define the ‘space debris’ covered by the Guidelines.31 The subject is still included on the agenda of the Scientific and Technical Sub-Committee of the COPUOS.32 (ii) Definition and extent of compensable damage Only damage caused on the surface of the earth or on an aircraft in flight is covered, rationae loci, by the 1972 Convention. If the damage is caused elsewhere than on the surface of the earth and to a space object or to persons or property on board such an

References (p. 908) object, the launching State will only be responsible if the damage is due to its fault.33 Once again, there are unanswered questions here. For example, does damage against a celestial body fall within the scope of the Convention? In fact such damage does not, rationae loci, come under either ‘objective’ responsibility, nor responsibility based on fault. The provisions of the 1972 Convention explicitly do not apply, rationae personae, to damage caused by the launching State against its own nationals, or indeed damage against foreign nationals who, as a result of an invitation by the launching State are participating in the operation of the space object or who are in the immediate vicinity of a planned launching or recovery area.34 Once again, uncertainties remain as to the application of this provision, which relies on criteria susceptible to divergent interpretation. Even more problematic is the definition of the ‘damage’ which, rationae materiae, can be the object of reparation. Article I(a) of the 1972 Convention provides that ‘damage’ here denotes ‘loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations’. Two categories of ‘damage’ remain problematic. First, the literature on this subject has questioned whether indirect damage is covered. Phrasing the issue in such terms is itself misleading. More simply, what is at issue is in fact a link of causality, which the implementing body will or will not consider to be established, depending on the case. The question of psychological damage is equally problematic. Bearing in mind the underlying objective of the 1972 Convention, academic literature tends to recommend that such damage should fall within this formulation, even though this inclusive approach is not explicitly provided for by the terms of the Convention itself. There is one final problematic issue, which arose in the Cosmos 954 case. Following the crash of a Soviet satellite on Canadian territory, Canada had to cover the costs of recovering the debris of the

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space engine, which was reputed to be radioactive. Canada demanded that the USSR reimburse these costs, pursuant to the 1972 Convention. And yet the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space provides that expenses incurred to recover and return are to be borne by the launching authority.35 It would thus appear that such expenses cannot be compensated on the basis of the 1972 Convention, as they fall within the scope of the 1968 Agreement. However in the situation where the launching authority does not request the return of the debris (as was the case with the Cosmos 954), and where the return of this debris is in fact essential to ensure restitution and reparation, these expenses would certainly fall within the scope of the 1972 Convention.36 Moreover, in Resolution 47/68, the General Assembly explicitly included, as elements of reparation, the costs of search, recovery and clean-up operations, including expenses for assistance received from third parties.37

References (p. 909) (iii) Definition of the reparation payable According to the 1972 Convention, reparation must be of a nature as to ‘restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred’.38 This corresponds to the standard definition of reparation in international law. Further, the Preamble to the 1972 Convention specifies that reparation to victims must be ‘prompt … full and equitable’.39 During the preparatory work for this Convention, States were divided regarding the law applicable to reparation: some argued that the law applicable should be that of the victim or territorial State, others argued for the law of the responsible party.40 A third approach was eventually adopted in the 1972 Convention itself, which provides that the reparation payable shall be determined ‘in accordance with international law and the principles of justice and equity’.41 During the preparatory work, States had also discussed whether it was necessary to limit the level of reparation to a specific sum, as is the case in certain conventions.42 This approach was eventually rejected, on the basis that the type of responsibility at issue would be that of States, who would have the means to pay, while the very objective of this Convention was to comprehensively compensate the victims. Bearing in mind the principle of lex specialis, however, it must be noted that certain conventions exclude the possibility of this kind of reparation between the parties. Article 16 of the 1988 Agreement on a Permanently Manned Civil Space Station thus anticipates a mutual waiving of all recourse to responsibility on behalf of partnering States and associated entities, notwithstanding that these States remain responsible, by virtue of the 1972 Convention, for any damage caused to third parties.43 It should be noted that the equivocal terms used in the 1967 Treaty and the 1972 Convention are the result of a deliberate approach by States. It would have been difficult to reach a compromise and conclude these treaties without the use of such imprecise terms.44 True, the UN General Assembly was, over time, able to adopt a resolution which clarified certain elements of the 1972 Convention.45 Nevertheless, this type of clarification (by way of ‘derivative law’) has remained the exception. Actual implementation of these texts should help to clarify their scope. However, despite the originality and flexibility of the system, the lack of litigation has thus far prevented any clarity from being reached in this area.

2 The implementation of responsibility The implementation of responsibility in this area is triggered by a claim for reparation which, together with the actual performance of the reparation and the settlement of disputes relating to the reparation, is marked by certain unusual characteristics.

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References

(p. 910) (a) The claim for reparation The claim for reparation must be presented through diplomatic channels, not later than one year following the date when the damage in question was sustained, when the responsible party was identified, or when the claimant State ‘could reasonably be expected to have learned of the facts through the exercise of due diligence’.46 If the injured party is an international organization, the claim for reparation must be made by one of its member States which is also party to the 1972 Convention itself.47 The 1972 Convention is somewhat innovative as regards the modalities for activating a claim for reparation. On the one hand, activating a claim is not conditioned on the prior exhaustion of local remedies.48 On the other hand, if the victims’ State of nationality does not make any claim for reparation, the State on whose territory the damage was sustained may do so. If neither of these two States present a claim, or notify their intention to do so, the State on whose territory the victims have permanent residence is entitled to present a claim.49 In this way the victims are effectively protected against the hazards of the classic regime of diplomatic protection, where the presentation of claims is entirely at the discretion of the State of nationality.50 In addition, the 1972 Convention retains the principle electa una via non datur recursus ad alteram: a State is prohibited from having recourse to the provisions of this Convention if that State has already had recourse to other channels. If a victim, whether State or natural or juridical person, can pursue a claim before domestic tribunals or before administrative agencies of the launching State, then as soon as that claim is ‘being pursued’ via domestic law, the victim cannot present a claim at the international level under the 1972 Convention.51 The scope of this provision, however, is not particularly clear. Does the State in question regain its right to invoke the 1972 Convention once recourse to domestic channels has failed, or is the choice made ab initio to be considered definitive? As the application of this Convention is not conditioned upon the exhaustion of local remedies, it would appear that the second of these interpretations prevails.52 It remains to be seen whether there are exceptions to this rule; for example in cases where the domestic procedure leads to a denial of justice, or was not carried out in an independent and impartial manner. The principle electa una via also applies in respect of different regimes in international law. If the State presents a claim for reparation under an international agreement other than the 1972 Convention, that State does not retain the right to present the same claim under the latter instrument.53 Here, once more, uncertainties remain. If the claim presented under an instrument or agreement other than the 1972 Convention fails, can the State then invoke the 1972 Convention? Again, it appears that the answer is negative, unless the

References (p. 911) failure of the initial claim was the result of non-impartiality or lack of independence in the procedure. Does this provision apply equally in respect of customary international law? A situation may be envisaged where a State simultaneously presents a claim under general international law on responsibility for unlawful conduct, or even for damage.54 In such a scenario, can the State involved also invoke the 1972 Convention? Article XI(2) of that instrument does not exclude this possibility. However the concept of double reparation is excluded in international law.55 If, then, there appears to be nothing explicit to prevent a State invoking simultaneously as applicable law, both customary international law and the 1972 Convention, the first reparation awarded to that State should prevent a second award, and bring to an end the corresponding (second) claim.

(b) The modalities for performing reparation In the case of multiple actors being responsible, the principle of joint liability for damage caused is 56

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clear.56 What remains to be clarified, then, are the modalities of reparation. Where the damage is caused by a space object which was launched by two or more States, all those States are jointly and severally responsible. The victim can therefore bring an action against one of these States to obtain full reparation.57 The 1972 Convention specifies that the State from whose territory or facility the space object was launched, ‘shall be regarded as a participant in a joint launching’.58 If the ‘launching State’ is an international organization, the member States of that organization who are also parties to the 1972 Convention, are jointly and severally responsible together with that organization.59 However in this case the claim for reparation must first be presented to the organization, and can only be presented to the member States subsequently, where the organization has failed to pay the sum agreed or determined to be due as compensation within a period of six months.60 As such, the responsibility of the member States here appears to be of a more subsidiary, rather than joint, character. The launching State which has compensated the damage is accorded the right to present a claim against the other participants in the launch. These States can conclude agreements among themselves regarding the apportioning of financial obligations in respect of which they are jointly and severally liable.61 Where the damage suffered by a third party is caused by the collision of two space objects, the burden of compensation must be apportioned between the two launching States, ‘in accordance with the extent to which they were at fault’. If this proves impossible to determine, the burden of compensation shall be apportioned equally between the two States.62

(c) The settlement of disputes relating to reparation The 1972 Convention provides for a quite specific system for dispute settlement which, to date, has not been utilized. In the event that diplomatic negotiations have not brought about settlement within one year, then at the request of either party the parties may create a Claims Commission.63 This Commission is to be composed of three members: one chosen by each party independently and the third member, the Chair of the Commission,

References (p. 912) to be chosen by both parties jointly. If there is no agreement on the choice of the Chair within four months, either party may request the UN Secretary-General to appoint one.64 Also, if one of the parties does not make its own appointment within the stipulated period, the Chair shall, at the request of the other party, constitute a single-member Commission.65 The Commission will determine its own procedures and, with the exception of single-member Commissions, its decisions shall be adopted by majority vote.66 In cases involving more than one claimant and respondent State, a single member of the Commission is to be jointly nominated by the States involved.67 The expenses incurred by the Claims Commission are to be borne equally by the parties, unless otherwise decided by the Commission itself.68 The Claims Commission is charged with deciding the merits of the claim for reparation and determining the amount of compensation payable, if any.69 The decision of the Commission, which must be rendered within one year unless an extension is deemed necessary by the Commission, is to be made public.70 These characteristics all give the impression that the procedure for settling disputes is subject to compulsory jurisdiction. However there is an important caveat here: namely, that the decision of the Claims Commission is only binding on the parties if the parties have so agreed in advance. The decision has in principle merely a recommendatory value, which the parties are to consider in good faith.71 In order to address this gap the General Assembly, when adopting the Resolution to approve the 1972 Convention, inserted a paragraph which recommends that future States parties to the instrument make a declaration that they recognize as binding the decisions of the 72

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Commission in relation to any other State accepting the same obligation.72 Even though many space objects have already fallen back to earth in an uncontrolled manner or collide in outer space, and the risk of damage sustained as a result remains real,73 to date no contentious claims for reparation for damages caused by such objects have in fact been formally made. This area of law is marked by a total absence of litigation, or, at least, of public litigation.74 Some rely on the Cosmos 954 affair to illustrate the existence of some (albeit non-contentious) State practice. It is true that in this incident, Canada based its claim for reparation on the 1972 Convention. However Canada also invoked the existence of a ‘standard of absolute liability for space activities’, which constituted ‘a general principle of international law’.75 Moreover, Canada was careful to recall that the intrusion of the Soviet satellite into Canadian airspace constituted ‘a violation of Canada’s sovereignty’,76 seemingly relying here on the general law of responsibility for internationally wrongful acts. Finally, the amicable settlement of the dispute which followed did not

References (p. 913) explicitly refer to the 1972 Convention. The Protocol on Settlement of Canada’s Claim, concluded on 2 April 1981 did not specify the legal basis for the reparation which the USSR agreed to pay to Canada.77 In sum, an analysis of the regime governing international responsibility in space law leads to a mixed conclusion. The regime is certainly original, and advantageous to victims, yet it remains vague in terms of definitions employed and has not yet been applied in practice. Of greater concern is that this regime appears increasingly ill-adjusted to the constraints of contemporary international law. In the first place, activities in outer space are increasingly carried out by non-State actors, increasingly privatized. This requires a redefinition of the applicable rules so as to account for this new economic reality. In the second place, the law on responsibility in outer space is not consistent with the expectations of positive international law on the environment. Despite its ‘audacious’ traits, the regime governing responsibility in outer space appears ‘all things considered, very disappointing’.78 If the regime on responsibility in outer space has served as a model to be followed, it appears that this regime is itself in the process of being overtaken by general international law. In fact, the regime on responsibility in outer space is founded on a somewhat ‘inter-State’ approach, which is not consistent with the extraterritorial nature of the damage at issue. The mechanisms envisaged in this regime can not be applied to activities in spaces which do not fall within the jurisdiction of any State, whether these are situated on Earth or in outer space. The system functions on the basis of ‘every man for himself’,79 with each State able to claim reparation only for damage which is caused to its own property or to its nationals. Moreover, only immediate damage is taken into account; nothing is envisaged in respect of ‘largescale damage’ or ‘lasting effects’ such as ‘pollution … contamination, [or] environmental degradation’.80 Finally, no real preventative measures to avoid the occurrence of the damage at issue are envisaged by the regime.81 Therefore, if space law is to serve as a model for the codification and the progressive development of the law on international responsibility in the absence of a wrongful act, it also appears necessary to reflect further on the nature of this regime at present and, in particular, to update it. Further reading M Augusto Ferrer, ‘Responsabilidad en derecho espacial de las organizaciones internacionales’, in Estudios de derecho internacional publico y privado Homenaje al Profesor Luis Sela Sampil (Secretariado de Publicaciones—Universidad de Oviedo, 1970), Vol 1, 333 HA Baker, Space Debris: Legal and Policy Implications (Dordrecht, Martinus Nijhoff, 1989) G Catalano Sgrosso, La responsabilità degli Stati per le attività svolte nello spazio extraatmosferico (Padova, CEDAM, 1990)

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References (p. 914) B Cheng, ‘Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities”, and the “Appropriate State” ’ (1998) 24 J Space L 7 CQ Christol, ‘International Liability for Damage Caused by Space Objects’ (1980) 76 AJIL 346 L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, in La réparation des dommages catastrophiques Les risques technologiques majeurs en droit international et en droit communautaire (Brussels, Bruylant, 1990), 263 S Courteix, ‘Questions d’actualité en matière de droit de l’espace’ (1978) 24 AFDI 890 O Deleau, ‘La convention sur la responsabilité internationale pour les dommages causés par des objets spatiaux’ (1971) 17 AFDI 876 O Deleau, ‘La responsabilité pour les dommages causés par les objets lancés dans l’espace extra-atmosphérique’ (1968) 14 AFDI 747 P-M Dupuy, La responsabilité internationale des États pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 44 J Dutheil de la Rochere (ed), Droit de l’espace. Aspects récents (Paris, Pedone, 1988) WF Foster, ‘The Convention on International Liability for Damage Caused by Space Objects’ (1972) 10 Can YIL 137 Z Galicki, ‘Liability of International Organizations for Space Activities’ (1972–1973) 5 Polish YIL 199 S Gorove, ‘Toward a Clarification of the Term “Space Object”—An International Legal and Policy Imperative?’ (1993) 19 J Space L 11 W De Graaf & GC Reijnen, The Pollution of the Outer Space, in particular of the Geostationary Orbit (Dordrecht, MNP, 1989) P Haanappel, ‘Some Observations on the Crash of the Cosmos 954’ (1978) 4 J Space L 147 BA Hurwitz, State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects (Dordrecht, Martinus Nijhoff, 1992) N Jasentuliyana, ‘Space Debris and International Law’ (1998) 24 J Space L 139 G Lafferranderie, ‘Les accords relatifs à la station spatiale internationale. Analyse et commentaire’ (1989) 95 RGDIP 317 EG Lee & DW Sproule, ‘Liability for Damage Caused by Space Debris: The Cosmos 954 Claim’ (1988) 26 Can YIL 273 P-M Martin, ‘Les définitions absentes du droit de l’espace’ (1992) 46 Rev Fr Droit Aérien 105 M Mateesco-Matte, ‘Cosmos 954: pour une “zone orbitale de sécurité” ’ (1978) 3 Annales de droit aérien et spatial 483 J-P Pancracio, Droit international des espaces (Paris, Armand Colin, 1997) M Pedrazzi, Danni causati da attività spaziali e responsibilità internazionale (Milan Giuffré, 1996) L Ravillon, Droit des activités spatiales (Paris, Litec, 2004) L Ravillon, Les télécommunications par satellites. Aspects juridiques (Paris, litec-CREDIMI, 1997) R Rousseau, Rapport technique sur les débris spatiaux, texte du rapport adopté par le Sous-comité scientifique et technique du Comité des utilisations pacifiques de l’espace extra-atmosphérique (New York, United Nations, 1999) R Rousseau, ‘The ILA Finalizes its International Instrument on Space Debris in Buenos Aires, August 1994’ (1995) 21 J Space L 47 SFDI, Le droit de l’espace et la privatisation des activités spatiales (Paris, Pedone, 2003) N Taishoff, State Responsibility and the Direct Broadcast Satellite (London, Frances Pinter, 1987)

Footnotes:

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1 See L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, in La réparation des dommages catastrophiques. Les risques technologiques majeurs en droit international et en droit communautaire (Brussels Bruylant, 1990), 262, 265, for whom the regime on responsibility in outer space is ‘more generously “victim-oriented” than is the case elsewhere’. 2 See BA Hurwitz, State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects (Dordrecht, Martinus Nijhoff, 2002), 147ff, 207ff. 3 See, in particular, GA Res 1962 (XVIII), 13 December 1963, which foreshadowed the development of positive law in this area. 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27 January 1967, 610 UNTS 205. 5 Ibid, art I. 6 Ibid, art VII. 7 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187. 8 See P-M Martin, ‘Les définitions absentes du droit de l’espace’ (1992) 46 Rev Fr Droit Aérien 105. 9 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art II. 10 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27 January 1967, 610 UNTS 205, art VII. 11 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art I(c). 12 Report attached as Annex IV to the Report of the Legal Sub-Committee on the work of its 41st session, (A/AC.105/787), 19 April 2002. 13 GA Res 59/115, 10 December 2004, Preamble, para 4. 14 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art V. 15 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, 27 January 1967, 610 UNTS 205, art VI. See also B Cheng, ‘Art VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities”, and the “Appropriate State” (1998) 24 J Space L 7, 18ff. 16 GA Res 47/68, 14 December 1992, Principle 2, para 1. 17 See the Exchange of Notes between the United Kingdom and Chile (15 and 30 June 1998) Concerning Liability for Damage during the launch phase of the Fasat-Bravo satellite, available at . 18 See J Chappez, ‘Les systèmes de transport’, in J Dutheil de la Rochere (ed), Droit de l’espace (Paris, Pedone, 1988), 128, 136ff. On the interaction between the responsibility of the State and insurance of private actors, see L Ravillon, Les télécommunications par satellites. Aspects juridiques (Paris, Litec-CREDIMI, 1997), 435ff and L Ravillon, Droit des activités spatiales (Paris, Litec, 2004), 345–410. 19 See S Gorove, ‘Toward a Clarification of the Term “Space Object”—An International Legal and Policy Imperative?’ (1993) 19 J Space L 11, 23–24. 20 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art XXII (3).

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21 See B Stern, Chapter 17. 22 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art VI (2). 23 Ibid, art I(d). 24 Agreement Among the Government of the United States of America, Government of Member States of the European Space Agency, the Government of Japan, and the Government of Canada on Cooperation in the Detailed Design, Development, Operation and Utilization of the Permanently Manned Civil Space Station, 26 September 1988 (entry into force 30 January 1992). 25 Ibid, art 5(1). 26 See S Gorove, ‘Toward a Clarification of the Term “Space Object”—An International Legal and Policy Imperative?’ (1993) 19 J Space L 11, 23–24. 27 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art 1(b). 28 See the International Law Association’s 1994 project on defining ‘space debris’, cited in J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 294–295. 29 Text in the Report of the Committee on the Peaceful Uses of Outer Space, A/62/20 (2007), Annex. 30 GA Res 62/217, 21 December 2007, ‘International co-operation in the peaceful uses of outer space’, para 26. In GA Res 63/90, 5 December 2008, the General Assembly invited States to ‘implement’ these Guidelines (para 26). 31 The same is true as regards the 2008 European Code of Conduct which deals with space debris without defining them (see European Council, FSCP 1697, 17 December 2008, Annex II). 32 See GA Res 63/90, 5 December 2008, para 10(a)(v). 33 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, arts III, IV(1)(b). 34 Ibid, art VII. 35 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space, GA Res 2345 (XXII), 22 April 1968, art 5(5). 36 EG Lee and DW Sproule, ‘Liability for Damage Caused by Space Debris: The Cosmos 954 Claim’ (1988) 26 Can YIL 273, 278. 37 GA Res 47/68, 14 December 1992, ‘Principles Relevant to the Use of Nuclear Power Sources in Outer Space’, Principle 9, para 3. 38 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art XII. 39 Ibid, preamble (fourth paragraph). 40 See O Deleau, ‘La convention sur la responsabilité internationale pour les dommages causés par des objets spatiaux’ (1971) 16 AFDI 87, 882. 41 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art XII. 42 Eg in the field of nuclear energy: see M Montjoie, Chapter 60. 43 Agreement Among the Government of the United States of America, Government of Member States of the European Space Agency, the Government of Japan, and the Government of Canada on Cooperation in the Detailed Design, Development, Operation and Utilization of the Permanently Manned Civil Space Station, 26 September 1988 (entry into force 30 January 1992), art 17(1). 44 CQ Christol, ‘International Liability for Damage Caused by Space Objects’ (1980) 76 AJIL 346,

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369. 45 See GA Res 47/68, 14 December 1992, Principle 9, para 1, which equates objects having a source of nuclear energy on board, with space objects. 46 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, arts IX, X. 47 Ibid, art XXII(4). 48 Ibid, art XI(1). 49 Ibid, art VIII. 50 See Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12; Barcelona Traction Light and Power Company (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 44 (paras 78–79). See M Benlolo Carabot and M Ubeda-Saillard, Chapter 74. 51 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art XI (2). 52 Cf L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, in La réparation des dommages catastrophiques. Les risques technologiques majeurs en droit international et en droit communautaire (Brussels, Bruylant, 1990), 263, 284. 53 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, art XI (2). 54 This was the approach taken by Canada in the Cosmos 954 incident (1979) ILM 899, 905–907. 55 See Factory at Chorzów, Merits, 1925, PCIJ Reports, Series A, No 17, p 4, 48, 59. 56 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, arts IV(1)(a), V(1), and XXII(3). 57 Ibid, art V(1). 58 Ibid, art V(3). 59 Ibid, art XXII(3). 60 Ibid, art XXII(3)(a), (b). 61 Ibid, art V(2). 62 Ibid, art IV(2). 63 Ibid, art XIV. 64 Ibid, art XV. 65 Ibid, art XVI(1). 66 Ibid, art XVI(3), (5). 67 Ibid, art XVII. 68 Ibid, art XX. 69 Ibid, art XVIII. 70 Ibid, art XIX(3), (4). 71 Ibid, art XIX(2). 72 GA Res 2777 (XXVI), 29 November 1971 on the Convention on International Liability for Damage caused by Space Objects, paragraph 3. Only ten States made such a declaration upon ratification (Austria, Canada, Denmark, Finland, Greece, Ireland, the Netherlands, New Zealand, Norway, and Sweden—see ). 73 See J-P Pancracio, Droit international des espaces (Armand Colin, Paris, 1997), 246–247; see also the discovery by Saudi Arabia of space debris from an American space object, which was

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intended to land in Brazil, on its territory (see the Note Verbale addressed to the UN Secretary General by Saudi Arabia—of 3 April 2001, A/AC.105/762); the decision taken by the United States in 2008 to destroy a satellite before it fell back to earth (see (2008) 102 AJIL 646) or the collision in February 2009 between a US satellite and a Russian one (see (2009) 114 RGDIP 401–403). 74 See P-M Martin, ‘Les définitions absentes du droit de l’espace’ (1992) 46 Rev Fr Droit Aérien 105, 109. 75 See (1979) 18 ILM 907 (para 22). 76 Ibid, 907 (para 21). 77 See (1981) 21 ILM 689. 78 See L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, in La réparation des dommages catastrophiques. Les risques technologiques majeurs en droit international et en droit communautaire (Brussels, Bruylant, 1990), 263, 288ff. 79 Ibid, 291. 80 Ibid, 290; see also W De Graaf & GC Reijnen, The Pollution of the Outer Space, in particular of the Geostationary Orbit (Dordrecht, MNP, 1989); also J Bourely, ‘Le Droit de l’environment spatial’, in J Dutheil De La Rochere (ed), Droit de l’espace. Aspects récents (Paris, Pedone, 1988), 299– 314. 81 L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités spatiales’, in La réparation des dommages catastrophiques. Les risques technologiques majeurs en droit international et en droit communautaire (Brussels, Bruylant, 1990), 263, 288–290.

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Part IV The Content of International Responsibility, Ch.60 Nuclear Energy Michel Montjoie From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Vienna Convention on the Law of Treaties — Organization for Economic Cooperation and Development (OECD)

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(p. 915) Chapter 60 Nuclear Energy 1 The general framework of ‘third party nuclear liability’ 916 (a) The principles of third party nuclear liability 916 (b) The main existing agreements and their evolution 917 (i) The Paris/Brussels system 917 (ii) The Vienna system 918 (iii) Joint Protocol on the application of the Vienna Convention and the Paris Convention 918 (iv) The future of the Conventions 919 (c) Two particular Conventions 920 (i) The Convention on the Liability of Operators of Nuclear Ships 920 (ii) The Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material 921 2 The fundamental provisions of the conventional third party nuclear liability 921 (a) Field of application 922 (i) Field of geographical application 922 (ii) Field of technical application 922 (b) Nuclear damage 923 (c) Nature and canalization of the liability 923 (d) The liability limit 924 (i) The Paris Convention and its revised version 924 (ii) The Vienna Convention and the Amending Protocol 924 (iii) The Supplementary Convention, its revised version, and the CSC 925 (e) Liability coverage 925 (f) The priority given to certain victims 926 (g) Prescription for compensation requests 926 (h) Jurisdiction 927 (i) Settlement of disputes 927 Further reading 928 Given the potentially dangerous character of the peaceful uses of nuclear energy, even peaceful uses are today regarded as perilous activities. The possible trans-national effects of a nuclear accident, due to spreading of ‘radioactive cloud’, caused the international community to deal swiftly with the question of international liability in case of nuclear damage. International law does not provide any general rules concerning the harmful consequences of nonprohibited activities.1 The existing domestic provisions on third party (p. 916) liability were considered inadequate. Innovative solutions were finally reached by specific international conventions. Since the 1960s, several documents containing common principles have been elaborated at the

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international level. They represent the general framework of international liability in this field (1). The fundamental provisions of these different texts have significantly evolved over the years, becoming more similar to each other but still demonstrating major differences which are detrimental to the coherence of the system (2).

1 The general framework of ‘third party nuclear liability’ The first answer to the specific case of nuclear accidents is to be found in the US domestic legislation, in the so-called 1957 Price Anderson amendment to the 1954 Atomic Energy Act. This text is considered to be the foundation of third party nuclear liability. Parallel to this development, the desire for harmonization led to an international debate in many countries engaged in nuclear activities. From 1956, the subcommittee for insurance of the Organisation for European Economic Cooperation (OEEC) studied the normative and insurance problems caused by nuclear risks. This work led to a draft convention in October 1958, and negotiations continued under the auspices of the European Nuclear Energy Agency (ENEA) (the Nuclear Energy Agency within the OECD from 1972). These negotiations led to the adoption of the Paris Convention on Third Party Liability in the Field of Nuclear Energy in 1960 (‘Paris Convention’).2 This convention concerns third party liability arising in a case of ‘nuclear accident’ on a fixed ‘nuclear installation’, or caused by ‘nuclear substances’ during their carriage from or to a fixed installation.

(a) The principles of third party nuclear liability In order to understand the principles of third party liability in case of nuclear accident, it is useful to recall the aims of the Paris Convention as stated in the Preamble. It aims to: insure an adequate and equitable reparation of the damages caused to the victims of nuclear accidents, taking the measures necessary to avoid impeding the development of the production and use of nuclear energy for peaceful ends. It also affirms the ‘necessity to unify the fundamental rules applicable to the liability arising from this kind of damages in the different countries, leaving to the single State the chance to take the appropriate supplementary measures’. The fundamental principles which were established for the first time by the Paris Convention, and which are found in subsequent international agreements and most of the domestic legislation in this field, are the following: • ‘exclusive’ liablity of the operator; • ‘objective’ liability of the operator; • compensation limited to a precise amount; • limited duration of the liability; • financial guarantee of the operator corresponding to its liability; and • non-concurrent jurisdiction.

References (p. 917) Supplementary and/or subsidiary State compensation must be added to these initial principles. Although not present in the 1960 Paris Convention, this principle soon appeared in a supplementary text.

(b) The main existing agreements and their evolution The Paris Convention was established under the auspices of a regional organization: the ENEA of

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the OECD. One of its major drawbacks is the fact that it did not aim to become a universal instrument. (Nevertheless, with the prior authorization of the contracting parties, a new State can become a Party to the Convention, even if it is not a member of the Organisation.) Moreover, the Vienna Convention on Civil Liability for Nuclear Damage (‘Vienna Convention’) was adopted under the auspices of the International Atomic Energy Agency (IAEA) in 1963.3 This instrument aims to set up an international system based on the same principles as the Paris Convention. However, the two conventions differ in some significant ways and have evolved in different directions. (i) The Paris/Brussels system The Paris Convention was adopted on 29 July 1960.4 It was then amended by a Protocol on 28 January 19645 to bring it closer to the 1963 Vienna Convention.6 A further Protocol of 16 November 19827 substituted the monetary unit of the European Monetary Agreement with the special drawing right (SDR) of the International Monetary Fund. The 1982 version has been in force since 7 October 1988. A complete review of this Convention began in 1998, in order to take into account all recent developments, and particularly those carried out under the auspices of the IAEA. This process lead to the signature on 12 February 2004 of the Protocol to amend the Convention on Third Party Liability in the field of Nuclear Energy, as at end 2009, not yet in force, as amended (‘the Revised Paris Convention’).8 Together with the Paris Convention it is necessary to mention the Convention of 31 January 1963 Supplementary to the Paris Convention (‘the Supplementary Convention’): 9 a State cannot become a Party to this Convention without being a signatory to the Paris Convention. It provides additional compensation for the victims of a nuclear accident, composed of public funds supplied partly by the State owning the installation and partly by contributions of the other contracting Parties. This last Convention was amended by the Protocols of 28 January 1964 and 16 November 1982, following the same trends as the amendments to the Paris Convention. Moreover, it was then completely revised, together with the Paris Convention, leading to the adoption on 12 February 2004 of the Protocol to amend the Convention of 31 January 1963

References (p. 918) Supplementary to the Paris Convention, not yet in force as at end 2009 (‘the revised Supplementary Convention’).10 (ii) The Vienna system The Vienna Convention was adopted under the auspices of the IAEA on 21 May 1963 and entered into force on 12 November 1977.11 The Chernobyl accident in 1986 underlined the insufficiencies of this ‘old’ Convention. The necessity of a revised version was then affirmed in a resolution of the IAEA General Conference on 23 September 1988.12 In 1990 discussions began within a Permanent Committee set up by the Governor’s Council to ‘study the international third party liability and the international liability of States’. Although State liability was not taken into account, the discussions led to a Protocol to amend the Vienna Convention on civil liability for nuclear damage (‘the Amending Protocol’) adopted in Vienna on 12 September 1997, which has been in force since 4 October 2003.13 This Protocol does not replace the Convention, which remains open to ratification (the Russian Federation in 2005 and Nigeria in 2007 ratified this Convention, but not the Amending Protocol). At first the only purpose of the Amending Protocol was to amend certain provisions of the Vienna Convention. Nevertheless, the establishment of a supplementary convention concerning extra funds supplied by States still had to be discussed, given the fact that the 1963 Convention did not provide for such a compensation system. Because of its constitutional arrangements, the United States was not able to join the Vienna Convention, even in its revised form, but wanted to participate in an international agreement. This encouraged the development of an ‘autonomous’ text concerning States’ supplementary compensation. The Convention on Supplementary Compensation for Nuclear Damage was adopted in Vienna on 29 September 1997 (‘Convention on 14

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Supplementary Compensation’ or ‘CSC’), which was not yet in force as at late 2009.14 An Annex to the Convention (article II.3) specifies the engagements concerning the third party liability of the exploiting person by States which are not signatories of either the Paris or the Vienna Convention. (iii) Joint Protocol on the application of the Vienna Convention and the Paris Convention The Paris Convention (in the 1960 version) and the Vienna Convention, although founded on common principles, are different in certain respects. The problem of the relation between the two instruments has arisen. The ENEA and the IAEA have both worked to find a solution. A first harmonization was pursued by the 1964 Protocol to the Paris Convention, but a certain number of difficulties were still subsisting. Among the different possible solutions,15 the one adopted was the setting of a link between the two

References (p. 919) conventions in the shape of a joint protocol. The Joint Protocol on the Application of the Vienna Convention and the Paris Convention was adopted on 21 September 1988 and entered into force on 27 April 1992 (‘the Joint Protocol’).16 The main purpose of this instrument was to recognize the right of victims of nuclear damage to compensation in a State party to one of the two Conventions and to avoid the difficulties resulting from the simultaneous application of the two Conventions. The Joint Protocol affects the original version of the two Conventions as well as all further revised texts.17 (iv) The future of the Conventions The definitive renunciation of the development of a single text has led to an indefinite process of amendment of both. This ‘emulation’ could present some advantages but it mainly has drawbacks. The adoption, in the Revised Paris Convention, of certain provisions of the Amending Protocol led to a further harmonization of the two systems but they are still profoundly dissimilar. A new trend which must be mentioned is the progressive removal of the liability limit which represented a fundamental principle of the third party nuclear liability system. The CSC being an ‘autonomous’ instrument, the coexistence of the Paris/Brussels and the Vienna systems represents an issue creating a true competition for States which are not parties to either of the two instruments. The ‘Brussels’ system adopted a new provision in the revised Supplementary Convention, providing for a better cooperation between the two systems in order to solve the difficult issue of the use of public funds in the framework of one or the other Convention for States which want to join both of them. Article 14(d) allows signatory States to the revised Supplementary Convention to use international funds ‘to satisfy the obligation that could be incumbent upon them by virtue of another international agreement [referring in particular to the CSC]’. The desire for coherence makes this provision applicable only if all the contracting parties equally join the other international agreement. The development of a convention specifically dealing with international liability of States for nuclear damage was also considered, particularly after the Chernobyl accident in 1986. The discussion on this topic is open: Pelzer18 argues against the effectiveness of such an instrument, while de la Fayette19 is in favour of its development. The IAEA has been working on this topic, and several States have contributed to the discussions.20 The IAEA report argues that the development of a new instrument concerning State liability could be a useful supplement to the existing system’s lacunas and drawbacks.21 However, this approach did not produce any result and subsequent discussions have only focused on the amelioration of the Paris/Brussels and Vienna system. Another suggestion was to design a ‘universal convention concerning all the international State engagements on nuclear security and the compensation of the translational damages encountered’.22 This idea did not receive general agreement amongst States.

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References (p. 920) Nevertheless, even if we cannot claim that it represents a step toward a universal instrument, it is worth mentioning that the CSC is not exactly an autonomous instrument for States which have a nuclear installation. Article XVIII.1 specifies that such a State may become a party of the CSC only if it is also a signatory of the Convention on Nuclear Safety signed at Vienna on 20 September 1994.23 The expression ‘nuclear installation’ is to be interpreted in accordance with the definition given in the Convention on Nuclear Safety.

(c) Two particular Conventions Two remarks can be made in respect of the field of application of the Paris and Vienna Conventions: On the one hand, these conventions explicitly exclude the nuclear installations being part of a carriage. However, nuclear propulsion ships were built soon after World War 2. The maritime law provisions in the field of liability do not apply to these kind of ships, given the extent of the risk they carry.24 A specific instrument became necessary. The Convention on the Liability of Operators of Nuclear Ships was adopted on 25 May 1962 in the framework of a diplomatic conference on maritime law (‘the Brussels Convention of 1962’).25 On the other hand, while it is true that these conventions also concern damage incurring during carriage of nuclear material, the superimposition of transport law and nuclear law creates a conflict which becomes particularly critical in the context of maritime carriage. Some carriers refuse to take charge of certain goods for carriage. This led to the signature of the Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, adopted at Brussels on 17 December 1971 (‘the Brussels Convention of 1971’)26 under the auspices of the ENEA, the IAEA, and the Inter-Governmental Maritime Consultative Organization (IMCO).27 Another use of nuclear energy is to be found in certain satellites. Damage in case of space objects accidents, including nuclear damage, is dealt with in the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972.28 (i) The Convention on the Liability of Operators of Nuclear Ships On the basis of a draft elaborated by the International Maritime Committee (CMI) and another one proposed by the IAEA, a diplomatic conference was convened in 1962 and led to the signature of the Convention on the Liability of Operators of Nuclear Ships on 25 May 1962,29 the fundamental principles of which are mainly inspired by the Paris Convention.30

References (p. 921) One of the main difficulties in the negotiation process was the inclusion of warships in the field of application of the Convention. At that time, only two nuclear propulsion merchant ships existed: the Russian ‘Lenin’ and the American ‘Savannah’. However, there were then at least 45 nuclear propulsion warships in existence. It seemed strange to design a convention for two ships, excluding 45 ships from its field of application. Notwithstanding fierce American and Russian opposition (acting with the support of their satellite countries taking part in the negotiation), their inclusion was finally decided with a vote of 24 in favour, 12 against, and 12 abstentions. As a consequence, this Convention has never come into force, since it would not come into force if even one State with a nuclear ship failed to ratify it. This situation did not, however, preclude adopting the solutions in the Convention, since the States having nuclear merchant ships (the US for the ‘Savannah’, Germany for the ‘Otto-Hahn’, and soon after Japan for the ‘Mutsu’) made bilateral agreements with States where ports of call were planned, reproducing the provisions of the Convention.31 However, these agreements had short-term utility, given the rapid movement of

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these ships. (ii) The Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material The liability system of the Paris and Vienna Conventions is applicable to damage caused during carriage. However, these Conventions reserved the application of the international agreement to the carriage field.32 They provide for a cumulative application of the two systems, allowing the victim to choose between an action against the operator of the nuclear installation where the cargo comes from or is directed to, or against the liable person by virtue of international transport law. Some difficulties have arisen in the maritime carriage domain. The ENEA attempted to find a solution to overcome these difficulties. The simplest solution seemed to be the adoption of a new convention setting aside the liability of the carrier and other persons liable by virtue of maritime law in case of nuclear damage. The liability was restored to the operator of the nuclear installation, who was responsible by virtue of the Paris and Vienna Conventions. A first project was drafted in 1970, and in 1971 the IMCO decided to convene an international conference, leading to the signature of a Convention based on these principles on 17 December 1971, which came into force on 15 July 1975.33

2 The fundamental provisions of the conventional third party nuclear liability The following analysis of the fundamental provisions incorporates a comparison between the most recent versions of the Paris Convention and the Brussels Supplementary Convention on the one hand, and the provisions contained in the Vienna Convention and the CSC

References (p. 922) on the other hand. We will not focus on the specific reforms in the most recent versions, unless they are particularly relevant to the analysis. The following provisions are analysed in their most important aspects: field of application; nuclear damage; nature and canalization of liability; liability limits; liability coverage; priority given to certain victims; prescription deadline; competent jurisdiction; and settlement of disputes.

(a) Field of application (i) Field of geographical application A difference in wording exists between the Paris and Brussels Conventions on one hand and the Vienna Convention on the other hand. The Paris Convention34 and the Supplementary Convention35 grant benefits only to the contracting parties. The Vienna Convention does not specify this, and given rules on treaty interpretation, it would also only benefit contracting parties. However, the Experts of the Permanent Committee tend to consider the Vienna Convention as applicable even if the damage occurs on the territory of a non-signatory State. The Amending Protocol added an article I.A., specifying that ‘the Convention is applicable to nuclear damage, regardless of where they occur’, with some exceptions. The Revised Paris Convention adopted a similar provision, but with a different formulation, listing the cases in which the Convention is applicable.36 The CSC adopted a principle analogous to what is provided in the Supplementary Convention: following the traditional rule concerning the deployment of public funds, it reserves the solidarity benefits only to State parties.37 The revised Supplementary Convention did not substantially modify the provisions of the 1963 Convention and adopted identical provisions to those of the CSC.38

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(ii) Field of technical application Two aspects have to be addressed: the identification of the activities and installations covered by these two Conventions; and the introduction in their field of application of installations which are not third party ones. As far as the first element is concerned, the two Conventions give definitions of ‘nuclear installation’39 which are not really explicit, especially for accidents relating to the definitive disposal installations of nuclear waste. The Amending Protocol did not really change the definition. However, the Council of Governors of the IAEA completed the definition, giving it more flexibility, but less clarity. The Revised Paris Convention did not substantially modify its technical field of application but clarified the interpretation of the

References (p. 923) definition: the old installations undergoing a declassification process and the definitive disposal installations of nuclear waste are now explicitly within the field of application of the Convention. As far as the second point is concerned, the different Conventions adopted different positions. None of the provisions of the Paris Convention excludes the nuclear installation for non-pacific purposes, while the Supplementary Convention explicitly leaves them out.40 The revised version of the two Conventions did not introduce any substantial changes. The Vienna Convention is no more explicit, but in the Preamble it refers to the ‘financial protection of the damage caused by the pacific use of nuclear energy’ and seems to leave aside the military installation from its field of application. With an additional article I.B., the Amending Protocol is explicit in stipulating that ‘the Convention is not applicable to nuclear installations used for non pacific purposes’. The CSC adopted the same provision in its article II.2.

(b) Nuclear damage The definition of ‘nuclear damage’ is key to understanding the types of damage involved. The Paris and Vienna Conventions do not give a detailed definition and simply refer to the damage caused to people and goods.41 The Amending Protocol completes this list adding indirect damage and damage to the environment. This involves: • economic losses involved in the damage to people and goods; • the cost of effective restoration for a significant environment degradation; • economic loss associated with environmental damage; • the cost of preventive measures and the damage created by such measures; and • any other immaterial damage, apart from damage caused by the environment degradation. This extension of the definition of nuclear damage, representing major progress, encountered fervent opposition from a certain number of States. It was obtained thanks to certain concessions in the definitions of ‘restoration measures’, ‘preventive measures’, ‘reasonable measures’, referring to the law of the concerned State and the competent tribunal. The CSC adopted the same definition. The Revised Paris Convention contains an extension almost identical to the Amending Protocol, even if the last element is left out.

(c) Nature and canalization of the liability The two systems are distinguished by the objective (the victim only has to prove the causal link between the nuclear accident and the subsequent damage) and exclusive liability (the canalization of the liability on the nuclear installation operator). Those elements are shared by the principal conventions on international liability for dangerous activities. These two elements appear in article

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3 of the Paris Convention and in article IV.1 of the Vienna Convention.

References (p. 924) In the framework of the exoneration of this liability, the differences between the two systems become more evident: • the Vienna Convention provides that if the damage results from a serious negligence of one of the people who becomes a victim of the accident, the operator can be exonerated of its liability toward this person when domestic law allows it. 42 This provision was not modified with the Amending Protocol. On the other hand, the Paris Convention does not contain such a provision and its revised version was adapted in accordance with the Vienna system; 43 • the Paris 44 and the Vienna 45 Conventions both provide for liability exoneration when the accident is a direct consequence of an armed conflict, hostilities, war, riot, or natural disaster of an exceptional character. However, the Amending Protocol does not consider as an exonerating cause ‘a natural disaster of exceptional character’ and the Revised Paris Convention adopts the same position. 46

(d) The liability limit This limit is considered as the counterpart of objective liability. The provisions regarding this limit are particularly complex, with several exceptions modifying the general rule. (i) The Paris Convention and its revised version As far as the 1960 Convention, the maximum amount fixed is 15M SDR.47 A specific provision allows a State party to provide for a different amount in the framework of its domestic legislation, with a minimum of 5M SDR. The maximum amount fixed in 1960 seemed to be quite modest. In order to ensure compatibility with the domestic legislation of different States which adopted an unlimited liability system, the Revised Paris Convention adopted a minimum amount of €700M, with a transitional amount of €350M applicable only for five years, and only to new State parties.48 Notwithstanding certain reluctance, due to the fact that non-EU members have not yet adopted the euro, this currency was chosen as the monetary unit by the Revised Paris Convention. (ii) The Vienna Convention and the Amending Protocol The Vienna Convention49 simply fixes a minimum amount of US$5M. The Amending Protocol modifies this provision from both a quantitative and qualitative point of view. The minimum amount depending upon the operator is fixed at 300M SDR, or 150M SDR if the supplementary amount (taking the total to 300M SDR) is supplied

References (p. 925) by public funds.50 On the other hand, a transitory provision allows for a progressive implementation (adopted on the demand of States with economic difficulties), with a provisional minimum amount 100M SDR, for a maximum of 15 years. The amount depending upon the operator can be smaller when the public funds provide for the supplement, taking it to 100M.51 This provision is only applicable to State parties to the original Convention. (iii) The Supplementary Convention, its revised version, and the CSC Even if the Supplementary Convention and the CSC do not have a common origin (the Supplementary Convention being linked to the Paris Convention and the CSC being an ‘autonomous’ instrument), comparison between the two is worthwhile because of their common purpose. 52

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The Supplementary Convention fixes compensation in three ‘steps’: 52 a first sum of a minimum of 5M SDR supplied by the financial guarantee of the nuclear operator, normally corresponding to the compensation amount imposed by the Paris Convention; the second and third sums representing the true supplement provided by the Convention. They represent a form of State intervention but this cannot be considered State liability. The second sum has to be in between the first sum amount and 175M SDR and it is supplied by the State of the installation; the third sum is supplied by all the contracting parties of the Convention, following a fixed distribution key designed by the Convention itself.53 Even if it can apply autonomously from the Amending Protocol (and the Paris Convention), the CSC is consistent with them. It establishes two compensation steps: article III(1) (a) requires that the State of the installation has to supply the first compensation sum. This first sum is fixed at 300M SDR,54 corresponding to the liability sum of the Amending Protocol. Article III(1)(b) requires the second compensation sum to be supplied by an international fund to which the contracting parties contribute on the basis of a specific distribution key,55 different from that of the Supplementary Convention. These international funds will provide around 300M SDR. The total amount available will be 600M SDR. In a continuous and parallel revision process, the Supplementary Convention increased the global guarantee to a higher value than the CSC provides for. Naturally, the euro was adopted as the monetary unit. This revised version develops a ‘three steps’ system: the first sum, without changing the method, is a minimum of €700M corresponding to the amount of the Revised Paris Convention; the second sum, depending upon the State of the installation, provides for a supplement of €500M; the third sum, supplied by all the contracting Parties, provides for €300M. An element of flexibility is brought between the first and second step to insure the compatibility with the States having a domestic system of unlimited liability. The total amount available is €1500M.

(e) Liability coverage The canalization of liability and limit are accompanied by a financial guarantee supplied by the operator. This guarantee is described in article 10 of the Paris Convention and article

References (p. 926) VII of the Vienna Convention. These provisions were designed when the unlimited liability of the operator was not considered in the context of domestic legislation. The Amending Protocol took into account the new situation and modified article VII, specifying that when the operator’s liability is unlimited, the State where the installation is located must provide for a financial guarantee of the operator at least equal to the minimum amount fixed by the Convention. The Revised Paris Convention adopted the same principle.56

(f) The priority given to certain victims Parallel to the issue of the maximum compensation amount provided by the conventions, the problem arises of distribution among the different kind of damage, when their extent exceeds this maximum. The Paris Convention57 and the Vienna Convention58 leave to the competent tribunal the charge of identifying the nature, the extent and the method of distribution. The Amending Protocol adds a new paragraph to the original article VIII, establishing the principle of giving priority to requests of compensations for death or damage to persons. But this priority subsists only for a period of 10 years from the accident. Article 11 of the CSC Annex kept the original wording of article VIII of the Vienna Convention, in order to avoid incompatibility with the Paris/Brussels system, in force when the CSC was elaborated. The Revised Paris Convention did not change its original wording.

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(g) Prescription for compensation requests The importance of the time limit for the submission of compensation requests after a nuclear accident is peculiar to this type of accident. In fact, the consequences for persons may arise only a long time afterwards. Notwithstanding this peculiarity, the Paris Convention,59 the Supplementary Convention,60 and the Vienna Convention61 fix the time limit for the submission to 10 years after the accident, which is shorter than what domestic legislation normally provides (30 years). This choice may be explained by lobbying by insurers, who claim it is impossible to bear their obligations for a longer period. The Amending Protocol modifies article VI, providing for a double limit: 30 years for damages to persons, 10 years for any other damage. The Revised Paris Convention adopts the same values. On the other hand, the CSC, in article 8 of its Annex, kept the original time limit of 10 years for any kind of nuclear damage, in order to avoid any incompatibility with the Paris/Brussels system in force when the CSC was elaborated.

References

(p. 927) (h) Jurisdiction The Principle of the Paris Convention62 and the Vienna Convention63 is based on the competence of the tribunal of the contracting party on the territory of which the accident occurred. After long negotiations, article XI(1)bis was added to the Amending Protocol. It specifies that if an accident occurs in the exclusive economic area of a contracting Party, the tribunals of this State are only competent. The Paris Convention adopts the same provision. The principle of jurisdictional unity led to a provision for which the final judgments given by the competent tribunal are applicable to every State party without a need for a further substantive examination.64

(i) Settlement of disputes The provisions are different in the Paris/Brussels system and the Vienna system, because they are influenced by the rules of the organization under the auspices of which the Conventions were elaborated. When a peaceful agreement is not reached, the Paris/Brussels system65 provides for the submission of disputes to the European Nuclear Energy Tribunal.66 The Revised Paris Convention and the revised Supplementary Convention adopted a more complex procedure, but still leading first to a peaceful settlement, and then submission to the European Nuclear Energy Tribunal. Article 17(a) of the Revised Paris Convention brought a new element which has no equivalent in the Amending Protocol. It provides that the disputes concerning the limits of the maritime zones are out of the Convention’s field of application. The Vienna Convention does not contain any provision on the settlement of disputes. These are part of the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Convention on Civil Liability for Nuclear Damage signed on 21 March 1963, together with the Convention, but coming into force only on 13 April 1999, after a second ratification (‘the Optional Protocol’).67 The Optional Protocol provides for

References (p. 928) settlement by the ICJ68 but does not exclude a settlement by an arbitration tribunal69 or through conciliation.70 The Amending Protocol provides for a settlement of disputes clause in its text.71 The settlement first appeals to negotiation; then the arbitration procedure or the intervention of the ICJ are considered. A contracting Party may refuse to be bound to this clause. The CSC adopted the same provisions in

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its article XVI. Further reading V Boulanenkov & B Brands, ‘Nuclear Liability: Status and Prospects’ (1988) 4 IAEA Bulletin 5 CA Colliard, ‘La Convention de Bruxelles relative à la responsabilité des exploitants de navires nucléaires’ (1962) 8 AFDI 41 P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976) L de la Fayette, ‘Towards a New Regime of State Responsibility for Nuclear Activities’ (1992) 50 NLB 7 R Fornassier, ‘Une expérience de solidarité internationale: la Convention complémentaire à la convention de Paris du 29 juillet 1960 sur la responsabilité civile dans le domaine de l’énergie nucléaire’ (1962) AFDI 762 N Horbach, ‘Nuclear Liability Entering a New Millenium’ Nuclear Inter Jura’ 99, 259 R Kovar, ‘Les accords conclus au sujet du “Savannah” et la responsabilité civile des exploitants de navires nucléaires’ (1965) 11 AFDI 783 V Lamm, ‘The Protocol Amending the 1963 Vienna Convention’ (1998) 61 NLB 7 C Legendre, ‘La conférence diplomatique de Bruxelles de 1962’ (1962) 13 DMF 575 B McRae, ‘The Compensation Convention: Path to a Global Regime for Dealing with Legal Liability and Compensation for Nuclear Damage’ (1998) 61 NLB 25 N Pelzer ‘Liability for Nuclear Damage’, in The Hazards Arising out of the Peaceful Use of Nuclear Energy (The Hague, Martinus Nijhoff, 1993), 269 M Radetski, ‘Limitation of Third Party Liability: Causes, Implications and Future Possibilities’ (1999) 63 NLB 7 P Reyners, ‘Modernisation du régime de responsabilité civile pour les dommages nucléaires et nouvelle convention sur la réparation complémentaires des dommages nucléaires’ (1998) 102 RGDIP 747 R Rodière, ‘Spécificité du risque nucléaire et droit maritime’, in Droit nucléaire et droit océanique (Paris, Economica, 1977), 85 P Strohl, ‘La réparation des dommages causés par un accident nucléaire’, in Les risques résultant de l’utilisation pacifique de l’énergie nucléaire (The Hague, Martinus Nijhoff, 1993), 136 P Strohl, ‘La Convention de 1971 relative à la responsabilité civile dans le domaine du transport maritime de matières nucléaires—Un essai de conciliation entre le droit maritime et le droit nucléaire’ (1972) 18 AFDI 753 O von Busekist, ‘A Bridge between two Conventions on Civil Liability for Nuclear Damage—the Joint Protocol Related to the Application of the Vienna Convention and the Paris Convention’ (1989) 53 NLB 10

References

Footnotes: 1 See above, A Boyle, Chapter 10 and M Montjoie, Chapter 34. 2 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263. 3 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265. 4 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263. 5 Additional Protocol to Paris Convention on Third Party Liability in the Field of Nuclear Energy, 28 January 1964, 956 UNTS 335.

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6 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265. 7 Protocol to the Convention Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy, 16 November 1982, 1519 UNTS 329. 8 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at . 9 Convention Supplementary to the Paris Convention of July 29, 1960 on Third Party Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358. 10 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at . 11 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265. 12 Resolution GC(XXXII)/RES/491. 13 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, 12 September 1997, 2241 UNTS 302. 14 Convention on Supplementary Compensation for Nuclear Damage, 29 September 1997, IAEA INFCIRC/567, 22 July 1998. 15 O Von Busekist, ‘ A Bridge between two Conventions on Civil Liability for Nuclear Damage-the Joint Protocol Related to the Application of the Vienna Convention and the Paris Convention’ (1989) 43 NLB 10. 16 Joint Protocol Relating to the Application of the Vienna Convention on Civil Liability for Nuclear Damage and the Paris Convention on Third Party Liability in the Field of Nuclear Energy, 21 September 1988, 1672 UNTS 293. 17 Ibid, art I(a) and (b). 18 N Pelzer, ‘Liability for Nuclear Damage’, in The Hazards Arising out of the Peaceful Use of Nuclear Energy (The Hague, Martinus Nijhoff, 1993), 273. 19 L de la Fayette, ‘Towards a New Regime of State Responsibility for Nuclear Activities’ (1992) 50 NLB 7. 20 Cf the GOV/2306 report of 22 May 1987 and the GOV/INF/ 550/Add. 2 document of 21 March 1989. 21 V Boulanenkov & B Brands, ‘Nuclear Liability: Status and Prospects’ (1988) 4 IAEA Bulletin 5. 22 L de la Fayette, ‘Towards a New Regime of State Responsibility for Nuclear Activities’ (1992) 50 NLB 7. 23 Convention on Nuclear Safety, 17 June 1994, 1963 UNTS 293. 24 R Rodière, ‘Spécificité du risque nucléaire et droit maritime’, in Droit nucléaire et droit océanique (Paris, Economica, 1977), 85–92. 25 Brussels Convention on the Liability of Operators of Nuclear Ships, 25 May 1962, 57 AJIL 268. 26 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 17 December 1971, 974 UNTS 255. 27 IMCO became the International Maritime Organization (IMO) in 1982. 28 961 UNTS 187; P-M Dupuy, La responsabilité internationale des Etats pour les dommages d’origine technologique et industrielle (Paris, Pedone, 1976), 53. See M Forteau, Chapter 59. 29 Brussels Convention on the Liability of Operators of Nuclear Ships, 25 May 1962, 57 AJIL 268.

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30 CA Colliard, ‘La Convention de Bruxelles relative à la responsabilité des exploitants de navires nucléaires’ (1962) 8 AFDI 41. 31 R Kovar, ‘Les accords conclus au sujet du “Savannah” et la responsabilité civile des exploitants de navires nucléaires’ (1965) 11 AFDI 783. 32 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 6(b); and Vienna Convention, art II(5). 33 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 17 December 1971, 974 UNTS 255. 34 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 2. 35 Convention Supplementary to the Paris Convention of July 29, 1960 on Third Party Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art 2(a). 36 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at , art 2(a). 37 Convention Supplementary to the Paris Convention of July 29, 1960 on Third Party Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art V. 38 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at , art 2. 39 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29July 1960, 956 UNTS 263, art 1; and Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art I. 40 Convention Supplementary to the Paris Convention of July 29, 1960 on Third Party Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art 2(a)(i). 41 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 3(a); Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art I.1(k). 42 Ibid, art IV(2). 43 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 6(e). 44 Ibid, art 9. 45 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art IV(3). 46 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at , art 9. 47 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 7(b). 48 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at , art 21(c). 49 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

V(1). 50 Ibid, art V(1)(a) and (b). 51 Ibid, art V(1)(c). 52 Convention Supplementary to the Paris Convention of July 29, 1960 on Third Party Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art 3(b). 53 Ibid, art 12. 54 Convention on Supplementary Compensation for Nuclear Damage, 29 September 1997, IAEA IN FCIRC/567 of 22 July 1998, art III(1)(a)(i). 55 Ibid, art IV. 56 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at , art 10(b). 57 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 11. 58 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art VIII. 59 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 8. 60 Convention Supplementary to the Paris Convention of July 29, 1960 on Third Party Liability in the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art 6. 61 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art VI. 62 Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263, art 13. 63 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art XI. (1) and (2). 64 Protocol to Amend the Convention on Third Party Liability in The Field of Nuclear Energy of 29 July 1960, as amended by the additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, 12 February 2004, available at , art 13(i); Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art XII(1) and the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, 12 September 1997, 2241 UNTS 302; Convention on Supplementary Compensation for Nuclear Damage, 29 September 1997, IAEA INFCIRC/567 of 22 July 1998, art XIII.5. 65 Art 17 in the two conventions: Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 263; Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265. 66 Created by the Convention on the Establishment of a Security Control in the Field of Nuclear Energy, 20 December 1957, 351 UNTS 235, elaborated under the auspices of the ENEA, entered into force on 22 July 1959. 67 Optional Protocol Concerning the Compulsory Settlement of Disputes to the Convention on Civil Liability for Nuclear Damage, Vienna, 29 May 1963, reproduced in WE Burhenne (ed), International Environmental Law: Multilateral Treaties, Vol 3 (The Hague, Kluwer, 1995), 963:41/001. 68 Ibid, art I. 69 Ibid, art II. 70 Ibid, art III. 71 Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, 12 September From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

1997, 241 UNTS 302, art XX(A).

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Part V The Implementation of International Responsibility, Ch.61 Overview of Part Three of the Articles on State Responsibility James R Crawford From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Responsibility of non-state actors — Countermeasures

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(p. 931) Chapter 61 Overview of Part Three of the Articles on State Responsibility 1 The place of implementation in the law of international responsibility 931 2 Implementation of State responsibility: Part Three of the ILC Articles 932 (a) Invocation of responsibility: injured States and obligations owed to the international community as a whole 932 (b) Forms of reparation available to injured and other States 934 (c) Countermeasures 936 3 Implementation of the international responsibility of non-State actors 939 4 Conclusions 940

1 The place of implementation in the law of international responsibility In the declaratory tradition of international law, State responsibility has always been seen to flow immediately from the commission of an internationally wrongful act without any need for action on the part of any injured State or entity. That State responsibility arises independently of its invocation by an injured State is apparent from article 1: Every internationally wrongful act of a State entails the international responsibility of that State. This was the basis for the notion of ‘secondary’ rules of responsibility: these were thought to determine the consequences that flowed by operation of law from a breach. Within that framework, the role of claim, protest or other conduct by other States could be seen as falling outside the realm of responsibility in the strict sense and within other fields such as sanctions, settlement of disputes, election of remedies or the (still more uncertain) field of loss of rights (extinctive prescription). These phenomena might flow from an internationally wrongful act but they did not necessarily do so: they were not entailed by such an act. Thus the Draft Articles produced on first reading in 1996 consisted of only two substantive Parts, Part One setting out framework rules for determining whether conduct was attributable to a State and was wrongful, and Part Two defining the consequences of such conduct in terms of reparation and the ‘facility’ of countermeasures. So expressed, the Draft Articles gave a rather formalistic, static impression, as if, ineluctably, full reparation followed from responsibility which followed from breach in some solemn procession, regardless of the attitude of other States and irrespective of the exercise of remedial or other discretions. Moreover, within that optic, to locate countermeasures in

References (p. 932) Part Two was decidedly awkward: while resort to countermeasures may be a consequence of breach, it is neither an immediate nor an inevitable consequence.1 From many points of view it is better to regard countermeasures as measures of later (if not final) resort aimed at securing compliance: on this basis countermeasures were part of a claims process which was in all other respects missing from the first reading text. For this and other reasons, the ILC Articles as adopted in 2001 included a new part, Part Three, dealing with implementation, and incorporated a revised version of the countermeasures articles. Part Three as a whole was headed ‘The Implementation of the International Responsibility of a State’. If the term had not such overtones of common law

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thinking it might almost have been headed ‘Remedies’. It includes many of the innovations made by the ILC during the second reading. Unlike Parts One and Two, Part Three deals only with implementation of State responsibility by other States (including of course the injured State). It does not deal with the invocation of responsibility by entities other than States—eg by international organizations or other injured parties. If the law relating to implementation of State responsibility is only partly developed, implementation of the responsibility of non-State actors is even less so and has to be dealt with by analogy or by reference to specific provisions in particular treaties. The proviso in article 33(2) (‘This Part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State’) applies mutatis mutandis to Part Three. Also omitted, evidently, is the tricky terrain of the relations between claims of responsibility asserted by States and those, arising from the same conduct, asserted by the actual victims. This has traditionally been dealt with in the law of diplomatic protection through the concept of espousal; but this is not the only context on which the problem arises. For example, it arises in the framework of ICSID and BIT arbitration, which does not seem to be a form of delegated diplomatic protection.2 It also arises in the framework of human rights protection, which is also distinct.3

2 Implementation of State responsibility: Part Three of the ILC Articles Part Three of the Articles on State Responsibility deals with implementation of State responsibility, sometimes referred to as the mise-en-oeuvre of State responsibility.

(a) Invocation of responsibility: injured States and obligations owed to the international community as a whole The concept of the injured State is central to the invocation of State responsibility. The first attempt to formulate a definition of injured State was made by Special Rapporteur

References (p. 933) Willem Riphagen in 1984, following extensive debate on the notion in the Commission.4 At the time Part Two of the Draft Articles was envisaged to cover the content, forms and degree of international responsibility, whereas Part Three established a dispute settlement procedure. In 1984, the Commission adopted draft article 40 on first reading, which provided:

Article 40 Meaning of injured State 1 . For the purposes of the present articles, ‘injured State’ means any State a right of which is infringed by the act of another State, if that act constitutes, in accordance with Part One, an internationally wrongful act of that State. 2 . In particular, ‘injured State’ means: (a) if the right infringed by the act of a State arises from a bilateral treaty, the other State party to the treaty; (b) if the right infringed by the act of a State arises from a judgement or other binding dispute settlement decision of an international court or tribunal, the other State or States party to the dispute and entitled to the benefit of that right; (c) if the right infringed by the act of a State arises from a binding decision of an international organ other than an international court or tribunal, the other State or States which, in accordance with the constituent instrument of the international organization concerns, are entitled to the benefit of that right;

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(d) if the right infringed by the act of a State arises from a treaty provision for a third State, that third State; (e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other State party to the multilateral treaty or bound by the relevant rule of customary international law, if it is established that: (i) the right has been created or is established in its favour; (ii) the infringement of the right by the act of a State necessarily affects the enjoyment of the rights or the performance of the obligations of the other States parties to the multilateral treaty or bound by the rule of customary international law; or (iii) the right has been created or is established for the protection of human rights and fundamental freedoms; (f) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto. 3 . In addition, ‘injured State’ means, if the internationally wrongful act constitutes an international crime, all other States.’5 As perhaps the crucial article in the entire text, this provision attracted numerous comments from governments. Although some supported the general approach underlying the text, most governments expressed serious concerns, in particular as to the wording and content of paragraphs 2(e) and (f ) and 3.6 More generally draft article 40 was open to criticism as unwieldy; it was prolix in its treatment of bilateral responsibility and erratic and uneven in its treatment of multilateral obligations. (p. 934) When the topic of State responsibility was taken up in 1998 on second reading, the deficiencies of draft article 40 became the subject of renewed attention. In a substantial restructuring, former Part Two of the draft articles adopted on first reading was separated into two parts: Part Two, dealing with the content of State responsibility and Part Three, dealing with implementation of responsibility. The original Part Three, dealing with dispute settlement, was deleted. In particular, articles 42 and 48 of the Articles deal with the concept of invocation of responsibility: the former providing for invocation of responsibility by an injured State, the latter for invocation of responsibility by other States. Article 42 provides: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States, including that State, or the internationally community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation. Article 48(1) relevantly provides: 1 . Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or

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(b) the obligation breached is owed to the international community as a whole. Articles 42 and 48 represent a conceptual shift from the position taken in draft article 40 in several respects. Apart from the change in terminology from ‘inter national crimes of States’ to obligations ‘owed to the international community as a whole’, article 48 rejects the artificial idea that breach of such an obligation made all other States into individually ‘injured States’. Instead it permits the invocation of the responsibility of the wrong-doing State by any one of the States identified— indeed, in the case of obligations to the international community as a whole, by any State. In effect this is public interest standing, not the exercise of a subjective right. This shift reflected a larger concern at draft article 40’s apparent assumption that all responsibility relations are to be assimilated to classical bilateral right-duty relations, or at least at its failure to address the ways in which multilateral responsibility relations differ from bilateral ones. Additionally, the new formulation permits States to act in the collective public interest, a welcome development for the implementation of the international responsibility of States in areas concerning collective goods or the common welfare.

(b) Forms of reparation available to injured and other States The new formulation in articles 42 and 48 in respect of the invocation of State responsibility brought to light deficiencies in the consequences of an internationally wrongful act as dealt with in Part Two of the articles adopted on first reading. The approach there taken appeared to conceive of all the consequences of an internationally wrongful act as arising automatically, by operation of law. On this assumption, there was no room for choice or response on the part of other States, including the responsible State itself. This approach

References (p. 935) ignored the distinction between consequences that flow as a matter of law from the commission of an internationally wrongful act and those consequences which depend on the subsequent responses of the parties. For example, a refusal to make reparation may lead to the possibility of countermeasures; a waiver by the injured State may result in loss of the right to invoke responsibility. Both are mere possibilities, yet it was sensible for the Articles to deal with them. Part Three of the Articles seek to address this deficiency by dealing with the modalities of and limits upon the invocation of responsibility by an injured State, including the right to elect the form of reparation. An injured State is entitled to elect between the available forms of reparation: it may prefer compensation to the possibility of restitution, as Germany did in Chorzów Factory,7 or as Finland eventually chose in its settlement of the Passage through the Great Belt case.8 This room for choice on the part of an injured State is reflected in article 43, which relevantly provides: 2 . The injured State may specify in particular: … (b) what form reparation should take in accordance with the provisions of Part Two. The possibility of non-injured States invoking responsibility of a State for an internationally wrongful act, now provided for in article 48, raised the question of the forms of reparation available to those non-injured States. No doubt where a State is individually a victim of a breach of a collective or community obligation (as, for example, Kuwait faced with Iraqi aggression) its position may be assimilated to that of the injured State in a bilateral context: article 42(b) reflects this position. But the position is different with respect to the broader class of States which have an interest in the breach of a collective or community obligation in the absence of a direct injury: they may call for cessation and for assurances and guarantees of non-repetition; they may also insist on compliance with the obligation of reparation, in the interests of the injured State. Accordingly,

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article 48 (2) relevantly provides: 2 . Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of nonrepetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interests of the injured State or of the beneficiaries of the obligation breached. One topic not dealt with expressly in the Draft Articles adopted on first reading was responsibility relating to the same act or transaction but involving a plurality of States. In respect of both the invocation of responsibility by several States and the invocation of responsibility against several States, the position under international law seems to be straightforward. Each State is responsible for its own conduct in respect of its own international obligations. This principle is reflected in article 47(1), which provides: Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.

References (p. 936) The position involving a plurality of injured States is also clear: each injured State is entitled to claim against any responsible State in respect of the losses flowing from the act of that State. This is reflected in article 46, which provides: Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act. Such claims are subject to two provisos. The first, incorporated in article 47(2)(a), is that the injured State may not recover, by way of compensation, more than the damage it has suffered. The second, referenced in article 47(2)(b), is obvious enough but still worth stating: where there is more than one responsible State in respect of the same injury, questions of contribution may arise between them. Sub-paragraph (b) does not address the question of contribution among several States which are responsible for the same wrongful act; it merely provides that the general principle permitting recovery is without prejudice to any right of recourse which one responsible State may have against any other responsible States.9

(c) Countermeasures If cessation or reparation are denied by the responsible State, a further mechanism for the implementation of responsibility is the taking of countermeasures. In the Articles adopted on first reading, countermeasures were dealt with in Part Two, Chapter III; on second reading, they were moved to Chapter II of Part Three. This Chapter was the most controversial aspect of the text on second reading. The most fundamental concern related to the inclusion of countermeasures, both in principle and in the context of the implementation of State responsibility. A second concern went to the formulation of the articles, especially those dealing with obligations not subject to countermeasures and the procedural conditions on resort to countermeasures. The third concern involved the question of so-called ‘collective’ countermeasures, that is countermeasures taken by State other than the injured State. At least one government argued that countermeasures should be prohibited entirely,10 but the ILC did not endorse that position. A provision on countermeasures had been present in the draft for over two decades and it had been endorsed in the jurisprudence, most notably by the International 11

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Court in the Gabcíkovo-Nagymaros case.11 The ILC effectively faced three options: (1) deletion of a separate Chapter and incorporation of the substance of the articles in Chapter V of Part One; (2) retention of the Chapter with drafting improvements; or (3) retention of the Chapter only with regard to countermeasures by an injured State, with the reservation of the issue of countermeasures by ‘third’ States in a saving clause. The third of these options was eventually preferred: it was agreed to retain a separate Chapter on countermeasures in Part Three but to leave open the possibility of countermeasures taken by other non-injured States in response to internationally wrongful conduct infringing some collective interest. On the whole, the substance of the provisions relating to countermeasures adopted on first reading was approved and the review undertaken at second reading was one of synthesis and development rather than major change. The notion of countermeasures as temporary is

References (p. 937) emphasized by the notion of suspension of performance of obligations (article 49(2)). It is provided that countermeasures should ‘as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question’ (article 49(3)), and that they should be terminated ‘as soon as the responsible State has complied with its obligation under Part Two in relation to the internationally wrongful act’ (article 53). The provision on proportionality was retained, although in revised terms to reflect the language of the Court in the GabcíkovoNagymaros case. Draft article 50 on first reading excluded countermeasures altogether in certain cases. These were: (a) the threat or use of force as prohibited by the Charter of the United Nations; (b) ‘extreme economic or political coercion’ against the responsible State; (c) conduct infringing the inviolability of diplomatic or consular agents, premises, archives or documents; (d) conduct derogating from basic human rights; and (e) any other conduct in contravention of a peremptory norm. On second reading, this was reformulated to draw a clearer distinction between, on the one hand, fundamental substantive obligations which may not be affected by countermeasures (the prohibition on the threat or use of force, fundamental human rights obligations, humanitarian obligations prohibiting reprisals and obligations under other peremptory norms) and, on the other hand, certain obligations concerned with the maintenance of channels of communication between the two States concerned, including machinery for the resolution of their disputes, and the basic immunities of diplomatic agents and consular officials. Article 50 as finally adopted thus provides: 1 . Countermeasures shall not affect: (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (b) the obligations for the protection of fundamental human rights; (c) obligation of a humanitarian character prohibiting reprisals; (d) other obligations under peremptory norms of general international law. 2 . A State taking countermeasures is not relieved from fulfilling its obligations: (a) under any dispute settlement procedure applicable between it and the responsible State; (b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents. Paragraph 2(a) reflects the principle of the severability of dispute settlement provisions from related substantive obligations; paragraph 2(b) the special need for protection of diplomatic and consular inviolability in case of disputes, it not being the function of diplomats and consuls to be hostages abroad.

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Article 53 adopted on first reading provided detailed procedural conditions relating to resort to countermeasures. These included a unilateral right of the responsible State to submit a dispute over countermeasures to arbitration: in effect the responsible State could trigger compulsory third party settlement, but not the injured State, which was anomalous. On second reading it was generally agreed that this should be deleted even if the Articles were to be proposed for adoption in treaty form. But the relationship between countermeasures and dispute settlement, including negotiations, remained very much a live issue. Some governments expressed concern at the possibility of unilateral determination by a State taking countermeasures,12 while others criticized the procedural conditions as unduly cumbersome and restrictive.13 The compromise eventually achieved reflects a

References (p. 938) relaxation of procedural conditions as compared with the first reading text. Article 50 provides: 1 . Before taking countermeasures, an injured State shall: (a) call on the responsible State, in accordance with article 43, to fulfil its obligations under Part Two; (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. 2 . Notwithstanding paragraph (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights. 3 . Countermeasures may not be taken, and if already taken must be suspending without undue delay if: (a) the internationally wrongful act has ceased, and (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. 4 . Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement procedures in good faith. The question of the entitlement of States that are not directly affected to take countermeasures, described as ‘collective countermeasures’,14 was also extensively revisited on second reading. The articles adopted on first reading defined ‘injured State’ broadly and allowed any injured State to take countermeasures; thus any State whatever could take countermeasures in response to an ‘international crime’, a breach of human rights or the breach of certain collective obligations. In 2000, the Drafting Committee adopted a new article, entitled ‘Countermeasures by States other than the injured State’. It referred to two situations. First, countermeasures could be taken by an article 48 State ‘at the request and on behalf of any State injured by the breach, to the extent that that State may itself take countermeasures under this Chapter’: this was treated as analogous to collective selfdefence on behalf of a State which is the subject of an armed attack. The second situation concerned counter measures taken in response to the serious breaches dealt with in Part Two, Chapter III. Any State could individually take countermeasures in respect of such a serious breach. In the ensuing debate, a matter of particular concern about was the relation of ‘collective countermeasures’ to collective measures taken by or within the framework of international organizations. There was a risk of duplicating Chapter VII of the Charter at the level of the individual action of States or of a small number of States, as exemplifi ed, perhaps, in the Kosovo crisis. Additionally a number of governments expressed concern at the possibility of freezing an area of law still in the process of development.15 A majority of the ILC agreed with the general thrust of

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government comments that ‘collective countermeasures’ had only a doubtful basis in international law and could be destabilizing as compared with action through competent international organizations.16 However, there was a concern that deleting draft article 54 would imply that countermeasures could only ever be taken by States directly injured in the sense of article 42: although State practice was not extensive, it did not support such a restrictive stance.

References (p. 939) Moreover according to these members, while the current state of international law on measures taken in the common interest might be uncertain, it could hardly be the case that countermeasures were limited to breaches of obligations of a bilateral character. Accordingly, the ILC agreed on the need for a saving clause which would reserve the position and leave the resolution of the matter to further developments in international law and practice. Article 54 provides: This Chapter does not prejudice the right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

3 Implementation of the international responsibility of non-State actors The basic principle codified in article 1 of the ILC’s Articles would seem to be equally applicable, by definition, to all international legal persons. In particular, the principle of the responsibility of international organizations under general international law was affirmed by the International Court of Justice in the Cumaraswamy advisory opinion.17 The difficulty remains with implementation: the systems of implementation of responsibility in international law have been developed almost exclusively by reference to States and not international organizations, and the principal agent for change in this regard— the EU in fields such as the WTO and the law of the sea—is changing the general picture only slowly and in an ad hoc manner.18 The position in respect of individuals, corporations, non-governmental organizations and other groups is even less clear. In relation to individuals, international responsibility has only developed in the criminal field, and then only recently and in limited circumstances. As to corporations, so far there has been no development of corporate criminal responsibility in international law. It is very doubtful whether corporations are subjects of international law for the purposes of responsibility; indeed as a creation of national law, it is questionable whether a regime of international responsibility ought to be applicable to corporations at all. So far, the only procedure for implementing responsibility of individuals and corporations for breaches of international law is the Alien Tort Claims Act in the United States. The cases emerging from this unusual jurisdiction are doing so on an ad hoc basis and have not generally been embraced by other States.19 In respect of input from NGOs, there have been developments in opening up international proceedings, for example under NAFTA, and allowing amicus briefs in a range of tribunals, including the WTO. While NGOs continue to have a significant influence on the development of international law, so far there is no regime by which any international responsibility they might have could be implemented.

4 Conclusions References

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(p. 940) While there have been significant developments in recognition of the status of non-State actors on the international plane, implementation of international responsibility essentially exists only in respect of States and some international organizations, of which the European Union is the most advanced (and the most atypical). The State’s monopoly of responsibility presented little difficulty when international law was seen to operate essentially at the level of inter-State relations, separated from relations between States and individuals, corporations, international organizations, or NGOs. But international law now contains a range of rules which operate outside the context of bilateral relations between States and which cover a broader spectrum of actors: correlatively there is a need for an expansion of ways in which such actors can be held responsible. Reflection on the implementation of international responsibility provides an overview of the relevant questions but hardly any answers as to how international law can respond.

Footnotes: 1 Kelsen identified breaches of international law as those which entailed sanctions including countermeasures: H Kelsen (RW Tucker, ed), Principles of International Law (New York, Holt, Rhinehart & Winston, 1966), 19–20. But the Articles did not seem to adopt a Kelsenian view of the character of law in general or of international law specifically. 2 See eg the ICSID Convention, art 27; Autopista Concesionada de Venezuela CA v Bolivarian Republic of Venezuela (2001) 6 ICSID Reports 417, 447 (paras 136–140); Republic of Ecuador v Occidental Exploration and Production Co [2006] QB 432, 447–452; 12 ICSID Reports 129, 135– 40. 3 See the discussion by S Marks & F Azizi, Chapter 51.1 above, and S Borelli & S Olleson, Chapter 84. 4 See ILC Yearbook 1984, Vol II(2), 101-2 (para 355); discussion of the debate is found in W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 1, 36–9 (paras 90– 101), Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II(1) 13–14 (paras 72–8), 21–3 (paras 112–25). 5 Adopted in 1985: see ILC Yearbook 1985, Vol II(2), 25–7. 6 See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 77–81. 7 Factory at Chorzów, Merits, 1928, PCIJ Reports, Series A, No 17, p 4, 21. 8 Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1991, p 12; ICJ Reports 1992, p 348 (discontinuance following settlement). 9 For a review of special regimes of joint and several responsibility as provided for in specific agreements, see J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 268– 276. 10 Greece, A/C.6/55/SR.17, para 85. 11 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 55 (para 83). 12 Eg Chile, A/C.6/55/SR.17, para 50; Croatia, A/C.6/55/SR.16, para 72; Greece, A/C.6/55/SR.17, paras 85-86. 13 Eg United Kingdom, A/C.6/55/SR.14, paras 35–36; United States, A/C.6/55/SR.18, para 69. 14 See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 386-405. See also M Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) BYIL 337. 15 For a review of the practice, see Commentary to art 54, paras 3-5. 16 For example, Israel, A/C.6/55/SR.15, para 25. 17 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 88–9 (para 66).

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18 The EU has had to be specifically provided for in order to be a party to contentious proceedings under Part XV of the Law of the Sea Convention and the WTO dispute settlement mechanism. 19 Cf Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ Reports 2002, p 3, 77 (para 48) (Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).

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Part V The Implementation of International Responsibility, Ch.62 The Concept of an Injured State Giorgio Gaja From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Recognition of states — BITs (Bilateral Investment Treaties) — Vienna Convention on the Law of Treaties

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(p. 941) Chapter 62 The Concept of an Injured State 1 The nature of the legal position corresponding to the obligations of the responsible State 941 2 The identification of States injured in the sense of article 42 ARSIWA 942 (a) The breach of a bilateral obligation 942 (b) The breach of integral obligations 944 (c) The breach of a multilateral obligation which specially affects one State 946 Further reading 947 Chapter 1 of Part Three of the Articles on State Responsibility (ARSIWA) is entitled ‘Invocation of State Responsibility’. While the title suggests that the Chapter is concerned with purely procedural matters, it also addresses the preliminary question of which State has rights or interests corresponding to the obligations of the responsible State. This issue is not addressed elsewhere in ARSIWA, but is resolved implicitly in this Chapter, in relation to matters concerning implementation. In the context of ARSIWA, to say that a State may invoke responsibility means both that that State has the right to expect the responsible State to behave in a certain way and that the requisite conditions for making a claim regarding this conduct are met. The Commentary on ARSIWA indicates that invocation of responsibility should be understood as ‘taking measures of a relatively formal character’, and gives the examples of the presentation of a ‘claim against another State’, or the commencement of ‘proceedings before an international court or tribunal’.1 In fact, there is nothing to prevent a State making a simple approach to indicate, for example, its interest that an affair or incident be resolved in a certain way. In terms of the existence of a legal right or interest, however, what is important is not so much the form which the claim takes as the fact that the State involved asserts its right to expect the responsible State to conduct itself in a certain way. The subsequent choice of procedural means for making this assertion may be linked to the existence of certain conditions.

1 The nature of the legal position corresponding to the obligations of the responsible State If an international obligation binds a State, usually there will also be a certain legal relationship in respect of another legal subject. The latter will have not only remedies, but also a subjective right or a legal interest. These terms do not, however, define in a precise way the actual content of the legal position. (p. 942) While ARSIWA accept that subjects other than States may be injured by the breach of an international obligation existing towards them, article 33 specifies that Part Two of ARSIWA addresses only those obligations which the responsible State has in respect of other States. This is true also where the breach at issue injures non-State subjects of international law. In the draft text adopted by the ILC on first reading, the legal entitlements corresponding to the obligations of the responsible State were uniformly defined as ‘rights’.2 As a result, all the States which were in a responsibility relationship with the responsible State were identified as injured States. Special Rapporteur Crawford proposed a distinction between two types of responsibility relationships, namely, those involving rights, and those involving legal interests.3 This terminology was not accepted by the ILC, which preferred, finally, not to define different types of responsibility relationships. The ILC did, however, accept the idea of a distinction corresponding to the type of obligation of the responsible State. This led the ILC to split into two categories (defined, respectively, in article 42 and article 48) the States which, as a result of the breach of an obligation existing towards them, may invoke international responsibility and therefore, implicitly, benefit from

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a responsibility relationship. The term ‘injured State’ only appears in article 42; there is no alternative term provided for those States which are referred to in article 48. The States injured in the sense of article 42 certainly benefit from a set of legal entitlements which is more complete than that applicable in respect of those States falling under article 48. The legal position of a State which comes within the first category includes, significantly, the possibility of claiming reparation for its own benefit, whereas States in the second category may only claim reparation in the interest of the beneficiary (that is, the State, international organization, or individual which was injured). Moreover, according to ARSIWA it is only those States injured in the sense of article 42 which may have recourse to countermeasures in order to induce the responsible State to comply with its obligations. As regards the States which are considered in article 48, the controversial question of their resort to countermeasures was left open by article 54.4

2 The identification of States injured in the sense of article 42 ARSIWA (a) The breach of a bilateral obligation Normally the State which is injured in the sense of article 42 sustains material damage. There are, however, cases where States other than the injured State sustain damage, either directly or indirectly. Equally there are cases where a State is injured without sustaining any material damage: for example, where another State breaches its obligation to adopt legislative measures provided for by a bilateral treaty. Hence one cannot identify the injured State purely on the basis of damage caused by the breach of an international obligation. Where an international obligation only exists in the relations between two States, the range of legal entitlements which correspond to the obligations of the responsible State is certainly

References (p. 943) complete. Clearly, in the case of breach of that type of obligation, the States to whom such an obligation is owed fall into the category of injured States mentioned in article 42. One can in this connection speak of a bilateral obligation, in the sense that the obligation exists only in the relations between two States. However, this obligation is not necessarily bilateral in the sense that it exists for both States, as a treaty may establish differentiated obligations for States parties. In any event, in practice it is usually the obligation of a single State which will be at issue. An obligation can be clearly identified as bilateral in the first sense where it derives from a rule which only binds two States. Even in the case of a rule which binds several States, the obligation of one State may exist in respect of only one other State. There would be thus an ‘obligation breached’ which is owed to a State ‘individually’, as it is phrased in sub-paragraph (a) of article 42. As with the rules of general international law, multilateral treaties may impose obligations which, in a given circumstance, States are required to fulfil in respect of a large number of States. However, this is not necessarily true of every obligation imposed by a multilateral treaty. A contrary opinion which is sometimes voiced on this point tends to generalize a position which only holds true for certain treaties. For many multilateral treaties, applying the rules provided for in the treaty to a particular case will be to the benefit of only a single State, or a limited group of States parties. Even where the text of the multilateral treaty does not expressly so indicate, a reasonable interpretation of the treaty provisions can lead to the conclusion that the obligations provided for by the treaty exist, in practice, as a series of bilateral obligations. One can take as an example a multilateral extradition treaty. Usually this type of treaty contains rules which appear to be of general application. Nevertheless, in regard to a specifi c request for

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extradition, these rules only apply to the relations between the requesting State and the requested State. If the latter does not fulfil its obligations, only the requesting State may claim to be injured. At the very most, the other States parties to the extradition treaty could harbour a legitimate concern as to the application of the treaty in future relations between the requested State and themselves. A second example could be the immunities of diplomatic or consular agents, whether these immunities derive from general international law (this example is briefly touched upon by the ILC Commentary5) or from the Vienna Conventions on Diplomatic Relations (1961) and Consular Relations (1963). It is true that in the case of United States Diplomatic and Consular Staff in Tehran the International Court drew ‘the attention of the entire international community … to the irreparable harm that may be caused by events of the kind now before the Court’.6 The Court did not, however, indicate that in its opinion States other than the claimant State could be considered as injured, or had another basis for invoking the responsibility of the respondent State. Moreover, according to general international law and the conventions referred to above, it is clear that if a State wishes to renounce the immunity of one of its diplomatic or consular agents, it can freely waive this immunity. A third example can be drawn from the LaGrand case.7 Where a State does not inform a foreign national who has been detained of his/her right to contact the consulate of his/her State of nationality, the former State breaches an international obligation deriving

References (p. 944) from article 36 of the 1963 Vienna Convention on Consular Relations. In the LaGrand case, the Court noted that the right of the individual, and the right of the State of which he was a national, had been violated. However the Court clearly did not envisage that any other States parties to the Vienna Convention possessed rights in this situation, or indeed that such States were placed in any specific legal relationship with the responsible State. In fact, a legal interest of these States in the performance of the obligation would only exist in those cases where one of their own nationals had been detained.8 In the three examples just provided, it is only (respectively) the State requesting extradition, the national State of the diplomatic or consular agent, or the national State of the detained person—in short, the injured State—which is entitled to request the performance of the international obligation, and demand reparation in case of breach. Irrespective of whether the obligation at issue derives from a multilateral treaty or a customary rule, the obligation breached is bilateral in the sense specified, and the legal relationship created as a result of the breach is equally bilateral. It may be difficult to establish whether a multilateral treaty creates obligations which, in the wording of article 42 ARSIWA, are owed to one or more States ‘individually’: that is, to establish whether the obligations at issue are bilateral obligations. The majority of treaties do not explicitly indicate which State or States are, in given circumstances, ‘individually’ affected by a breach of an obligation. Still, an important indicator of the bilateral character of the obligation at issue can be found in the criteria relating to the scope of application of that treaty. These criteria will help to identify which interests the treaty specifically seeks to protect. For example, where a multilateral treaty dealing with investments only protects the property belonging to nationals of States parties, one can draw the conclusion that the obligations created by this treaty with regard to a certain investment only exist in respect of the investor’s State of nationality. Thus it would only be that State which should be considered injured by a breach of the relevant obligation. An analogous conclusion can be reached in respect of the customary rules on the treatment of foreign nationals. These are general rules which, in specific circumstances, give rise only to bilateral obligations. One could also look at the breach of various customary rules on the law of the sea, as well as the

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corresponding rules articulated in the 1982 Montego Bay Convention. Taking, for example, the rule which prohibits, in principle, States from seizing ships of foreign States while these ships are on the high seas, does this represent a rule which, in relation to the specifi c question of a State wishing to seize a particular ship, places an obligation on that State in respect of all other States? Or, is it preferable to see here a bilateral obligation in respect of the flag State? In the latter case, if a State seizes the ship of another State in circumstances which do not justify this conduct, this would alarm other States, but only the flag State would be considered injured by the breach, and have a legitimate basis for demanding reparation.

(b) The breach of integral obligations Except for those cases where an obligation at issue has a bilateral character, an obligation will be owed to all the States which are beneficiaries of the conventional or customary rule in question. This does not necessarily mean that, in case of a breach, all these States will

References (p. 945) have the same legal entitlements, nor that they will have legal entitlements which correspond to that of the State to whom a bilateral obligation is owed. In article 42 ARSIWA only two situations, both of which are relatively rare, are equated with the case of an obligation owed to a State ‘individually’. The first situation concerns those obligations which Special Rapporteur Crawford referred to as ‘integral’,9 and which the ILC Commentary describes, in the context of treaty-based obligations, as ‘interdependent’.10 With regard to this category of obligations, as stated in the Commentary, ‘performance of the obligation by the responsible State is a necessary condition of its performance by all the other States’.11 Professor Crawford subsequently commented that the breach of this kind of treaty-based obligation threatens the entire structure of the treaty.12 At issue here is a category of rules which are not always easily distinguishable from those rules which, while aimed at protecting a collective interest, do not, in case of a breach of the relevant obligation, give all States other than the responsible State the legal entitlements which are due to an injured State.13 Where a State breaches an integral obligation, the legal position of the other States is not as such equated by the ARSIWA with the legal position of the State to whom a bilateral obligation is owed. A situation of equivalence in legal positions only occurs where the breach ‘is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation’.14 To illustrate this type of scenario, it is useful to reconsider an example given by the ILC Commentary: namely, the obligation of States parties to the Antarctic Treaty of 1959 to refrain from claiming sovereignty over a part of Antarctica on the basis of an act undertaken while the Treaty is in force.15 This obligation binds States parties, in any specific circumstances, in respect of all other States parties to that treaty, all of whom have an interest in maintaining the status quo in Antarctica. It is clear that all these States would be affected by a breach of this obligation. Logically, the nature of the legal position of those States to whom the integral obligation is owed, and hence the status of injured State, should not depend on the significance of the breach. It is difficult to see how the interests of States parties to the treaty would be affected in a qualitatively different manner in the case of a significant breach. The underlying premise is that the treaty also prohibits trivial breaches. Article 42 ARSIWA provides, however, that there will be injured States only where a breach is such ‘as radically to change the position of all the other States to which the obligation is owed’.16 It can certainly be expected that a significant breach will provoke the type of reaction which a negligible breach would not cause, yet this would depend on the approach which the States decide to take in the prevailing circumstances, and not on the diversity of their legal

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positions. Nevertheless, the ILC preferred to limit the cases where breaches of integral obligations are equated with the breach of bilateral obligations. Where the breach is not significant, however, the States affected will still have legal entitlements, but only so far as provided by article 48 ARSIWA.

References (p. 946) The formulation of article 42(b)(ii) ARSIWA is partly modelled on article 60(2)(c) of the 1969 Vienna Convention on the Law of Treaties. The same type of treaty is envisaged in both texts. The commentary on the draft which became article 60 of the Vienna Convention17 gives the example of a breach of an obligation imposed under a treaty on disarmament (as indeed does the Commentary to ARSIWA).18 However, while article 42 ARSIWA addresses the invocation of responsibility, the text of the Vienna Convention concerns the possibility for a State party to a treaty to suspend the operation of a treaty where ‘a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty’.19 At issue in both texts is the radical modification of a situation. However the envisaged modification does not have the same character in respect of both texts. For the ARSIWA, at issue is a modification which affects the future performance of the specific obligation in question. The Vienna Convention, on the other hand, concerns a modification which affects the totality of obligations deriving from the treaty. This difference in focus can be explained by the fact that the obligation at issue for the ARSIWA can be customary in nature; the notion of interdependent obligations can be difficult to expound in respect of customary obligations. Hence for the ARSIWA it is only the specific obligation breached which is taken into account. A second difference between the two texts is that the suspension of the operation of a treaty also applies vis-à-vis States parties which have not breached the obligation, while the question of responsibility does not arise in respect of these States. At the same time, the fact that the power to suspend the treaty is exerted in respect of all parties can explain why the Vienna Convention requires that the material breach create a radical modification in respect of future performance not only of the specific obligation breached, but rather of all obligations deriving from that treaty. The differences between the text of ARSIWA and article 60(2)(c) of the Vienna Convention do not create inconsistencies between distinct areas of international law. Still, the partial reproduction of the text from the Vienna Convention in the ARSIWA seems the result of expediency, rather than logical coherence. The solution arrived at allows the use of an accepted formulation, to express what is in fact a relatively new concept.

(c) The breach of a multilateral obligation which specially affects one State Article 42(b)(i) sets out the second situation which is equated in ARSIWA to the case of a State injured by the breach of a bilateral obligation: namely, the breach of an obligation which exists visà-vis all States, or all States parties to a treaty, where this breach ‘specially’ affects one State in particular. The resulting legal entitlements of the specially affected State are more extensive than those of the other States affected by the breach. The formulation in ARSIWA recalls article 60(2)(b) of the Vienna Convention on the Law of Treaties which addresses, again, the suspension of the operation of a treaty which has been the object of a material breach. The provision in the Vienna Convention is, however, of wider application as it also covers the breach of a bilateral obligation. In the case of the breach of a bilateral obligation, it is clear that the State in respect of whom the obligation is owed is ‘specially’ affected. It is less straightforward to establish when a State may suspend a treaty, or be considered injured, as a result of the breach of an obligation which is not bilateral. At issue are situations wherein one State is bound by an obligation in

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References (p. 947) respect of all other States (or, for a treaty-based obligation, all other parties to the treaty), but where one or more of these States are particularly affected. An example given in the relevant section of the ARSIWA Commentary is that of pollution of the high seas by one State, in breach of the customary rule or the obligation deriving from article 194 of the 1982 United Nations Convention on the Law of the Sea, where this pollution has a particular impact on the territorial sea of a certain State.20 In this case the breach exists in respect of all other States, but among these the coastal State which is particularly affected by the pollution is to be considered as ‘specially’ affected. Another example would be that of an act of aggression of one State against another State. The latter is to be considered specially affected, but the breach of the obligation not to use force also exists vis-à-vis other States, who are all equally affected, albeit in a less particular manner. It seems logical that the mere fact that the obligation at issue is not of a purely bilateral character does not deprive the specially affected State of legal entitlements which it would have if the obligation breached was in fact bilateral. In addition, the fact that one State is specially affected does not alter the legal entitlements of the other States in respect of whom the multilateral obligation is owed. Considering again the first example given above, it would be somewhat illogical to suggest that States other than the (specially affected) coastal State could no longer invoke the responsibility of the polluting State, once the pollution had reached the territorial sea of the specially affected State. As regards the second example, the act of aggression would not give rise merely to a bilateral responsibility relationship between the aggressor State and the State on the receiving end of that act. It is clear that in such cases, there exists both the (more extensive) legal entitlements of the specially affected State, and the lesser legal entitlements of the other States in respect of whom the breached obligation existed. Simply, the latter States will not fall within the category of injured States in the sense of article 42 ARSIWA, but they are entitled to invoke responsibility pursuant to article 48. Further reading C Annacker, ‘The Legal Regime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian Journal of Public International Law 131 J Crawford, ‘The Standing of States: A Critique of Article 40 of the I.L.C.’s Draft Articles on State Responsibility’, in M Andenas (ed), Judicial Review in International Perspective. Liber Amicorum for Lord Slynn of Hadley (The Hague, Kluwer, 2000), 23 S Forlati, Diritto dei trattati e responsabilità internazionale (Milan, Giuffrè, 2005) DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151 N Kawasaki, ‘The “Injured State” in the International Law of State Responsibility’ (2000) Hitotsubashi Journal of Law & Politics 17 G Perrin, ‘La détermination de l’État lésé. Les régimes dissociables et les régimes indissociables’, in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century. Essays in Honour of Krzysztof Skubiszewski (The Hague, Kluwer, 1996), 243 K Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273 L-A Sicilianos, ‘Classification des obligations et dimension multilatérale de la responsabilité internationale’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 57

References (p. 948)

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Footnotes: 1 Commentary to art 42, para 2. 2 See Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 62ff. 3 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 97. 4 See L-A Sicilianos, Chapter 80. 5 Commentary to art 42, para 6. 6 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3, 43, para 92. 7 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466. 8 See also Avena and Other Mexican Nationals (Mexico v United States of America), ICJ Reports 2004, p 12. 9 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 91. 10 Commentary to art 42, para 15. 11 Ibid, para 5. 12 J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, CUP, 2002), 41. 13 Criticism of the lack of clarity regarding this distinction was made during the debates of the Sixth Committee in 2001 (particularly by the representative of Japan, C Yamdda, A/C.6/56/SR.12, para 6). 14 Art 42(b)(ii) ARSIWA. 15 Commentary to art 42, para 14. 16 Art 42(b)(ii) ARSIWA. 17 ILC Yearbook 1966, Vol II, 255. 18 Commentary to art 42, para 13. 19 Art 60(2)(c), 1155 UNTS 331. 20 Commentary to art 42, para 12.

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Part V The Implementation of International Responsibility, Ch.63 Plurality of Injured States Rosario Huesa Vinaixa From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Countermeasures

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(p. 949) Chapter 63 Plurality of Injured States 1 Wrongful acts giving rise to a plurality of injured States 949 (a) Nature and scope of the obligation breached 950 (b) Identification of the injured States 951 2 Invocation and content of responsibility in case of a plurality of injured States 952 (a) Unilateralism versus solidarity in establishing responsibility 952 (b) Determining the content of the claim (reclamation) 953 3 Plurality of injured States and the taking of countermeasures 953 Further reading 954 The existence of a plurality of States ‘injured by the same internationally wrongful act’ is envisaged by the ILC in article 46 ARSIWA. Prima facie, the simplicity of the wording suggests that there is no specific problem with the existence of a plurality of injured States. Article 46 provides: Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act. Nevertheless, the issue is linked to important theoretical problems which became apparent during the ILC’s work on State responsibility. The complexity lies in identifying the wrongful acts which are susceptible to cause injury to a plurality of States, in the regulation of the invocation of the responsibility which arises and its content, as well as concerns regarding the adoption of countermeasures.

1 Wrongful acts giving rise to a plurality of injured States It must immediately be remarked that we are dealing with a plurality of injured States that is caused by the same wrongful act. This means that there is a ‘conduct consisting of an action or omission [that] constitutes a breach of an international obligation of the State’.1 Thus the situation where the plurality of injured States is caused by linked instances of conduct that consist of the commission of a succession or plurality of wrongful acts that are more or less indissociable or linked can immediately be dismissed as irrelevant; this

References (p. 950) was the case, for example, in the Rainbow Warrior case: 2 several States—New Zealand, the United Kingdom, the Netherlands, and Switzerland—addressed France as injured States, but every one of them because of a different breach of an obligation.3 A situation where there are a plurality of injured States as a result of a multiplicity of conduct (even if they are identical, simultaneous or repeated) which constitute breaches of a plurality of bilateral obligations (even if they are identical) of the acting State towards any of the injured States must also be distinguished. In both these situations, the plurality of injured States arises from the commission of a plurality of internationally wrongful acts, each one causing injury to a State. By contrast, we are concerned with a single internationally wrongful act which causes injury to more than one State. Thus, it is the unique character of the internationally wrongful act (and thus also of the breached obligation) that makes the existence of a plurality of injured States special. To determine the categories of injured States which may arise, it is first necessary to analyse the objective element of the internationally wrongful act susceptible to cause injury to a plurality of States.

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(a) Nature and scope of the obligation breached As far as the breached obligation is concerned, it is sometimes difficult to distinguish whether the relevant obligation is owed to a plurality of States or whether it consists of a bundle of identical bilateral obligations in the framework of multilateral relations. It must also be noted that obligations which are owed to a State individually can derive from a general norm of international law or from a multilateral treaty. The obligations of States in the framework of diplomatic relations are an apt example. According to the ILC, ‘[s]uch cases are to be contrasted with situations where performance of the obligation is owed generally to the parties to the treaty at the same time and is not differentiated or individualized’.4 Thus it is not the source of the obligation which determines its character (whether individual or not) but the character (individual or multiple) of the beneficiary States to which the obligation is owed. In the words of the ILC ‘[i]t will be a matter for the interpretation and application of the primary rule to determine into which of the categories an obligation comes’.5 Article 42 distinguishes between obligations owed to a State individually and obligations owed to ‘a group of States … or the international community as a whole’. In the latter case we are dealing with collective (or rather multilateral) obligations, which the ILC defined as ‘obligations that apply between more than two States and whose performance in the given case is not owed to one State individually, but to a group of States or even the international community as a whole’.6 It seems thus that situations concerning a plurality of injured States can only arise from the breach of collective obligations. Despite the difficulty of devising a categorization, the following can be classed as obligations of this type: First, there are obligations erga omnes partes, where all parties have a common interest in their fulfilment. This category comprises ‘integral’ obligations, or obligations which operate in an all-ornothing fashion, the breach of which ‘threatens the treaty structure as a whole’.7 They are inserted in ‘[t]reaties … requiring complete collective restraint if they

References (p. 951) are to work’, such as non-proliferation or disarmament treaties.8 The ILC Commentary to article 42 described these obligations as ‘interdependent’,9 a term which distinguishes them from certain obligations that are sometimes called integral, such as those relating to human rights law or environmental law.10 Second, there are obligations owed to the international community as a whole (erga omnes). For present purposes, it suffices to note that the notion emphasizes ‘the universality of the obligation and the persons or entities to whom it is owed, specifically all States and other legal entities which are members of that community’.11

(b) Identification of the injured States Wherever obligations are owed to a group of States or the international community as a whole, all the States which hold a corresponding right will not necessarily have the status of an injured State. According to article 42, mere membership of that group or of the international community (depending on the case) is not sufficient. In these cases, a State is only entitled to invoke, as an injured State, the responsibility of another State if the breach specially affects that State or if it is of such a character as radically to change the position of all the States to which the obligation is owed with respect to the further performance of the obligation.12 The position taken in the Articles is more restrictive as to the concept of injured State than that adopted on first reading. Draft article 40 as adopted on first reading also treated as injured all those other States linked to a regime of protection of human rights or protection of collective interests of the parties, or all other States in case of an international crime. In ARSIWA the ILC separated the notion of an injured State from that of a State with a legal interest in achieving compliance with the obligation in question.13 The latter is dealt with in article 48.14 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

In accordance with the notion of injured State adopted by the ILC, plurality of injured States can thus arise from one of the following three situations: (a) the breach of a collective obligation specially affecting two or more States; (b) the radical change of the position of all States to which the obligation is owed with respect to the further performance of the obligation (that is to say the breach of an interdependent obligation); or (c) a combination of these situations (ie specially affecting one or more States and also radically changing the position of all other States). For this reason a plurality of injured States does not necessarily signify identity or homogeneity as far as the nature or the intensity of the injury is concerned. Only the scenario identified in (b) (violation of an interdependent obligation) implies by definition the existence of a plurality of States injured in an identical way. But the position of States which have a right to invoke responsibility without being an injured State also ensues from the breach of collective obligations.15 In practice, it is not exceptional for the injured State(s) to coexist with other States which have the right to

References (p. 952) invoke responsibility for breach of a collective obligation. Nevertheless, the existence of a plurality of interested States does not presuppose or imply the existence of a plurality of injured States. One can therefore encounter a situation where there is a plurality of interested States, but only one injured State or no injured State. The ILC itself recognized that the distinction has no significance vis-à-vis some effects of the invocation of responsibility, noting: ‘it may not be necessary to decide into which category they fall, provided it is clear that they fall into one or the other’.16

2 Invocation and content of responsibility in case of a plurality of injured States The existence of a plurality of injured States does not imply a qualitatively different situation from that of a single injured State so far as the content of the responsibility is concerned. In fact, according to article 33(1) ARSIWA, where a wrongful act is committed, the obligations of the responsible State (that is, those obligations which form the content of responsibility) ‘may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach’. In principle, the determination of the existence of a plurality of injured States is related to the definition of their position as beneficiaries of the new obligations owed by the responsible State. Logically, injured States have a right to invoke responsibility, and therefore to require the fulfilment of these obligations.

(a) Unilateralism versus solidarity in establishing responsibility According to some authors, there are obligations which tend to create, in the case of a breach, a situation of solidarity between the States to which the obligations are owed. This would be the case in respect of interdependent obligations: the invocation of responsibility, even if only realized by one of the injured States, would have an inter omnes partes effect and would remain essentially integral, since these obligations can only be fulfilled with regard to all parties, and not only with respect to the claiming State.17 In these cases the solidarity of the injured States is presupposed. But is it always guaranteed? It is rather possible that there is a divergence among them vis-à-vis the existence of a wrongful act and the obligations which flow from that act for the responsible

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State. The inclusion of obligatory mechanisms in a régime in order to classify the acts and to establish consequences eliminates the disadvantages of a diversity of interests by objectivizing the invocation of responsibility. But these special or autonomous regimes are the exception, not the rule. Furthermore, the obligatory recourse to a form of dispute settlement is itself not always guaranteed. In this respect, article 46 limits itself to recognizing for every injured State the possibility of separately invoking the responsibility of the State which has committed the internationally wrongful act. Even though the collective invocation of responsibility is not necessarily ruled out because of this provision, it is not compulsory in any situation involving a plurality of injured States. What is more, the ILC seemed to admit the

References (p. 953) possibility that one of the States belonging to the group can invoke responsibility even in the case of interdependent obligations. In such a case, it is to be expected that it would invoke the obligations in favour of its own interests. However, in contrast to the provisions in the Vienna Convention on the Law of Treaties which relate to unilateral suspension of a treaty,18 ARSIWA contains no provisions to diminish the disadvantages to other states which might arise from an excess of unilateralism in the invocation of responsibility. Pursuant to article 43 ARSIWA, the injured State which invokes the responsibility of the responsible State needs only give notice to that State. The negative effects of this potential fragmentation (and even divergence) of the relations of responsibility go beyond the supposed violation of integral (interdependent) obligations. Article 48 also recognizes the right of ‘any State other than an injured State’ to invoke responsibility in the case of breaches of collective obligations. In these circumstances, the risk of divergence between the members of the group is even higher.

(b) Determining the content of the claim (reclamation) As for a potential claim for reparation, a plurality of injured States may bring with it some specific problems due to a lack of agreement between the States. First, ‘excessive reparation’: according to the ILC, where there is a claim for compensation ‘evidently each State will be limited to the damage actually suffered’.19 This rule would evidently also be applicable in the case where not all the injured States are in a position to demand compensation (for example, in the case of waiver20 ). Furthermore, if all injured States make a claim, it is clear that the responsible State is not obliged to compensate for more than the amount that results from the financial evaluation of the entirety of the harm caused.21 Second, there is the problem of incompatible claims (eg claims for both compensation and restitution). A flexible approach to the rule of the priority of restitution seems to be required in this case. Thus, the ILC recalled that in Forests of Central Rhodope22 ‘the arbitrator declined to award restitution, inter alia, on the ground that not all the persons or entities interested in restitution had claimed’.23 The practice in the area of claims presented by several injured States for the same wrongful act is certainly not overwhelming and it is not possible to discern the existence of a specific customary regime. The adoption of a specific regulation also seems to have been ruled out in the work of the Commission.24 In any case, the ILC recommends that injured States to coordinate their claims in order to avoid the problems that can arise from a plurality of claims for the same wrongful act.25

3 Plurality of injured States and the taking of countermeasures The plurality of injured States does not necessarily imply the adoption of collective countermeasures. State practice has certainly demonstrated that measures may be taken by a group of States in a more or less concerted manner against States which are apparently From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

responsible

References (p. 954) for breaches of collective obligations. But it must first be noted that not all those which participate in measures of collective reaction may be classified as injured States. Sometimes none of the participating States will be injured States in the sense of the Articles. This has especially been the case where the existence of an international crime has been invoked. In its new approach, the ILC decided to limit the term ‘countermeasures’ to those measures adopted by injured States. Article 54 nevertheless preserves the (uncertain) right of any State entitled to invoke the responsibility of another State ‘to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligations breached’. Therefore, it would be possible that collective measures could be taken without the participation of any of the injured States. Beyond that, the general regime which applies to countermeasures extends to collective countermeasures or countermeasures adopted by a group of injured States. But it must not be forgotten that, just as with the invocation of responsibility, in the context of countermeasures, action by a plurality of States carries the risk of being disproportionate. The ILC has recognized that ‘proportionality must be assessed taking into account not only the purely “quantitative” element of the injury suffered, but also “qualitative” factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach’.26 Without doubt, this will be important where there is a breach of collective obligations. Furthermore, the purely instrumental character of countermeasures27 would seem to preclude an excessive reaction which would amount to punitive action. Proportionality continues to constitute a limit ‘even on measures which may be justified under article 49’.28 According to the Commission, the requirement of proportionality with regard to the harm suffered ‘has a function partly independent of the question whether the countermeasure was necessary to achieve the result of ensuring compliance’.29 Bearing this in mind, it can clearly be seen that the concept of proportionality ought to be applied in the context of countermeasures, whether unilateral or coordinated, where there is a plurality of injured States. Further reading C Annacker, ‘The Legal Régime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian J Publ Intl Law 131 C Annacker, ‘Part Two of the ILC’s Draft Articles on State Responsibility’ (1994) 37 GYBIL 206 DJ Bederman, ‘Article 40(2)(e) & (f ) of the ILC Draft Articles on State Responsibility: Standing of Injured States under Customary International Law and Multilateral Treaties’ (1998) 92 ASIL Proc 291 J Crawford, ‘The Standing of States: A critique of Article 40 of the ILC’s Draft Articles on State Responsibility’, in M Andenas (ed), Liber Amicorum for Lord Slynn of Hadley (The Hague, Kluwer, 2000) Vol II, 23 C Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’ (1999) 10 EJIL 353 P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” de l’illicite’ (1983) 87 RGDIP 505 P-M Dupuy, ‘Action publique et crime international de l’Etat: À propos de l’article 19 du projet de la Commission du droit international sur la responsabilité des Etats’ (1979) 25 AFDI 539

References (p. 955) DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151 G Perrin, ‘La détermination de l’État lésé Les régimes dissociables et les régimes indissociables’, Theory of International Law at the Threshold of the 21st Century (Essays in From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Honour of Krzyzstof Skubiszewski) (The Hague, Kluwer, 1996), 243 P Reuter, ‘Solidarité et divisibilité des engagements conventionnels’, in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht, Kluwer, 1989), 623 J Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273 B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 250 Recueil des cours 219B B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht, Kluwer, 1989), 821(p. 956)

Footnotes: 1 Art 2 ARSIWA (emphasis added). 2 Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215. 3 See C Rousseau, ‘Chronique des faits internationaux’ (1986) 90 RGDIP 216. 4 Commentary to art 42, para 6. 5 Ibid. 6 Ibid, para 11. 7 J Crawford, The International Law Commission’s Arts on State Responsibility: Introduction, Text and Commentaries (Cambridge, CUP, 2002), 41. 8 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 38. 9 Commentary to art 42, para 15. 10 Ibid, para 5, fn 706. 11 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 49. 12 Art 42(b), ARSIWA. 13 Commentary to Part Three, Chapter 1, para 2; Commentary to art 42, para 3. 14 See Chapter 64. 15 Art 48(1), ARSIWA. 16 Commentary to art 46, para 4. 17 J Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273, 282. 18 Arts 60(2)(c) and 65, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. 19 Commentary to art 46, para 4. 20 See art 45, ARSIWA. 21 See art 36, ARSIWA. 22 (1931) 3 RIAA 1405, 1432. 23 Commentary to art 46, para 4, fn 746. 24 See eg J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 281. 25 Commentary to art 46, para 4. 26 Commentary to art 51, para 6. 27 Art 49(1), ARSIWA. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

28 Commentary to art 51, para 7. 29 Ibid.

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Part V The Implementation of International Responsibility, Ch.64 States having an Interest in Compliance with the Obligation Breached Giorgio Gaja From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Erga omnes obligations — Interest

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(p. 957) Chapter 64 States having an Interest in Compliance with the Obligation Breached 1 Breach of erga omnes and erga omnes partes obligations 957 2 The legal position of States other than the injured State in cases of breach of obligations owed to them 960 Further reading 963 While article 42 ARSIWA concerns the invocation of responsibility by States specially affected by the breach of an international obligation owed to a group of States or the international community as a whole, article 48 concerns the situation of States other than injured States, but to whom the obligation breached is also owed. The term ‘injured State’ could be used also in relation to this category of States, for they are also affected by the breach. But the ARSIWA, with a choice of terminology that may be regarded as questionable, call ‘injured States’ only those States falling within the categories outlined in article 42. In any event, what seems important is the entitlement which the States referred to in article 48 benefit from, rather than the term employed to define these States.

1 Breach of erga omnes and erga omnes partes obligations When an obligation is owed by a State to all other States (which is implicit in the indication that ‘the obligation breached is owed to the international community as a whole’) or to all the other States parties to a treaty, all those States are necessarily affected by a breach of that obligation. In this respect, it is possible to speak of a breach of an obligation erga omnes or of an obligation erga omnes partes, respectively. These are expressions that are not always understood in the same way and ARSIWA do not use them: the only Latin words in ARSIWA (lex specialis) appear in the text of article 55. But the expression ‘obligations erga omnes’, already classical, is found in the Commentary to the Articles, where the famous passage of the International Court of Justice’s judgment in Barcelona Traction—the case which launched the term—is reproduced.1 Reference is made to the Court’s incidental mention of ‘obligations of States towards the international community as a whole’ and to the remark according to which, ‘in view of the importance of the rights involved, all States

References (p. 958) can be held to have a legal interest in their protection; they are obligations erga omnes’.2 The Court took examples from: the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.3 In relation to the breach of some of these obligations, there is no State that may be considered as injured. This is the case, for instance, of the obligation to protect the fundamental rights of the human person. The injured subjects in this case are the individuals concerned; only if they are foreigners in relation to the State responsible for the breach, one could argue that their national State is specially affected by the breach. In other cases, as has been mentioned in respect of article 42, there is an injured State: for instance, in the case of aggression, the State which was the object of the aggression is assimilated to the State to whom a bilateral obligation is due. But the position of States other than the injured State is not in principle different from that which would apply in the absence of an injured State. Since the obligation is owed to all States or all the States party to a treaty, all these States are

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necessarily affected. They are affected directly, for the obligation breached is owed to them as well: the terminology of ‘indirect injury’, sometimes used, is inappropriate since it evokes, in the presence of an injured State, the idea that an indirect injury depends on a direct injury; it is even less adequate when no State may be considered as injured. Article 48 establishes the right of the States to whom the obligation is owed, but who do not fall within the category of injured States, to invoke the responsibility of the State author of the breach. Although the definition of the categories of injured States in article 42 renders the identification of the other cases in which the obligation is owed unnecessary, article 48 describes in a pedagogical way the cases in which a State which is not injured in the sense of article 42 is entitled to invoke responsibility. Article 48(1)(b) incorporates the situations mentioned by the International Court of Justice in Barcelona Traction: that is the case of breach of obligations ‘owed to the international community as a whole’. The reference of the Court to the ‘international community as a whole’ concerns all States other than the responsible State, and not a superior and distinct entity. The situation has not evolved much since the judgment, other than in the growing tendency to admit that certain subjects other than States also form part of the international community. It would thus be difficult to maintain that responsibility can only be invoked by ‘a distinct entity’, situated above States.4 Further, it does not follow from the articles that in cases of breach of erga omnes obligations States can invoke responsibility only collectively. If this were so, the significance of article 48 would be drastically limited. Insofar as the reaction to a breach is taken by the organized international community within the framework of the United Nations, the initiatives that a State could take against the responsible State would be restricted. Similarly, interferences could also result from the Security Council taking measures without specific consideration for the existence of a breach of the obligation. These possible restrictions are recalled, although in a synthetic manner, in article 59, which in a ‘without prejudice’ provision refers to the Charter of the United Nations.

References (p. 959) The breach of obligations erga omnes, or rather a sub-category of these obligations, is also addressed in another provision: article 40, concerning the ‘serious breach … of an obligation arising from a peremptory norm of general international law’. The term used in this provision underlines the importance of the content of the rule for the international community and in consequence the seriousness of a breach, whereas the reference to the international community in article 48 indicates that the obligation is owed by a State to all other States. This is explained by the fact that articles 40 and 41 deal with the consequences of the unlawful act, whereas article 48 concerns the invocation of responsibility, thus specifying which States are entitled to invoke it. Even if there are diverging views about the relation between peremptory norms and rules imposing obligations erga omnes, it is clear that the latter comprise peremptory norms in the sense of article 53 of the Vienna Convention on the Law of Treaties.5 It does not seem that these provisions admit the interpretation that has been given, according to which article 40 would be a special rule excluding the applicability of article 48, and that in consequence the latter article does not apply to the invocation of responsibility for a serious breach of an obligation arising from a peremptory norm.6 In relation to obligations erga omnes, article 48 implies that States have a collective interest in compliance with the obligation. The existence of a collective interest is expressly required by article 48(1)(a), which concerns the case where the obligation breached is owed ‘to a group of States’ and ‘the obligation is established for the protection of a collective interest of the group’. The reference in this text to the collective interest is probably intended to specify that it concerns the category of multilateral treaties (or customary rules) which establish obligations which in any specific circumstance are owed to all the other States party to the treaty (or addressees of the

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rule) and thus do not give rise only to a set of bilateral obligations. In other words, this is the case of obligations whose breach affects in any event all the other addressees of the international legal rule. Special Rapporteur Crawford suggested that even a rule that generally sets forth bilateral obligations could protect a collective interest in the case of a breach of a certain degree of seriousness.7 I have already pointed out, in relation to article 42, the difficulty in defining the scope of obligations imposed by a multilateral treaty. The character of the obligation can in fact give rise to controversy. It is sufficient to recall here the judgment of the International Court of Justice in the South West Africa cases, where the Court excluded, with the narrowest majority, the right of States formerly members of the League of Nations to invoke the responsibility of a mandatory State.8 The commentary of the ILC maintains that article 48 ‘is a deliberate departure’ from this judgment.9 In fact, article 48 seems neutral in respect of the existence of a collective interest of the group concerning the obligation imposed by a multilateral treaty. The answer can only be given through the interpretation of the treaty. It would seem that what the ILC intended to say is that, in its opinion, a collective interest should have been recognized by the Court in relation to the mandate for South West Africa.

References (p. 960) The ILC’s approach finds some support in the separate opinion of Judge Simma in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda).10 Part of Uganda’s counterclaim had been rejected by the Court as the claim was brought by way of diplomatic protection, and Uganda had failed to prove that the relevant persons were its nationals.11 Judge Simma expressed the view that the Court should have gone on to find that the ‘victims of the attacks at the Ndjili International Airport remained legally protected against such maltreatment irrespective of their nationality, by other branches of international law, namely international human rights and, particularly, international humanitarian law’,12 and that Uganda had standing to raise such claims on their behalf.13 Referring to article 48, he stated: [a]s to the question of standing of a claimant State for violations of human rights committed against persons which might or might not possess the nationality of that State, the jurisdiction of the Court not being at issue, the contemporary law of State responsibility provides a positive answer as well. The International Law Commission’s 2001 draft on Responsibility of States for Internationally Wrongful Acts provides not only for the invocation of responsibility by an injured State (which quality Uganda would possess if it had been able to establish the Ugandan nationality of the individuals at the airport) but also for the possibility that such responsibility can be invoked by a State other than an injured State … The obligations deriving from the human rights treaties cited above and breached by the DRC are instances par excellence of obligations that are owed to a group of States including Uganda, and are established for the protection of a collective interest of the States parties to the Covenant.14 In 2006, the Court expressly noted that the existence of jus cogens or erga omnes obligations would not exclude the requirement of jurisdiction, stating: … the Court deems it necessary to recall that the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties …15 This does not mean that the Court could not examine the breach of one of these obligations in a context where its jurisdiction was established, for example, by a treaty.

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2 The legal position of States other than the injured State in cases of breach of obligations owed to them The fact that the obligation breached is owed to a State entails that this State can request the cessation of the unlawful act. It is in fact an essential aspect of the existence of an obligation imposed by the primary rule. The same conclusion may be reached in respect of assurances and guarantees of non-repetition, which equally concern compliance with the

References (p. 961) same obligation, rather than the fulfilment of new obligations arising as a consequence of the wrongful act. A State which has not been injured, but which may invoke the responsibility of the wrongdoing State, does so essentially in the exercise of a collective interest. It will rarely have suffered damage (moral or material) that affects it individually. This could be the case of a State which, even if its coastal and maritime areas are not affected by the consequences of pollution in the high seas, incurs expenses to combat pollution. Normally, damage resulting from the breach of obligations erga omnes or obligations erga omnes partes does not affect any State other than an injured State, if there is one. It would be inconceivable that another State would be entitled to claim compensation for its own benefit to make reparation for damage that it has not suffered. The question is whether a State other than the injured State would be entitled to invoke responsibility in order to request that the obligation of reparation be fulfilled. Restitution or compensation and, depending on the case, satisfaction would be claimed by any State other than the injured State, not for its own benefit, but for the benefit of the injured State or any other injured subject. Article 48(2)(b) resolves this question by allowing every State to demand ‘performance of the obligation of reparation … in the interest of the injured State or of the beneficiaries of the obligation breached’. The latter case is normally that in which the obligation is owed to States and also to other subjects, like individuals and peoples. It could also be that the obligation exists only towards other States and no State is injured by its breach, but reparation is necessary in the interest of the international community. An example of this situation could be heavy pollution of the high seas which requires a form of restitution. The solution adopted by the ILC, to allow a State other than the injured State to claim reparation, has given rise to criticism within the Sixth Committee. Mr B Ebotou, delegate of Cameroon, considered that article 48 was one of the ‘aspects of the progressive development of international law which were a source of legitimate concern’; 16 even stronger criticism was expressed by the Chinese delegate, H Xue.17 The Commission admits in its commentary that the solution proposed ‘involves a measure of progressive development’.18 And yet this provision responds to practical and logical exigencies. On the logical plane, in the absence of such provision, the responsible State could avoid fulfilling any obligation of reparation when there is no injured State. No State would in fact be able to invoke the responsibility of the wrongdoing State. In the case of heavy pollution of the high seas or unlawful harm to the ozone layer, the responsible State would have an obligation of reparation that would not be owed to any other State and would therefore remain theoretical. This would also imply that the obligations not to pollute the high seas and not to cause harm to the ozone layer would also be theoretical, for they could easily be breached without consequences. Similarly, in the case of human rights violations, at least when the violations concern nationals of the responsible State, there would be no State which could claim the reparation owed. Again, the obligation to protect human rights would not have any practical significance. It therefore seems that where an obligation is imposed on a State to protect a collective interest, it must follow that other States are entitled to request reparation in case of a breach of that obligation.

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References (p. 962) The possible presence of an injured State should not alter the legal situation of the other States to whom the obligation is owed. The injured State may claim reparation on its own account, while the other States may only make a claim for the benefit of another subject, such as the injured State. It is true that practice shows few examples of cases in which a non-injured State has claimed the performance of the obligation of reparation. In this respect, Resolution 687 of the Security Council, concerning the damages caused by the invasion of Kuwait, constitutes an important example. It is also interesting to note that article 41 of the European Convention on Human Rights expressly allows States which bring claims to the European Court of Human Rights to request reparation for the breach of obligations suffered by individuals. Even in the case of the breach of a bilateral obligation, reparation is very rarely claimed. This results from a choice that the claimant State makes, and does not necessarily affect the principle. The existence of a State’s right to invoke international responsibility has certain implications in relation to its right to present a claim in this respect before the International Court of Justice, when a dispute arises between the State invoking responsibility and the allegedly responsible State. There is no reason to exclude this type of dispute from the application of the rules generally concerning the jurisdiction of the Court over disputes between these two States. The ILC’s Commentary seems however to take a different approach, when it states that for: the filing of an application before a competent international tribunal, or even the taking of countermeasures … a State … should have a specific right to do so, e.g., a right of action specifically conferred by treaty, or it must be considered an injured State.19 This passage is closer to the position taken in certain separate and dissenting opinions by judges of the Court, insofar as it considers that one should not resolve the question of a right of action before the Court simply on the basis of the existence of a legal position corresponding to the erga omnes obligation.20 The question of the admissibility of countermeasures by a State which is not injured by the breach is even more controversial. Article 54 ARSIWA explicitly indicates that the chapter concerning countermeasures: does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached. The question of countermeasures by States other than the injured State arose in practice in relation to serious breaches of obligations owed to the international community as a whole, and will be analysed in this context.21 It is however interesting to note that the ‘without prejudice’ clause in article 54 concerns in general all the situations covered by article 48, thus even cases where there is no serious breach. However, the clause does not imply that the problem of admissibility of countermeasures should be solved in a uniform manner in all cases where responsibility may be invoked by a State other than the injured State.

References (p. 963) In relation to the conditions for the invocation of responsibility by a State other than the injured State, according to article 48(3), the ‘requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1’. It is therefore clear that the specified requirements apply to the State

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invoking responsibility, whether it has suffered injury or not, without regard to the fact that the injured State may have also presented a claim. On the basis of the reference to article 43, a State other than the injured State is also required to notify its request. The indication of the ‘form reparation should take’ does not affect the content of the obligation of the responsible State, even when this indication comes from the injured State. It seems reasonable that in principle the indication of the latter State, if there is one and if the indication exists, should prevail over that of other States, but it is not necessarily decisive. A waiver on the part of the injured State solely affects the claim of that State. It does not prevent other States from invoking responsibility. The reference to article 45 entails only that also these other States can waive their right to invoke responsibility. The reference to article 44, concerning admissibility of claims, is only partly appropriate. In fact, the requirement of ‘nationality of claims’ does not apply when a State other than the injured State is entitled to invoke responsibility. The first State asserts a collective interest, and this is hardly reconcilable with the application of a requirement derived from nationality. It would be different where the claim is presented by a State as the injured State, if this quality depends on the fact that the injury affects one of its nationals. Instead, the rule of exhaustion of domestic remedies could apply both to the injured State and to any other State invoking responsibility with the aim of protecting a collective interest. This could occur when responsibility is invoked by virtue of a breach of a human rights obligation, insofar as the invocation comes under the application of the rule. Further reading C Annacker, Die Durchsetzung von erga omnes Verpflichtungen vor dem Internationalen Gerichtshof (Hamburg, Kovac, 1994) C Annacker, ‘The Legal Régime of Erga Omnes Obligations in International Law’ (1994) 46 Austrian Journal of Public and International Law 131 A de Hoogh, Obligations Erga Omnes and International Crimes (The Hague, Kluwer, 1996) C Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’ (1999) 10 EJIL 353 P-M Dupuy, ‘Bilan général des rencontres de la dimension multilatérale des obligations avec la codification du droit de la responsabilité’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 57 S Forlati, ‘Azioni dinanzi alla Corte internazionale di giustizia rispetto a violazioni di obblighi erga omnes’ (2001) 84 Riv DI 69 J Frowein, ‘Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung’, in R Bernhard et al (eds), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte. Festschrift für Hermann Mosler (Berlin, Springer-Verlag, 1983), 241 J Frowein, ‘Reactions by not directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345 CA Günther, Die Klagebefugnis der Staaten in internationalen Streitbeilegungsverfahren (Cologne, Heymanns, 1999)

References (p. 964) M Kaplan, ‘Using Collective Interests to Ensure Human Rights: An Analysis of the Articles on State Responsibility’ (2004) 79 NYU Law Review 1902 F Lattanzi, Garanzie dei diritti dell’uomo nel diritto internazionale generale (Milan, Giuffré, 1983) P Picone, ‘Obblighi erga omnes e codificazione della responsabilità degli Stati’ (2005) 88 Riv DI 893 P Picone, ‘Obblighi reciproci ed obblighi erga omnes degli Stati nel campo della protezione

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internazionale dell’ambiente marino dall’inquinamento’, in V Starace (ed), Diritto internazionale e protezione dell’ambiente marino (Milan, Giuffré, 1983), 15 M Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, Clarendon Press, 1997) I Scobbie, ‘Invocation de la responsabilité pour la violation d’obligations découlant de normes impératives de droit international général’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 121 L-A Sicilianos, ‘Classification des obligations et dimension multilatérale de la responsabilité internationale’, in P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des États (Paris, Pedone, 2002), 57 B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 219 B Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Y Dinstein (ed), International Law in a Time of Perplexity. Essays in Honour of Shabtai Rosenne (Dordrecht, Martinus Nijhoff, 1989), 821 B Stern, ‘Et si on utilisait le concept de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’ (2001) 47 AFDI 3 CJ Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005) K Zemanek, ‘New Trends in the Enforcement of Erga Omnes Obligations’ (2000) 4 Max Planck Yearbook of United Nations Law 1

Footnotes: 1 Commentary to art 48, para 8. 2 Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p 3, 32 (para 33). 3 Ibid, 32 (para 34). 4 As advocated by the Greek delegate before the Sixth Committee, C Economides, 1 November 2001, A/C.6/56/SR.14, para 22. 5 1155 UNTS 331. See G Abi-Saab, ‘The Uses of Article 19’ (1999) 10 EJIL 339. 6 See especially the interventions before the Sixth Committee of the delegates of Finland, M Koskenniemi, and Israel, Y Dinstein, on 29 and 31 October 2001, A/C.6/56/SR.11, paras 31-33 and SR.13, para 21. This interpretation was criticized, notably by the delegates of the Netherlands, J Lammers, on 31 October 2001 and of Jordan, MD Hmoud, on 1 November 2001, A/C.6/56/SR.12, para 29 and SR.15, paras 22-25. 7 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 40. 8 South West Africa, Second Phase, Judgment, ICJ Reports 1966, p 6. 9 Commentary to art 48, para 7 (n 725). 10 Separate Opinion of Judge Simma, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 334. 11 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 276 (para 333). 12 Separate Opinion of Judge Simma, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, p 168, 334. 13 Ibid, 348–349 (para 37). 14 Ibid, 347 (para 35). 15 Armed Activities on The Territory of The Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, ICJ Reports 2006, p 6, 50 (para 125). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

16 1 November 2001, A/C.6/56/SR.14, para 60. 17 29 October 2001, A/C.6/56/SR.11, paras 59-61. 18 Commentary to art 48, para 12. 19 Commentary to art 42, para 2. 20 Separate opinion of Judge Fitzmaurice, Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p 66; and the joint dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga, and Sir Humphrey Waldock, Nuclear Tests (Australia v France), Judgment, ICJ Reports 1974, p 312, 370. 21 See L-A Sicilianos, Chapter 80.

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Part V The Implementation of International Responsibility, Ch.65 Succession of States in Respect of Rights of an Injured State Václav Mikulka From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Diplomatic protection — Wrongful acts — State succession

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(p. 965) Chapter 65 Succession of States in Respect of Rights of an Injured State Chapter 21 addressed the problem of succession of States in respect of responsibility of States, namely the question whether or in what circumstances the successor State may replace predecessor States in respect of legal obligations which arose by reason of the internationally wrongful act of the predecessor State. There is, however, another situation which may result from the succession of States, namely that where the injured State is affected by the succession of States. This Chapter deals with succession in respect of secondary rights of the predecessor State arising from a wrongful act of another State. Unlike the first aspect of the problem, the question of succession in respect of rights of the injured State has received relatively little attention in the literature. Consistently with their views on the fate of obligations arising from the wrongful act of the predecessor State, writers tend to reject the possibility of transfer of rights of the predecessor State, which arose from the wrongful act of another State, to a successor State. According to this view: … in the absence of an agreement to the contrary, the new State does not assume the rights of the former State arising from the wrongful acts of which this State was a victim.1 This view is supported by reference to cases in which diplomatic protection was involved. The discussion, as a consequence, usually shifts towards the question of ‘continuity of nationality’.2 While for some writers diplomatic protection belongs to the realm of State responsibility, because it is the State which is affected by the injury caused to its national by the breach of international law by another State, for others diplomatic protection is independent from the problem of State responsibility. Accordingly, even if a recent trend is to recognize an exception from the rule of ‘continued nationality’ in cases when change of nationality results from succession of States,3 it would not suffice to justify the thesis of succession in respect of rights of an injured State. One can agree that ‘… rules [concerning diplomatic protection] are not applicable if the victim of the breach is the predecessor State itself ’.4 But at the time the above conclusion was formulated there might not have been cases in which the victim of the breach (p. 966) was the predecessor State itself. However, in Gabcíkovo-Nagymaros Project the problem of succession arose in the context of breaches affecting the States directly. Thus Slovakia claimed, inter alia, compensation for Czechoslovakia’s losses caused by Hungary’s breaches of the 1977 Treaty on construction and operation of the Project of which Czechoslovakia was a direct victim. In Slovakia’s view, Hungary’s obligation to compensate Czechoslovakia was created, ipso facto, by delays, since there were specific provisions of the Treaty concerning liability for damages resulting from delays in construction works caused by other contracting party.5 As a successor State in relation to the Treaty, Slovakia therefore sought compensation for losses caused by Hungary’s breaches both prior to and after the date of dissolution of Czechoslovakia.6 The Court, having decided that Slovakia and Hungary were both entitled to obtain compensation given the fact that there were intersecting wrongs by both parties, stated explicitly: … Slovakia is … entitled to compensation for the damage suffered by Czechoslovakia, as well as by itself as a result of Hungary’s decision to suspend and subsequently abandon the works [on the Project].7 The legal ramifications of the Court’s decision (linkage with succession in respect of rights and obligations under the Treaty, provisions of the Special Agreement concerning the status of Slovakia as the successor State) are summarized in Chapter 21 above in the context of succession in respect of State responsibility. The Gabcíkovo-Nagymaros case invites reflection on a number of traditional postulates which are often taken for granted. One example is the thesis that the problem of succession has a raison d’être only if the predecessor State ceases to exist, for otherwise it would be only this State which From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

would remain engaged in the new legal relations arising from the breach of the international obligation. This thesis was mentioned in the context of the discussion of the problem of succession with respect to wrongful acts and seems to be tacitly accepted also as a starting point for the debate on succession in respect of rights of the injured State.8 But is it accurate? Let us imagine that a situation analogous to that of Gabcíkovo-Nagymaros Project occurs in the context of cession (and not that of dissolution, as in fact it did). Where would this thesis lead us? The predecessor State would continue to exist and would remain solely responsible for its breaches but also solely entitled to obtain reparation for the wrongful acts of the other party. All material consequences as well as practical means to remedy a situation, which were the result of intrinsic breaches of a localized treaty,9 however, would now rest with the successor State and the other treaty party. Remedies like resumption of obligations breached, restitution or even assurances of non-repetition would not be an option in the relations between the predecessor State and its former neighbour, because the original treaty bond between them would have disappeared. These remedies, however, still might be of significance to the successor State and the other treaty party. It is premature to contemplate the extent to which Gabcíkovo-Nagymaros will influence further development of international law in the field of succession in matters of

References (p. 967) international responsibility. It is apparent, however, that it matches well with current trends towards greater security in international legal relations. Further reading W Czaplinski, ‘State succession and State responsibility’ (1990) 28 Can YBIL 339 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) 8 AFDI 65 DP O’Connell, State Succession in Municipal Law and International Law (Cambridge, CUP, 1967), Vol I, ch 19 MJ Volkovitsch, ‘Towards a new theory of State succession to responsibility for international delicts’ (1992) 92 Columbia Law Review 2166(p. 968)

Footnotes: 1 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) AFDI 65, 86. 2 See eg ibid, 68–72. 3 Report of the ILC, 47th Session, ILC Yearbook 1995, Vol II(2), 116 (paras 31–2). See also the ILC’s work on the topic of diplomatic protection: Commentary to draft art 5, paras 1–11, Report of the ILC, 56th Session, 2004, A/59/10, 34-8; see now Articles on Diplomatic Protection, Commentary to art 5, paras 1-14; Report of the ILC, 58th Session, 2006, A/61/10, 35-41. 4 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) AFDI 65, 72. 5 Art 26(2)(c) of the Treaty. 6 Memorial of the Slovak Republic, paras 3.62–3.64. 7 Gabcíkovo-Nagymaros Project (Hungary/Slovakia) ICJ Reports 1997, p 7, 78 (para 152). 8 JP Monnier, ‘La succession d’Etats en matière de responsabilité internationale’ (1962) AFDI 65, 67–68. 9 Gabcíkovo-Nagymaros Project (Hungary/Slovakia) ICJ Reports 1997, p 7, 71–4), 81 (para 153).

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Part V The Implementation of International Responsibility, Ch.66 Invocation of Responsibility by International Organizations Eglantine Cujo From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of international organizations — Wrongful acts — Responsibility of states — United Nations (UN) — Countermeasures

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(p. 969) Chapter 66 Invocation of Responsibility by International Organizations 1 The injured international organization 970 (a) Injury to an international organization 970 (b) Invocation of responsibility by an injured international organization 972 2 Invocation of responsibility by an international organization which is not injured 976 (a) The interest of an international organization in respect for the breached obligation 976 (i) Membership of a group to whom the obligation is owed 976 (ii) Membership of the international community as a whole 976 (b) The consequences of international organization having an interest in respect for the breached obligation 978 Further reading 982 The issue of the invocation of international responsibility by international organizations is complex and was long-neglected by codification projects, case law, and doctrine. Article 33(2) ARSIWA reserves the possibility of rights arising from the international responsibi lity of a State which might accrue directly to any person or entity other than a State. The ILC subsequently considered the issue of invocation of responsibility by international organizations in the context of codifying the responsibility of international organizations,1 albeit under the restrictive angle of invocation of the responsibility of another organization, and not of a State. The ILC has nevertheless considered that ARSIWA ‘can be applied by analogy also to the relationship between a responsible State and an international organization’.2 Although the question of passive responsibility of international organizations has been the subject of several studies,3 little attention has been given to the active responsibility of international organizations (with the exception of some aspects of practice of the European

References (p. 970) Community). It has been suggested that this question requires no consideration, since situations of active responsibility of international organizations ‘in any case hardly raise any difficulty anymore’.4 The question of the invocation of inter national responsibility by international organizations (whether it is against a member State, a third party State or another organization) nevertheless raises difficult questions and merits a thorough study. We will proceed here, following the distinction maintained by the ILC, by examining first the situation of the injured international organization, then that of the international organization having an interest in respect of the breached obligation.

1 The injured international organization The invocation of international responsibility belongs to the injured subject, which has priority. We will therefore examine the issue of the quality of the injured international organization before considering the consequences which attach to it.

(a) Injury to an international organization As subjects of public international law, international organizations are holders of rights which

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another subject of international law may breach. In other words, and just as for States, whether an organization is an injured subject depends on the participation of the organization in a primary legal relationship. The possibility of injury to the rights of an organization presented itself very early,5 and was taken into account in the initial stages of the ILC work on the responsibility of States.6 It is becoming more relevant in practice because of the increasing activity of such organizations in international legal relations. Nevertheless there are certain questions concerning the specific character of international organizations as subjects of international law. In the classic law on responsibility, a subject is considered as injured and entitled to invoke international responsibility when one of its rights has been denied or compromised by an internationally wrongful act or where it has been particularly affected by such an act.7 Consequently, classifying an international organization as injured in the sense that is understood in the law of responsibility implies that the organization has been the beneficiary of the breached obligation. This presupposes that an international organization can hold certain rights under international law. While this does not raise any difficulty in respect of States (hence ARSIWA does not attach great importance to the content of the international obligations the breach of which engages responsibility),8 in respect of international organizations the question arises as to whether the organization has competence to derive rights directly from international law. A few remarks must be made on this point. The first issue is that the rights which pertain to the organization must be distinguished from those which attach to its members. In respect of rights belonging to the organization itself, it is clear that where these rights are infringed by a wrongful act, the organization

References (p. 971) will be an injured subject.9 The situation is sometimes relatively clear. It is clear where the breached obligation results from a bilateral treaty to which the organization is a party; it is also clear where the breached obligation concerns an area in respect of which the organization has exclusive competence (for example, breach of a commercial obligation which is owed to the EC); and it is clear where a breached obligation concerns an agent of the organization, ie ‘any person through whom it acts’,10 as the breach results in direct prejudice to the organization.11 On the other hand, some cases are more problematic. Above all, in a situation where an organization and its members are parties to a treaty in which the exact field of the respective competences of each is not clearly defined, it is not easy to determine to whom the breached obligations are owed. In contemporary practice that difficulty has generally been circumvented by obliging the organization or its Member States to make declarations as to the scope of their respective competencies for the information of third parties.12 Further, where the organization has succeeded its member States in the exercise of certain competences under a treaty there might be difficulties. Should the breach of rights which were initially held by the member States be considered as a breach of the rights of the organization? Where the succession is recognized by other parties to the agreement (as was the case at the time with GATT of 1947 where the Contracting Parties recognized and accepted the succession of the EEC to its members), the organization must be considered as injured by the breach. This is even more clear in situations of representation, ie where agreements are concluded by States on behalf of the organization to which they belong, since here the rights are owed to the organization from the very beginning.13 A second issue is whether the organization draws rights from its constitutive charter even though it is not, by definition, a party to it. Where member States of an international organization breach the constitutive treaty, do they breach an obligation owed to the organization or only one which they owe to other contracting parties? The latter seems the preferable interpretation: since the organization is not party to the primary legal relationship, it should not be considered as injured by a breach of the primary obligation. Herein lies the paradox (especially for so-called integrated organizations): the treaty creates the organization and yet the organization does not have rights 14

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corresponding to the obligations of State parties to comply with the terms of that instrument.14 Of course, the international organization certainly has an interest in respect for its constitutive treaty, but the recognition of an interest does not entail the attribution of a right.15 Furthermore, even though it is true that there are many defence mechanisms for norms which are under the care of an

References (p. 972) international organization,16 these are not based on a right which the organization draws from the law of responsibility, but are the result of competences attributed to the organization by the treaty. The organization must thus be considered as a third party and the law of treaties envisages expressly that, in such a situation, in order for a provision of a treaty to give rise to a right for the organization, the parties to the treaty must have intended, through this provision, to confer such a right and the organization must have consented.17 One may be surprised at the Commentary of the ILC on draft article 27 of the Draft Articles on the law of treaties between States and international organizations or between international organizations, according to which: [a]n international organization may deny a contracting State the benefit of performance of a treaty if that State has committed a wrongful act against the organization, no matter whether that wrongful act consists in a breach of the treaty or of a general rule of international law, or in a breach of the rules of the organization if the State is also a member of the organization.18 Of course an organization’s rights may be infringed when a member State breaches any engagement directly between the organization and that member State (for example, the agreements under article 43 UN Charter). The organization’s rights may also be infringed by a member State where there is a breach by that State of its obligations towards the organization which concern an agent of that organization.19 Finally, another difficult situation must be mentioned: where the rights of member States are infringed. In this situation, and depending on the degree of integration of the organization, is the organization itself also injured? Opinion is divided on this point, but it appears that the organization would not be injured, since it is not party to the primary legal relationship.

(b) Invocation of responsibility by an injured international organization The identification of the injured subject is an element in the process of determining the legal consequences of an internationally wrongful act. Consequently, and as soon as the capacity of the international organization to be injured by an internationally wrongful act has been established, it has the right to invoke the international responsibility of another subject of law.20 The organization must be able to demand cessation of the act as well as reparation for the prejudice suffered (apart from the situation where the organization is not recognized by the third party State, in which case the possibility of invoking responsibility falls to the members of the organization). To do this, the organization may, as the ICJ indicated in 1949, resort to ‘the customary methods recognized by international law’ (protest, negotiation, arbitration, etc); 21 the particular responses of the organization may vary.22 This flexibility can be seen in examples from practice: following harm caused to the property of the United Nations Emergency Force

References (p. 973) by members of military contingents, the UN Secretariat delivered an opinion in which it indicated that the issue of the recovery of indemnities owed for that harm could be settled on the international level directly between the UN and the government concerned.23 The clauses regulating the treatment of indemnification claims envisaged in the agreements between the EU and third party countries and concerning the status of forces under the direction of the EU may also be 24

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cited here.24 If the author of the internationally wrongful act does not fulfil its obligations of cessation or reparation, the question of the remedy of countermeasures through the organization must also be envisaged (it was also raised by Ago in his Eighth Report).25 Where the rights of the organization itself have been infringed, the doctrine suggests that the organization may resort to countermeasures to ensure that the responsible party puts an end to the wrongful act and repairs the harm.26 The work of the ILC on the responsibility of international organizations supports this approach.27 The use of countermeasures by an international organization is, in practice, relatively exceptional (with the exception of the EC in the commercial context). It nevertheless raises certain questions, especially because of the internal distribution of competences between the organization and its members which can result in a disparity between injured subject and the subject which adopts countermeasures (a situation which also highlights the artificial character of treating the responsibility of States and organizations separately). Since international organizations only have the competences which are attributed to them, where an organization has been injured it may be necessary for the member States to adopt countermeasures.28 This may be the case where the organization and its members jointly participate in a treaty or, more generally, there may be solidarity which bonds the organization to its member States. Where both an organization and its member States are parties to a treaty, two scenarios may occur. The first is that the organization and its member States are considered as one and the same party (this is for example the case for certain cooperation agreements of the EC and its member States). Where there is a breach of an obligation which is owed both to the organization and to its member States, countermeasures may be taken in accordance with the internal rules of the organization (subject to the criterion of proportionality which could be difficult to fulfil depending on the reaction being that of the organization or of its member States). The second scenario is where the organization and its member States are recognized as distinct parties and where the obligations owed to them are not mixed. The situation of the EC and its member States at the WTO is interesting here, since the Memorandum of Agreement on the Settlement of Disputes expressly authorizes

References (p. 974) resort to countermeasures in a sector other than the one in which the breach occurred. The EC may be injured (for example by the institution of illegal subsidies applied to exports within the Community market), but the efficiency of the reaction may necessitate measures which are within the competence of member States. This substitution of one party by another cannot be contested where it has been accepted by the other members of the organization (and here special attention must be given to the criterion of proportionality of countermeasures). Nevertheless, opinion is divided on the issue. For some, the principle remains that the party entitled to respond is the injured party.29 For others, the organization must have capacity to invoke responsibility in all cases.30 Apart from this particular case, opinion is generally in support of the recognition of the competence of member States to obtain, by way of countermeasures, respect for the obligation by the subject whose wrongful act has injured the organization.31 The second scenario concerns the justification of a disjunction between the injured subject and the subject which seeks to obtain reparation or cessation of the wrongful act, having regard to the solidarity which can exist between the organization and its members. The idea that the organization may take countermeasures against a State whose wrongful act injures one of its member States is defended by some.32 It is nevertheless difficult to find a basis in law for this conclusion, except if it is accepted that the member States have transferred every competence to respond to the organization, which seems very unlikely, and that this situation is opposable to third parties. However, where there is an armed attack, the organization may be entitled to take countermeasures as a form of collective self-defence.

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As far as the conditions for the resort to countermeasures are concerned, article 54 of the 2009 Draft Articles provides that the rules stated by the ILC in relation to the responsibility of States apply mutatis mutandis to countermeasures taken by international organizations.33 As far as the proportionality of countermeasures is concerned, it has long been discussed in the literature whether it should be read differently in respect of measures taken by international organizations. It is clear that the work of the ILC on the responsibility of States is not very useful on this point since it did not resolve the situation of countermeasures taken by a plurality of injured States. In 1992 some members of the ILC raised the question of countermeasures by a plurality of injured States: Assuming that no coordinated, collective (‘horizontal’) action was undertaken by those States, it was likely that each injured State would be predominantly concerned with its own relationship with the

References (p. 975) State which had committed the wrongful act. Taken alone, that conduct might seem reasonable. But what if, collectively, the conduct of all the injured States amounted to a disproportionate response? A provision to the effect that each State should respond with due regard to the responses of other injured States was viewed as too vague.34 In his Third Report, Special Rapporteur Crawford also specified in relation to the situation of collective countermeasures taken by non-injured States that ‘all the countermeasures taken in relation to a particular breach should be considered in determining whether the response is, overall, proportionate’.35 In his Sixth Report on the Responsibility of International Organizations, Special Rapporteur Gaja nevertheless did not seem to consider that the requirement of proportionality as it features in ARSIWA should be adapted, but rather that it could be taken up as it was in the context of international organizations.36 The Draft Articles on the Responsibility of International Organizations adopted in 2009 go in the same direction since the drafting of article 53 is identical to that of article 51 of the 2001 Articles. Its Commentary, surprisingly, is silent on the question. Beyond proportionality, there is no doubt that the list concluded by the ILC in 2001 (article 50) of obligations which cannot be affected by countermeasures is also relevant for measures taken by international organizations.37 It is also included in the 2009 Draft Articles (article 52). Finally, a last point must be mentioned concerning the conditions for the exercise of countermeasures by international organizations. In the special case where an organization invokes the international responsibility of a subject for harm caused to one of its agents, there is no doubt that it must be proved that the agent is an agent of the organization just as, in the case of direct harm to a State organ, the State must prove that the organ which suffered the prejudice is indeed an organ of the State. Furthermore, a specification must be added with regard to the situation mentioned by the Court in 1949 of potential competition of claims formulated by an organization and a State. The Court ruled on this point that ‘there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim’.38 Solutions ‘inspired by goodwill and common sense’ must be found and ‘risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case’, it being understood that, in any case, the defendant State cannot be forced to make reparation twice for harm caused.39 Academic writers have also addressed this issue and proposed slightly different solutions (for Eagleton, priority must be given to the action of the organization).40 Whatever the answer to this last question should be, there will only

References

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(p. 976) be competition where the organization and the State are invoking the breach of the same international obligation with respect to the same act (for example in the case where a blue helmet is subjected to acts of torture by a belligerent).

2 Invocation of responsibility by an international organization which is not injured Apart from the situation where the international organization invokes responsibility as an injured subject, the situation may arise where the organization invokes international responsibility without being injured but because of the interest that it has in respect for the breached obligation, taking account of its special character. The situation of an organization having an interest in respect for a breached obligation must be envisaged for erga omnes partes obligations and ‘obligations owed to the international community as a whole’ under the formulation that was finally retained by the ILC.41 Since these obligations are owed to ‘all’ the question arises whether they are also owed to international organizations, and whether on that basis international organizations would also be entitled to invoke responsibility for breaches of those obligations.

(a) The interest of an international organization in respect for the breached obligation (i) Membership of a group to whom the obligation is owed The first situation envisaged by article 48(1) ARSIWA where a State other than the injured State can invoke responsibility is where the breached obligation is owed to a group of States including the invoking State and the obligation is established with the purpose of protecting the collective interest of the group. These obligations can be classified as erga omnes partes obligations. They may arise under multilateral treaties or customary international law.42 Nothing prevents an international organization from being part of such a group, as article 48(1) of the 2009 Draft Articles notes in the case of the invocation of responsibility of another organization. (ii) Membership of the international community as a whole The second situation, where the breached obligation is owed to the international community as a whole, is more delicate. The notion of the international community as a whole is not precisely defined.43 In this context, one could be tempted to adopt a restrictive definition of the international community as comprising only States. If a broader definition is adopted, there is a risk that the international community could be comprised of each and every subject of international law (including individuals for particular purposes), since the only criterion would be possessing international legal personality. However, pragmatic reasons negate such a logical deduction. In fact, international organizations do not occupy the same position as individuals in the international legal order and the participation of international organizations as forming part of the international community does not necessarily entail the automatic recognition of individuals as doing so. On the one hand, and in contrast to individuals, international organizations actively participate in the formation

References (p. 977) of international law and in particular may be parties to treaties which may, by their terms, establish obligations owed to the international community as a whole.44 On the other hand, again in contrast to individuals, international organizations may be seen as the extension of their member States, and, by definition, act in the common interest. Accordingly, there would seem to be a purely functional reason which explains why organizations such as the ICRC should be considered to constitute members of the international community.45

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A more restrictive view of the scope of the international community does not appear to correspond to reality and recognition of international organizations as members of the international community is desirable. With the exception of the particular context of the law of treaties (the Vienna Conventions, including that of 1986 on international organizations, refer to the international community of States),46 the repeated use in treaty practice of the expression ‘international community as a whole’ with preference over ‘international community of States as a whole’ seems to provide some support for a broader notion of the international community. 47 Notably, the Court refers to ‘obligations of a State towards the international community as a whole’.48 In the ILC, the terminology employed by successive Special Rapporteurs on State responsibility also evolved in this sense: although at the beginning the concept was referred to as the ‘international community of States as a whole’, the final terminology used by Special Rapporteur Crawford and approved by the ILC is ‘international community as a whole’. Objections were raised by some States (for example France, Mexico, Slovakia, and the United Kingdom49 on the basis that the expression ‘international community as a whole’ should read ‘international community of States as a whole’) but were rejected: The Special Rapporteur does not agree that any change is necessary in what has become a well-accepted phrase. States remain central to the process of international lawmaking and law-applying, and it is axiomatic that every State is as such a member of the international community. But the international community includes entities in addition to States: for example, the European Union, the International Committee of the Red Cross, the United Nations itself.50 The Draft Articles on the Responsibility of International Organizations 2009 also use this inclusive conception of the international community (article 48). It follows that the theory of assimilation of the UN to the international community as a whole, which was supported by some—for whom the global organization is the most satisfying institutional representation of the organized international community51—should be rejected. This theory is further of little use if it is considered that the sanctions that the

References (p. 978) Security Council may adopt relate to the law of collective security and not to the law of responsibility.52 It also follows that the argument that organizations should be excluded from the international community because they are not members of the Organization which represents this community is not appropriate. The Special Rapporteur justified this solution on the basis of the practical consideration that the lack of willingness on the part of UN organs should not result in a situation where a State which breaches an obligation towards the community as a whole could not be held to account for that breach.53

(b) The consequences of international organization having an interest in respect for the breached obligation The inclusion of a category of obligations owed to a group of States or to the international community as a whole was intended to broaden the scope for the invocation of responsibility. Should it be deduced from this that as from the moment when certain obligations are owed to international organizations, they have a right to invoke the responsibility of the author of the breach under the same conditions as States? This is quite unclear. As the Court has recognized: ‘[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights’.54 Undoubtedly membership of a group to whom an obligation is owed or of the international community as a whole must entail certain consequences. The minimum that this could entail is the right to protest against breaches of erga omnes obligations, since protest is generally considered 55

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as a lawful act; 55 it also be noted that there is significant practice in support of a right of protest (Community institutions, but also the organs of the Council of Europe, the African Union, etc).56 What are the consequences envisaged by ARSIWA? For States having an interest in the respect for the obligation which is breached, article 48(2) recognizes the right to require the cessation of the internationally wrongful act as well as guarantees of non-repetition on the one hand, and on the other, the right to require the execution of the obligation of reparation in the interest of the injured State or the beneficiaries of the breached obligation.57 Of course, the utility of recognizing these rights for organizations in addition to States is open to question, insofar as the right to invoke responsibility with regard to such obligations is not established in the personal interest of the party which invokes it ‘but in the community interest’58 or in the interest of the group. A distinction between the obligations concerned could be made in this regard and an organization could be entitled to require more from a member of a group to which it belongs (to whom an obligation is owed) than as a member of the international community as a whole.

References (p. 979) The 2009 Draft Articles also recognize the ability of non-injured organizations to invoke responsibility while distinguishing the situations where the breached obligation is owed to a group (article 48(1)) or to the international community as a whole (article 48(3)). In the latter case, the Draft Articles specify that, in a legitimate way, the ability of an organization to invoke the responsibility of another organization only exists if the protection of the interest of this community which underlies the breached obligation is included among the functions of the international organization invoking responsibility59 —and with this same reservation, the existence of such an ability must be accepted where there is an organization that invokes the responsibility of a State. But the 2009 Draft Articles nevertheless do not distinguish between the situations where there is a determination of rights which belong to the organization having an interest in the respect of the breached obligation and the wording of article 48 is modelled on that of article 48(2) ARSIWA. The Articles on State Responsibility leave open the question whether States other than injured States are entitled to resort to countermeasures to induce the responsible State to fulfil its secondary obligations. The insertion of an express provision relating to countermeasures in these circumstances was envisaged by the ILC until the last version of the draft articles. Former article 40 provided that any State could take countermeasures in the case of an ‘international crime’, breach of human rights or the breach of certain collective obligations, independently from the entitlement of any other State, including the injured State. Subsequently, a toned-down version of this proposition was retained: 60 article 54 dealt with the resort to countermeasures by a State having an interest in respect for an obligation breached in two situations: first at request and on behalf of any injured State; and second in response to grave breaches of essential obligations owed to the international community and in the interest of the beneficiaries of the breached obligation.61 This provision was not retained in the final version of the articles and article 54 states that the Chapter dedicated to countermeasures: does not prejudice the right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached. It is therefore uncertain whether States other than injured States can take countermeasures62 and it seems difficult to recognize a power for organizations (including the UN63 ) to take countermeasures in these situations.64 What is more, the situation of countermeasures being taken by organizations seems sometimes to have been hidden, to the point of devising mechanisms which would in practice have prevented organizations from resorting

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References (p. 980) to countermeasures.65 Article 56 of the 2009 Draft Articles leaves the question open since it takes up the ‘without prejudice’ approach that features in article 54 of the 2001 Articles. The commentary to article 5666 nevertheless implies that resort to countermeasures by an international organization in the case of a breach of an obligation owed to the international community as a whole or to a group to which it belongs is acceptable. Even if international law recognizes a power for organizations to take countermeasures, it is still necessary that the organization itself has competence to take such measures. Such a competence is exceptional. Even in the framework of the EC, this competence does not exist, as is shown by the mechanism provided for by article 301 ECT, pursuant to which the EC only had competence to ensure the execution of measures decided within the EU; the progressive affirmation of the legal personality of the EU—even if today it is no longer open to question—in this regard underwent an interesting evolution. In the majority of cases, organizations can only recommend the taking of certain measures to their member States, because of their limited competence.67 Some authors defend the existence of such a competence for the UN, to take action against a third State.68 Furthermore, the emerging practice of some international organizations is even more limited than that of States, for instance the few cases of measures adopted by the EU in reaction to serious and repeated violations of human rights. An example is Common Position 2000/346/PESC of the EC Council of 26 April 2000 ‘extending and amending Common Position 96/635/CFSP on Burma/Myanmar’,69 which froze the assets of certain Burmese representatives following grave human rights breaches systematically committed in Burma. However, as indicated by Special Rapporteur James Crawford, measures adopted within the context of the UN would appear not to fall within this category.70 The denunciation of the cooperation agreement between the Community and with the SFRY on the basis of the law of treaties (a rebus sic stantibus clause) also shows that international organizations are reluctant to take measures under the general law of responsibility in this type of situation.71 International law seems to have taken note of this state of affairs. The different texts which contemplate the issue, even if they generally maintain the broad notion of ‘international community as a whole’, restrict the possibility of invoking responsibility only to States. The judgment in Barcelona Traction indicates, after having referred to ‘obligations of

References (p. 981) a State towards the international community as a whole’ that ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.72 Article 1(2) of the Institut de Droit International Resolution of 13 September 1989 relating to the protection of human rights provides that the obligation to respect human rights assumes the character of an erga omnes obligation and thus ‘ it is incumbent upon every State in relation to the international community as a whole, and every State has a legal interest in the protection of human rights’; and article 2(2) continues ‘States, acting individually or collectively, are entitled to take diplomatic, economic and other measures towards any other State which has violated the obligation set forth in Article 1, provided such measures are permitted under international law’.73 Academic writers also mostly exclude the possibility for organizations to invoke international responsibility and take countermeasures in cases of breaches of obligations that are owed to the international community. P-M Dupuy approaches the issue of ‘countermeasures that are taken with view to the satisfaction of an objective right that belongs to each member of the international community’74 without even contemplating measures taken by organizations. Verhoeven does not examine the question of breachs of obligations owed to the international community but expressly rejects an organization resorting to countermeasures where the rights of a third party State are 75

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infringed.75 Daillier and Pellet state however that ‘[t]he rights from which the international community benefits are still limited and, today, can only be exercised by States or international organizations, the traditional subjects of international law’.76 For Dubouis, a reaction is possible when it is within the competence of the organization since vis-à-vis the third party State the measure presents itself as a unilateral one.77 In a more engaged fashion, CD Ehlermann78 states that countermeasures by organizations must be accepted in cases of international crimes in the same way as for States. G Cohen-Jonathan notes further: In a general way, and for grave and generalised breaches, international practice tends to accept the possibility of ‘countermeasures’ with the purpose of establishing respect for essential norms. A State, a group of States or an international organization (the European Union for example) can then react to a grave breach by taking coercive measures on the diplomatic or economic level.79 An evolution can nevertheless be expected with regard to grave breaches following from peremptory norms of general international law. In fact, for this special category of obligations owed to the international community as a whole it is accepted that breaches ‘can attract additional consequences, not only for the responsible State, but for all other States’.80 Among the supplementary consequences that are listed in article 41 ARSIWA, there is an obligation for States to cooperate to end, by lawful means, any grave breach

References (p. 982) in the sense of article 40.81 If subsequent practice was to confirm that the ‘lawful means’ mentioned by this article includes countermeasures, the instrumentalization of international organizations for the cooperation required by ARSIWA could develop into an interesting possibility.82 The measures decided by an organization offer guarantees of superior objectivity compared to those which emanate from States. This is also the justification for the solution given by the ICTY in Blaskic where the Tribunal envisages action which is instrumentalized and strictly framed by intergovernmental organizations on occasions of responses to grave breaches of international law.83 The 2009 Draft Articles and their commentaries do not, however, envisage this route and article 41(1) limits itself to taking up, mutatis mutandis, the wording of article 40 ARSIWA. Further reading A Bleckmann, ‘The Mixed Agreements of the EEC in Public International Law’, in D O’Keeffe & HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) G Cohen-Jonathan, ‘La protection des droits de l’homme et l’évolution du droit international— Conclusions générales’, in Colloque de la Société française pour le droit international de Strasbourg, La protection des droits de l’homme et l’évolution du droit international (Paris, Pedone, 1998), 307 E Cujo, Les réactions décentralisées de l’Union européenne à l’illicite, Thèse Paris XNanterre 2002 L Dubouis, ‘L’embargo dans la pratique contemporaine’ (1967) 13 AFDI 99 J Dutheil de la Rochere, ‘L’ère des compétences partagées. A propos de l’étendue des compétences extérieures de la Communauté européenne’ (August–September 1995) 390 RMC 461 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des Cours 323 CD Ehlermann, ‘Communautés européennes et sanctions internationals—une réponse à Joe Verhoeven’ (1984–1985) 18 Revue Belge de Droit International 96 M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale de l’Etat (Paris, Pedone, 2006) JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’

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(1994-IV) 248 Recueil des cours 345 G Gaja, ‘The European Community’s Rights and Obligations Under Mixed Agreements’, in D O’Keeffe & HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983), 133 C Held, Les accords internationaux conclus par la Communauté économique européenne— Etude de droit communautaire (Vevey, Saüberlin, & Pfeiffer, 1977) E Kalpyris & R Vork, A Napolitano, Les sanctions des Nations Unies dans le conflit de l’exYougoslavie—La coopération OSCE/UE (Brussels/Paris, Bruylant/LGDJ, 1995) S Karagiannis, ‘Sanctions internationales et droit communautaire—A propos du règlement 1901/98 sur l’interdiction de vol des transporteurs yougoslaves’ (July–September 1999) 35 RTDE 363

References (p. 983) P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998) PJ Kuyper, ‘International Legal Aspects of Economic Sanctions’, in P Sarcevic & H Van Houtte, Legal Issues in International Trade (London/Dordrecht/Boston, Graham & Trotman/Martinus Nijhoff, 1990), 145 C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979) K Oellers-Frahm, ‘The Erga Omnes Applicability of Human Rights’ (1992) 30 Archiv des Völkerrechts 28 B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 217 J Verhoeven, ‘Communautés européennes et sanctions internationals’ (1984–1985) 18 Revue Belge de Droit International 79(p. 984)

Footnotes: 1 See in particular G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597. 2 Commentary to art 1 of the Draft Articles on the Responsibility of International Organizations (DARIO) adopted on first reading by the ILC in August 2009, para 10; see also G Gaja, Seventh Report on Responsibility of International Organizations, 2009, A/CN.4/610, para 8. 3 See especially the work of P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998). 4 Ibid, 5. 5 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174. 6 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1),44 (para 94); see now the work of the ILC on the responsibility of international organizations, including G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597, paras 6–10). 7 Commentary to art 42, para 2. 8 Introductory Commentary, para 1. 9 Opinion is unanimous on this point, see for example E David, Droit des organisations internationales (Brussels, PUB, 1996–1997), vol 2, 280. 10 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 177. 11 P-M Dupuy, Droit international public (Paris, Dalloz, 2004), 487; see also the position of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Administrative Tribunal of the ILO that rejects the idea of a condition of exhaustion of local remedies in the case cited by: D Ruzié, ‘La jurisprudence du Tribunal administratif de l’OIT’ (2000) 46 AFDI 475. 12 See Annex IX, arts 1–6; United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3, or art II(5)-7 of the Constitution of the FAO (as amended). 13 See P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998), 326. 14 Cf, however, DARIO, draft art 21(2); see also C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979), 271. 15 South West Africa, Second Phase, Judgment, ICJ Reports 1966, p 6, 47. 16 Cf C Leben, Les sanctions privatives de droits et de qualité dans les organisations internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du droit des gens (Brussels, Bruylant, 1979). 17 Art 36(2) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543, also requires express consent, while this is presumed where a right is conferred onto a third party State (see art 36(1)). 18 Report of the ILC, 34th Session, ILC Yearbook 1982, Vol II(2) 39 (emphasis added). 19 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 180. 20 See DARIO, draft art 42. 21 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 177. 22 See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 234ff. 23 Opinion of 20 August 1975, United Nations Juridical Yearbook 1975, 161. 24 See eg Official Journal of the European Union, 3 February 2009, L 33/43; 24 May 2008, L 136/46; 26 March 2008, L 83/40. 25 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol. II(1), 44 (para 94). 26 J Verhoeven, ‘Communautés européennes et sanctions internationals’ (1984–1985) 18 RBDI 87; PJ Kuyper, ‘International Legal Aspects of Economic Sanctions’, in P Sarcevic & H Van Houtte (eds), Legal Issues in International Trade (London, Martinus Nijhoff, 1990), 156; in a more nuanced fashion: CD Ehlermann, ‘Communautés européennes et sanctions internationals—une réponse à Joe Verhoeven’ (1984–1985) 18 RBDI 103. 27 See DARIO Commentary to art 1, para 10, Report of the ILC, 61st Session, 2009, A/64/10, 42 and DARIO, draft arts 21 and 50–55. 28 This situation is contemplated by CD Ehlermann, ‘Communautés européennes et sanctions internationales—une réponse à Joe Verhoeven’ (1984–1985) 18 RBDI 96, 103. 29 J Dutheil de la Rochère, ‘L’ère des compétences partagées. A propos de l’étendue des compétences extérieures de la Communauté européenne’ (August–September 1995) RMC No 390, 461. 30 In this sense Ch Held, Les accords internationaux conclus par la Communauté économique européenne—Etude de droit communautaire (Vevey, Saüberlin, & Pfeiffer, 1977), 205. This author nevertheless accompanies his proposal with a reservation; according to him the organization can only intervene if the interested member State or member States cannot or do not want to act on their own behalf, considering that they are those that are primarily competent in the area. See also G Gaja, ‘The European Community’s Rights and Obligations Under Mixed Agreements’, in D From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

O’Keeffe & HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 137; cf A Bleckmann, ‘The Mixed Agreements of the EEC in Public International Law’, ibid, 158. 31 See eg PJ Kuyper, ‘International Legal Aspects of Economic Sanctions’, in P Sarcevic & H Van Houtte, Legal Issues in International Trade (Dordrecht, Martinus Nijhoff, 1990), 156. 32 See especially E David, Droit des organisations internationals (Brussels, PUB, 1996–1997), 280, 281; P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998), 401; cf J Verhoeven, ‘Communautés européennes et sanctions internationales’ (1984–1985) 18 RBDI 79, 87, 90. 33 See DARIO Commentary to art 21, para 2, Report of the ILC, 61st Session, 2009, A/64/10, 98. 34 Report of the ILC, 44th Session, ILC Yearbook 1992, Vol II(2), 39 (para 270). 35 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 401. 36 G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597, paras 53–54. 37 On this point see General Comment 8 (1997) of the ECOSOC Committee which inter alia examines the effect of measures taken by organizations on civil populations and indicates that ‘whatever the circumstances, such sanctions should always take full account of the provisions of the International Covenant on Economic, Social and Cultural Rights’: ECOSOC, General Comment No 8, The relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, E/C.12/1997/8 (para 1); cited in the Commentary to art 50, para 7. 38 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 185. 39 Ibid, 186. 40 CD Eagleton, ‘International Organizations and the Law of Responsibility’ (1950-I) 76 Recueil des cours 361. 41 Art 48 ARSIWA. 42 Commentary to art 48, para 6. 43 On this notion, see A-L Vaurs-Chaumette, below, Chapter 70. 44 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, 46. 45 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 36. As for the ICRC, but also for the UN Compensation Commission, the UNHCR etc, see Decision No 5 of the Governing Council of the United Nations Compensation Commission for Iraq, S/AC.26/1991/5 (1991), paras 4–5. 46 Article 53, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, 25 ILM 543. 47 See the list of conventions in the Commentary to art 25, para 18, fn 421. 48 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3, 32 (para 33). 49 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 36, fn 45. 50 Ibid, para 36. 51 See eg JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345, 355, B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Recueil des cours 217, 256; see also the doctrine cited in G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1), 13 (fn 85); for a rejection of this concept see Report of the ILC, 46th Session, ILC Yearbook 1994, Vol II(2), 149 (para 330). 52 See especially on this point M Forteau, Droit de la sécurité collective et droit de la From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

responsabilité internationale de l’État (Paris, Pedone, 2006). 53 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 37. 54 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 178. 55 See eg art 3 of the resolution of the Institut de Droit International, 13 September 1989, ‘The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States’ (Santiago de Compostela), 63-II Annuaire IDI 338. 56 E Cujo & M Forteau, ‘Les réactions des organes politiques’, in H Ascensio et al (eds), Droit international pénal (Paris, Pedone, 2000), 668–670. 57 It must be noted that accepting that organizations have the same rights as States here supposes that obligations are also imposed on them—ie those of art 41 of ARSIWA, namely the nonrecognition of the situation as lawful and non-assistance in the maintenance of the situation. 58 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 376. 59 See on this point G Gaja, Sixth Report on Responsibility of International Organizations, 2008, A/CN.4/597, paras 32–40. 60 Crawford’s Fourth Report on State Responsibility indicates that even though this modification caused many controversies, the effect of the inclusion of this provision ‘is to reduce the extent to which countermeasures can be taken in a community interest, as compared with the first reading text (article [47] in conjunction with article [40])’: J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 59 (emphasis added). 61 ibid, para 70. 62 See the Commentary to art 54, ARSIWA. 63 See the rejection of the ILC of Special Rapporteur Riphagen’s proposition to make countermeasures dependent on a collective decision of the global Organization: W Riphagen, Preliminary Report on State Responsibility, ILC Yearbook 1980, Vol II(1) 121 (para 68–73); W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 36 (para 91), 44 (para 130, 134). 64 On this question see above, G Gaja, Chapter 64, and L-A Sicilianos, Chapter 80. 65 See the suggestion of Special Rapporteur Arangio-Ruiz that resort to countermeasures in response to an international crime ought to be subjected to a procedure at the ICJ, in which international organizations would not have standing. Cf G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1) 24; for the reasons for rejecting this proposition see ILC Yearbook 1998, Vol II(1), 74 (para 310). 66 Commentary to art 56, para 2. 67 See eg declaration of 11 January 1982 adopted by the Atlantic Council concerning the establishment of a state of war in Poland, reproduced in Ch Rousseau, ‘Chronique des faits internationaux’ (1982) 86 RGDIP 603, 606–607. 68 This is for example the situation for measures taken against the FRY at the time when it was not a member of the organization, see in this sense Kalpyris who is of the opinion that the Security Council can use Chapter VII against non-member States: E Kalpyris, R Vork, & A Napolitano, Les sanctions des Nations Unies dans le conflit de l’ex-Yougoslavie—La coopération OSCE/UE, (Brussels, Bruylant, 1995), 16; cf S Karagiannis, ‘Sanctions internationales et droit communautaire —A propos du règlement 1901/98 sur l’interdiction de vol des transporteurs yougoslaves’ (JulySeptember 1999) 35 RTDE 382. 69 Official Journal of the European Communities, 24 May 2000, No L 122/1. 70 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 73; and see the saving clause contained in art 59 ARSIWA.

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71 Decision 91/602/CEE of the Council, 25 November1991 denouncing the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia, Official Journal of the European Communities, 27 November 1991, No L 325/23. 72 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, ICJ Reports 1970, p 3, 32 (para 33), emphasis added. 73 Resolution of the Institut de Droit International, 13 September 1989, The Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States (Santiago de Compostela), 65-II Annuaire (01 338). 74 P-M Dupuy, Droit international public (Paris, Dalloz, 2004), 507. 75 J Verhoeven, ‘Communautés européennes et sanctions internationals’ (1984–1985) 18 RBDI 87, 89. 76 P Dallier & A Pellet, Nguyen Quoc Dinh, Droit international public (Paris, LGDJ, 2002), 402. 77 L Dubouis, ‘L’embargo dans la pratique contemporaine’ (1967) 13 AFDI 127. 78 CD Ehlermann, ‘Communautés européennes et sanctions internationals—une réponse à Joe Verhoeven’ (1984–1985) 18 RBDI 103, 104. 79 G Cohen-Jonathan, ‘La protection des droits de l’homme et l’évolution du droit international— Conclusions générales’, in Colloque SFDI Strasbourg, La protection des droits de l’homme et l’évolution du droit international (Paris, Pedone, 1998), 338. 80 Commentary to Part Two, Chapter III, para 7. 81 The ICJ nevertheless neglected this element of cooperation in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 159). 82 See commentary to art 41 that indicates that this cooperation ‘could be organized in the framework of a competent international organization, in particular the United Nations’ (para 2); already in 1993 did the ILC note that some authors are in favour of an intervention of regional organizations in preference to that of States ut singuli to sanction crimes; K Oellers-Frahm, ‘The Erga Omnes Applicability of Human Rights’ (1992) 30 Archiv des Völkerrechts 34. 83 Prosecutor v Tihomir Blaskic, ICTY, Appeals Chamber, judgment, 29 October 1997, IT-95-14-AR 108 bis, 110 ILR 607, 636 (para 56).

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Part V The Implementation of International Responsibility, Ch.67 Individuals Christian Tomuschat From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of individuals — Aliens, treatment — International Centre for the Settlement of Investment Disputes (ICSID) — European Commission on Human Rights — United Nations (UN) — Armed conflict

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(p. 985) Chapter 67 Individuals 1 Protection of foreigners 985 2 The protection of individuals through human rights 985 (a) Conventional regimes 986 (b) General international law 988 3 Protection of the individual in specialized treaty systems 989 (a) The European Community 989 (b) The ICSID Convention 990 4 Mixed regimes: reparation under national law 990 Further reading 990

1 Protection of foreigners Aliens enjoy protection by virtue of a body of traditional rules of international law (the so-called ‘minimum standard’) which in our time have been more or less absorbed, substantively speaking, by the regime of human rights, with the exception of those protections relating to property. However, these customary rules do not confer rights directly on the interested party. When the State on whose territory they reside infringes those rules, it is the rights of the victim’s State of nationality which are prejudiced. Notwithstanding certain criticisms, this interpretation has been maintained in the ILC’s 2006 Articles on Diplomatic Protection.1 Therefore, despite having suffered harm in fact, a foreigner cannot—from the point of view of aliens’ law—be considered an injured person in the legal sense.

2 The protection of individuals through human rights The position is otherwise from the point of view of human rights. Following the appearance of the concept of human rights, the protection of the individual by the State of nationality has been overshadowed. Given that human rights essentially protect individuals against their States of nationality, there is some paradox in the State, a potential violator of human rights, simultaneously protecting them at the international level.

References

(p. 986) (a) Conventional regimes Many human rights treaties permit the individual to commence infringement proceedings of some kind. However, as a general rule, the availability of such actions requires either a special declaration by the respondent State, or the ratification of a special protocol. Originally, a petition to the European Commission of Human Rights under the European Convention of Human Rights was dependent on the making of a declaration which many States were hesitant to make. The United Kingdom accepted the right of individual petition only in 1966, France in 1981 and Turkey in 1987. Since 1 November 1998, the acceptance of the right of individual petition, which, following the abolition of the European Commission, is made directly to the European Court of Human Rights, is obligatory for all States parties to the Convention. Under the system of the International Covenant on Civil and Political Rights, an individual communication can be directed against States which have ratified the (first) Optional Protocol to the Covenant. In the case of the Convention on the Elimination of All Forms of Discrimination against Women, such a remedy was introduced 20 years after its 2

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adoption. 2 Individual petition forms also an integral part of the system of the American Convention on Human Rights.3 An individual who has access in this manner to some court, commission, or committee has a subjective status under international law which is independent of the will of the national government. If the body before which the individual brings a complaint concludes that a violation exists, that violation is officially acknowledged. This acknowledgement in itself already constitutes at least partial reparation. Particularly when the harm caused by State interference is intangible in kind, the acknowledgement may be held to erase all negative consequences resulting from the breach. Often, however, a violation of human rights will have caused material damage. A mere verbal declaration may in these circumstances not provide sufficient reparation. In this regard, international human rights treaties offer only fragmentary responses. A few conventional provisions stipulate that the individual injured has the right to reparation directly by virtue of the provisions. This meaning can also be given to article 5(5) of the European Convention on Human Rights, as well as to article 9(5) of the International Covenant on Civil and Political Rights. Thus, in Germany, Austria, and Switzerland, the highest courts have given direct effect to these provisions, even in the absence of national legislation regulating the details of implementation. In the majority of cases, however, the treaties specify that the States parties are obliged to guarantee to the victims of an infringement the right to be indemnified. The right to reparation is not conferred on the individual directly under international law in such cases but only indirectly, on the basis of national law. Such a provision can be found in article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination,4 according to which any person affected by such discrimination has the right to seek ‘just and adequate reparation or satisfaction for any damage suffered …’ from national tribunals, and in article 14(1) of the 1984 UN Convention Against Torture.5 Under the International Covenant on Civil and Political Rights, such an obligation to seek reparation by means of national legislation is provided for in the case of convictions

References (p. 987) occurring as a result of miscarriages of justice.6 The International Covenant on Economic, Social and Cultural Rights contains no clause to this effect. Most other treaties are equally mute on this issue. As discussed further below, national legislation may independently confer on victims a right to reparation, without being specifically required to do so by international law. Certain treaties provide that the tribunals charged with overseeing their implementation may afford reparation to victims of a rights violation. An example is article 41 of the European Convention on Human Rights. It provides, as a residual matter—if the internal law of the State concerned allows the negative consequences of the illegal behaviour affecting the victim to be erased only partially— that the European Court of Human Rights shall ‘if necessary, afford just satisfaction’ to the injured party. Initially, the European Court was of the opinion that article 41 empowered it only to award financial indemnification to the victim, even if in the reasons for its judgment it explained that the finding of a violation obliged the State responsible to restore the status quo as far as possible. Nonetheless, since its judgment in Papamichalopoulos v Greece,7 affirmed in Brumarescu v Romania,8 the Court no longer hesitates to rule that the State responsible for a violation of its obligations is bound to restore to the interested party the goods illegally taken from him. However, by invoking the words ‘if necessary’, the European Court lays claim to a broad margin of appreciation. Thus, it is of the view that in a vast group of cases the official acknowledgement of a violation constitutes sufficient reparation. Moreover, the Court refuses to afford indemnification if, in its view, the victim was engaged in reprehensible activity.9 In these circumstances, it is difficult to maintain that the individual holds a true right to reparation under article 41 of the European Convention. The same ambiguity exists in relation to article 63 of the American Convention on Human Rights.

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This provision stipulates that if the Inter-American Court of Human Rights concludes that a violation of the rights of the person concerned has occurred, it ‘shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated’. Otherwise, as concerns damage caused by the illegal measure, the Court must equally order ‘that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party’, but only ‘if appropriate’. Although the Court has pronounced itself unreservedly in favour of the victim’s right to reparation in all cases of violation,10 the jurisprudence is not yet sufficiently consolidated for definitive conclusions to be drawn from it. The boldest jurisprudence has been developed by the Human Rights Committee under the International Covenant on Civil and Political Rights. Basing itself on article 2(3)(a) of the Covenant, according to which the States parties undertake to guarantee to all victims of violations of their rights an ‘effective remedy’, the Committee has, from the outset of receiving communications under the Optional Protocol, held that there exists an obligation on the part of the responsible State to cease its conduct and to accord an indemnification to the victim. The high point of this jurisprudence was a series of cases concerning Jamaica and Trinidad and Tobago where the Committee observed that persons sentenced

References (p. 988) to death according to a defective procedure and awaiting their execution should be freed. However, two elements must be taken into consideration. On the one hand, the ‘views’ of the Committee of Human Rights are not decisions with binding effect, but constitute recommendations or suggestions. And this is the way in which States parties to the Covenant view them. The record of respect for and compliance with the Committee’s ‘views’ is distressingly poor. Despite the great efforts of the Committee to give real effectiveness to its ‘views’, a large number of States do not even respond to its requests for information.

(b) General international law Given that conventional regimes abstain from establishing complete regimes of responsibility in relation to rights of the victims which are clearly defined, it seems natural to borrow responses from general international law. It is easy to argue that, just as international organizations have been integrated into the network of general rules of international law since being acknowledged as subjects of international law, individuals should benefit from the same advantage by virtue of their entry into the international juridical order. Following this line of reasoning, it is conceivable that all of the secondary rights provided for in ARSIWA extend to individuals. In effect, a project initially developed within the Sub-Commission for the Promotion and Protection of Human Rights11 sought to introduce perfect equality between injured States and injured individuals. After a number of years of discussion in the course of which Western States in particular expressed reservations, the draft was finally approved by the General Assembly (Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law).12 However, modifications to the text during the drafting process make clear that this is ultimately a collection of recommendations, and not a codification of existing customary law. Indeed, strong arguments militate against conceiving of the Basic Principles and Guidelines as a set of binding rules. Often, violations of humanitarian law and human rights accompany armed conflicts between two States. Accordingly, such occurrences may give rise to thousands of claims, and the number could easily amount to millions in a case where, for example, prohibited weapons were used. If, in such circumstances, all persons affected had an entitlement to a right to reparation under international law individually, the settlement of the consequences of armed conflicts by a peace treaty would be impossible. Traditionally, peace treaties provide for the payment of lump

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sums by way of indemnifi cation, distribution of such sums being undertaken by the victim State. Of course, it is always permissible for the parties to derogate, by way of a special treaty, from this somewhat crude model, taking into account the specifics of the damage suffered. In particular, it is relatively simple to restore to the former owner property which has been illegally taken from him. Nevertheless, it remains the case that an individualization of the settlement of consequences of an armed conflict would block the re-establishment of peace. As far as mass violations committed by dictatorial regimes are concerned, it is equally clear that individuals cannot hope for complete reparation of the harm suffered. After the (p. 989) end of the apartheid regime in South Africa, a reparation programme would have had to include as beneficiaries all those persons who had for decades suffered the worst discrimination imaginable. However, the benefits of financial value provided under such a programme would have had to be paid in large part by these same persons, that is to say, by all taxpayers. By the same token, a poor country such as Guatemala cannot count on external aid to implement the recommendations made by the Truth Commission (Comisión para el Esclarecimiento Histórico) in 1999 to meet the basic needs of the persons most gravely affected by the armed conflict which took place in the period 1962–1996. Even if the government and the legislature had demonstrated greater willingness than was in fact the case, payments by the State could never have provided compensation for the entirety of the damage inflicted on the victims of the conflict. Even Germany has had a great deal of difficulty in ensuring adequate indemnification for victims of discriminatory measures taken by the Communist regime of the German Democratic Republic against all dissidents (imprisonment, prohibitions on working, refusals of higher education for their children). Financial reparation must, in all cases, be in line with the available economic and financial resources. Even in instances where international crimes have been committed to the detriment of a person, the evaluation of the legal situation leads to the same results. At the level of principle, all seems to indicate that the individual affected by such crimes enjoys a right to full reparation, given that an international crime may never be justified by national legislation. However, one must be careful to guard against confusing decisions relating the crime itself and decisions relating to its consequences. Whereas international law takes little or no notice of the economic capacity of a State obliged to repair damage caused to another State, the same rigidity in the case of crimes committed within a State would be absurd. Inevitably, the problem of the limitation of resources within a national community must be considered. Particularly after a national catastrophe, when a people has succeeded in rebuilding a democratic regime having overthrown a dictatorship, the first priority will be to revive the economy by appealing to all members of the nation. In such circumstances, no-one may insist on the community’s duty to repair comprehensively the consequences of the injustice he has suffered. Under the principle of self-determination, international law must leave the regulation of such situations to national decisions. When the crime concerned merely has the character of an irregularity in an otherwise well-ordered system of governance, the issue of reparation evidently falls to be considered in a different context. In any case, the fact that the response depends broadly on the factual context shows that it is difficult for international law to lay down a general rule.

3 Protection of the individual in specialized treaty systems (a) The European Community The European Community is the first (and so far virtually the only) international system in which the individual benefits from full protection of the rights conferred by the corresponding treaties. If the organs of the EC cause injury by infringing an individual’s rights, the victim can invoke article 288(2) of the EC Treaty (now article III-337 of the Treaty on the Functioning of the EU) which guarantees reparation in conformity with the general principles common to the laws of the member States. The treaties make no explicit provision in relation to those cases where it is the member States which infringe individuals’

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References (p. 990) rights; nevertheless, in its Francovich judgment13 the European Court of Justice held that according to the general principle of effectiveness of Community law, which underlies European integration, the individual must even in such situations be considered to be vested with a right to reparation. Initially controversial, this case law has very quickly been recognized by the courts of all the member States. The victory achieved by the European Court in this respect is explained by the simple fact that the right to reparation can be enforced before national tribunals and that the latter are placed under the control of the European Court of Justice by means of the system of preliminary references.14

(b) The ICSID Convention The individual can also defend rights qua investor directly under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention).15 The Convention, developed under the auspices of the World Bank, foresees that States and private investors can conclude contracts in which an arbitration procedure is prescribed for all disputes resulting from the implementation of the contract. There are several levels to this method of mixed regulation. Whilst the Convention is itself undoubtedly part of international law, like any investment protection treaty concluded between the host state and the home state of the investor, the agreements concluded on this basis between States and private persons are situated halfway between international law and a legal relationship of pure commercial law. In any case, the great advantage of those contracts which fall under the Convention consists in their protection against unilateral decisions on the part of the governments concerned. This stability is conferred on them by the conventional inter-State bond. In this system, the investor is himself considered as the injured party if the State party violates the relevant investment protection treaty and/or breaks the contractual bond. The investor does not need the aid of his State of nationality for the defence of his interests. In this way, disputes occurring are largely depoliticized.

4 Mixed regimes: reparation under national law The best-known example of national legislation which independently affords a right to reparation to persons injured by a violation of international law is the US Alien Tort Claims Act. According to this statute, which dates back to 1789, an action is available before federal courts in cases where a non-national claims to have suffered damage because of a violation of international law committed against him. Although often saluted as a useful step in the progressive realization of human rights, the Act is not free from doubt to the extent that the United States claims jurisdiction over all violations of international law irrespective of where they occurred. Further reading A Randelzhofer & C Tomuschat, State Responsibility and the Individual. Reparation in Instances of Grave Violations of Human Rights (The Hague, Nijhoff, 1999)

References (p. 991) S Ratner & JS Abrams, Accountability for Human Rights Atrocities in International Law. Beyond the Nuremberg Legacy (2nd edn, Oxford, OUP, 2001) A Scheffler, Die Bewältigung hoheitlich begangenen Unrechts durch fremde Zivilgerichte (Berlin, Duncker & Humblot, 1997) D Shelton, Remedies in International Human Rights Law (2nd edn, Oxford, OUP, 2005) C Tomuschat, Human Rights. Between Idealism and Realism (2nd edn, Oxford, OUP, 2008) C Tomuschat, ‘La protection internationale des victimes’ (2006) 18 Revue universelle des

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droits de l’homme 1 C Tomuschat, ‘Reparation for Victims of Grave Human Rights Violations’ (2002) 20 Tulane Journal of International and Comparative Law 1 C Tomuschat, ‘Current Issues of Responsibility under International Law’ (2000) Cours EuroMediterranéens Bancaja de Droit International 516 T Van Boven, ‘Victims’ Rights to a Remedy and Reparation: the New United Nations Principles and Guidelines’, in C Ferstman et al, Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Leiden, Nijhoff, 2009)(p. 992)

Footnotes: 1 Report of the ILC, 58th Session, 2006, A/61/10, ch IV. 2 GA Res 54/4, 6 October 1999. 3 Art 44, American Convention on Human Rights, 1144 UNTS 123. 4 660 UNTS 195. 5 1465 UNTS 85, ‘Each State Party shall ensure in its legal system …’ 6 999 UNTS 171, art 14(6). 7 Papamichalopoulos v Greece (App No 14556/89), ECHR, Series A, No 330-B (1995). 8 Bramarescu v Romania (App No 28342/95), ECHR Reports 2001-I. 9 McCann and Others v United Kingdom (App No 18984/91), ECHR, Series A, No 324 (1995). 10 Velásquez Rodríguez v Honduras, I/ACHR, Series C, No 4 (1988). 11 Commission on Human Rights, ‘The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final report of the Special Rapporteur, Mr M Cherif Bassiouni’, UN Doc E/CN.4/2000/62, 18 January 2000. 12 GA Res 60/147, 16 December 2005. 13 Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy [1991] ECR I-5357. 14 Art 234, ECT. 15 575 UNTS 515.

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Part V The Implementation of International Responsibility, Ch.68 Peoples and Minorities Anne-Laure Vaurs-Chaumette From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Responsibility of individuals — Minorities — Actio popularis

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(p. 993) Chapter 68 Peoples and Minorities 1 Peoples and minorities: simple beneficiaries of rights 994 (a) The rights recognized to peoples and minorities 994 (b) The limited legal capacity of injured peoples and minorities 996 2 An actio popularis by States on behalf of injured peoples? 997 (a) The peremptory character of the norms for the protection of peoples 998 (b) Towards actio popularis by States on behalf of peoples and minorities 999 (i) Institutionalized State action 999 (ii) Decentralized State action 1000 Further reading 1002 Grotius remarked that ‘Kings … have a Right to exact Punishments … for Injuries … which are, in any Person whatsoever, grievous Violations of the Law of Nature or Nations’.1 This identified one of the aspects of the modern international law of State responsibility: a subject of international law is empowered to respond to any serious breach of international norms for the protection of other entities. The appearance in international law of the concepts of peoples and minorities, and of the rights attached to them, is relatively recent. But the definition of these concepts has not been settled. The notion of minority is generally not defined in the instruments for the protection of minority rights.2 However, it is generally accepted that the term refers to a group of individuals with common national, ethnic, cultural, religious, or linguistic links which differ from those of the majority population of the State of residence.3 The multifaceted concept of peoples,4 for its part, remains controversial: international law has failed to give it a convincing meaning in the abstract. Generally, peoples are identified through territorial criteria (eg the people inhabiting a colonial territory). But according to Verhoeven, ‘no definition of peoples or minorities is sufficient to clearly distinguish between the two groups’.5

References (p. 994) In the course of the second half of the 20th century, and in parallel with the development of human rights, States adopted rules for the protection of peoples. But the question arises: have States created through these rules an international law mechanism allowing peoples to enforce respect for their rights? In other words, when the rights of a people or a minority are breached by a State, do these groups have the legal capacity to invoke the international responsibility of that State? While individuals seem to have attained the character of derivative subjects of international law, the status of peoples remains uncertain. According to the International Court, an entity is considered a subject of international law when it ‘is capable of possessing international rights and duties’, and when it has the capacity to ‘maintain its rights by bringing international claims’.6 Although it is unquestionable that certain rights have been granted to peoples and minorities, these two groups have not yet achieved legal capacity to demand respect for those rights. The question then arises whether, due to this deficiency, States are able to act in defence of the injured rights of peoples and minorities.

1 Peoples and minorities: simple beneficiaries of rights

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In 1945 the priority was to safeguard individual rights. But since 1966 the International Covenants introduced a collective dimension to human rights,7 establishing in their first article that the fulfilment of collective rights of peoples is a pre-condition for the effective enjoyment of individual human rights.8 Despite the fact that international law recognizes certain rights to peoples and minorities, however, it does not allow them to claim these rights before international bodies. Groups of individuals thus do not appear as the holders but rather as the addressees of these rights—they are, in this sense, objects of international law.

(a) The rights recognized to peoples and minorities Since Ago, the object of the ILC’s project on State responsibility focused on the secondary rules of international law. Nevertheless, as recognized by Crawford, primary obligations have an impact on the secondary rules on State responsibility.9 Thus, the identification of the rights granted to peoples and minorities is an indispensable precondition to the study of their capacity to invoke the responsibility of States for the breach of these rights. According to article 2 ARSIWA, the responsibility of the State arises when there is a breach of an international obligation which is attributable to it. In the case at hand, this State must have breached an international obligation which is binding on it and which is aimed at the protection of peoples or minorities. In this respect, international law does not grant solely rights to these groups but also establishes certain prohibitions in relation to the commission of genocide or the imposition of apartheid or any other form of discrimination.

References (p. 995) On the one hand, peoples and minorities enjoy clearly defined rights established in international and regional instruments. In conformity with articles 1(2) and 55 of the UN Charter,10 peoples have the right to self-determination. This principle is reaffirmed by General Assembly Resolutions 1514 (XV)11 and 2625(XXV).12 These texts expressly affirm that the right to selfdetermination belongs to peoples: according to paragraph 2 of Resolution 1514 (XV), it is ‘all peoples’ who ‘have the right to self-determination’. Equally, the texts affirm that States must respect this right and have the correlative obligation to abstain from recurring to ‘any forcible action which deprives peoples … of their right to self-determination and freedom and independence’.13 In consequence, if peoples are the recipients of this right, then States have the correlative duty to ensure its effectiveness. In 1981, the adoption of the African Charter on Human and Peoples’ Rights14 expanded the rights granted to peoples: in addition to the consecration of the right to selfdetermination, the Charter also recognizes their right to existence,15 permanent sovereignty over natural resources,16 and an environment favourable to their socio-economic and cultural development.17 These peoples’ rights are systematically associated to a State obligation to undertake measures necessary to ensure their effective exercise. Minorities similarly appear to benefit from numerous rights defined in article 27 of the International Covenant on Civil and Political Rights (ICCPR), pursuant to which: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Nonetheless, it appears from the provision that the holders of the rights are not the minorities qua groups of individuals but the individuals comprising the minority. This imperfection is repeated in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.18 The Declaration affirms to minorities the right to the protection of their existence and identity,19 which prohibits the elimination of minorities from the territory of a State either through expulsion or extermination (ie genocide) as well as any cultural destruction or ethnocide; the right 20

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to participate in decisions which affect the group,20 and the right to establish and maintain their own associations. This text introduces new collective rights and purports to impose on the State certain obligations of means. Equally, international law grants to peoples and to individual members of a minority rights which are opposable to States. Peoples and minorities are also protected against the commission of certain unlawful acts. Article II of the Convention on the Prevention and Punishment of the Crime of Genocide establishes as one of the constitutive elements of the crime of genocide ‘the intention to destroy, in whole or in part, a national, ethnic, racial or religious group as such’.21 This wording thus protects groups of individuals against genocide, a crime that violates the most fundamental right of minorities: their right to existence. The ICJ interpreted the obligations following from this Convention widely: if the literal text of the 1948 Convention only required States to adopt measures for the prevention and punishment of genocide by individuals, the Court considered that:

References (p. 996) the reference in Article IX to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article III’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’.22 Equally, the concept of apartheid aims at the protection of a racial group that exists within the population of a State. Article II of the Convention on the Suppression and Punishment of the Crime of Apartheid establishes that any act for the establishment and maintenance of ‘domination by one racial group of persons over any other racial group of persons and systematically oppressing them’ constitutes apartheid.23 It must be highlighted that although this Convention is addressed to States, it only imposes on them, if need be, the duty to prosecute those responsible. Other international instruments protect peoples against any form of discrimination, in particular, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,24 and the 1969 United Nations Convention on the Elimination of all Forms of Racial Discrimination, which imposes on States the obligation to eliminate all forms of racial discrimination.25 The international protection of peoples and minorities is thus characterized by the existence of rules of incentive and rules of prohibition imposed on States. But what does international law say when the rights of these groups are breached?

(b) The limited legal capacity of injured peoples and minorities States have obligations vis-à-vis groups of individuals. Nevertheless, peoples and minorities seem not to have a mechanism at their disposal allowing them to invoke their rights by States before international jurisdictions. It must be noted, at first, that in accordance with article 34(1) of the ICJ Statute, only States have access to the Court. It follows that minorities and peoples do not have the capacity to act before the judicial organ of the United Nations. It must thus be asked whether they can have recourse to other international instances in case of breach of their rights by a State. First, peoples and minorities had, until 2006, access to a particular procedure established by Resolution 1503 (XLVIII)26 of the Economic, Cultural and Social Council of the United Nations, and modified by Resolution 2003/3.27 The Sub-Commission for the Promotion and Protection of Human Rights was competent to investigate complaints submitted by individuals or groups of individuals. Although it would appear that minorities had a means to protect their rights, it must be emphasized that it was not, stricto sensu, an international judicial protection of these rights capable of engaging the State’s responsibility. Moreover, this subsidiary organ of the Human Rights Commission was suppressed in 2006 when the Human Rights Council was established and was replaced by the 28

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Advisory Committee of the Human Rights Council.28 This new organ, composed of experts, has only an advisory function, as its name suggests. It did not inherit the competence to investigate claims that was entrusted to the Sub-Commission. In addition, in December 2007, the Human Rights

References (p. 997) Council decided to create an Expert Mechanism on the Rights of Indigenous Peoples.29 This mechanism does not constitute a system of judicial protection (any more than that of the SubCommission). It is only entrusted with the competence to engage in studies and research on indigenous peoples and to make proposals to the Council.30 Second, the analysis of international instruments recognizing rights to peoples results in a peculiar paradox: while these texts establish guarantees for peoples as such, the international judicial procedures allowing invocation of a State’s responsibility for the breach of these rights is only open to members of the people, that is to the individuals composing the group. Thus only individual victims of discriminatory measures can bring claims under the Racial Discrimination Convention. Equally, article 1 of the Optional Protocol to the ICCPR31 does not allow peoples to address to the Human Rights Committee communications related to breaches of their right to self-determination, guaranteed by article 1 of the Covenant.32 As for breaches of article 27 of the Covenant granting certain rights to minorities, it is once more only the members of these minority groups that can seize the Committee. Finally, the case of the African Commission on Human Rights must be emphasized: although the Commission recognizes the justiciability of peoples’ rights, peoples as such are not allowed to invoke it.33 Recently, the Commission has also accepted the ‘actio popularis’ of two human rights NGOs acting on behalf of the Ogoni People in Social and Economic Rights Action Center, Center for Economic and Social Rights v Nigeria.34 Third, a people which is the addressee of a right is sometimes incapable of enforcing this right. Thus, if groups are protected against genocide by the 1948 Convention, there is no mechanism at their disposal to ensure respect of this prohibition by States. Similarly, pursuant to the Racial Discrimination Convention, only States can bring claims before the Committee established to examine violation of the Convention’s obligations. It follows that international law does not grant peoples, as groups, the possibility to bring claims where their rights are violated. Thus, in default of judicial mechanisms to ensure their respect, the rights of peoples risk becoming purely theoretical. This is the reason why the possibility of individual claims or collective claims by States on behalf of injured peoples must be envisaged.

2 An actio popularis by States on behalf of injured peoples? The international law of State responsibility distinguishes two regimes: one that applies in relation to the breach of obligations ‘whose fulfilment is of fundamental importance to the international community as a whole’, and one that applies ‘in cases where the State had merely failed to fulfil an obligation of lesser and less general importance’.35 The regime of

References (p. 998) responsibility thus depends on the object of the international obligation breached. And yet, by creating obligations for the protection of non-State entities, in particular peoples and minorities, States have articulated ‘extra-State interests’ that have priority over the individual interests of States. By virtue of article 48 ARSIWA, all States have thus an interest in the respect of peoples and minorities’ rights.

(a) The peremptory character of the norms for the protection of peoples The prohibition of ‘serious breaches’ constitutes a standard of protection for groups as such. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

unlawful act attributable to the State is of such gravity that it constitutes a violation of peremptory norms owed to the international community as a whole. By virtue of article 48, all States other than the injured State may invoke responsibility. The concept of peremptory norm is defined by the Vienna Convention on the Law of Treaties as a rule ‘accepted and recognized as such by the international community of States as a whole’.36 Are the right to self-determination, the prohibition of genocide and apartheid peremptory rules whose violation entails a specific regime of State responsibility? During the second half of the 20th century, international case law recognized that the rights of which peoples and minorities are the addressees are rules opposable erga omnes and even norms of jus cogens. The International Court has recognized the erga omnes character of the prohibition of genocide and racial discrimination, which may include apartheid. Since 1951, the Court has considered ‘genocide as “a crime under international law” involving a denial of the right of existence of entire human groups’.37 The Court confirmed its position in 1970 by announcing, among examples of obligations erga omnes, the prohibition of genocide and racial discrimination.38 Finally, in 2006, the Court recognized that ‘the norms codified in the substantive provisions of the Genocide Convention have the status of jus cogens and create rights and obligations erga omnes’.39 Similarly, international forums have progressively recognized that the right of peoples to self-determination is a peremptory norm. The Arbitration Commission of the Conference for Peace in Yugoslavia, in 1991, also explicitly stated respect of minorities and the right to self-determination of peoples to be peremptory norms of international law.40 This case law has been confirmed by UN resolutions and by reports of the ILC. UN General Assembly resolutions insist on the point that the commission of acts of genocide, the maintenance of a system of apartheid or colonial domination constitute grave violations of international law. Since 11 December 1946, genocide has been considered by the General Assembly as an ‘international crime’.41 Twenty years later, the General Assembly characterized apartheid as a ‘crime against humanity’,42 confirmed by the Security Council in 1984.43 The Assembly equally condemned violations of the right to self-determination,

References (p. 999) declaring ‘the continuation of colonialism … [as] a crime’.44 As for the ILC, it has referred to the prohibition of genocide,45 the prohibition of apartheid,46 and the obligation to respect the right of self-determination of peoples47 as examples of peremptory norms (whose breach constitutes an international crime).48 Not only have the rules for the protection of peoples and minorities acquired the character of erga omnes rules and even jus cogens, but their breach has also been systematically qualified as an international crime, that is, as a serious breach of an obligation owed to the international community as a whole. For these reasons, according to article 48 ARSIWA a serious breach of universal principles gives rise to special consequences in the field of State responsibility.

(b) Towards actio popularis by States on behalf of peoples and minorities Traditionally a State suffers injury when another subject of international law has, through an internationally unlawful act, breached one of its subjective rights. From that moment, the injured State is allowed to bring a claim for international responsibility against the injuring State and to request reparation of the damage suffered. However, since the 19th century, certain authors, such as Blüntschli, maintained that if the violation threatens the international community, then all States have the capacity to react to re-establish the respect for international law. In the case of rights of peoples and minorities, the status of ‘injured State’ does not ex hypothesi derive from any individual damage caused to the State itself, but rather from its membership in the international community. In fact, the right of self-determination, the prohibition of genocide and apartheid all concern groups: it is the groups themselves who suffer direct injury when the rules From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

are breached. But, since these rights are guaranteed by rules which are opposable erga omnes, all States have an interest in seeing these rights respected; and when a primary rule of international law envisages the protection of extra-State interests and invites States to participate in the application of this rule, it must be admitted that States have an interest to act to request respect for said rule. However, if States must act on behalf of the specially affected victim,49 they should not be identified with the groups concerned: they do not become the holders of the rights of peoples and minorities. The recognition of the concept of a State other than the injured State provides different responses to the international wrongful act which breaches a peremptory norm for the protection of groups of individuals. If collective sanctions can be adopted by an international organization, equally States may act individually by virtue of articles 41, 48, and 54 ARSIWA. (i) Institutionalized State action The protection of groups of individuals threatened by the violation of an obligation owed to the international community as a whole can entail a collective State reaction. The

References (p. 1000) Security Council has considered that the breach to peremptory norms for the protection of peoples and minorities constitutes a threat to international peace and security, which justifies intervention on the basis of Chapter VII of the Charter. Thus, the Council considered that the breach of the right of self-determination of peoples in Southern Rhodesia was a threat to international peace,50 and that apartheid and racial discrimination in South Africa constituted a threat to international security.51 In addition, in accordance with article 41(1) ARSIWA, States must ‘cooperate to bring to an end’ breaches of peremptory norms. In 1991, States members of the European Union agreed to first suspend and to then denounce the Cooperation Agreement with Yugoslavia because the humanitarian crisis in Kosovo breached peremptory norms and constituted a threat to international peace and security.52 Under the direction of Ago, the Commission seems to have considered that collective actions are preferable to unilateral actions,53 for they allowed a centralized and institutionalized characterization of the breach and the adoption of coercive measures. On the basis of the Namibia advisory opinion of 1971,54 Riphagen considered that the reaction of a State other than the injured State should be based on a ‘collective decision’, generally, a UN decision.55 However, the Commission not only refused to specify the modalities of the intervention of an international organization,56 it also allowed decentralized reactions by States as a response to a breach of a peremptory norm for the protection of groups of individuals. (ii) Decentralized State action Sicilianos considers that when a ‘breach concerns the international community; the reaction to it can be decentralized’.57 Individual State action in case of serious breaches of peoples and minorities’ rights is characterized by the requirements of article 41(2) of the ARS; by the possibility to adopt ‘lawful measures … to ensure cessation of the breach and reparation in the interest of … the beneficiaries of the obligation breached’ (article 54); and even by an eventual actio popularis by States based on article 48. According to article 41(2), States must not recognize situations created by a serious breach of peremptory norms guaranteeing peoples and minorities’ rights and they must not contribute to the maintenance of the situation. This obligation requires a prior characterization of the situation. Both the characterization as well as the prohibition of recognition of to recognize the situation may be carried out by the Security Council,58 by the General Assembly,59 or by the ICJ.60 Nevertheless, an institutional characterization does not exclude unilateral characterization by States.

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References (p. 1001) In order to obtain respect for peoples and minorities’ rights, article 54 envisages the adoption by a State other than the injured State of ‘lawful measures’ to bring to an end the breach of the obligations owed to the international community.61 Similarly, certain States have preferred to act unilaterally. Thus the United States adopted measures against Uganda for the commission of genocide by its government62 and against South Africa in order to oblige it to bring to an end the apartheid regime.63 Finally, as Riphagen submitted in 1982: the introduction of extra-State interests as the object of protection by rules of international law tends towards the recognition of an actio popularis of every State having participated in the creation of such extra-State interest, the other possibilities of enforcement being either only self-enforcement, or enforcement by the subject to which this extra-State interest is allocated for this purpose.64 Since peoples and minorities cannot bring claims for the responsibility of a State which breaches their rights, enforcement by the addressees of the rights is excluded. Similarly, enforcement by one of the States which participated in the creation of the norm is not envisaged by the rights in question: indeed, only the State which engages in genocide, apartheid, continuation of colonialism is able to put an end to the breach. Consequently, only the actio popularis is capable of ensuring respect for peremptory norms granting rights to peoples and minorities. This mechanism was initially excluded by the International Court. In 1966, the Court considered that only the State who was the direct victim of the breach could claim the international responsibility of the State author of the internationally wrongful act: the Court considered that international law did not recognize actio popularis and in consequence ‘a right resident in any member of a community to take legal action in vindication of a public interest’65 did not exist. The Court has not yet recognized the capacity of the community of States in cases of breach of jus cogens norms. And yet, by definition, one such norm is owed ‘to the international community of States as a whole’.66 It follows that even if States do not suffer a direct injury from the breach of a peremptory norm, they have a legal interest in seeing and ensuring that the rule is respected. However, an analysis of the subsequent case-law demonstrates that the Court does not explicitly reject the actio popularis. First, in Barcelona Traction the Court seems to implicitly accept the existence of one such action in cases where a jus cogens norm has been breached or an international crime has been committed. In 1970, the Court considered that: an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.67

References (p. 1002) The Court recognized that each State has a legal interest in the respect of erga omnes rules and, a fortiori, of peremptory norms including those for the protection of peoples and minorities. Second, in two subsequent judgments concerning States not directly injured, the Court dismissed their claim on bases other than the non-existence of an actio popularis, thus leaving the question open. On the one hand, in Nuclear Tests New Zealand and Australia considered that atmospheric testing in the Pacific breached the collective interests of the international community. But the refusal of the Court to continue the proceedings in 1974 was due to the dispute having become From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

moot after the statements of President Chirac, and not because it considered the claim to be inadmissible.68 On the other hand, in the East Timor case Portugal invoked the right of the East Timorese people to selfdetermination. The Court confirmed that the right of self-determination of peoples was a right ‘opposable erga omnes’ but, given the absence of Indonesia from the proceedings, the Court declared itself incompetent on the basis of the Monetary Gold principle.69 What may seem paradoxical about this conclusion may be explained by the fact that the Court in East Timor referred to erga omnes rights and not to erga omnes obligations. Finally, since 1970, the question of an actio popularis in the hypothesis of a breach of erga omnes rules remains an open question. Under article 48, any State of the international community is capable of claiming the responsibility of another State, whose conduct has breached a peremptory norm for the protection of groups of individuals. In consequence, it is perfectly possible that through an actio popularis, injured peoples and minorities may obtain respect for the most fundamental rights granted to them by international law. Nevertheless, groups of individuals remain incapable, as such, to invoke the international responsibility of States for the violation of their rights. Further reading F Bataillier-Demichel, ‘Droits de l’homme et droits des peuples dans l’ordre international’, in Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 23 A Beaudouin, ‘Le maintien par la force d’une domination coloniale’, in H Ascencio, E Decaux, & A Pellet, Droit international pénal (Paris, Pedone, 2000), 427 Y Ben Achour, ‘Souveraineté étatique et protection internationale des minorités’ (1994-I) 245 Recueil des cours 321 IO Bokatola, ‘La Déclaration des Nations Unies sur le droit des personnes appartenant à des minorités nationales ou ethniques, religieuses et linguistiques’ (1993) 97 RGDIP 745 A Cassese, Self-Determination of Peoples—A Legal Reappraisal (Cambridge, CUP, 1995) A Cassese, ‘Self-determination Revisited’, in M Rama Montaldo (ed), El derecho internacional en un mundo en transformación en homenaje al profesor Eduardo Jiménez de Aréchaga (Montevideo, Fundación de Cultura Universitaria, 1994), Vol I, 229 J Charpentier, ‘Autodétermination et decolonisation’, in Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 117 Y Dinstein, ‘Self-determination Revisited’, in Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 241

References (p. 1003) L Favoreu, ‘Affaire du Sud-Ouest Africain’ (1966) 11 AFDI 123 V Gowlland-Debbas (ed), United Nations Sanctions and International Law (The Hague, Kluwer Law International, 2001) V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law—United Nations Action in the Question of Southern Rhodesia (Dordrecht, Martinus Nijhoff Publishers, 1990) AJJ de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of International Responsibility of States (Nijmegen, Kluwer Law International, 1995) K Kawazaki, ‘The “Injured State” in the International Law of State Responsibility’ (2000) 28 Hitosubasi Journal of Law and Politics 17 N Lerner & M Nowak, ‘The Evolution of Minority Rights in International Law’, in C Brölmann, R Lefeber, & M Zieck (eds), Peoples and Minorities in International Law (Dordrecht, Martinus

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Nijhoff Publishers, 1993), 77 L Matarasso, ‘A propos d’initiatives de caractère non étatique en faveur du droit des peoples’, Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 397 R Monaco, ‘Observations sur le droit des peuples dans la communauté internationale’, in M Rama Montaldo (ed), El derecho internacional en un mundo en transformación en homenaje al profesor Eduardo Jiménez de Aréchaga (Montevideo, Fundación de Cultura Universitaria, 1994), Vol I, 217 G Perrin, ‘La détermination de l’Etat lésé. Les régimes dissociables et les régimes indissociables’, in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century—Essays in Honour of Krzystof Skubiszewski (The Hague, Kluwer, 1996), 243 J-F Prévost, ‘Observations sur l’avis consultatif de la CIJ relatif au Sahara occidental (“terra nullius” et autodétermination)’ (1976) 103 JDI 831 F Rigaux (ed), Le concept de peuple (Brussels, Story-Scientia, 1988) H Ruiz Fabri & J-M Sorel, ‘Chronique de jurisprudence de la C.I.J. (1995)—Affaire relative au Timor oriental (Portugal/Australie): arrêt du 30 juin 1995’ (1996) 123 JDI 756 K Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273 L-A Sicilianos, Les réactions décentralisées à l’illicite—Des contre-mesures à la légitime défense (Paris, LGDJ, 1990) B Stern, ‘Chronique de jurisprudence de la C.I.J. (1991); Affaire du Timor oriental (PortugalAustralie)’ (1991) 118 JDI 740 J-M Thouvenin, ‘L’arrêt de la Cour internationale de Justice du 30 juin 1995 rendu dans l’affaire du Timor oriental (Portugal c. Australie)’ (1995) 41 AFDI 328 F Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les jurisdictions internationals (Paris, PUF, 2004) A-M de Zayas, ‘The International Judicial Protection of Peoples and Minorities’, in C Brölmann, R Lefeber, & M Zieck (eds), Peoples and Minorities in International Law (Dordrecht, Martinus Nijhoff Publishers, 1993), 253 J Zourek, ‘La lutte d’un peuple en vue de faire prévaloir son droit à l’autodétermination constitue-elle au regard du droit international un conflit interne ou un conflit de caractère international?’, in Diritto internazionale: storia delle relazioni internazionali—Studi in onore di Manlio Udina (Milan, Giuffrè, 1975), 897(p. 1004)

Footnotes: 1 H Grotius, De Iure Bellis ac Pacis, 1646, (R Tuck (ed), Hugo Grotius’ De Iure Bellis ac Pacis (reprinted, Indianapolis, Liberty Fund, 2005)), 1021, Book II, Chapter XX, para XL. 2 Due to lack of consensus within the UN, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, 18 December 1992, contains no definition of ‘minority’. 3 Greco-Bulgarian Communities, 1930, PCIJ Reports, Series B, No 17, p 4, 21; F Capotorti, ‘Minority’, in R Bernhardt et al (eds), Encyclopaedia of Public International Law (Amsterdam, North Holland, 1985), vol 8, 385. 4 F Rigaux (ed), Le concept de peuple (Brussels, Story-Scientia, 1988), IV. 5 J Verhoeven, ‘Peuples et droit international’, in F Rigaux (ed), Le concept de peuple (Brussels, Story-Scientia, 1988), 52. 6 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 179. For a challenge to this definition in the field of international criminal law, see A-L Vaurs-Chaumette, Les sujets du droit international pénal. Vers une nouvelle définition de la personnalité juridique internationale? (Paris, Pedone, 2009).

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7 International Covenant on Civil and Political Rights, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3. 8 The dichotomy between general protection of individuals through human rights and protection of minorities through collective rights had already been envisaged by the PCIJ in the advisory opinion on Minority Schools in Albania, PCIJ Reports, Series A/B, No 64, 17. 9 ARSIWA, Introductory Commentary, para 4(a). 10 1 UNTS 1. 11 GA Res 1514 (XV), 14 December 1960. 12 GA Res 2625 (XXV), 24 October 1970. 13 Ibid. 14 1520 UNTS 217. 15 Ibid, art 20(1). 16 Ibid, art 21. 17 Ibid, arts 22 and 24. 18 GA Res 47/135, 18 December 1992. 19 Ibid, art 1(1). 20 Ibid, art 2(4). 21 78 UNTS 277. 22 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 32); confirmed in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Merits, Judgment, 26 February 2007, 63 (paras 166–167). 23 1015 UNTS 243. 24 GA Res 36/55, 25 November 1981. 25 660 UNTS 195, art 2. 26 ECOSOC Res 1503 (XLVIII), 27 May 1970. 27 ECOSOC Res 2000/3, 16 June 2000. 28 GA Res 60/251, 3 April 2006. 29 Human Rights Council Res 6/36, 14 December 2007. 30 Ibid, para 1. 31 999 UNTS 302. 32 As R Errera regretted in his separate opinion, the Mikmaq case did not allow determination of whether an individual could act on behalf or a people and seize the Committee with violations of art 1(1) of the Covenant: The Mikmaq Tribal Society v Canada, HRC, Communication No 78/1980, 29 July 1984, UN Doc Supp No 40 (A/39/40), 200; 79 ILR 261, 266. 33 See Sir Dawda K Jawara/Gambie, ACHPR, Communications No.147/95 and 149/96, 11 May 2000, in relation to article 26 of the African Charter on the right to internal self-determination; Social and Economic Rights Action Center, Center for Economic and Social Rights v Nigeria, ACHPR, Communication No 155/96, 13–27 October 2001, in relation to article 24 of the African Charter on the right to a satisfactory environment. 34 Ibid (para 49). 35 Commentary to draft art 19, para 6, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 97.

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36 1155 UNTS 331, art 53. 37 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15, 23. 38 Barcelona Traction Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 33 (para 34). 39 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction of the Court and Admissibility of the Application, ICJ Reports 2006, p 6, 28 (para 60). 40 Opinion No 1, 29 November 1991, (1992) 31 ILM 1494, 1494–1496 (para 1-e). 41 GA Res 96(I), 11 December 1946. 42 GA Res 2202A(XXI), 16 December 1966. 43 SC Res 556 (1984), 23 October 1984. 44 GA Res 2621(XXV), 12 October 1970. 45 Commentary to draft art 19, para 6, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 97. 46 Ibid. 47 Commentary to draft art 19, para 18, ibid, 102. See also J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 94. 48 See draft art 19(3) as adopted on first reading, ILC Yearbook 1976, Vol II(2), 95. 49 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 33 (para 140). 50 SC Res 217, 20 November 1965. 51 SC Res 418, 4 November 1977, through which the Council also imposed an embargo on South Africa. 52 Common positions adopted on 7 May and 29 June 1998, Official Journal of the EC, 1998, L 143, 1, and L 190, 3. 53 Cf ILC Yearbook 1976, Vol I, 67ff. 54 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16. 55 W Riphagen, Preliminary Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 121 (para 68). 56 Commentary to art 54, para 2. 57 L-A Sicilianos, Les réactions décentralisées à l’illicite—Des contre-mesures à la légitime défense (Paris, LGDJ, 1990), 135. 58 See eg SC Res 216, 12 November 1965, requiring States not to recognize Southern Rhodesia. 59 See eg GA Res 31/6A, 27 October 1976, calling on States not to recognize Transkei. 60 See eg Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (paras 159–160): the Court considered that, faced with the breach of obligations erga omnes, in particular the right of self-determination, all States have an obligation not to recognize the unlawful situation and not to lend support to the creation of this situation. The Court invited the Security Council and the General Assembly to adopt the necessary measures to bring the situation to an end. 61 Commentary to art 54, para 7. 62 Uganda Embargo Act, 22 USC s. 2151 (1978).

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63 Comprehensive Anti-Apartheid Act (1987) 26 ILM 79. 64 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 37 (para 94). 65 South West Africa (Liberia/Ethiopia v South Africa), Second Phase, ICJ Reports 1966, p 6, 47 (para 88). 66 Art 48, ARSIWA. 67 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3. 68 Nuclear Tests (Australia/New Zealand v France), ICJ Reports 1974, p 253. 69 East Timor (Portugal v Australia), ICJ Reports 1995, p 90.

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Part V The Implementation of International Responsibility, Ch.69 Injuries to Corporations Vaughan Lowe From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Nationality of corporations — Responsibility of states — Nationalilty of individuals — Wrongful acts — Nationality of investor, shareholders — National treatment — Most-favoured-nation treatment (MFN) — Fair and equitable treatment standard — International Centre for the Settlement of Investment Disputes (ICSID)

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(p. 1005) Chapter 69 Injuries to Corporations 1 Introduction 1005 2 The basic rule 1006 (a) The company’s national State should claim 1006 (b) Determining the nationality of a company 1007 3 The limits of the basic rule 1010 (a) The scope of the basic rule 1010 (b) Exceptions to the basic rule 1010 4 Distinguishing the company’s rights from shareholders’ rights 1012 5 The question of minority shareholders 1016 6 The problem of corporate groups 1017 7 Continuous nationality and the assignment of actions 1018 Further reading 1020

1 Introduction The principles of international law governing the question of injuries to moral persons—companies, corporations, and other legal entities created by municipal law—have been slow to develop, and at the time of writing1 are still far from presenting a comprehensive and coherent system. The topic has been under consideration by the ILC since 1997, and reference should be made to its reports for its views on the matters discussed in this Chapter.2 These issues are, moreover, overlain by a fast-growing body of treaty law which makes special provision for the presentation of claims against States for injuries inflicted upon companies in violation of international law, and by a body of diplomatic practice of interventions by States on behalf of the interests of companies. Superficially, the relevant principles of customary international law are straightforward. A corporation

References (p. 1006) (and for convenience, this term will be used to describe moral persons in general) is a legal person distinct from its members. The protection of a corporation is, accordingly, a matter for its national State, ie the State to whose legal system the corporation owes its existence, which is in principle the State in which the corporation was incorporated. The apparent simplicity of that position dissolves, however, on closer inspection.

2 The basic rule (a) The company’s national State should claim It is convenient to begin with the conventional wisdom, as it is set out in the Barcelona Traction case.3 There, the famous, and surprisingly brief, majority judgment of the Court set out a series of propositions that have since served as the cornerstones of the law in this area. (Judges Fitzmaurice, Tanaka, Jessup, Morelli, Padilla Nervo, Gros, and Ammoun delivered Separate Opinions, and Judge ad hoc Riphagen delivered a Dissenting Opinion; and these Opinions contain a wealth of learning and acute analysis.) The case was brought by Belgium against Spain. It concerned wrongs allegedly done from 1946 onwards by Spain to a company, the Barcelona

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Traction, Light and Power Company Limited, which was incorporated under Canadian law in 1911 and had its head office in Toronto, Canada, but most of whose shareholders were said to be of Belgian nationality. In relation to the question whether Belgium was entitled to institute proceedings against Spain, the ICJ set out the basic rule as follows: … where it is a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorizes the national State of the company alone to make a claim.4 The ICJ recently restated this rule in the context of diplomatic protection in the Diallo case.5 Mr Diallo, a Guinean national, moved to Congo in 1964 and there established an import-export company and subsequently incorporated another company. Towards the end of the 1980s these companies began to have problems recovering certain debts. In 1996 Mr Diallo was deported to Guinea, which sought to exercise its diplomatic protection on his behalf for the alleged violation of his individual personal rights, his direct rights as a shareholder and the rights of the companies ‘by “substitution” ’.6 Guinea referred to a dictum in Barcelona Traction and to other arbitral awards that allegedly accorded protection to foreign shareholders in the event that the State of the injured company was the State whose responsibility was invoked.7 The ICJ held that Guinea was prevented from exercising diplomatic protection in relation to the companies’ rights: what matters, from the point of view of international law, is to determine whether or not these [entities] have a legal personality independent of their members… . As a result, only the State of nationality may exercise diplomatic protection on behalf of the company when its rights are injured by a wrongful act of another State.8

References (p. 1007) However, there have in the past been indications that it is not only the national State of the company that has the right to make a claim. There is some authority supporting a general right of States to present claims in respect of injuries to foreign companies that are owned or controlled by their nationals. Borchard, for instance, treated such instances as the ‘obverse’ of cases where a nationally-incorporated company is protected despite the predominantly foreign ownership of its shares: he does not treat them as instances of the protection of shareholders’ rights.9 This may be no more than an example of the conflation of two distinct questions: first, whether the national State of the shareholders or of the company should bring the action; and second, what is the nationality of the company. Most instances of the protection of foreign-incorporated companies are, in any event, rather old, and are sometimes concerned with the making of informal representations rather than formal international claims; and some may also be better regarded as instances of the protection of the shareholders’ own rights, as opposed to the company’s rights.10 Apart from the specific circumstances discussed below as exceptions to the basic Barcelona Traction rule, there is no sign of significant support for this position in current customary international law. There may, however, be treaty provisions that permit the presentation of claims in respect of injuries to foreign companies owned or controlled by a State’s nationals.11

(b) Determining the nationality of a company The Barcelona Traction Court did not decide how the national State of the company was to be determined for the purposes of diplomatic protection. It is commonly said that two approaches exist to this question. Common law countries attribute to companies the nationality of the State in whose territory the company is incorporated. At least some civil law countries, on the other hand, do not use the ‘place of incorporation’ test but treat companies whose seat of management (siège social or Sitz) is within their territory as their nationals.12 The Court in Barcelona Traction noted that:

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in allocating corporate entities to States for purposes of diplomatic protection, international law is based, but only to a limited extent, on an analogy with the rules governing the nationality of individuals.

References (p. 1008) The traditional rule attributes the right of diplomatic protection of a corporate entity to the state under the laws of which it is incorporated and in whose territory it has its registered office.13 The Court did not need to decide whether the ‘traditional rule’ was good law, because whether the incorporation test or the alternative ‘seat’ test were applied, Barcelona Traction would have been a Canadian corporation. It was incorporated in Canada and also had its head office there. It will be noted that the Court spoke of nationality ‘for purposes of diplomatic protection’: nationality for other purposes (such as the exercise of prescriptive jurisdiction, or the determination of enemy character, or qualification for remedies under a particular treaty) is a distinct matter, which may be governed by different principles that lead to different outcomes.14 So, too, is the question of the nationality of a company for the various purposes of municipal law.15 Failure to recognize that these matters are not necessarily governed by the same principles has led to much confused thinking. Many of the cases cited by authors are in fact concerned with determinations of nationality in other contexts.16 There are examples in State practice to support both the ‘incorporation’ and the ‘seat’ approach. For instance, in the Wimbledon case France based its right to protect the company, Les Affréteurs Réunis, upon the fact that the company’s siège social was in Paris.17 Some States, such as Germany, rely upon the seat to determine which companies are protected by investment treaties. It is, however, more common for protection to be based upon the incorporation of the company in the State, often without any more substantial connection with the claimant State being advanced.18 This is, moreover, a common practice in contemporary bilateral investment protection treaties, many of which define investors of a Party as ‘any corporations, companies, firms, enterprises, organisations and associations incorporated or constituted under the law in force in the territory of that Contracting Party’,19 although some other treaties impose the additional requirement that the investor have its seat in such territory.20

References (p. 1009) The Court in Barcelona Traction noted this mixed practice. It observed that some States impose requirements in addition to incorporation within the territory,21 for example, giving companies incorporated under their laws diplomatic protection only where the company’s seat or management or centre of control is located within their territory, or where a majority or a substantial proportion of the shares is owned by nationals of the State.22 Referring to arguments made by the parties concerning the alleged need to demonstrate a ‘genuine connection’ between the company and the protecting State, of the kind at issue in the Nottebohm case,23 the Court concluded that ‘no absolute test of the “genuine connection” had found general acceptance’.24 No such factors would have affected the decision in this case, however, because the manifold links of the company with Canada, including its incorporation there, pointed clearly to it having Canadian nationality. Only the nationality of the shareholders pointed to a link with Belgium. There is, moreover, still little sign of any ‘genuine connection’ test establishing itself in international practice concerning the protection of corporations.25 It was noted above that in Barcelona Traction the Court did not have to decide between the ‘incorporation’ and ‘seat’ approaches to the determination of nationality. The question may have to be decided, for example, if a respondent State were to challenge the right of a claimant State to protect a company incorporated in the Claimant’s territory but having its seat elsewhere. There is, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

however, some support for a third view: that the question should be referred to the law of the claimant State, and that if that State regards the company as its national that would decide the matter.26 That approach would be consistent with the view that it is for each State to determine who are its nationals, as long as that determination does not violate international law.27 Cases of dual nationality might be resolved by applying the same principles that are applied to individuals who are dual nationals.28 In 2006 the ILC adopted 19 Draft Articles on Diplomatic Protection.29 Draft article 9, having affirmed the principle that in the context of diplomatic protection ‘the State of nationality means the State under whose law the corporation was incorporated’, provided for an exception to that principle. If the corporation (i) is controlled by shareholders who are nationals of other States, and (ii) the corporation has no ‘other link or connection’ with the State of incorporation, and (iii) both its seat and its financial control are based in another State, the State of the seat and financial control is to be regarded the State of nationality.30 The Commentary to draft article 9 makes clear that there is only one State

References (p. 1010) with the right to exercise diplomatic protection, and that the basic principle remains that it is the State of incorporation that has that right.31 While the theoretical position remains uncertain, with the contest between the ‘incorporation’ and ‘seat’ approaches still unresolved, the practical position is clearer. In practice most States now tend to exercise diplomatic protection, as a general rule (the exceptions are considered below), only in respect of companies that have been incorporated in their territory; and a significant number of States require in addition that the company have its seat within that State. In other words, incorporation in a State is generally a necessary, but not always a sufficient, condition for the exercise of diplomatic protection. It should also be noted that unincorporated businesses may be protected by the State in which they are registered.32

3 The limits of the basic rule (a) The scope of the basic rule The basic rule has important limitations upon its scope. Most important, it applies only in relation to wrongs done to the company. If the alleged wrong violates, not a right belonging to the company, but rather a right belonging to the shareholders as such, the basic rule will not apply. The Barcelona Traction Court mentioned ‘the right to any declared dividend, the right to attend and vote at general meetings, [and] the right to share in the residual assets of the company on liquidation’ as examples of what it called ‘direct rights of the shareholder as such’.33 In Barcelona Traction, Belgium might have argued that Spain’s treatment of the company amounted to a violation of the shareholders’ direct rights to manage and control the property that they had invested in; but that point was apparently not pursued.34 In Diallo, the ICJ reiterated that ‘what amounts to the internationally wrongful act, in the case of associés or shareholders, is the violation by the respondent State of their direct rights in relation to a legal person’.35 What the precise limits of these ‘direct rights’ of shareholders might be, and how they are to be distinguished from the rights of the company, is one of the most difficult and important questions in this area, and is considered further below.

(b) Exceptions to the basic rule The Barcelona Traction Court held open the possibility that even in contexts where the wrong was

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done to the company, the basic principle might be subject to certain exceptions. First, the application of the principle presupposes that the company continues to exist. The Court held that ‘in the event of the legal demise of the company’ the shareholders ‘are deprived of the possibility of a remedy available through the company’, adding

References (p. 1011) that ‘it is only if they became deprived of all such possibility that an independent right of action for them and their government could arise’.36 Such an exceptional right of action for shareholders’ national States has a long history, and is still asserted by States.37 Second, there may be circumstances where the national State lacks the capacity to act on behalf of the company.38 The Court stressed the distinction between such a ‘lack of capacity’, which might entail an exception to the principle, and a simple refusal by a national State that possesses such capacity to exercise it on behalf of a company. Whatever the position might be in municipal law, as a matter of international law diplomatic protection is, as the Court noted, a right and not an obligation.39 The full extent of this notion of a lack of capacity is not entirely clear. The Parties to the case had made frequent reference in their pleadings to the Nottebohm case; 40 and one situation where it might be argued that the national State ‘lacks the capacity to act’ is where the company lacks any real attachment or link to an applicant State under whose laws it was incorporated but has longstanding and close ties with the respondent State. In such a case it might be argued that the respondent State is under no obligation to recognize the nationality resulting from incorporation, and that the applicant State is not entitled to extend its protection to the company.41 As was noted above, there is little evidence in international practice to support this possibility. Moreover, given the common practice of incorporating companies in foreign territories in order to secure tax advantages, any such refusal to accept that the State of incorporation is entitled to exercise diplomatic protection would have widespread consequences under traditional international law. Nonetheless, the possibility must be admitted that the State in which the company is incorporated might be held by a tribunal not to be entitled to present claims on behalf of the company, at least against certain States with which the company has a closer connection. Another possibility is that it might be held that the company’s national State lacks the capacity to act on its behalf in circumstances where that State has as a matter of law no government, as was found to be the case in respect of Somalia by the English courts in Republic of Somalia v Woodhouse.42 The possibility of the national State of the shareholders being entitled in such circumstances to present diplomatic claims in respect of injuries to the company is reinforced by the International Court’s seeming willingness to accept that considerations of equity might call for the acceptance of such a right.43 The Court considered, but did not pronounce upon, a third possible exception to the basic principle that it must be the company’s national State that exercises diplomatic protection of the company. It said: … a theory has been developed to the effect that the State of the shareholders has a right of diplomatic protection when the State whose responsibility is invoked is the national State of the

References (p. 1012) company. Whatever the validity of this theory may be, it is certainly not applicable to the present case, since Spain is not the national State of Barcelona Traction.44

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Subsequently, the ICJ examined in Diallo whether this theory had become part of customary international law, and held it had not.45 However, investment treaties46 occasionally include this ‘theory’ as a treaty provision, and the theory has found its most visible expression in the ICSID Convention, considered below. It has also been accepted in State practice47 and in the ILC Draft Articles on Diplomatic Protection.48 In particular, Draft article 11 concerning the protection of shareholders provides for their protection in the event that: (a) the corporation has ceased to exist according to the law of the State of incorporation for a reason unrelated to the injury; or (b) the corporation had, at the date of injury, the nationality of the State alleged to be responsible for causing the injury, and incorporation in that State was required by it as a precondition for doing business there.49 The decision of the Court in Diallo cannot be regarded as deciding whether the exception in article 11(b) represents customary international law, because it was not applicable in that case.50 Both exceptions have been criticized because they apply to each and every shareholder in the company, thus allowing for the possibility of multiple claims.51 It is not, however, clear even as a matter of policy that this objection is best answered by restricting the right of the national State of the shareholder to espouse the claim rather than by procedural steps to protect the legitimate interests of a respondent State in any subsequent litigation.

4 Distinguishing the company’s rights from shareholders’ rights As the basic principle is that it is the national State of the company, not of the shareholders, that must exercise diplomatic protection in respect of a wrong done to the company, the next matter must be to distinguish between wrongs done to the company and wrongs done to shareholders. Some shareholder rights, such as the right to vote and to receive declared dividends, were identified above. This is, however, a topic that needs to be approached with some caution, for two reasons. First, the existence of rights must surely be a matter governed by the law of the State in which the company is incorporated (or more accurately by the law

References (p. 1013) by virtue of which its personality is internationally recognized).52 National laws may differ on the question of what rights shareholders possess. For example, the moment at which shareholders, rather than the company, become entitled to monies declared as dividends may differ from law to law. Second, and more significantly, it may be difficult to decide how any particular right should be characterized. This is the problem that underlay the ELSI case,53 to which attention must now be turned. The ELSI case arose out of the alleged mistreatment by the Italian authorities of Elettronica Sicula SpA (ELSI), an Italian company all of whose shares were owned by the United States company, Raytheon, and its subsidiary, Machlett laboratories. Raytheon and Machlett claimed that they had suffered losses because they had been prevented from conducting an orderly liquidation of ELSI by the Italian authorities, who had intervened in an attempt to minimize the impact of ELSI’s liquidation upon the local economy. A chamber of the ICJ held that there had been no such losses, because ELSI was already insolvent at the time that the Italian authorities intervened; but the interesting question for present purposes is whether the claim should in any event have been dismissed on the ground that the United States had no right to present it. The United States was, after all, presenting a claim on behalf of ELSI’s shareholders, whereas the Italian authorities had intervened in relation to ELSI, an Italian company. The ELSI Chamber could have decided that the claim fell within the Barcelona Traction ‘theory’ that the shareholders’ national State can claim where the alleged wrong is done by the State of 54

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incorporation; but it did not explicitly do so.54 Rather, it seems that the Chamber took the view that it was not ELSI’s rights but the direct rights of ELSI’s shareholders to manage the company that were alleged to have been infringed—an alternative characterization of the facts that appears to have been excluded as a possibility in the Barcelona Traction case only by an accident of pleading.55 The issue then becomes, how are the direct rights of shareholders, as distinct from the rights of the company, to be determined? In the ELSI case, Judges Oda and Schwebel addressed this issue. While they differed over the interpretation and scope of the rights, they appear to have accepted that shareholders’ rights might derive from three sources: (i) the law of the territory in which the company is incorporated; (ii) the provisions of any international agreement, such as a bilateral investment protection treaty, that identifies and protects specific rights of shareholders; and (iii) what Judge Oda called ‘the general principles of law concerning companies’,56 by which he may have meant those rights of shareholders that are identified and protected as such by customary international law (and under article 38(1)(c) of the Statute of the International Court of Justice). Interesting as this gloss on the basic principles is, it by no means disposes of all of the difficulties. How is it to be decided if it is the company that has a right to an unfettered management, or rather the controlling shareholders who have

References (p. 1014) an unfettered right to manage, for example? But the discussions in the ELSI Opinions of Judges Oda and Schwebel do at least point to the sources from which answers might in due course come. In Diallo the ICJ stated that the shareholders’ direct rights are ‘defined by the domestic law of [the respondent] State’,57 and noted that the Court would ‘define the precise nature, content and limits of these rights’ at the merits stage (which is currently pending, more than a decade after the case was registered with the Court).58 As a matter of principle the answer must be that shareholders cannot as a rule assert greater rights to engage in, or to control, the management of a company than they would have under the proper law of the company, the lex societatis. The lex societatis will in principle be the law by virtue of which the company’s personality is internationally recognized, and is generally considered to be the law of the territory in which the company is incorporated.59 (It will be recalled that this will not necessarily be the same as the State that is the national State of the company for the purposes of the making of international claims, although it will usually be so.) Similarly, the existence and extent of shareholders’ other rights ought equally to be determined by the lex societatis. No doubt certain rights, such as the fundamental rights to attend company meetings and to share in the assets of the company on its winding up, could not be denied to shareholders as a matter of international law even if the lex societatis were to be amended so as to abolish those rights. In such cases inter national law would operate in its familiar role as a complement to national law, securing to aliens not only the enjoyment on a nondiscriminatory basis of rights that they are given by national law, but also a certain minimum standard of treatment. Even here, however, the position might arguably be otherwise if the rights in question did not exist at the time when the shareholder made its investment in the company: it is difficult to see that international law should protect greater rights than were initially obtained. One might, alternatively, approach the abolition of such rights as a taking of shareholders’ property, within the expanded meaning of that concept as it has developed since the seminal Starrett Housing case.60 In contemporary practice, shareholders’ rights are now commonly spelled out in treaties, most frequently in bilateral investment protection treaties, which now number over 2600.61 Such treaties typically oblige host States to accord to foreign investments ‘fair and equitable treatment’ and ‘full protection and security’, not to expropriate them except for a public purpose and against prompt, adequate and effective compensation, and to treat them according to the most-favoured-nation and national treatment standards.62 They From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

References (p. 1015) commonly define the term ‘investments’ so as to include investments made either directly or indirectly, including investments made ‘through an investor from a third State’63 and as including, for example, ‘every kind of investment owned or controlled by nationals or companies of the other Party’,64 or ‘shares in, and stock, bonds and debentures of, and any other form of participation in, a company or business enterprise’.65 In each case the effect is much the same. The foreign investor is regarded as having a protectable right even if it is a right that consists of a shareholding in a company and it is the company in which the shares are held that actually sustains the injury at the hands of the State.66 BITs accordingly provide as a matter of treaty law for the approach which seems to have been accepted implicitly by the majority in the ELSI case, according to which the shareholders may regard their interest in the company in which they invest as being itself a piece of property, so that they are entitled to a remedy when their rights in respect of that property are interfered with unlawfully. A similar situation obtains under the ICSID Convention. There, Parties may (and commonly do) agree to treat as a ‘foreign investor’ ‘any juridical person which had the nationality of the Contracting State party to the dispute … and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention …’.67 Foreign investors are then entitled to remedies if their investment is treated unlawfully. Again, the result is that if a State injures a company incorporated under its laws (as, for example, in the ELSI case), the controlling foreign shareholders in that company are entitled to a remedy. The same general approach has been taken in other contexts, too: for example, in the instruments establishing the Iran-US Claims Tribunal. It seems that what happens, conceptually, under these investment treaties is that the shareholders are treated as having direct rights that are engaged whenever an injury is inflicted upon a company in which they have invested. As a matter of international law, the category of direct shareholder rights is vastly expanded. Both under BITs and more generally under the ICSID regime investors have a direct remedy against the respondent State.68 There is no need for diplomatic protection to be exercised by their national State. Such is the astonishing number and scope of these provisions, which also appear in other multilateral agreements,69 that it may be expected that the diplomatic

References (p. 1016) protection of shareholders and of companies by States will henceforth be a rare occurrence.70 The shareholder-investor, or the company, will itself pursue its own remedy in its own name.

5 The question of minority shareholders In Barcelona Traction and ELSI there was no doubt that the shareholders whose claims were presented were in full and effective control of the companies that had allegedly been wrongly treated: but what of the position of minority shareholders? In principle the answer is clear. If the national State of the majority shareholders may not bring a claim, as Barcelona Traction established, a fortiori the national State of minority shareholders may not do so. If, under the lex societatis, minority shareholders may not initiate legal actions in the name of the company, so too the national States of minority shareholders may not present international claims in respect of injuries to the company.71 If, under the lex societatis, minority shareholders are given the right to take action in the name of the company and that exceptional right is limited to actions against the company’s officers, the shareholders’ national State should in principle not be entitled to bring a claim in respect of an injury to the company. The exceptional minority action is a matter of internal corporate

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governance, not concerned with the company’s relations with third parties. If there should be an exceptional right for minority shareholders to act in the name of the company in relation to third parties the position might be different; but any such cases could probably be analysed in terms of the individual, direct rights of shareholders rather than as a further exception to the basic Barcelona Traction principle. Although the Court in Barcelona Traction did not explore this possibility, it seems that in principle in those circumstances where, as exceptions to the basic rule that it is for the national State to bring claims, the national States of the shareholders do indeed have the right to bring claims, that right should extend to the national State of each and every shareholder, regardless of the size of the shareholding. Investments made by minority shareholders are often specifically covered by a BIT’s definition of ‘investment’, as ICSID arbitral tribunals have recognized in several cases.72

References (p. 1017) This has the effect of marking a major deviation from the approach adopted in Barcelona Traction; but in most such cases the company would take action in its own name against the State, and diplomatic protection by the company’s national State would be rendered unnecessary or even precluded by the terms of the treaty.73 In any event, it is unlikely in practice that a State would bring such a claim unless the ‘national’ shareholding were substantial or the claim could be brought jointly with the national States of shareholders who do hold a substantial proportion of the shares. This is the position adopted in, for example, the Commentary to Rule VI of the United Kingdom Rules regarding the Taking up of International Claims by Her Majesty’s Government, which states that ‘Where the capital in a foreign company is owned in various proportions by nationals of several States, including the United Kingdom, it is unusual for HMG to make representations unless the States whose nationals hold the bulk of the capital will support them in making representations’.74 It is not clear whether a number of States representing different groups of minority shareholders who, taken together, would hold a majority of the shares, could bring an action in respect of an injury to the company if the national State of the company declines to do so, even in cases where none of the exceptions to the basic rule in Barcelona Traction applies. It might be argued that, as the shareholders had the power to act jointly to direct the company to take action, and in that sense could be said to represent the company, so too should their national States be entitled to combine to take action on the international plane. On the other hand, the nature of the legal interest of the shareholder and of the shareholder’s national State is quite different.75 As a group, the shareholders may be the controllers of the company: but as a group, the national States of the shareholders are merely a group of national States of minority shareholders. It might also be said that if the majority shareholders fail to persuade the company, and through it the national State of the company, to take action, there is no reason why the national States of the shareholders should be given a wider right.

6 The problem of corporate groups A particular problem arises from the phenomenon of the corporate group. It is common for a company (and particularly a company established or operating in a State other than the State of its incorporation) to be a part of a network of parent companies, subsidiaries and affiliates. May a claim in respect of an injury to one such company be made by way of a claim to protect the interests of another company in the group? In principle the answer should be, no: each company is a separate person. One must, however, distinguish

References

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(p. 1018) between the question of locus standi to present a claim in respect of an injury and the question of the incidence of that injury, although both questions will usually point to the same conclusion. As far as locus standi is concerned, the issue only arises if the companies have different nationalities. If they do, and company A owns all or most of the shares in a foreign company, B, it is in essentially the same position as were the Belgian shareholders in Barcelona Traction. There is no reason to allow company A’s national State to claim in respect of the injury to company B. As far as the incidence of the injury is concerned, it is important to recall Judge Fitzmaurice’s observation that shareholders have ‘no legal right that [their shares] shall have, or be maintained at, any particular market value’.76 Accordingly, company A’s national State cannot claim on behalf of company A for the diminution in the value of its shares in company B if company B is injured. Whatever the position may be in customary international law, under treaty law there will commonly be a right for the parent company or individual owner of an injured company to bring a claim. Indeed, it is one of the essential purposes of BITs to allow owners and controllers of companies to seek their remedies in this way; and this is typically done by allowing claims in respect of investments held either directly or indirectly through a third party.77 It is, however, not clear how far this logic extends. There may be many companies interposed between the injured company and the ultimate owner, each owning or controlling its subsidiary, and each, perhaps, incorporated in a different State. Can each of them bring a separate claim in respect of the same injury? This question has not yet been definitively answered, although there are some indications of a reluctance to accept the possibility of multiple claims.78 In principle, the solution must be found in the construction of the treaties in question. It will, of course, not be permissible to recover more than once for any injury suffered; but given the primitive state of international legal doctrine on matters such as res judicata and lis pendens in the context of arbitration,79 the possibility of multiple actions in the names of different corporate affiliates in the chain of ownership obviously increases the chances that at least one of those claims will be successful.

7 Continuous nationality and the assignment of actions In cases of indirect international responsibility, international law imposes in principle a requirement that the ‘nationality of the claim’ remain unchanged from the time that the injury is sustained up to the time that the claim is espoused by the national State: that is to say, while there may be successors in title to the claim, they must all have the same

References (p. 1019) nationality as the person who sustained the initial injury.80 Article 10 of the ILC Draft Articles on Diplomatic Protection includes this requirement and adds that ‘a State continues to be entitled to exercise diplomatic protection in respect of a corporation which was its national at the date of injury and which, as the result of the injury, has ceased to exist according to the law of the State of incorporation’. 81 If international law ascribes nationality to companies entirely upon the basis of the place in which the company is incorporated, that nationality cannot change.82 It would be necessary for the company to be dissolved in one State and for a new company to be incorporated in the other, with as full a transfer of the rights and obligations of one to the other as the respective municipal laws permit. But to the extent that international law looks beyond the place of incorporation of the corporation as the criterion of nationality it is possible that there might be a change in nationality, or at least a failure to maintain the company’s nationality in a manner that satisfies the continuous nationality principle. This might occur through changes in the location of the seat of management or in the nationality of the shareholders.83 Changes in the seat of management of the company are matters of fact, to be proved in the normal way. Changes of shareholding, however, are more problematic. Shares may be transferred to shareholders of different nationalities, without the

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company being aware of the changes in shareholder nationality. The Iran-United States Claims Tribunal has on several occasions had to determine whether companies were owned or controlled by United States nationals. It developed a number of pragmatic tests, such as the registered addresses of holders of small blocks of shares (actual proof of nationality being required in respect of holders of larger blocks of shares), to establish rebuttable presumptions concerning the holders’ nationality.84 Similar approaches might be adopted in other circumstances, such as the determination of ‘foreign control’ under ICSID article 25(2)(b). May the claim be assigned by the company that sustained the initial injury to another company? This question, too, lacks a definitive answer, although there are some indications as to the way in which the law is developing. Practice under the ICSID Convention is generally liberal in this respect, accepting transfers of the claim within a corporate group and permitting the ultimate holder of the affected property to initiate the action, if other jurisdictional requirements are met.85 That may be the result of the specific purpose of

References (p. 1020) the ICSID Convention, which might be said to be to protect ‘investments’ rather than ‘property’. The concept of an investment might be argued to be a broader expression of the relationship between the investor and the host State than is the concept of property, so that a subsequent buyer can be permitted to step into the shoes of the initial investor. That, at least, appears to have been the view of a number of ICSID Tribunals. On the other hand, it is arguable that the bundle of rights that constitute the property must be constituted and determined by municipal law, so that when property is sold or assigned, the new owner can acquire no more than the property which the previous owner passes on, in the imperfect condition that the property is in after it has been ‘damaged’ by the host State.86 The principle nemo dat quod non habet is as forceful as a matter of law as it is as a matter of logic. That principle has also been applied in the investment context so as to determine that a lack, on the part of a company that sustained an injury committed by a State, of locus standi to bring an ICSID claim precluded an action in respect of that injury by another company which did have locus standi to bring ICSID claims when the second company bought the shares in the first.87 It is also probable that assignments that are in some sense colourable or abusive will not be permitted to form the basis of the diplomatic protection of the assignee.88 It is unclear whether this approach may obtain also in a non-investment context (the context being determined primarily by the treaty under which proceedings are initiated) so as to entitle the successive owners of any company to say that every injury the company has sustained is an injury to their ‘investment’. One awaits further developments in this area with interest. If free assignment of claims is indeed permitted, one might expect that the buying of claims by companies incorporated in States that enjoy particularly favourable protection under investment treaties made with the wrongdoing host State will become common. Further reading L Caflisch, La Protection des Sociétés Commerciales et des Intérêts Indirects en Droit International Public (The Hague, Martinus Nijhoff, 1969) L Caflisch, ‘The Protection of Corporate Investments Abroad in the Light of the Barcelona Traction Case’ (1971) 31 ZaöRV 162 M Diez de Velasco, ‘La Protection Diplomatique des Sociétés et des Actionnaires’ (1974-I) 141 Recueil des cours 93 Y Dinstein, ‘Diplomatic Protection of Companies under International Law’, in K Wellens (ed), International Law: Theory and Practice. Essays in Honour of Eric Suy (The Hague, Nijhoff, 1998), 505 Z Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYIL 151

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A Gianelli, ‘La Protezione Diplomatica di Società dopo la Sentenza Concernente la Barcelona Traction’ (1986) 69 Rivista di Diritto Internazionale 762 D Harris, ‘The Protection of Companies in International Law in the Light of the Nottebohm case’ (1969) 18 ICLQ 275 JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225

References (p. 1021) V Lowe, ‘Shareholders’ Rights to Control and Manage: from Barcelona Traction to ELSI’, in N Ando, E McWhinney, & R Wolfrum (eds), Liber Amicorum Judge Shigeru Oda (The Hague, Kluwer, 2002), 269 FA Mann, ‘The Protection of Shareholders’ Interests in the Light of the Barcelona Traction Case’ (1973) 67 AJIL 259 F Orrego Vicuña, ‘Interim Report on “The Changing Law of Nationality of Claims” ’, International Law Association: Report of the Sixty-Ninth Conference, ILA, London, 2000, 631 I Seidl-Hohenveldern, ‘ELSI and BADGER: The Two Raytheon Cases’, in I Seidl-Hohenveldern, Collected Essays on International Investments and on International Organizations (The Hague, Kluwer, 1998), 399 I Seidl-Hohenveldern, Corporations in and under International Law (Cambridge, Grotius, 1987) C Staker, ‘Diplomatic Protection of Private Business Companies: Determining Corporate Personality for International Law Purposes’ (1990) 66 BYIL 155 B Stern, ‘La Protection Diplomatique des Investissements Internationaux’ (1990) 116 JDI 897 P de Visscher, ‘La Protection Diplomatique des Personnes Morales’ (1961-I) 102 Recueil des cours 395(p. 1022)

Footnotes: 1 This paper was written in 2001, and thanks are due to Dr Monique Sasson who revised the paper in 2009 for publication at the request of the editors. Had the paper been written today, in the light of developments in the ILC and in international arbitration (and notably in ICSID arbitrations), the paper would have had a rather different structure. It is, however, too soon to say what effect the ILC Articles of 2006 and the range of views expressed in recent arbitral awards will have on the development of customary international law. The need for caution in this respect is evident in the light of the decision of the ICJ in the Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, para 90. 2 See also the reports of the Committee on Diplomatic Protection of Persons and Property, International Law Association, Report of the Sixty-Ninth Conference: London (2000), 605–654; Second Report in International Law Association, Report of the Seventieth Conference: New Delhi (2002), 228–298. 3 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3. 4 Ibid, 46 (para 88). 5 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007. 6 Ibid, para 31. 7 Ibid, paras 82–83. 8 Ibid, para 61. See also ibid, para 63. 9 EM Borchard, The Diplomatic Protection of Citizens Abroad; or The Law of International Claims

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(New York, The Banks Law Publishing Company, 1915), 622–623; but note his conclusion drawn from the practice of international tribunals: ibid, 624. 10 See further the Separate Opinion of Benito Flores in Flack (1929) 5 RIAA 61, 64–74; the Mexican Eagle Oil Company episode (1938), in MM Whiteman, Digest of International Law (Washington, DC, US Government Printing Office, 1967), vol VI, 1271–1279; JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225. 11 See eg art VII(2) of the Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, 20 ILM 223; GH Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, OUP, 1996), 88–92. Similar modifications appear in investment protection treaties. 12 See eg the Germany–Bangladesh Treaty concerning the Promotion and Reciprocal Protection of Investments, 6 May 1981, art 8(4). Cf, D Carreau, Droit International (6th edn, Paris, Pedone, 1999), paras 868–872; S Rammeloo, Corporations in Private International Law: A European Perspective (Oxford, OUP, 2000); S Bastid et al, La Personnalité Morale et ses Limites: Etudes de Droit Comparé et de Droit International Public (Paris, LGDJ, 1960). And see Case C-212/97, Centros Ltd v Danish Commercial Register [1999] ECR I-1459 CJEC; and Case C-208/00, Überseering BV v NCC Nordic Construction Company Baumanagement GmbH, [2002] ECR I-9919 CJEC, for developments in the European Union. 13 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 42 (para 70). 14 See eg Société Anonyme du Charbonnage Frédéric Henri v Germany (1921) 1 ILR 227. Cf, the comments of the Italian-United States Conciliation Commission in Flegenheimer (1958) 25 ILR 91, 148; and Judge Tanaka in Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 114, 122–123. 15 See eg the Amicus Curiae brief filed by the United Kingdom in the Supreme Court of the United States in Matimak Trading Company Ltd v Albert Khalily et al, reproduced in (1997) 68 BYIL 554, 557; the EU Judgments Regulation, Council Regulation (EC) 44/2001, art 22, and Speed Investments v Formula One Holdings Ltd [2004] EWCA Civ 1512. 16 See G Schwarzenberger, International Law (3rd edn, London, Stevens and Sons, 1957), Vol I, chapter 22. 17 PCIJ, Series C, No 3/3. Cf the Swiss position in The Losinger & Co case, PCIJ, Series C, No 78, p 14. 18 See eg the Anglo-Iranian Oil Company case (United Kingdom v Iran), ICJ Reports 1952, p 93, 102. See also D Harris, ‘The Protection of Companies in International Law in the Light of the Nottebohm case’ (1969) 18 ICLQ 275. 19 Eg art 1(d)(iii), UK-USSR Agreement for the Promotion and Reciprocal Protection of Investments, London, 6 April 1989, 29 ILM 366, 370. See further Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 22–26. 20 Eg art 1(2)(b), France-USSR Agreement for the Promotion and Reciprocal Protection of Investments, Paris, 4 July 1989, 29 ILM 317, 321. See further Z Douglas, The International Law of Investment Claims (Cambridge, CUP, 2009), 23. The ‘incorporation’ test is also the basic principle adopted in the Hague Convention concerning the Recognition of the Legal Personality of Foreign Corporations, Partnerships and Foundations, 1 June 1956, (art 1). The position of States adopting the ‘seat’ theory is preserved by art 2. The Convention is not in force. For an application of the Convention, see Bakalian v Ottoman Bank (1965) 47 ILR 216. 21 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 42 (para 70).

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22 See eg A Giardina, ‘Compensating Nationals for Damage Suffered Abroad: Italian Practice’ (1986–1987) 7 Italian YBIL 3, 19–21. 23 Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4. 24 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 42 (para 70). 25 But see the Separate Opinion of Judge Anderson in the M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (1999) 120 ILR 143, 251–254. 26 See Bakalian v Ottoman Bank (1965) 47 ILR 216; Clunet, 1966, 118. Cf L Caflisch, ‘The Protection of Corporate Investments Abroad in the Light of the Barcelona Traction Case’ (1971) 31 ZaöRV 162, 173–177. 27 Cf the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930, art 1, 189 LNTS 89. 28 See Case A/18 (1984) 5 Iran-US CTR, 251 (including dissents); Flegenheimer (1958) 25 ILR 91. 29 Report of the ILC, 58th Session, 2006, A/61/10, 19. 30 Ibid: ‘Article 9. State of nationality of a corporation. For the purposes of the diplomatic protection of a corporation, the State of nationality means the State under whose law the corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and has no substantial business activities in the State of incorporation, and the seat of management and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality.’ See J Crawford, ‘The ILC’s Articles on Diplomatic Protection’ (2006) 31 SAYIL 19, 37. 31 See Articles on Diplomatic Protection, Commentary to art 9, paras 4–6, Report of the ILC, 58th Session, 2006, A/61/10, 54–55. 32 See eg art 1 of the Burundi-United Kingdom Agreement for the Promotion and Protection of Investments, 13 September 1990, UKTS No 11 (1991). 33 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 36 (para 47). 34 Ibid, 37 (para 49). 35 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, para 64. 36 Ibid, para 66. 37 JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225; and see the United Kingdom Rules regarding the Taking up of International Claims by Her Majesty’s Government, Rule V (1983) 54 BYIL 500, 501. 38 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 41–45 (para 69–81). 39 Ibid, 44–45 (paras 77–80). 40 Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4. 41 See the Separate Opinion of Judge Fitzmaurice, Barcelona Traction, Light and Power Company (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 79–83 (paras 26–33). 42 [1993] 1 All ER 371. Hobhouse J held that ‘the republic currently has no government’, 383. 43 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 48 (paras 93–94). 44 Ibid, 48 (para 92). 45 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary

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Objections, Judgment of 24 May 2007, paras 87–89. 46 See eg art 6 of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 4 October 1993, UKTS No 35 (1994). 47 JM Jones, ‘Claims on Behalf of Nationals Who are Shareholders in Foreign Companies’ (1949) 26 BYIL 225–258; and see the United Kingdom Rules regarding the Taking up of International Claims by Her Majesty’s Government, Rule VI, which stipulates that ‘Where a UK national has an interest, as a shareholder or otherwise, in a company incorporated in another State and of which it is therefore a national, and that State injures the company, [the British Government] may intervene to protect the interests of that UK national’ (1983) 54 BYIL 500, 501. 48 Report of the ILC, 58th Session, 2006, A/61/10, 19. 49 Ibid, 58. 50 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, paras 91–93. 51 J Crawford, ‘The ILC’s Articles on Diplomatic Protection’ (2006) 31 SAYIL 19, 40. 52 See Bakalian v Ottoman Bank (1965) 47 ILR 216, 228; C Staker, ‘Diplomatic Protection of Private Business Companies: Determining Corporate Personality for International Law Purposes’ (1990) 56 BYIL 155, 164–168. 53 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Objections and Merits, ICJ Reports 1989, p 15. 54 See B Stern, ‘La Protection Diplomatique des Investissements Internationaux’ (1990) 116 JDI 897, 924–927; A Watts, ‘Nationality of Claims: Some Relevant Concepts’, in V Lowe & M Fitzmaurice, Fifty Years of the International Court of Justice (Cambridge, Grotius, 1996), 424, 435. 55 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 37 (para 49). 56 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Objections and Merits, ICJ Reports 1989, p 15, 87–88. 57 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, para 64. Moreover, in this case the application of the law of Guinea as lex societatis was uncontested: ibid. 58 Ibid, para 66. 59 See eg the Separate Opinion of Judge Ammoun, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 325–326; Judge Oda’s Separate Opinion in Elettronica Sicula (ELSI) (United States of America v Italy), Objections and Merits, ICJ Reports 1989, p 15, 87. It is, however, possible that other laws may govern certain matters. For example, the right to attend and vote at meetings might be determined by the law of the place where the meetings are held. See generally S Rammeloo, Corporations in Private International Law (Oxford, OUP, 2001). 60 Interlocutory award (1983) 85 ILR 349, 391; (1983) 4 Iran-US CTR 122, 155. Quantification of the loss in such circumstances would, however, be a very difficult task. 61 See the ICSID web-site: , and the UNCTAD website: . 62 See, in general, Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009); A Reinisch (ed), Standards of Investment Protection (Oxford, OUP, 2008); R Dolzer and C Schreuer, Principles of International Investment Law (Oxford, OUP, 2008); C McLachlan, L Shore, & M Weiniger, International Investment Arbitration: Substantive Principles (Oxford, OUP, 2007). 63 See eg art 1, France-USSR Agreement for the Promotion and Reciprocal Protection of Investments, Paris, 4 July 1989, 29 ILM 317, 321.

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64 See eg art 1(1)(c), USA-USSR Treaty concerning the Encouragement and Reciprocal Protection of Investment, Washington, 17 June 1992, 31 ILM 794, 799. 65 See eg art 1(a)(ii), UK-USSR Agreement for the Promotion and Reciprocal Protection of Investments, London, 6 April 1989, 29 ILM 366, 369. 66 See C Schreuer, ‘Shareholder Protection in International Investment Law’ (2005) 2 Transnational Dispute Management, Issue 03; F Orrego Vicuña, ‘The Protection of Shareholders Under International Law: Making State Responsibility More Accessible’, in M Ragazzi (ed), International Responsibility Today, Essay in Memory of Oscar Schachter (Boston, Martinus Nijhoff, 2005), 161. 67 Art 25(2)(b). For an example of an agreement to treat companies according to this ‘foreign control’ clause, see art 10 of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 4 October 1993, UKTS No 35 (1994). 68 See R Dolzer & M Stevens, Bilateral Investment Treaties (The Hague, Kluwer, 1995); CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention, A Commentary (2nd edn, Cambridge, CUP, 2009). 69 See eg the Energy Charter Treaty, Lisbon, 17 December 1994, art 26, 34 ILM 360, 399–400. 70 See eg on claims brought by shareholders in investment treaty disputes: Asian Agricultural Products Limited v Democratic Socialist Republic of Sri Lanka, Final Award, 27 June 1990, 4 ICSID Reports 245; American Manufacturing & Trading, Inc v Democratic Republic of the Congo, Final Award (21 February 1997), 5 ICSID Reports 11; Antoine Goetz and others v Republic of Burundi, Final Award (10 February 1999), (2000) 15 ICSID Review 457; Lanco International, Inc v Argentine Republic, Preliminary Decision on Jurisdiction, 8 December 1998, 40 ILM 457; Emilio Agustín Maffezini v Kingdom of Spain, Decision on Jurisdiction, 25 January 2000, 5 ICSID Reports 396; Alex Genin, Eastern Credit Limited, Inc et AS Baltoil v République d’Estonie, Final Award, 25 June 2001, 6 ICSID Reports 236; Azurix Corp v Argentine Republic, Decision on Jurisdiction, 8 December 2003, 10 ICSID Reports 412; LG & E Energy Corp, LG & E Capital Corp. and LG & E International Inc v Argentine Republic, Decision on Objections to Jurisdiction, 30 April 2004, 11 ICSID Reports 411; Plama Consortium Limited v Republic of Bulgaria, Decision on Jurisdiction, 8 February 2005, 13 ICSID Reports 268; Suez, et al v Argentine Republic, Decision on Jurisdiction, 3 August 2006, ; Pan American Energy LLC, and BP Argentina Exploration Company v The Argentine Republic, BP America Production Company, Pan American Sur SRL, Pan American Fueguina, SRL and Pan American Continental SRL v The Argentine Republic, Decision on Jurisdiction, 27 July 2006, . 71 See the Separate Opinion of Judge Fitzmaurice, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 67, (para 6). 72 See eg Camuzzi International SA v Argentina, Decision on Jurisdiction, 11 May 2005, , para 81; Enron v Argentina, Decision on Jurisdiction, 2 August 2004, ; LG&E v Argentina, Decision on Liability, 3 October 2006, 21 ICSID Review 203 (para 78); Sempra Energy v Argentina, Decision on Jurisdiction, 11 May 2005, , para 93. 73 See CMS Gas Transmission Co v Argentina, Decision on Objections to Jurisdiction, 17 July 2003, 42 ILM 788. 74 (1983) 54 BYIL 500, 501. 75 C Staker, ‘Diplomatic Protection of Private Business Companies: Determining Corporate

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Personality for International Law Purposes’ (1990) 61 BYIL 155, 169; I Seidl-Hohenveldern, Corporations in and under International Law (Cambridge, Grotius, 1987), ch 2; M Diez de Velasco, ‘La Protection Diplomatique des Sociétés et des Actionnaires’ (1974-I) 141 Recueil des cours 93, 100–104; JHW Verzijl, International Law in Historical Perspective (Leiden, Sijthoff, 1973), Part VI, 715; Separate Opinion of Judge Riphagen, Barcelona Traction, ICJ Reports 1970, p 3, 335–336. 76 See the Separate Opinion of Judge Fitzmaurice, Barcelona Traction, ICJ Reports 1970, p 3, 68 (para 8). 77 For similar results under the ICSID Convention, see CH Schreuer, L Malintoppi, A Reinisch, & A Sinclair, The ICSID Convention: A Commentary (2nd edn, Cambridge, CUP, 2009), 172–185; Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 310. Cf the practice in post-war claims treaties: MM Whiteman, Digest of International Law (Washington DC, US Government Printing Office, 1967), vol VI, 1285–1291. 78 See eg the draft Multilateral Agreement on Investment, Chapter V.C(1)(b) and (c), and Chapter V.(D) (3)(b), ; the Separate Opinion of Judge Padilla Nervo, Barcelona Traction, ICJ Reports 1970, p 3, 245; but see Judge Tanaka, ibid, 130–131. On the other hand, see the overlapping awards in the cases of CME v Czech Republic and Lauder v Czech Republic (2006) 9 ICSID Reports 113 and 62. C McLachlan, L Shore, & M Weiniger, International Investment Arbitration: Substantive Principles (Oxford, OUP, 2007), 118– 119; Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 308–309. 79 See C McLachlan, Lis Pendens in International Litigation (Leiden, Martinus Nijhoff, 2009). 80 See the report of the Committee on Diplomatic Protection of Persons and Property, International Law Association, Report of the Seventieth Conference: New Delhi (2002), 228–298; M Mendelson, ‘The Continuous Nationality Rule’, in T Weiler, International Investment Law and Arbitration (London, Cameron and May, 2005); D Bederman, ‘NAFTA Decision on Continuous Nationality and Local Remedies’ (on the Award of 26 June 2003 in the Loewen case) (2003) 74 AJIL 699; Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 297–309. 81 Report of the ILC, 58th Session, 2006, A/61/10, 19. 82 This chapter does not consider the position of exceptional corporate forms, such as the Societas Europaea, to which special considerations might apply. 83 This may occur under ILC draft art 9 on Diplomatic Protection, which attributes relevance to the location of the management and financial control of a company: see J Crawford, ‘The ILC’s Articles on Diplomatic Protection’ (2006) 31 SAYIL 19, 38. 84 Flexi-Van Leasing, Inc v Iran (1982) 1 Iran-US CTR 455, 462; General Motors Corp, et al v Iran (1983) 3 Iran-US CTR1; GH Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford, OUP, 1996), 44–54. But see the Separate Opinion of Judge Jessup, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 207– 215 (paras 85–98). 85 CME Czech Republic BV (The Netherlands) v Czech Republic, Partial Award, 13 September 2001, (2006) 9 ICSID Reports 113; Aguas del Tunari SA v Republic of Bolivia, Decision on Jurisdiction, 21 October 2005, (2005) 20 ICSID Review 450. 86 See the comments of Judge Fitzmaurice, Barcelona Traction, ICJ Reports 1970, p 3, 66–67 (paras 5–6), and of Judge Morelli, 235–236. Z Douglas The International Law of Investment Claims (Cambridge, CUP, 2009), 461. 87 Banro v Democratic Republic of Congo, Award, 1 September 2000, (2002) 17 ICSID Review 3. 88 See MM Whiteman, Digest of International Law (Washington DC, US Government Printing Office, 1967), vol VI, 1270–1271.

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Part V The Implementation of International Responsibility, Ch.70 The International Community as a Whole Anne-Laure Vaurs-Chaumette From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of international organizations — Responsibility of states — Wrongful acts — Vienna Convention on the Law of Treaties — State practice — Erga omnes obligations — Peremptory norms / ius cogens

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(p. 1023) Chapter 70 The International Community as a Whole 1 The recognition of collective interests 1024 2 Implementation of responsibility for serious breaches of obligations owed to the international community as a whole 1025 (a) The non-implementation of responsibility by international organizations 1026 (b) The implementation of responsibility by States 1027 Further reading 1028 In 1991 Manfred Lachs asserted that ‘it is difficult […] in our day to deny the existence of a “juridical international community”, imperfect and incomplete as it may be’.1 The affirmation of peremptory norms, and of erga omnes obligations, the articulation of the concept of international crimes, now replaced with the concept of serious breaches of peremptory norms of general international law, are normative evolutions which have, little by little, contributed to the emergence of this abstract entity. But, if the phrase ‘international community’ is nowadays commonly used, its definition remains imprecise. Article 53 of the Vienna Conventions on the Law of Treaties defines the international community as a community of States.2 Similarly, when the International Court in the Barcelona Traction case evoked the ‘obligations of a State towards the international community as a whole’ it clarified the concept by stating that ‘[b]y their very nature [these obligations] are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.3 Equally, Ago considered that an ‘inter-state or international community, as suggested by the name, cannot but be a community composed by States’.4 Special Rapporteur Crawford, for his part, did not share this view: in his opinion ‘the international community includes entities in addition to States: for example, the European Union, the

References (p. 1024) International Committee of the Red Cross, the United Nations itself ’.5 In the end and despite these differences, it is the depository of values that transcend the State understood ut singuli that is being referred to. The terminological uncertainty in relation to the concept ‘international community’ has not prevented positive law from incorporating it as a point of reference in certain areas. The legal institution of international responsibility is one of these areas. Thus, article 33(1) ARSIWA establishes that: ‘The obligations of the responsible State set out in this Part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach’, while the Commentary to article 1 acknowledges that ‘increasingly it has been recognized that some wrongful acts engage the responsibility of the State concerned towards several or many States or even towards the international community as a whole’.6 The question which arises is thus whether it is possible to consider the international community as an injured person. Should the answer be in the affirmative, then it would have to be accepted that the community’s rights may have been breached by an internationally wrongful act and that it may be capable of invoking the responsibility of the author of the breach. But it must be noted that the international community, even if it is to be regarded as a distinct legal concept, is not an injured person. The international community does not exist as a subject of international law. It is a legal fiction comprising (at least) all States. In cases of serious breaches of obligations deriving from peremptory norms, it is States collectively who are the holders of the injured interest and who have From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

the capacity to act against the author of the breach.

1 The recognition of collective interests Article 40 ARSIWA envisages serious breaches of obligations owed to the international community of States as a whole and essential for the protection of its fundamental interests. The wording does not imply that an entity, the international community, is the holder of rights but rather that there exist common interests whose breach affects all States. The international community appears as a ‘rational construction, with a heuristic vocation’ and is ‘characterized by a specific degree of cohesion that results from the solidarity of the members of a social group in the safeguard of certain identical collective interests’.7 This concept allows us to emphasize the existence of collective goods in respect of which all States have an interest. The notion of ‘community’ contributes to the ‘affirmation of rights that, due to their being held by each, do not belong to anybody’.8 Thus State responsibility towards the international community translates into legal form the will to safeguard collective goods and values, including human rights, humanitarian law, self-determination of peoples, the (p. 1025) prohibition of genocide, respect for international peace, and protection of the environment. These collective goods and values are protected by jus cogens norms and involve obligations erga omnes ‘which also presuppose a community of interests and values’.9 They were recognized by the International Court in the Barcelona Traction case and are among the examples given by the ILC in the Commentary to article 53 of the Vienna Conventions on the Law of Treaties. There is also consensus on the existence of a hard nucleus of norms having reinforced authority, a sort of draft of a constitution of the international community, for these concepts are inseparable.10 The ILC Articles posit a sanction for the breach of these collective goods and values and seek to generate the ‘identical collective interest, granted to all and every State, which has as its object the realization and preservation of these collective goods and interests, that is, the respect for the conditions allowing all members of the community to obtain the advantage corresponding to the use or existence of these goods and interests’.11 Thus it is not the international community which holds the rights, but the States who together maintain a collective interest in respect for collective goods and values. Consequently, the State author of a serious breach of peremptory obligations is ‘required to perform certain acts … towards all and each State simultaneously’.12 The absence of rights of which the international community is a holder is a reflection of the absence of an institutional mechanism allowing the international community as such to implement the responsibility of the authors of the breaches. Of course, ‘the values which … derive [from peremptory norms] are linked to the guarantee of collective universal goods enjoyed by all and requiring unified protection’.13 This unified protection is not, however, enforced though a centralized institutional system but rather individually by every State.

2 Implementation of responsibility for serious breaches of obligations owed to the international community as a whole In 1970, Ago asked whether the relationships originated from ‘crimes under international law’ were established with ‘States ut singuli or with States as members of an international organization which would alone be competent to decide on the action to be taken’.14 If some wished for the implementation of this responsibility to be pursued through international institutions representing the international community, practice has shown that only States have the legal capacity to invoke the responsibility of the authors of serious violations of peremptory norms.

References

(p. 1026) (a) The non-implementation of responsibility by international From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

organizations Special Rapporteur Ago,15 like his successors Riphagen16 and Arangio-Ruiz,17 wished to give priority to reactions by institutions, often referring to the United Nations as the representative entity of the organized or structured international community. One of the rare illustrations of this system is the intervention of the United Nations during the first Gulf war. According to Dupuy ‘the implementation of Iraqi responsibility was thus institutionalized … This is confirmation that this responsibility is that of a State towards not just the States most directly affected by its actions, but also towards the international community as a whole, whose public order it has deliberately defied’.18 Other institutions can equally represent the international community. The case of the UN Compensation Commission is of interest here. The Administrative Council has said that: ‘the international community represented by the UN Compensation Commission assumes in its entirety the responsibility for the protection of the mentioned persons’, that is Palestinians and stateless persons.19 The international community thus becomes the intermediary for non-State entities, such as peoples, which do not possess the means to ensure respect of their rights through their governments. However, such an institutional embodiment only manifests itself in a diffuse and sporadic way. In 1996, the ILC admitted that reaction by international institutions is not the only possible reaction in case of breaches of obligations deriving from peremptory norms. It considered that ‘a certain minimum response to a crime is called for on the part of all States’.20 State action is thus envisaged as subsidiary to that of international organizations. Progressively, some have admitted the limits to reactions by international organizations, in particular, the Security Council, whose legitimacy as a representative of the international community has been contested: the vulnerability and the essentially fluctuating character of the engagement of the United Nations, in particular that of the Security Council, in the defense of collective interests, as well as the absolutely random manner in which it condemns certain breaches but closes its eyes in front of other equally serious breaches, structurally impede to follow the waking dream of the initial codificators of responsibility for crimes. Although not impossible, the institutionalisation of the response would remain always partial and its functioning random.21 Consequently, ‘pending the emergence of a real ‘international community’, which remains to this day more of a fantasy than a reality’,22 only States as individual actors are capable of invoking responsibility in case of serious breaches of peremptory norms.

(p. 1027) (b) The implementation of responsibility by States According to the ILC, ‘the focus of obligations to the international community as a whole is essentially on the legal interest of all States in compliance—i.e. in terms of the present articles, in being entitled to invoke the responsibility of any State in breach’.23 The interest of States does not derive from their having suffered damage, but from the fact that a peremptory norm has been breached. The question arises then whether the State may be considered as the guardian of the constitution of the international community. This is, for instance, what was implied in the dictum of the International Court in Barcelona Traction. Article 48 ARSIWA confirms this and affirms that every State has the right to invoke three consequences for the breach: cessation of the unlawful situation, guarantee of non repetition and reparation. These consequences seek, first of all, ‘the reestablishment of the status quo ante of the collective goods and values as such, and notably the restoration of the integrity of the rule imposing the primary obligation breached and guaranteeing the necessary conditions for the enjoyment of the goods or values mentioned’.24 The cessation of the wrongful situation and the guarantee of non-repetition become rights of all that every State may implement even if the serious violation does not threaten it in its personal sphere and even if another State directly injured neglects to invoke. Their function is thus specific and differs from the function these consequences have within the traditional field of responsibility. They

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are preventive in function, for every threat to collective goods or values ‘risks, in the mid or long term, to cause an irreparable prejudice to the goods and values protected’.25 Article 48(2)(b) also provides that every State may request the performance of an obligation of reparation ‘in the interest of the injured State or of the beneficiaries of the obligation breached’. This provision, which entails an element of progressive development, allows us to transcend the ‘bilateral paradigm’ of State responsibility.26 Two types of damages are susceptible of reparation. On the one hand, reparation may concern the individual damage of the injured State, in which case, the action of the other States comes in support of the injured State’s claim. On the other hand, reparation may concern the direct prejudice caused to the collective goods and values. In this case, the question will arise as to what form should the reparation take since, although in certain circumstances the prejudice is quantifiable (eg in the case of breaches of environmental law), in general the damage is not material. Thus, ‘the international community has affirmed itself as a new entity bearing universal common values’.27 Nevertheless, if the existence of a ‘normative community’28 has come to be accepted, the existence of an institutional community remains to be established. The concept of international community today does not refer to a juridical person, which does not yet exist, but rather to an international public order which is not disaggregated even though its manifestations may be. (p. 1028) Further reading G Abi-Saab, ‘Whither the International Community?’ (1998) 9 EJIL 248 G Abi-Saab, ‘La ‘Communauté internationale’ saisie par le droit—Essai de radioscopie juridique’, in Boutros Boutros-Ghali Amicorum Discipulorumque Liber (Brussels, Bruylant, 1998), Vol I, 81 R Ago, ‘Communauté internationale et organisation internationale’, in R-J Dupuy (ed), Manuel sur les organisations internationales (2nd edn, Dordrecht, Martinus Nijhoff Publishers, 1998), 3 J Crawford, ‘Responsibility to the International Community as a Whole’ (2001) 8 Indiana Journal of Global Legal Studies 303 P-M Dupuy (ed), Obligations multilatérales, droit impératif et responsabilité internationale des Etats (Paris, Pedone, 2003) P-M Dupuy, ‘L’unité de l’ordre juridique international. Cour général de droit international public’ (2002) 297 Recueil des cours 9 JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345 M Lachs, ‘Quelques réflexions sur la communauté internationale’, in Le droit international au service de la paix, de la justice et du développement—Mélanges Michel Virally (Paris, Pedone, 1991), 349–357 P Moreau Defarges, La communauté internationale (Paris, PUF, 2000) B Simma and AL Paulus, ‘The “International Community”: Facing the Challenge of Globalization’ (1998) 9 EJIL 266 V Starace, ‘La responsabilité résultant de la violation des obligations à l’égard de la communauté internationale’ (1976-V) 153 Recueil des cours 263 S Szurek, ‘La Charte des Nations Unies, Constitution mondiale?’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies. Commentaire article par article (3rd edn, Paris, Economica, 2005), 29 S Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats (Paris, PUF, 2005)

Footnotes: 1 M Lachs, ‘Quelques réflexions sur la communauté internationale’, in Le droit international au service de la paix, de la justice et du développement—Mélanges Michel Virally (Paris, Pedone, 1991), 355. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

2 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 53; Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations, 21 March 1986, 25 ILM 543, art 53. 3 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment, ICJ Reports 1970, p 3, 32 (para 33). 4 R Ago, ‘Communauté internationale et organisation internationale’, in R-J Dupuy (ed), Manuel sur les organisations internationales (2nd edn, Dordrecht, Martinus Nijhoff Publishers, 1998), 3. 5 J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 36. See also above, Chapter 66. 6 Commentary to art 1, para 4. 7 S Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats (Paris, PUF, 2005), 25–26. 8 P-M Dupuy, ‘Humanité, communauté, et efficacité du droit’, in Humanité et droit international: Mélanges R.-J. Dupuy (Paris, Pedone, 1991), 138. 9 G Abi-Saab, ‘ “Humanité” et “communauté internationale” dans la dialectique du droit international’, in Humanité et droit international: Mélanges R.-J. Dupuy (Paris, Pedone, 1991), 102. 10 C Tomuschat, ‘Obligations Arising for States Without or Against Their Will’ (1993-IV) 241 Recueil des cours 195; S Szurek, ‘La Charte des Nations Unies, Constitution mondiale?’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies. Commentaire article par article (3rd edn, Paris, Economica, 2005), 29–68. 11 S Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats (Paris, PUF, 2005), 308–309. 12 Ibid, 249. 13 JC Tcheuwa, ‘Communauté internationale, guerre et responsabilité: réflexion autour de la responsabilité internationale des Etats’ (2005) 58 Revue hellénique de droit international 97. 14 R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 184 (para 23). 15 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 43–44 (paras 91– 92). 16 W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 48 (para 5) and 49 (para 14). 17 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 17ff. 18 P-M Dupuy, ‘Après la guerre du Golfe’ (1991) 95 RGDIP 621, 635. 19 Decision No 5 of the Administration Council of the UN Compensation Commission (1991) S/AC.26/1991/5. 20 Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 72-72 (para 3). 21 P-M Dupuy, ‘L’unité de l’ordre juridique international. Cours général de droit international public’ (2002) 297 Recueil des cours 9, 376–377. 22 P Klein, ‘Responsabilité pour violation d’obligations découlant de normes impératives du droit international général et droit des Nations Unies’, in P-M Dupuy, Obligations multilatérales, droit impératif et responsabilité internationale des Etats (Paris, Pedone, 2003), 206. 23 Introductory Commentary to Part Two, Chapter III, para 7. 24 S Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats (Paris, PUF, 2005), 250. 25 Ibid, 250, 341. 26 I Scobbie, ‘Invocation de la responsabilité pour la violation d’obligations découlant de normes

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impératives du droit international general’, in P-M Dupuy, Obligations multilatérales, droit impératif et responsabilité internationale des Etats (Paris, Pedone, 2003), 136. 27 S Szurek, ‘La Charte des Nations Unies, Constitution mondiale?’, in J-P Cot, A Pellet, & M Forteau (eds), La Charte des Nations Unies. Commentaire article par article (3rd edn, Paris, Economica, 2005), 29, 44. 28 R-J Dupuy, La communauté internationale entre le mythe et l’histoire (Paris: Economica, 1986), 151.

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Part V The Implementation of International Responsibility, Ch.71 Notice of Claim by an Injured State Jacqueline Peel From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Wrongful acts — Reparations

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(p. 1029) Chapter 71 Notice of Claim by an Injured State 1 Introduction 1029 2 A flexible notice requirement 1030 3 Specifying the content of cessation 1031 4 Election of the form of reparation 1032 5 Conclusion 1033 Further reading 1033

1 Introduction Article 43 on ‘Notice of claim by an injured State’ is the first of a series of provisions in Part Three, Chapter I of the ILC Articles dealing with procedural aspects of the invocation of responsibility by an injured State. Notification by an injured State of its claim against a responsible State was a matter not addressed in the first reading draft, which focused instead on the substantive rights of the ‘injured State’ to cessation and reparation.1 As part of the reconsideration of the Draft Articles on second reading, the Special Rapporteur recommended the inclusion of a number of additional provisions in a new part (now Part Three) dealing with the ‘implementation’ of State responsibility.2 These recommendations were accepted and a draft article on notice of a claim was introduced by the Drafting Committee in 2000.3 The new draft article was based on a proposal put forward by the Special Rapporteur in his Third Report.4 Article 43 requires an injured State, which invokes the responsibility of another State, to give notice of its claim to that State. Notice under article 43 is not a pre-condition for

References (p. 1030) the operation of the obligation to provide reparation for the injury, since that obligation arises immediately upon the commission of the breach of an international obligation by the responsible State.5 As a practical matter, however, it is important to establish the precise scope and nature of the particular dispute between the parties. An injured State should therefore indicate its complaint with reasonable clarity and communicate any demands for cessation of the wrongful conduct and reparation, so that the responsible State is aware of the allegation and is in a position to respond to it. Moreover, failure by an injured State to pursue a claim in a timely manner may be construed as a waiver of its claim, or acquiescence in its lapse.6 Article 43 thus serves to specify the modalities that the injured State should observe in order to notify the responsible State of its claim. The article refers only to the ‘injured State’ (as defined in article 42), however, the same requirements apply to other interested States which are entitled to respond to the breach under article 48(1).7

2 A flexible notice requirement The notice requirement in article 43 is expressed very flexibly. The injured State is simply required to ‘give notice of its claim’ to the responsible State. There is no requirement for the notice to be in a particular form, such as in writing, nor is there any specification of the level of government of the responsible State to which the notice should be submitted. This flexibility reflects existing State practice where responses to breaches of international obligations take a variety of forms8 and are raised at different levels of government, depending on the seriousness of the breach and the general relations between the States concerned.9 A more formal procedure, requiring written notification by the injured State, could place an undue burden on the injured State.10 Moreover, it might wrongly be taken to imply that the usual consequence of the non-performance of an 11

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international obligation is tantamount to the lodging of a statement of claim.11 A flexible approach to the notification of a claim by an injured State accords with the decision of the International Court in the Certain Phosphate Lands in Nauru.12 Before the Court Australia argued that Nauru’s claim was ‘inadmissible on the ground that it [had] not been submitted within a reasonable time’,13 given the 20-year period between Nauru achieving independence and its application to the Court. The Court summarized the communications between the parties as follows: … Nauru was officially informed, at the latest by letter of 4 February 1969, of the position of Australia on the subject of the rehabilitation of the phosphate lands worked out before 1 July 1967.

References (p. 1031) Nauru took issue with that position in writing only on 6 October 1983. In the meantime, however, as stated by Nauru and not contradicted by Australia, the question had on two occasions been raised by the President of Nauru with the competent Australian authorities.14 There was thus a significant delay (some 14 years) between the time when Nauru was made aware of Australia’s position and the time when it formally notified a claim in writing to the Australian authorities. However, the Court apparently did not set much store by formalities. Instead the Court seemed satisfied that Australia had earlier knowledge of Nauru’s claim by virtue of discussion and correspondence with Australian Ministers and through ‘press reports’ of the Nauruan Head Chief ’s Independence Day speech which mentioned the claim.15 The Court considered that ‘given the nature of the relations between Australia and Nauru, as well as the steps thus taken, Nauru’s application was not rendered inadmissible by the passage of time’.16 Thus, in the Court’s view, it was sufficient that the responsible State was made aware of the claim, even if the communications between the parties took the form of press reports of speeches or meetings, rather than formal diplomatic correspondence. Nevertheless, despite the flexibility of its approach on the issue of formalities, the Court clearly attached importance to the fact that Australian authorities had been made aware of the Nauruan claim within a reasonable time.

3 Specifying the content of cessation The requirement for notice of a claim in article 43 is analogous to article 65 of the Vienna Convention on the Law of Treaties,17 dealing with the invocation of the invalidity, suspension or termination of a treaty. Article 65 provides that: 1 . A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2 . If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed. 3 . If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in article 33 of the Charter of the United Nations. 4 . Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes.

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5 . Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. In a similar fashion to article 65(1), article 43(2)(a) allows an injured State, as part of its notification, to specify measures that the responsible State should take in order to cease any continuing wrongful conduct. However, unlike article 65(1), this specification

References (p. 1032) is not mandatory. Nor is it binding on the responsible State, as the injured State can only require the responsible State to comply with its obligations of cessation and reparation; it cannot stipulate how these obligations are to be performed. The aim of article 43(2)(a) is merely to facilitate resolution of the dispute between the parties by giving the injured State the option to indicate what would satisfy its claim, which could be of assistance to the responsible State.

4 Election of the form of reparation Article 43(b) deals, albeit indirectly, with the question of election of the form of reparation by the injured State. In general, it is the prerogative of the injured State to elect the form of reparation to be provided by the responsible State. It may thus elect to receive compensation for the injury over restitution,18 or may be content with declaratory relief by way of satisfaction of its claim rather than compensation. The ability of the injured State to elect the form of reparation is subject to the normal limitations placed on certain forms of reparation under the Articles. For example, an injured State cannot demand restitution where it would involve a burden out of all proportion to the benefit deriving from that remedy instead of compensation.19 Likewise the injured State cannot specify forms of satisfaction which would be humiliating to the responsible State.20 In circumstances where notice of the claim is given by a State other than the injured State, in accordance with article 48(1), performance of the obligation of reparation may only be sought ‘in the interest of the injured State’ where one can be identified.21 This stipulation would seem to give the preferences of the injured State priority in such cases over any election of the form of reparation by the other interested State(s). There may be some cases, however, where an injured State does not have an absolute right to elect the appropriate form of reparation for an injury which it has suffered. Thus an injured State could not elect to ‘take the money and run’, so to speak, in situations where the life or liberty of individuals or the entitlement of a people to their territory or to self-determination is at stake.22 Moreover, the injury caused by breaches of collective obligations or obligations owed to the international community as a whole may not

References (p. 1033) be adequately repaired by a settlement between two States only, even where one State is specially affected by the breach.23 Consequently, article 43(2)(b) does not set forth the right of election in an absolute form. It provides merely that the injured State may specify in its notice to the responsible State what form reparation should take in accordance with the provisions of Part Two of the Articles. This is intended to provide guidance to the injured State as to the sort of information which it should include in the notice, rather than to create an absolute right on the part of the injured State to elect the form of reparation to be provided by the responsible State.

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A deficiency of the first reading text of the Articles on State Responsibility was the implicit assumption that all consequences of an internationally wrongful act arose automatically, by operation of law. In practice though, a responsible State must be made aware of a breach and of the injured State’s claims before it will be in a position to respond through taking action to cease any continuing violation or providing reparation for the injury suffered. Article 43 establishes modalities for communicating a claim by an injured State to the responsible State, but does so in flexible terms which reflect the requirements of current State practice and international jurisprudence. The injured State has an opportunity in its notice to specify the conduct the responsible State should take to cease any continuing breach and the appropriate form of reparation to be provided. However, the purpose of such specifications by the injured State is to facilitate a successful resolution of the dispute, rather than to confer rights on the injured State to stipulate how the responsible State should perform its secondary obligations. Further reading A Anghie, ‘Jurisdiction and Admissibility—Breach of Trusteeship Agreement—Waiver of Rights —Effect of Termination of Trust—Effect of Court Ruling on Absent Third Parties: Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, 1992 ICJ Rep. 240’ (1993) 87 AJIL 282 J Crawford, P Bodeau, & J Peel, ‘The ILC’s Draft Articles on State Responsibility: Towards Completion of a Second Reading’ (2000) 94 AJIL 660 D Bodansky, JR Crook, & E Brown Weiss, ‘Invoking State Responsibility in the Twenty-First Century’ (2002) 96 AJIL 798 S Wittich, ‘The International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading’ (2002) 15 Leiden J Int’l L 891(p. 1034)

Footnotes: 1 The concept of the ‘rights of the injured State’ which underlay Part Two, Chapter II of the first reading draft has been replaced with that of the ‘obligations of the responsible State’ in the final text. This change was made to allow for those cases where there is a plurality of injured States, each of which is entitled to respond to the breach. It also helps clarify the right of election that an injured State may have as between the forms of reparation. This is considered helpful since the position of other States entitled to respond to the breach under art 48(1) may be affected by a valid election for one remedy rather than another by an injured State. See J Crawford, P Bodeau, & J Peel, ‘The ILC’s Draft Articles on State Responsibility: Towards Completion of a Second Reading’ (2000) 94 AJIL 660, 668. 2 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 8–10. 3 Draft art 44 provisionally adopted by the Drafting Committee on second reading: ILC Yearbook 2000, Vol II(2), 69. 4 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 284. 5 See art 31, ARSIWA (‘Reparation’). 6 See art 45, ARSIWA (‘Loss of the right to invoke responsibility’). 7 Art 48(3), ARSIWA (‘Invocation of responsibility by a State other than an injured State’). 8 These range from an unofficial and confidential reminder to fulfil the obligation through to protests and representations or negotiations through diplomatic channels. If these communications do not produce a satisfactory result, the injured State may choose to take the matter up more formally by presenting an international claim against the responsible State. 9 J Crawford, Third Report on State Responsibility, A/CN.4/507, paras 234, 237. 10 This concern was voiced by a number of members of the Commission during the plenary

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debate on the draft article in 2000: see Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 46–47 (paras 256–258). 11 Commentary to art 43, para 3. 12 Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240. 13 Ibid, 251 (para 31). 14 Ibid, 254 (para 36). 15 Ibid, 254 (paras 33–35). 16 Ibid, 254–5 (para 36). 17 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 18 The Special Rapporteur cited two case examples in his Third Report, J Crawford, Third Report on State Responsibility, A/CN.4/507, para 232. In the Factory at Chorzów, Jurisdiction, 1927, PCIJ Reports, Series A, No 9, p 4, 21, by the time the dispute came before the Permanent Court, Germany was no longer seeking for its national the return of the factory in question or of the property seized with it. In Passage through the Great Belt (Finland v Denmark), Provisional Measures, ICJ Reports 1991, p 12, in the eventual settlement of the case, Finland chose to accept compensation in lieu of its original claim for restitution, ie non-construction of a bridge across the Great Belt by Denmark. For details of the terms of the settlement see M Koskenniemi, ‘L’affaire du passage par le Grand-Belt’ (1992) AFDI 905–947, especially 940ff. 19 Art 35(b), ARSIWA (‘Restitution’). 20 Art 37(3), ARSIWA (‘Satisfaction’). 21 In cases where a collective or community interest is at stake it may be difficult to identify an individually injured State. In these circumstances, art 48(2)(b) ARSIWA permits third States to claim performance of the obligation of reparation in the interest of ‘the beneficiaries of the obligation breached’. 22 Examples of such situations are discussed in J Crawford, Third Report on State Responsibility, A/CN.4/507, para 126. 23 This is the case, for example, where a State breaches obligations under a multilateral environmental treaty designed to protect the global commons. In such circumstances, one or a few States may well be specially affected by the breach but arguably an election by an injured State(s) to receive compensation should not take priority over the desire of the majority of other States for an alternative remedy such as restitution. See J Peel, ‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context’ (2001) 10 RECIEL 82, 89.

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Part V The Implementation of International Responsibility, Ch.72 Waiver, Acquiescence, and Extinctive Prescription Christian J Tams From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Diplomatic protection — Vienna Convention on the Law of Treaties — State succession, international agreements — Treaties, interpretation — Arbitral tribunal — Arbitration

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(p. 1035) Chapter 72 Waiver, Acquiescence, and Extinctive Prescription 1 Introduction 1035 2 Waiver 1036 (a) General remarks 1036 (b) Requirements for waiver 1037 (i) A declaration 1038 (ii) By the competent authorities 1038 (iii) Disposability 1039 (iv) After the breach 1041 (v) Absence of grounds for invalidity 1041 (vi) Limits on freedom to waive 1041 3 Acquiescence 1042 (a) General remarks 1042 (b) Conduct amounting to acquiescence 1043 (c) Relation to other concepts 1044 4 Extinctive prescription 1045 (a) General remarks 1045 (b) Relation to acquiescence and estoppel 1047 5 Concluding remarks 1048 Further reading 1049

1 Introduction Waiver, acquiescence, and extinctive prescription are legal concepts entailing the same effect— they lead to the loss of a right or claim. In the context of State responsibility, they entail the loss of the right to invoke responsibility, ie they extinguish any existing claim for cessation, reparation, or guarantees and assurances of non-repetition. The rules governing these concepts come within the framework of the implementation of international responsibility as dealt with in Part Three of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts. In particular, article 45 addresses questions of the ‘Loss of the right to invoke responsibility’. The provision, which according to the ILC’s Commentary1 is ‘analogous’ to article 45 of the Vienna Convention on the Law of Treaties (VCLT),2 expressly mentions waiver and acquiescence. In contrast, there is no

References (p. 1036) direct reference to the concept of extinctive prescription, nor to any other ground entailing the loss of the right to invoke responsibility, such as settlement. Article 45 provides: The responsibility of a State may not be invoked if: (a) the injured State has validly waived the claim;

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(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim. Based on their legal effects, waiver, acquiescence, and prescription must be distinguished from other grounds excluding the exercise of rights. Two clarifications seem to be of particular relevance. First, waiver, acquiescence, and prescription entail the subsequent loss of a claim. In contrast, there are other grounds which preclude, ab initio, the coming into existence of claims, the most common example being the case of consent.3 Secondly, waiver, acquiescence, and prescription affect the substance of a claim. Once the conditions for any of them are met, the claimant State’s right to demand cessation, reparation, or guarantees and assurances of nonrepetition ceases to exist. Waiver, acquiescence, and extinctive prescription therefore need to be distinguished from concepts which leave the substance of a claim unaffected, but, procedurally, prevent its enforcement in a particular forum or with a particular content, for example res judicata.4 Waiver, acquiescence, and extinctive prescription are not legal concepts peculiar to international law. All of them are known, in one form or the other, to municipal legal systems. Almost inevitably, their development at the international level has been informed by analogies to municipal law. The transfer of these rules to the international level has however brought with it some modifications. For example, the concept of acquiescement— which under French law originally was held to have procedural effects only—has been applied, under international law, as a principle of substantive law.5 It therefore seems important to stress at the outset that all three concepts should be considered as having acquired an autonomous status under present-day international law. The main facets of these autonomous legal regimes governing waiver, acquiescence, and extinctive prescription will be discussed in turn.

2 Waiver (a) General remarks Waiver can be defined as the voluntary renunciation of a right or claim.6 The concept is based on the principle of consent and is firmly established in international law, often reflected in the maxim volenti non fit iniuria.7 Its application is by no means limited to the law of State responsibility, but, in principle, extends to all types of rights or claims. (p. 1037) Specific examples outside the law of State responsibility would include the loss of the right to invalidate, terminate, or suspend treaties under article 45 VCLT, the abandonment of territorial sovereignty,8 or waivers of immunity from jurisdiction.9 Very often, waiver is characterized as a typical example of a unilateral act of State, and treated within that context.10 This narrow approach however is problematic. In fact, judging whether a legal act is unilateral in character is by no means an easy task. Especially in the context of State responsibility, a State’s waiver will often be part of a process of give and take, or motivated by an expectation that the State benefiting from the waiver will return the benefit in some other form.11 Perhaps even more frequent are ‘waiver clauses’, by which one State relinquishes claims (eg for compensation) arising from wrongful acts of another State in the framework of a bilateral or multilateral treaty.12 But even waivers which do not form part of written treaties will usually be preceded by diplomatic negotiations. Depending on the form of these negotiations, the line between purely unilateral acts, informal negotiations, loose bilateral arrangements, and (possibly non-written) treaties may often be blurred. Nevertheless, it is clear that the legal effects of the renunciation do not depend on whether it was declared in a unilateral, bilateral, or multilateral context. Restricting the concept of waiver to purely unilateral declarations thus seems to introduce an artificial distinction. The Russian Indemnities case13 further underlines how difficult it may be to distinguish between purely unilateral acts and other forms of settlements. There the Russian embassy in Turkey had repeatedly demanded, and ultimately obtained, the repayment of a loan, without however mentioning interest or damages for

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delay. In the view of the arbitral tribunal, Russia’s failure to demand more than the capital sum, taken together with Turkey’s subsequent repayment of the loan, amounted to an abandonment of all further claims.14 Summing up these considerations, it seems questionable and hardly feasible to hold that only unilateral declarations could constitute waivers. Rather the concept seems broad enough to comprise forms of renunciation which are not purely unilateral in character.15

(b) Requirements for waiver The question remains under which conditions a State may be held to have waived claims arising in the context of State responsibility. For reasons of convenience and clarity, it may be helpful to distinguish between six different requirements: (1) There must have been a declaration (2) by the competent authorities (3) of the State whose rights are affected by the waiver.

References (p. 1038) (4) This declaration must have been made after the breach has occurred (or at least in the context of claims made by the State that there has been a breach) and (5) must not suffer from grounds of invalidity. (6) Finally, there is a question whether waiver is excluded with respect to certain fundamental rights. (i) A declaration As a first requirement, the injured State must have declared its willingness to renounce its claim. According to the ILC, such declaration may be express or inferred from conduct.16 In the former case, general international law does not stipulate any requirements as to the form of the statement; in particular, it is not necessary that express waivers must be in writing.17 As regards the latter possibility, it seems difficult to distinguish implied waivers from conduct amounting to acquiescence. This problem will be addressed below. In order to amount to a valid waiver, the declaration in question must have been clear and unequivocal. Inevitably, this has given rise to problems where the declaration was not express but inferred from conduct. The relevant judicial pronouncements suggest that threshold to be met is high. Hence in Certain Phosphate Lands in Nauru, the International Court rejected Australia’s argument that Nauru had waived claims for a rehabilitation of the island. Although various statements made at the time of independence were conspicuously silent on the possibility of such rehabilitation, this conduct ‘did not at any time effect a clear and unequivocal waiver’, in particular when taking into account other statements made by Nauru’s authorities before the United Nations.18 More generally, it is often stated that a waiver cannot be presumed.19 This view is supported by judicial practice,20 but does not, of course, remove the need for an interpretation of the circumstances in the given case. Finally, in the context of the State responsibility, a waiver must be directed at renouncing claims arising from internationally wrongful acts. It is important to note that the concept also applies where a State has not waived all, but only some, of its claims, as is evidenced by the award in Russian Indemnities.21 As has been stated,22 it is not decisive whether the declaration occurs in a unilateral, bilateral or multilateral context. (ii) By the competent authorities

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In order to be valid, a waiver must be expressed by, or implied from the conduct of, persons authorized to act on behalf of the State concerned in the particular matter. In principle, this question is governed by the general rules on the representation of States. Articles 4–6 of the ILC’s Articles are not directly applicable (since they deal with the attribution of wrongful acts), but may provide some guidance in this respect. The same holds true for the rules contained in articles 7–17 VCLT, which either apply directly (in the case of

References (p. 1039) treaty-based waiver clauses) or by analogy.23 Overall, questions of representation do not seem to have given rise to major controversies in the context of waiver. (iii) Disposability As a third condition, the waiver can only affect rights of the State making the declaration; in other words, it must be made by the bearer of the right which is being waived.24 As a general proposition, this requirement would seem to be difficult to dispute; it constitutes a corollary to the maxim nemo plus dare potest quam ipse habet.25 Its application in the context of State responsibility however gives rise to two distinct, and intricate, problems, which relate to the identification of the bearer of the right. First, if the wrongful act in question has violated rights of private persons, it must be determined whether the State or the private person is entitled to waive the claim. This is but one aspect of the wider problem of diplomatic protection and needs to be addressed within that context.26 Based on the traditional understanding of diplomatic protection, a State vindicating rights of its nationals exercises its own subjective right.27 As a consequence, international claims based on diplomatic protection arise between the two States concerned, and it is the State which is entitled to waive claims for reparation and or cessation. The problems inherent in this State-centred conception of international law are beyond the scope of this Chapter. Suffice it to say that many treaty-based regimes nowadays protect direct rights of the individuals, which in turn cannot be waived by the State of nationality.28 Notwithstanding its conceptual problems, the traditional view is supported by international practice and jurisprudence. Hence international judicial bodies have, in a number of decisions, accepted the waiver, by States, of claims based on injury sustained by private persons, even where these persons had intended to pursue the claim.29 Conversely, the waiver, by a private person, does not prejudice the right of the State of nationality to espouse claims under international law.30 Moreover, international practice provides frequent examples of States waiving claims of their own nationals against foreign States, eg in peace treaties or other settlements.31 The second problem relating to disposability relates to the entitlement of States to waive claims arising from the breach of multilateral or community obligations, ie obligations owed to a group of State, or the international community as a whole. Just as with regard

References (p. 1040) to diplomatic protection, the problem has to be addressed within the broader framework of the rules governing community obligations. The crucial provisions in this respect are articles 42 and 48 of the ILC’s Articles, which recognize that under specific circumstances, States other than the individually injured State may have a legal interest in seeing specific forms of community obligations performed, and which are based on a distinction between ‘injured States’ (article 42) and ‘interested States other than the injured States’ (article 48).32 For present purposes, it is important to recognize that this categorization has repercussions on the rules governing waiver (as well as those on acquiescence, estoppel, and prescription). At a general level, it may be said that the legal regime governing waiver was initially developed to apply to bilateral situations involving

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reciprocal rights and duties of pairs of States—such as the claimant State’s right to demand reparation for violations of its subjective right, and the corresponding duty of the respondent State. Conversely, where international law recognizes the legal interest of a plurality of States in seeing community obligations respected, the traditional rules cannot apply without modification.33 More specifically, two types of situations need to be distinguished. First, situations may be envisaged in which the breach of a community obligation—be it conventional or customary—does not injure any State in its individual capacity. Typically, this would apply to situations in which the responsible State disregards human rights or environmental obligations in relation to its own population or territory. If it is established that the obligation in question served to protect the collective interest of a group of States (or the international community as a whole), then all States belonging to that group (or to the international community as a whole) are entitled to invoke the responsibility of the author State pursuant to article 48(1) of the ILC’s Articles. Secondly, there may equally be cases in which the breach of a (treaty-based or customary) community obligation injures one State in its individual capacity (eg the victim of an aggression) and other States in their capacity as members of a group of States (or the international community as a whole). The question remains which of these injured or otherwise legally interested States—if any— would be entitled to waive claims for cessation and/or reparation. Although international practice provides very little guidance on the matter, the answer would nevertheless seem to follow from the concept of multilateral obligations as recognized in the ILC’s Articles. In the first hypothesis, it is clear that even if one State validly waived its claim to cessation/reparation, this would not affect the right of all other States entitled to invoke the responsibility of the author State.34 It is only if all States belonging to the group to which performance of the obligation was owed (or to the international community as a whole) waived their claims that the obligation of the responsible State would cease to exist. It is therefore unlikely that claims arising from breaches of community obligations not injuring any State in its individual capacity could ever be waived, except as part of a major multilateral settlement. In the second hypothesis, the situation is more complex. Here again, States which have not been injured in their individual capacity—ie, to take up the example of aggression, States other than the immediate victim—could not liberate the responsible State

References (p. 1041) from its responsibility.35 The question remains whether the State injured in its individual capacity—such as the immediate victim of an aggression—should be entitled to waive all claims against the responsible State. Given that articles 42 and 48 recognize the legal interest of all States, there would certainly be an argument for requiring the agreement of all States. However, this approach would disregard the fact that the ILC’s Articles differentiate between different types of legal interests and recognize the primacy of individually injured States. Consequently, article 48 stipulates that ‘other interested States’ may only invoke responsibility in the interest of the direct victim. If however that direct victim is a State, and if it has validly waived its claims for cessation, reparation, etc, it would be hard to justify that other States should still be entitled to maintain their claims. Hence a valid waiver by the individually injured State would also extinguish all claims that ‘other interested States’ have under article 48. (iv) After the breach In order to constitute a waiver, the declaration in question must have been made after the breach of international law has occurred. In contrast, acceptance of an internationally wrongful act expressed (or inferred from conduct) prior to that act would constitute ‘consent’ in the sense of article 20.36 Admittedly, maintaining the line between both legal concepts may at times be difficult, especially where a State declares a waiver soon after the breach, or where it appears from the terms of the declaration that the waiver was meant to be retroactive.37 However, from a conceptual

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point of view, it seems both necessary and helpful to maintain the distinction, as consent precludes the wrongfulness ex tunc, while waiver after the breach only affects the legal consequences arising from the act.38 This has important consequences for the legal regime applicable in the interim period between breach and waiver, in particular with regard to the right to respond to the initial wrongful act. Since in the case of waiver, the initial act remains unlawful, the State against which it is directed retains its right to defend itself, e.g. by way of countermeasures. In contrast, in the case of consent, resort to countermeasures is excluded, as there is no wrongful act in the first place. (v) Absence of grounds for invalidity In order for a waiver to be valid, the declaration in question must have been free from any recognized ground of invalidity. Just as with regard to attribution, the validity of declarations of waiver is subject to the same tests as other manifestations of a State’s will. In principle, the grounds of invalidity set out in articles 48–52 of the VCLT are therefore applicable. For example, a waiver obtained through unlawful coercion against a State or its representative would be invalid.39 (vi) Limits on freedom to waive Finally, it needs to be discussed whether international law imposes any limits on the freedom of States to waive rights or claims. Some writers have argued that a State could not waive rights that exist in relation to all other States and that form the essence of statehood.40 However, in the context of State responsibility, this theoretical controversy is of relatively little

References (p. 1042) relevance, since claims for cessation, reparation, or guarantees and assurances only exist vis-à-vis the State responsible for the wrongful act and thus are ‘relative’ in character. Nevertheless, there is some discussion as to whether international law excludes, or should exclude, waivers of claims arising from the breach of peremptory norms as defined in article 53 VCLT. This proposition is informed by the idea that where peremptory norms are concerned, the community interest in seeing breaches remedied is of paramount importance. Within the framework of the ILC’s Articles, this approach finds expression in article 26 pursuant to which circumstances excluding wrongfulness cannot justify breaches of peremptory norms. During the ILC’s discussion of article 45, the question of exclusion was discussed but ultimately left open.41 Instead the Commission affirmed that where breaches of essential obligations are concerned, the rules on disposability would have particular importance.42 As has been stated, these impose considerable restrictions on the freedom of States to waive claims arising from breaches of obligations owed to the international community as a whole. On balance, the pragmatic approach followed during the ILC’s work on State responsibility is convincing. In view of the close relation between obligations owed to the international community as a whole and obligations arising under peremptory norms, a waiver of claims arising from breaches of peremptory norms will usually be invalid for lack of disposability. In line with what has been said above, the responsible State will only be released from its duty to make reparation if either (i) all legally interested States so agree, or (ii) the primary State victim waives its claims. It is only with regard to the second of these situations that special rules providing for the exclusion of waivers might gain practical relevance. Here, one might indeed argue that—to take up the example referred to above—the immediate victim of an aggression should be precluded from waiving claims for reparation, since the prohibition against aggression is peremptory in character.43 However, such a rigid rule would undermine the distinction between ‘individually injured’ and ‘other interested States’ introduced in articles 42 and 48, and would run counter to the differentiated rules of disposability based thereon. It would furthermore render impossible the negotiation of peace agreements involving mutual guarantees not to pursue claims for reparation. Whether this is supported by international practice, or indeed desirable, may be open to doubt. The more From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

convincing view seems to be that present-day international law does not strictly exclude waivers of claims arising from the breach of peremptory norms. Whether a State has validly waived claims arising from fundamental obligations thus has to be assessed mainly with regard to the rules on disposability of claims in cases involving breaches of community obligations.

3 Acquiescence (a) General remarks Under the doctrine of acquiescence, inaction on behalf of a State may lead to the loss of a right or claim if, under the circumstances, that State would have been expected to display some form of activity.44 Often, the same idea is expressed by citing the adage qui tacet

References (p. 1043) consentire videtur si loqui debuisset ac potuisset, but this does little to solve the actual problems of application. Ultimately, the doctrine is grounded in general concepts such as good faith and equity. Insofar as certain legal effects are inferred from a State’s conduct, the concept of acquiescence is similar to that of implied waiver. Even more problematic is the relation between acquiescence on the one hand, and estoppel on the other. Both aspects will be dealt with separately. Just as with waiver, the concept of acquiescence is not limited to the implementation of State responsibility, but can apply to all types of legal relations. It has been of particular importance in the settlement of territorial disputes, where one State’s failure to protest against a display of sovereignty was held to have legal effects.45 As far as the law of State responsibility is concerned, the legal conditions under which acquiescence operates are in many respects similar to those discussed in relation to waiver. This in particular applies to grounds for invalidity, the question of disposability, and the proposition that acquiescence should be excluded in relation to breaches of fundamental obligations. Moreover, as regards attribution, it is agreed that only conduct by State representatives can form the basis for acquiescence. Hence in Gulf of Maine, Canada could not invoke the letter of a technical expert employed by the US Department of the Interior—the so-called ‘Hoffman letter’—against the US government.46 But of course, much depends on what is seen as the relevant conduct: thus in the Temple case, the act involving acquiescence was that of a junior official, while more senior authorities had remained passive.47

(b) Conduct amounting to acquiescence The main difference between (express) waiver and acquiescence lies in the form of conduct (or inaction) that leads to the loss of the claim. In order to establish acquiescence, it has to be shown that the claimant State has failed to assert its claim and that it thereby has implicitly accepted its extinction. Whether, or under which conditions, this is so of course largely depends on the circumstances of the given case, and few clear-cut rules apply. However, the following elements seem relevant. First, the claimant State must have failed to assert its claim. Passivity, or silence, would be the typical type of conduct fulfilling this first condition. However, a failure to assert claims may equally be implied from certain forms of active conduct. Hence in the Temple case, Thailand’s claim to sovereignty over a certain piece of territory failed, inter alia, because it had accepted and used, without protest, certain boundary maps which contradicted its claim. It was thus a positive form of action (acceptance and use of certain boundary maps) that gave rise to acquiescence.48 Secondly, the failure to assert a claim must have extended over a certain period of time. It is clear that the longer the period of inaction, the easier it will be to establish that the claimant State has given up the claim. There are however no rules prescribing fixed timelimits. In Grisbadarna— involving conflicting claims to territory—Norway’s obvious failure to protest against a clear display

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of sovereign authority by Sweden was held to amount to acquiescence, although the period in question was rather short.49 There is no reason why

References (p. 1044) the same argument should not be applied to situations involving claims for State responsibility. Hence it may said that where the circumstances would have called for the claim to be asserted, a short period of passivity may be sufficient to establish acquiescence.50 This however leads to the third, and crucial, condition. It is clear that only under specific circumstances can inaction amount to acquiescence. In order to entail legal effects, a State must have failed to assert claims in circumstances that would have required action. For example, a State’s failure to assert claims may amount to acquiescence where it has failed to respond to offers, by the respondent State, to settle outstanding disputes, or where it has energetically pursued other, related claims. Similarly, passivity may amount to acquiescence where the respondent State could legitimately expect that the claim would no longer be asserted, or where it was prejudiced by the long period of passivity. But again, it can hardly be overstated that much turns upon the facts of the specific facts of the given case.

(c) Relation to other concepts Given the vagueness of these conditions, it is difficult to distinguish acquiescence from other related concepts such as implied waiver or estoppel. As regards the relation between acquiescence and implied waiver, the ILC seems to maintain a clear conceptual distinction. According to the explanatory commentary, implied waivers come within the scope of article 45(1), whereas acquiescence is dealt with in the second paragraph of that provision.51 However, upon consideration, it seems more convincing to see implied waiver and acquiescence as part of the same concept. For a start, it is telling that the ILC does not offer any basis upon which a distinction could be drawn. Certainly, both implied waiver and acquiescence are based on the same rationale, namely the idea that a certain statement may be inferred from conduct, be it action or inaction. Moreover, the various factors determining whether a certain conduct amounts to acquiescence would equally be applicable in deciding whether a State had implicitly waived a claim. Finally, article 45 of the VCLT—upon which, as has been stated, article 45 of the ILC’s Articles is based— also treats implied waivers as part of a general concept of acquiescence.52 All these considerations suggest that it is unnecessary, and indeed hardly feasible, to draw a distinction between implied waiver and acquiescence. The ILC’s departure from its earlier position, taken during the work on the law of treaties, is therefore unconvincing. Still more complex is the relation between acquiescence and estoppel. Under the latter concept— often referred to as ‘preclusion’—a State may be precluded from asserting a right or claim if, (i) by reason of previous conduct, declarations, or other manifestations of will, it has (ii) induced another State to believe, in good faith, that the right would no longer be exercised and (iii) the re-assertion of the right would now be detrimental to that other State.53 During its work on the Law of Treaties, the ILC chose not include, in article 45 VCLT, any reference to estoppel, which it held to be a ‘municipal law term’.54

References (p. 1045) Notwithstanding this view, the concept is applied in international practice, often in situations which might have also given rise to acquiescence. The similarity between both concepts was succinctly put by Canada, which, in Gulf of Maine, referred to estoppel as ‘the alter ego of acquiescence’.55 The ICJ proceedings in the Arbitral Award made by the King of Spain also underline how closely both concepts are related. Relying on a broad understanding of estoppel, Honduras attempted to preclude Nicaragua’s attempt to challenge the arbitral award. In its

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judgment, the Court did not mention estoppel, but held that Nicaragua was barred from challenging the award because of acquiescence.56 Indeed, one has to go to some pains in order to keep the concepts apart. In his separate opinion in the Temple Case, Judge Fitzmaurice explained with great clarity how a distinction could be drawn. While under the doctrine of acquiescence, it was necessary to show that the claimant State had in fact accepted, by implication, the loss of its claim, the concept of estoppel operated on a different level. The argument was not that the claimant State had in fact agreed to that new position. Rather, having behaved in a misleading manner, the State was precluded from asserting its claim.57 Theoretically feasible as it may be, this distinction is very difficult to apply in practice. As even those supporting it concede that: [t]here will obviously in many cases be a fairly fine line between the two analyses as applied to a particular situation; the same facts concerning the [relevant] State’s conduct may be regarded as showing the attitude it did adopt, or as estopping it from denying that it had adopted that attitude, even if it had not.58 Therefore, all that can be said is that a State bringing forward a claim based on estoppel would have to more carefully establish that it had been prejudiced by the other State’s change of attitude. However, the choice for one or the other of the two concepts will to a large extent depend on the respective State’s preference and national legal tradition.

4 Extinctive prescription (a) General remarks Extinctive prescription is discussed as a further ground which may entail the loss of a right to invoke responsibility. In theory, the doctrine of prescription is based on the idea that lapse of time as such may lead to the creation (acquisitive prescription) or elimination (extinctive prescription) of legal positions.59 Applied to the context of State responsibility, this would lead to the proposition that a State that does not present claims for cessation, reparation, etc, within a given period of time permanently loses its right to do so, even where it has not acquiesced in their extinction. Just as with waiver, acquiescence, and

References (p. 1046) estoppel, the rules on extinctive prescription have been developed by analogy to municipal law, namely the provisions prescribing time-limits for the bringing of claims.60 As will be shown, this analogy may however prove misleading. Irrespective of the position under general international law, certain treaties prescribe specific timelimits within which claims must be pursued.61 Conversely, reliance on extinctive prescription may be excluded by special agreement, such as in the Macedonian case between the United States and Chile.62 At least as far as inter-State complaints are concerned, such special rules are unusual.63 Whether, in the absence of such special provisions, general international law lays down time-limits for the bringing of claims is subject to some debate. During the second reading of the draft articles on State responsibility, the ILC has taken a relatively cautious position on the question. The ILC’s Commentary of course refers to the lapse of time as an important factor in applying the rules of acquiescence.64 However it does not mention the concept of extinctive prescription and rejects the idea that lapse of time alone may entail the loss of a claim.65 On the face of it, international jurisprudence would seem to contradict this cautious approach. Indeed, a great number of decisions recognize extinctive prescription as a separate, and independent, ground for the loss of claims. The ICJ’s judgment in Nauru, for example, states in clear and unequivocal terms that ‘even

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in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible’; 66 the same position is taken in a host of arbitral awards.67 As early as 1925, the Institut de Droit International had stated that: des considérations pratiques d’ordre, de stabilité et de paix, depuis longtemps retenue par la jurisprudence arbitrale, doivent faire ranger la préscription libératoire des obligations entre États parmi les principes généraux de droit reconnues par les nations civilisées dont les tribunaux internationaux sont appelés à faire application.68 In line with these pronouncements, it is difficult to deny that extinctive prescription has played an important role in international jurisprudence. When analysing the relevant decisions, it appears that it is subject to many of the considerations set out in relation to waiver and acquiescence. A State relying on extinctive prescription would however have to establish that the relevant conduct (for example, delay) was attributable to the claimant State, that that claimant State was entitled to dispose of the claim, and that no recognized grounds of invalidity applied. As regards the requirement of disposability in cases involving

References (p. 1047) claims based on the concept of diplomatic protection, the Cayuga Indians claim69 presents an interesting variation: in the circumstances of the case, the British Government had failed to present claims for violation of rights of the Cayuga Indians. Although the considerable delay was attributable to the British government, the arbitral tribunal held the claim to be admissible since the ultimate bearers of the right—the Cayuga—had, ‘in every way open to them, … pressed their claim’.70 Other awards however have not followed this line of reasoning, which would seem to run counter to the common understanding of the rules on diplomatic protection set out above.

(b) Relation to acquiescence and estoppel The question remains whether the concept of extinctive prescription, as recognized in international jurisprudence, can be meaningfully distinguished from that of acquiescence or estoppel. When bearing in mind the analogy to time-limits of municipal law, such a distinction should not prove difficult to draw. However, as has been stated, this analogy may be quite misleading. The reason is that international rules on extinctive prescription fundamentally differ from time-limits of municipal law.71 Two aspects in particular need to be mentioned. First, despite all affirmations of the principle of extinctive prescription, no fixed time-limits have ever been agreed. In its resolution of 1925, the Institut de droit international had suggested that the limitations on delictual claims were shorter than in the case of contractual claims; furthermore, in 1970, the Swiss Government expressed the view that a lapse of 20 to 30 years was required.72 But apart from these rare suggestions, the general picture is one of considerable flexibility. Often it is stressed that the concept of extinctive prescription has to be applied with regard to all circumstances of a given case and on a case-bycase basis.73 Applied to specific cases, this meant that at times, the lapse of more than 30 years did not constitute a bar against presenting a claim.74 In contrast, the arbitrators in Loretta G Barberie held 15 years to constitute an unreasonable delay giving rise to prescription.75 Based on these decisions, it must be said that unlike under municipal laws, the application of extinctive prescription involves more than ‘a mere exercise of measuring the lapse of time and applying clear-cut time-limits’76 but requires a balancing of all relevant circumstances. Secondly, and more importantly, a closer analysis of the relevant precedents suggests that unlike under municipal law, lapse of time as such is not a sufficient reason entailing the extinction of claims. On the contrary, international tribunals have applied the principle only where the lapse of time had placed the respondent at a disadvantage. This is very clearly brought out for example by one of the landmark decision often cited in support of the concept, namely the Gentini case. In his decision, Umpire Ralston stated that ‘[t]he principle of prescription finds its foundation in the highest 77

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equity—the avoidance of possible injustice to the defendant’.77 In the circumstances of the case, the claimant was held to have lost the

References (p. 1048) claim for indemnization, having ‘so long neglected his supposed rights as to justify a belief in their non-existence’.78 Considerations of procedural fairness also inform the decisions in Stevenson79 and the Lighthouses arbitration.80 Judge Buergenthal’s dissenting opinion in LaGrand points in the same direction. Trying to establish that one of Germany’s submissions was inadmissible because of delay, he stressed that ‘Germany’s negligence [ie the late filing of the application] had … detrimental consequences for the United States’.81 Conversely, where there was no risk of injustice, claims have been found admissible even after long delays. Hence, in Tagliaferro, the arbitrators found that ‘the responsible … authorities knew at all times of the wrongdoing [forming the basis for the claim] … When the reason for the rule of prescription ceases, the rule ceases, and such is the case now’.82 Similarly, in Cayuga Indians, one of the reasons for rejecting extinctive prescription was that delay in bringing the claim could not be said to have caused prejudice to the defendant.83 In short, although many international awards rely on the concept of extinctive prescription, it is clear that the lapse of time was only one factor influencing the actual decision. It was equally important that the delay in presenting the claim had put the respondent State at disadvantage. While arbitral practice does not allow for a clear-cut definition of when defendant States are held to be at a disadvantage, the basic rationale was succinctly expressed by the arbitrators in Loretta G Barberie: in their view, delay in presenting claims would ‘produce certain inevitable results, among which are the destruction or obscuration of evidence by which the equality of parties is disturbed or destroyed’.84 Unlike under municipal law, prescription under international law therefore is based on two considerations: delay and actual prejudice for the respondent.85 This finding has important consequences on the subject of the present inquiry. Insofar as the application of extinctive prescription is subjected to considerations of equity, fairness, and justice, the distinction between prescription, acquiescence and estoppel becomes increasingly difficult to draw. Since all three concepts require a flexible weighing of circumstances, factors such as legitimate expectation, reliance, lapse of time etc are relevant to all of them. Put differently, it may be assumed that the bulk of cases actually cited in support of the concept of extinctive prescription could have, in all probability, provided grounds for acquiescence or estoppel, and been decided under these concepts. Conceptually, the concept of extinctive prescription thus seems unnecessary. The ILC’s decision to omit any reference to it is a helpful clarification.

5 Concluding remarks Summing up the preceding consideration, it may be said that questions of the ‘Loss of the right to invoke responsibility’ are governed by a variety of different—overlapping and competing—legal concepts. While there is broad agreement over most of the basic

References (p. 1049) principles, international practice so far has not been able to clarify the relation between the various concepts. It is to be hoped that the pragmatic approach taken in article 45 of the ILC’s Articles, in particular the reliance on only two principles of waiver and acquiescence, will help overcome this conceptual uncertainty. Further reading J Bentz, ‘Le silence comme manifestation de volonté en droit international public’ (1963) 69

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RGDIP 44 DW Bowett, ‘Estoppel Before International Tribunals and Its Relation to Acquiescence’ (1957) 33 BYIL 176 PWC Chan, ‘Acquiescence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited’ (2004) 3 Chinese Journal of International Law 421 T Cottier & JP Müller, ‘Estoppel’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition I Feichtner, ‘Waiver’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 459 AR Ibrahim, ‘The Doctrine of Laches in International Law’ (1997) 83 Virginia Law Review 647 DHN Johnson, ‘Acquisitive Prescription in International Law’, reproduced in MN Shaw (ed) Title to Territory (Ashgate/Dartmouth, Aldershot 2005), 273 IC MacGibbon, ‘The Scope of Acquiescence in International Law’, reproduced in MN Shaw (ed) Title to Territory (Ashgate/Dartmouth, Aldershot 2005), 347 IC MacGibbon, ‘Customary International Law and Acquiescence’ (1958) 52 ICLQ 501 A Martin, L’estoppel en droit international public (Pédone, Paris, 1979), xvi, 384 NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition

JP Müller, Vertrauensschutz im Völkerrecht (Heymanns, Köln, 1971) R Rajasingham, ‘Extinctive Prescription in International Law’ (1966) 7 Indian Journal of International Law 45 V Rodríguez Cedeño & MITorres Cazorla, ‘Unilateral Acts of States’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition http://www.mpepil.com EC Schlemmer, ‘Waiver in international arbitration’ (2001) South African Yearbook of International Law 201 I Sinclair, ‘Estoppel and Acquiescence’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International Court of Justice (Cambridge, CUP, 1996) 104 G Sperduti, ‘Prescrizione, consuetudine e acquiescenza in diritto internazionale’ (1961) 44 RivDI 3 E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962) A Tommasi di Vignano, La rinuncia in diritto internazionale (Padua, Cedam-Casa, 1960) CG Weeramantry, ‘Estoppel and the Preclusive Effects of Inconsistent Statements and Conduct’ (1996) 27 Netherlands Yearbook of International Law 131 J Wouters & S Verhoeven, ‘Prescription’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition (p. 1050)

Footnotes: 1 Commentary to Art 45, 266, para 1. 2 1155 UNTS 331. 3 A Verdross & B Simma, Universelles Völkerrecht (3rd edn, Berlin, Duncker & Humblot, 1984), §1293. See also art 20, ARSIWA. 4 See Ch Rousseau, Droit international public (Paris, Sirey, 1983), vol V, 186–187. 5 NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition , para 3; and further T Cottier & JP Müller, ‘Estoppel’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition ,

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paras 4–8 on similar ‘metamorphoses’ of the doctrines of estoppel and extinctive prescription. 6 E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 153. 7 Commentary to art 45, para 2. 8 Often referred to as ‘derelictio’, see G Dahm, Völkerrecht (Stuttgart, Kohlhammer, 1961), vol III, 167. 9 Cf eg art 32 of the Vienna Convention on Diplomatic Relations, 586 UNTS 262, or art 45 of the Vienna Convention on Consular Relations, 500 UNTS 95. 10 See eg V Rodríguez Cedeño & MI Torres Cazorla, ‘Unilateral Acts of States’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition , para 7. 11 Ibid, 1020. 12 See eg art 77 of the 1947 Peace Treaty with Italy, 49 UNTS 3; or arts 23(3) & 27(2) of the 1955 Austrian State Treaty, 347 UNTS 3. 13 Russian Indemnities (1912) 11 RIAA 421. 14 Ibid, 446. 15 See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 255, 261. 16 Commentary to art 45, para 5. 17 E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 157– 158. 18 Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 247, 250. 19 Ch Rousseau, Droit international public (Paris, Sirey, 1983), vol V, 1983, 182; I Feichtner, ‘Waiver’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition , para 8; but cf G Dahm, Völkerrecht, vol. III (Stuttgart, Kohlhammer, 1961), 215. 20 Certain Norwegian Loans (France v Norway), ICJ Reports 1957, p 26; Kronprins Gustav Adolf Arbitration, 2 RIAA 1299; cf E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 159–164 with further references. 21 Russian Indemnities (1912) 11 RIAA 421. 22 See supra, Section 2(a). 23 See V Rodríguez Cedeño & MI Torres Cazorla, ‘Unilateral Acts of States’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition . 24 I Feichtner, ‘Waiver’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition , para 13. 25 E Suy, Les actes juridiques unilatéraux en droit international public (Paris, L.G.D.J., 1962), 166. 26 See J Dugard, Chapter 73. 27 Cf Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12; Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4, 24; Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 44. 28 See eg Gallardo, 21 ILM 1424, where Costa Rica unsuccessfully attempted to waive review procedures concerning the human rights complaint filed by an individual. 29 See Public Trustee v Chartered Bank of India, Australia and China (1956) 23 ILR 687, 698–9; Austrian Citizen’s Compensation Case (1966) 32 ILR 153; Inao Horimoto v The State (1966) 32 ILR 161; Togen Akiyama v The State (1966) 32 ILR 233; Jews Deported from Hungary Case (1972)

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44 ILR 301. 30 Cf First National City Bank of New York (1958) 26 ILR 325. 31 See eg art 77 of the 1947 Peace Treaty with Italy, 49 UNTS 3; or arts 23(3) & 27(2) of the 1955 Austrian State Treaty, 347 UNTS 3. 32 See G Gaja, Chapters 62 and 64 above; and see C Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge, CUP, 2005) for further comment on concepts of community obligations. 33 See Commentary to art 45, para 4; see also Judge Weeramantry’s separate opinion in the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, 117–118 (on the question of estoppel, but with implications of a more general nature). 34 Commentary to art 45, para 4. 35 Ibid; see also para 1, last sentence. 36 See A Ben Mansour, Chapter 33.1. 37 See J Crawford, Third Report on State Responsibility, 2000, UN Doc A/CN.4/507, para 254. 38 Commentary to art 20, para 3. 39 Commentary to art 45, para 4. 40 So-called ‘absolute rights’, see A Tommasi di Vignano, La rinuncia in diritto internazionale (Padua, Cedam-Casa, 1960), 68; and cf the discussion by E Suy, Les actes juridiques unilatéraux en droit international public (Paris, LGDJ, 1962), 167–169. 41 See Commentary to art 45, para 4; for the different position taken during the Commission’s work on the Law of Treaties cf para 5 of the ILC’s commentary on draft art 42, reproduced in Report of the ILC, 18th Session, ILC Yearbook 1966, Vol II, 240. 42 Commentary to art 45, para 4. 43 See Commentary to art 40, para 4. 44 NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition , para 2. 45 See Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6; Rann of Kutch (1976) 50 ILR 2; Grisbadarna (1909) 9 RIAA 155. 46 Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p 246, 306–8 (paras 133–139). 47 Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6, 25. 48 Ibid, 23. 49 Grisbadarna (1909) 11 RIAA 161–162. 50 See NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition . 51 Commentary to art 45, paras 5–6. 52 See para 4 of the ILC’s Commentary on [then] art 42. 53 Cf only North Sea Continental Shelf, ICJ Reports 1969, p 6, 26; Temple of Preah Vihear (Cambodia v Thailand) ICJ Reports 1962, p. 6, Judge Spender (diss), 143–4; T Cottier & JP Müller, ‘Estoppel’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition . 54 ILC Yearbook 1966, Vol II, 239 (para 4). 55 See Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports

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1984, p 246, 304 (para 129). 56 Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), ICJ Reports 1960, p 192, 208; but see the opinions of Judge Spender and Judge ad hoc Urutia Holguin, ibid, 219 and 221. 57 Temple of Preah Vihear (Cambodia v Thailand), ICJ Reports 1962, p 6, 62–63; see also Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports 1984, p 246, 305 (para 130); and cf H Thirlway, The Law and Procedure of the International Court of Justice 1960–1989 (1989) 60 BYIL 29. 58 Thirlway, ibid, 30; see also I Sinclair, ‘Estoppel and Acquiescence’, in V Lowe and M Fitzmaurice (eds) Fifty Years of the International Court of Justice (Cambridge, CUP, 1996), 104, 105. 59 Cf J Wouters & S Verhoeven, ‘Prescription’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition , para 4. 60 See K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 253–263, for a brief discussion of municipal legal rules. 61 See eg art 35 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No 5 or art X, para 1, of the 1971 Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187. 62 AG de la Pradelle and NS Politis, Recueil des arbitrages internationaux (Paris, Editions Internationales, 1955), vol II, 1856–1872, 191. 63 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 258; K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 285, 372–376 (reviewing limitations of claims in conventions dealing with civil liability). 64 Commentary to art 45, para 6. 65 Ibid, paras 6–11. 66 Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 253 (para 32). 67 See Williams (1898) in JB Moore, 4 History and Digest of International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 4184; Gentini (1903) 10 RIAA 552; Spader (1903/1905) 9 RIAA 223; Lighthouses (1956) 12 RIAA 186; Iran National Airlines Co v Government of the United States of America (1988) 17 Iran US CTR 214; and cf C Rousseau, Droit international public, vol V (Paris, Sirey, 1983), 181–182, K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 272–280. 68 (1925) 32 Annuaire IDI 558. 69 Cayuga Indians (1926) 6 RIAA 189. 70 Ibid. 71 See Commentary to art 45, paras 8–11. 72 Cf (1976) Annuaire suisse de droit international, 153. 73 See eg Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reports 1992, p 240, 253– 254 (para 32); Ambatielos, (1956) 23 ILR 314–317. 74 See eg Tagliaferro (1903) 10 RIAA 593; Giacopini (1903) 10 RIAA 594. 75 JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 1898, 4199. 76 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 259. 77 Gentini (1903) 10 RIAA 552 (emphasis added). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

78 Ibid. 79 Stevenson (1903) 9 RIAA 385. 80 Lighthouses (1956) 12 RIAA 155. 81 LaGrand (Germany v United States of America), ICJ Reports 2001, p 466, 555–556 (Judge Buergenthal, dissenting, para 20, emphasis added). 82 Tagliaferro (1903) 10 RIAA 593; cf also Stevenson (1903) 9 RIAA 386–387. 83 Cayuga Indians (1926) 6 RIAA 189. 84 Barberie, in JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), vol IV, 4203; see also Williams, ibid, 4195. 85 See JP Müller, Vertrauensschutz im Völkerrecht (Köln, Heymanns, 1971), 69–73; K Hobér, Extinctive Prescription and Applicable Law in Interstate Arbitration (Iustus Förlag, Uppsala 2001), 286, 301–304.

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Part V The Implementation of International Responsibility, Ch.73 Diplomatic Protection John Dugard From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Aliens, treatment — Wrongful acts — Nationalilty of individuals — Exhaustion of local remedies — Codification — Customary international law — Prisoners of war — Secession

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(p. 1051) Chapter 73 Diplomatic Protection ∗ 1 The notion of diplomatic protection 1051 2 The requirement of nationality 1053 (a) The effective link doctrine 1053 (b) Dual and multiple nationality 1055 (c) Nationality of corporations and shareholders 1057 (d) Continuous nationality 1060 3 The exhaustion of local remedies 1061 (a) The general principle 1061 (b) The ‘futility’ or ‘ineffectiveness’ exception 1063 (c) Unreasonable delay 1064 (d) Lack of connection with the respondent State 1064 (e) Preclusion from pursuing local remedies 1065 (f) Waiver 1065 4 The implementation of diplomatic protection 1067 5 Diplomatic protection and human rights 1068 Further reading 1070

1 The notion of diplomatic protection Generally speaking a State is not obliged to admit aliens to its territory, but once it has done so, it is under an obligation toward the alien’s State of nationality to provide a degree of protection to his person or property in accordance with an international minimum standard of treatment for aliens. Failure to do this may result in an internationally wrongful act or omission engaging the responsibility of the host State. Diplomatic protection is the procedure employed by the injured alien’s State of nationality to secure compliance with the primary rules of international law governing the treatment of aliens or to claim reparation for the injury inflicted upon the alien. Originally, the drafting of articles on diplomatic protection was seen as belonging to the study of State responsibility. The work of the first Special Rapporteur on State Responsibility, García Amador, included a number of draft articles relating to diplomatic protection. However, little attention was given to the topic in subsequent codification of the Articles on State Responsibility, and the Commentary to those Articles expressly notes that two topics central to diplomatic protection—nationality of claims and the exhaustion of local remedies—would be dealt with more extensively by the Commission in a

References (p. 1052) separate study.1 Following the work of two Special Rapporteurs, Mohamed Bennouna (1997–1999) and the present writer (1999–2006), the Draft Articles on Diplomatic Protection were adopted by the International Law Commission in 2006.2 In doctrine the most controversial aspect of diplomatic protection concerns the question whose rights are asserted when the State of nationality invokes the responsibility of another State for injury caused to its national. The traditional view maintains that the State of nationality acts on its own behalf since an injury to a national is an injury to the State itself. This view, which has its origin 3

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in the statement by Vattel that ‘whoever ill-treats a citizen indirectly injures the State’,3 was confirmed by the Permanent Court of International Justice in Mavrommatis Palestine Concessions, where the Court made the following statement: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right— its right to ensure, in the person of its subjects, respect for the rules of international law.4 The notion that an injury to the individual is an injury to the State itself is not consistently maintained in judicial proceedings. When States bring proceedings on behalf of their nationals they seldom claim that they assert their own right and often refer to the injured individual as the ‘claimant’. Consequently it has been suggested that when it exercises diplomatic protection a State acts as agent on behalf of the injured individual and enforces the right of the individual rather than that of the State. Logical inconsistencies in the traditional doctrine, such as the requirement of continuous nationality, the exhaustion of local remedies rule, and the practice of fixing the quantum of damages suffered to accord with the loss suffered by the individual, lend support to this view. It is difficult to defend the traditional view expounded in Mavrommatis as a coherent and consistent doctrine. It is factually inaccurate: it is ‘an exaggeration to say that whenever a national is injured in a foreign State, his State as a whole is necessarily injured too.’5 Moreover, as a doctrine it is impaired by inconsistencies of the kind mentioned above, which contradict the notion that an injury to the individual is an injury to the State, and by contemporary developments in human rights law and foreign investment law which empower the individual to bring proceedings in his own right before international tribunals. It cannot seriously be denied that the notion that an injury to a national is injury to the State is a fiction. But despite the fact that diplomatic protection is premised on a fiction, it is an important institution of customary international law which serves as a valuable instrument for the protection of the person and property of aliens.6 Consistently with this view, the Draft Articles on Diplomatic Protection stress that the right of diplomatic protection belongs to or vests in the State. Article 2 provides: A State has the right to exercise diplomatic protection in accordance with the present draft articles.7

References

(p. 1053) 2 The requirement of nationality The State’s right to exercise diplomatic protection is based on the link of nationality between the individual and the State.8 This is reflected in article 3(1) of the Draft Articles on Diplomatic Protection, which provides: ‘The State entitled to exercise diplomatic protection is the State of nationality’.9 ‘It is for each State to determine under its own law who are its nationals’.10 This right is not, however, absolute. This was made clear by the Permanent Court of International Justice in the Nationality Decrees in Tunis and Morocco case when it stated that the question whether a matter was ‘solely within the jurisdiction of a State’—such as the conferral of nationality—‘is essentially a relative question; it depends upon the development of international relations’.11 Moreover, even if a State in principle has an absolute right to determine nationality, other States may challenge this determination where there is insuffi cient connection between the State of nationality and the individual or where nationality has been improperly conferred.12 International custom and general principles of law set limits on the conferral of nationality by describing the linkages between State and individual that will result in the nationality conferred by a State being recognized by international law for the purpose of diplomatic protection. Birth (jus soli), descent (jus sanguinis) and naturalization are the connections generally recognized by

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international law. This position is reflected in article 4 of the Draft Articles on Diplomatic Protection, which provides: For the purposes of diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States or in any other manner, not inconsistent with international law.13 Whether in addition to one of these connecting factors, and particularly in the case of naturalization, there must be a ‘genuine’ or ‘effective’ link between the State asserting the claim and the individual is a matter that requires serious consideration.

(a) The effective link doctrine The Nottebohm case, in which Liechtenstein sought unsuccessfully to claim reparation on behalf of a naturalized national from Guatemala, with which the national (Nottebohm) had had close ties for over 34 years, is seen as authority for the proposition that there should be an ‘effective’ or ‘genuine link’ between the individual and the State of nationality, not only in the case of dual or plural nationality, but also where the national possesses only one nationality. Here the International Court of Justice stated:

References (p. 1054) According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is the legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection which has made him its national.14 It is very doubtful whether the Nottebohm case is authority for a general proposition that there should be an ‘effective’ or ‘genuine link’ between the individual and the State of nationality in all cases of diplomatic protection. The Court carefully confined its judgment to the right of Liechtenstein to exercise diplomatic protection on behalf of Nottebohm vis-à-vis Guatemala. It left unanswered the question whether Liechtenstein would have been able to protect Nottebohm against a State with which he had no close connection. This question is probably best answered in the affirmative as the Court was determined to propound a relative test only, ie that Nottebohm’s close ties with Guatemala trumped the weaker nationality link with Liechtenstein. In these circumstances the Nottebohm requirement of a ‘genuine link’ should be confined to the peculiar facts of the case and not seen as a general principle applicable to all cases of diplomatic protection. Opinion is divided on the reach of the Nottebohm decision. There is judicial authority for the view that it is doubtful that the International Court ‘intended to establish a rule of general international law’ in the Nottebohm case.15 On the other hand, codification attempts have given support to the requirement of a genuine and effective link as a general principle of law.16 There is no consensus on the subject among writers. The Nottebohm case featured prominently in the arguments before the International Court of Justice in the Barcelona Traction case.17 Although the Court distinguished Nottebohm on the facts and in law, it did find that there was a ‘permanent connection’ between the Company and Canada. The Court, however, carefully refrained from asserting that the principle

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expounded in Nottebohm reflected a principle of customary international law. The view taken by the ILC in codifying the law of diplomatic protection, as reflected in article 4, was that a State is not required to provide an effective or genuine link between itself and its national. The commentary to article 4 states: Despite divergent views as to the interpretation of the [Nottebohm] case, the Commission took the view that there were certain factors that served to limited Nottebohm to the facts of the case in question, particularly the fact that the ties between Mr. Nottebohm and Liechtenstein (the Applicant State) were ‘extremely tenuous’ compared with the close ties between Mr. Nottebohm and Guatemala (the Respondent State) for a period of over 34 years, which led the International Court of Justice to repeatedly assert that Liechtenstein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala.’ This suggests that the Court did not intend to expound a general rule applicable to all States but only a relative rule according to which a State in Liechtenstein’s position was required to show a genuine link between itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala with whom he had extremely close ties.

References (p. 1055) Moreover, it is necessary to be mindful of the fact that if the genuine link requirement proposed by Nottebohm was strictly applied it would exclude millions of persons from the benefit of diplomatic protection as in today’s world of economic globalization and migration there are millions of persons who have moved away from their State of nationality and made their lives in States whose nationality they never acquire or have acquired nationality by birth or descent from States with which they have a tenuous connection.18

(b) Dual and multiple nationality Dual or multiple nationality is a fact of international life. An individual may acquire more than one nationality as a result of the parallel operation of the principles of jus soli and jus sanguinis and of the conferment of nationality by naturalization, which does not result in the renunciation of a prior nationality. This phenomenon has given rise to difficulties in respect of diplomatic protection in two situations: first, where a State of which a dual national is a national wishes to exercise diplomatic protection against a State of which the dual national is not also a national; and, secondly, where one State of nationality seeks to protect a dual national against another State of nationality. In the former case, while there is some support for the view that the claimant State must show that it is the effective or dominant State of nationality, the weight of judicial opinion is against this approach. In the Salem case the Arbitral Tribunal held that Egypt could not raise the fact that the injured individual had effective Persian nationality against a claim from the United States, another State of nationality. It held that: the rule of International Law [is] that in a case of dual nationality a third Power is not entitled to contest the claim of one of the two Powers whose national is interested in the case by referring to the nationality of the other Power.19 This position is reflected in article 6 of the Draft Articles on Diplomatic Protection, which deals with multiple nationality and claims against a third State: 1 . Any State of which a dual or multiple national is a national may exercise diplomatic protection in respect of that national against a State of which that person is not a national. 2 . Two or more States of nationality may jointly exercise diplomatic protection in respect of a dual or multiple national. 20

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The latter case presents more difficulties. The traditional view is that one State of nationality may not exercise diplomatic protection on behalf of a dual national against another State of nationality. This principle was endorsed by the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, which provides in article 4 that: A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses. In 1949 in the Reparation for Injuries opinion the International Court described this approach as ‘the ordinary practice’.21 There is, however, judicial support in the decisions of arbitral tribunals reaching back to the early 19th century for the proposition that the dominant State of nationality may exercise diplomatic protection against another State

References (p. 1056) of nationality22 and, in 1955, in the Mergé claim the Italian-United State Conciliation Commission stated that: The principle, based on the sovereign equality of States, which excludes diplomatic protection in the case of dual nationality, must yield before the principle of effective nationality whenever such nationality is that of the claiming State.23 More recently the Iran-United States Claims Tribunal has applied the principle of dominant and effective nationality to a number of cases concerning claims of dual Iran-United States nationals against Iran.24 The jurisprudence of the Iran-United States Claims Tribunal has made a major contribution to the elucidation of the factors to be considered in determining the effectiveness of the individual’s link with his or her State of nationality. Factors it has considered in a large number of cases include habitual residence, the amount of time spent in each country of nationality, date of naturalization (ie, the length of the period spent as a national of the protecting State before the claim arose); place, curricula and language of education; employment and financial interests; place of family life; family ties in each country, the nationality of the family and the registration of birth and marriage at the embassy of the other State of nationality; participation in social and public life, use of language; taxation, bank account, social security insurance; visits to the other State of nationality and other ties with it; possession and use of passport of the other State; renunciation of one nationality; and military service in one State. The dominant nationality principle is also supported by the jurisprudence of the United Nations Compensation Commission established by the Security Council to provide compensation for damages caused by Iraq’s occupation of Kuwait. The condition applied by the Compensation Commission considering claims of dual citizens possessing Iraqi nationality was that they must possess bona fide nationality of another State.25 Codification proposals have also given approval to this approach.26 The ILC, in formulating the principle for the purposes of the Draft Articles on Diplomatic Protection, decided to use the term ‘predominant’ to describe the required link, rather than ‘effective’ or ‘dominant’, because it ‘conveys the element of relativity and indicates that the individual has stronger ties with one State rather than another.’27 Additionally, the Commission noted this term was used by the Commission in the Mergé claim which could be seen as the starting point for the development of the present customary rule. Article 7 thus provides:

References (p. 1057) A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official 28

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presentation of the claim.28 In the application of this rule a tribunal is required to balance the strengths of the competing nationalities. It should, however, be cautious in applying the principle of preponderance of effectiveness where the links between the dual national and the two States are fairly evenly matched, as this would seriously undermine the equality of the two States of nationality.

(c) Nationality of corporations and shareholders Two issues relating to the diplomatic protection of corporations and their shareholders require consideration: first, the question of which State is entitled to protect a company; secondly, the question whether the separate legal personalities of the company and the shareholders in municipal law preclude a State from protecting its nationals who are shareholders in a company incorporated in another State when damage is inflicted on the company. In 1970 the International Court of Justice gave an answer to these questions in the Barcelona Traction case when it held that the State of registration (or incorporation) of a company may exercise diplomatic protection on behalf of the company and that, subject to certain exceptions, the State of nationality of the shareholders in the company is not entitled to do so. In this case the Court rejected the argument that a company registered in Canada with an 88 per cent Belgian shareholding might be protected by Belgium, with which the company had a genuine link of the kind expounded in the Nottebohm case, against Spain, arising out of an injury inflicted on the company by Spain. Considerations of public policy contributed to this decision. First, when shareholders invest in a corporation doing business abroad they undertake risks, including the risk that the State of nationality of the corporation may in the exercise of its discretion decline to exercise its right of diplomatic protection.29 Secondly, many corporations engaged in transnational business have shareholders from several countries; to allow the State of nationality of the shareholders to bring proceedings on behalf of its shareholders may result in a multiplicity of claims by different States, all arising out of injury to the same company.30 Article 9 of the Draft Articles on Diplomatic Protection recognizes that incorporation confers nationality on a corporation, but provides an exception for cases where there is no significant connection between the corporation and its State of incorporation. The article provides that: For the purposes of the diplomatic protection of a corporation, the State of nationality means the State under whose law the corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and has no substantial business activities in the State of incorporation, and the seat of management and the financial control of the corporation are both located in another State, that State shall be regarded as the State of nationality.31 The Commentary to article 9 makes clear that there must be some additional tangible connection with the State in which the corporation is formed:

References (p. 1058) Draft article 9 accepts the basic premise of Barcelona Traction that it is incorporation that confers nationality on a corporation for the purposes of diplomatic protection. However, it provides an exception in a particular situation where there is no other significant link or connection between the State of incorporation and the corporation itself, and where certain significant connections exist with another State, in which case that other State is to be regarded as the State of nationality for the purpose of diplomatic protection. Policy and fairness dictate such a solution. It is wrong to place the sole and exclusive right to exercise diplomatic protection in a State with which the corporation has the most tenuous connection as in practice such a State will seldom be prepared to protect 32

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such a corporation.32 There are clearly exceptions to the rule expounded in Barcelona Traction and article 9—ie, cases in which the court will lift the corporate veil in order to allow the State of nationality of the shareholders to exercise diplomatic protection. Where an exception applies, as the shareholders in a company may be nationals of different States, several States of nationality may be able to exercise diplomatic protection.33 First, Barcelona Traction may be construed to allow the State of nationality of the shareholders to exercise diplomatic protection where the company’s national State lacks the capacity to act on its behalf because it fails to have some genuine connection with it.34 This exception is premised on the fact that the Court in Barcelona Traction found that there was ‘a close and permanent connection with Canada resulting from over fifty years of incorporation, the holding of board meetings in Canada, and the maintenance of an office in Canada’.35 A contrario when no such link exists, the State of incorporation of the company may lack the capacity to exercise protection on its behalf. Secondly, where there is injury to the direct rights of the shareholders, that is, rights enjoyed by shareholders themselves, distinct from the company’s rights. This was expressly recognized by the International Court in Barcelona Traction, although it proved not to be relevant because Belgium made it clear that it did not base its claim on an infringement of the direct rights of the shareholders.36 This issue was before a Chamber of the International Court of Justice in the ELSI case, but the relevant rights of the shareholders were contained in the Treaty of Friendship, Commerce and Navigation and the Chamber therefore failed to consider the rules of customary international law.37 The European Court of Human Rights acknowledged the right of shareholders to protection in respect of direct violation of their rights in Agrotexim, but held that in the case no such violation had occurred.38 However, the Court noted there that direct damage may arise, for instance, in the case of failure to pay dividends or to compensate shareholders for losses suffered.39 The exception for injury to the direct rights of shareholders is codified in article 12 of the ILC’s Draft Articles, which provides:

References (p. 1059) To the extent that an internationally wrongful act of a State causes direct injury to the rights of the shareholders as such, as distinct from those of the corporation itself, the State of nationality of any such shareholders is entitled to exercise diplomatic protection in respect of its nationals.40 Thirdly, where the company has ceased to exist or has lost its capacity to act—for example, where it has gone into liquidation. This exception was accepted by the Court in Barcelona Traction although it was not relevant on the facts.41 The question whether this has occurred is governed by the law of the State of the company’s nationality. The fact that the company is declared bankrupt in the respondent State and is subject to the management and control of the bankruptcy authorities in that State does not bring this exception into operation.42 Prior to the decision in Barcelona Traction, the weight of authority favoured a less stringent test: one that permitted intervention on behalf of shareholders when the company was ‘practically defunct’.43 However, the Court rejected this test as one ‘which lacks all legal precision’.44 It stated: Only in the event of the legal demise of the company are the shareholders deprived of the possibility of a remedy available through the company; it is only if they became deprived of all such possibility that an independent right of action for them and their Government could arise.45 Subsequently, the European Court of Human Rights has affirmed the more stringent test applied by 46

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the Court in Barcelona Traction.46 Fourthly, where the State alleged to have caused harm is the State in which the company is registered. This is illustrated by the Delagoa Bay Railway case in which the United Kingdom and the United States successfully intervened on behalf of their nationals who were shareholders in a Portuguese company, when the Portuguese government confiscated the assets of the company.47 This exception was acknowledged by the International Court in Barcelona Traction and by several judges in their separate opinions, although it was not relevant on the facts in Barcelona Traction.48 Subsequent developments, mainly in the context of treaties, indicate support for the notion that shareholders of a company may intervene against the State of incorporation of the company when it is responsible for causing injury to the company.49 Additionally, in the ELSI case,50 a Chamber of the International Court of Justice allowed the United States to bring a claim against Italy in respect of damage suffered by an Italian company whose shares were wholly owned by two

References (p. 1060) American companies, without any serious question having been raised as to the lawfulness of the espousal by the United States of its companies’ claims. The Chamber avoided pronouncing on the compatibility of its findings with Barcelona Traction despite an objection raised by Italy.51 It is therefore possible to infer support for the exception in favour of the right of the State of shareholders of a corporation to intervene against the State of incorporation when it is responsible for causing injury to the corporation.52 The final two exceptions outlined above are codified in article 11 of the ILC’s Draft Articles on Diplomatic Protection, which provides: A State of nationality of shareholders in a corporation shall not be entitled to exercise diplomatic protection in respect of such shareholders in the case of an injury to the corporation unless: (a) The corporation has ceased to exist according to the law of the State of incorporation for a reason unrelated to the injury; or (b) The corporation had, at the date of injury, the nationality of the State alleged to be responsible for causing the injury, and incorporation in that State was required by it as a precondition for doing business there. In the Diallo case53 the International Court of Justice left open the question whether the rule contained in article 11(b), which requires the claimant State to show that the company was compelled to incorporate in the respondent State, is a rule of customary international law.54

(d) Continuous nationality According to the traditional view, a State may exercise diplomatic protection only on behalf of a person who was a national of that State at time of the injury on which the claim is based and who had continuously been a national of that State up to and including the time of the presentation of the claim. The purpose of this rule is to prevent an individual from seeking the protection of another State more likely to press his claim. Whether this practice enjoys the status of a customary rule has been questioned by judges and jurists.55 It is difficult to reconcile the traditional rule with the Vattelian fiction that an injury to the national is an injury to the State itself; and its content is uncertain as there is no clarity on the meaning of the date of injury (dies a quo) and the date until which the injury must have continued (dies ad quem). Above all, it is unfair to those who have undergone an involuntary change of nationality, as a result of the succession of States or marriage. For these reasons, when the ILC considered codification of the rule of continuous nationality, it determined that the traditional rule should be maintained but made subject to exceptions. 56 Article 5 of the Draft Articles on Diplomatic Protection provides:

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References (p. 1061) 1 . A State is entitled to exercise diplomatic protection in respect of a person who was a national of that State continuously from the date of injury to the date of the official presentation of the claim. Continuity is presumed if that nationality existed at both these dates. 2 . Notwithstanding paragraph 1, a State may exercise diplomatic protection in respect of a person who is its national at the date of the official presentation of the claim but was not a national at the date of injury, provided that the person had the nationality of a predecessor State or lost his or her previous nationality and acquired, for a reason unrelated to the bringing of the claim, the nationality of the former State in a manner not inconsistent with international law. 3 . Diplomatic protection shall not be exercised by the present State of nationality in respect of a person against a former State of nationality of that person for an injury caused when that person was a national of the former State of nationality and not of the present State of nationality. 4 . A State is no longer entitled to exercise diplomatic protection in respect of a person who acquires the nationality of the State against which the claim is brought after the date of the official presentation of the claim.57 Paragraph 2 of article 5 thus provides that a State may exercise diplomatic protection in respect of a person who was a national at the time of the official presentation of the claim but not at the time of the injury provided that three conditions are met: first, the person seeking diplomatic protection has lost his or her former nationality; secondly, the person has acquired the nationality of another State for a reason unrelated to the bringing of the claim (addressing the fear that a person may deliberately change nationality in order to acquire a State of nationality more willing and able to bring a diplomatic protection claim); and thirdly, the acquisition of the new nationality has taken place in a manner not inconsistent with international law. The ILC refused to accept the dictum in Loewen Group Inc v USA,58 which proclaims an absolute requirement of continuous nationality, but does accept the principle which formed the basis for the Tribunal’s factual finding that a State may no longer exercise diplomatic protection in respect of a person who acquires the nationality of the State against which the claim is brought after the date of presentation of the claim.

3 The exhaustion of local remedies (a) The general principle A State may not bring an international claim arising out of an injury to a national before the injured national has exhausted all available and effective local legal remedies in the State alleged to be responsible for the injury. The exhaustion of local remedies rule is a rule of customary international law. In the Interhandel case the International Court of Justice stated that: The rule that remedies must be exhausted before international proceedings may be instituted is a wellestablished rule of customary international law; the rule has been generally observed in cases in which a state has adopted the cause of its national whose rights are claimed to have been disregarded in another State in violation of international law. Before resort may be had to an international court in such a situation, it has been considered necessary that the State where the violation occurred should have an opportunity to redress it by its own means, within the framework of its own domestic system.59

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References (p. 1062) In the context of its work on State responsibility, the ILC concluded that the exhaustion of local remedies is a ‘principle of general international law’ supported by judicial decisions, State practice, treaties, and the writings of jurists.60 Although the Articles on State Responsibility do not deal comprehensively with the scope and content of the exhaustion of local remedies rule, the exhaustion of local remedies was included as a condition for invoking the responsibility of a State. Article 44 relevantly provides: The responsibility of a State may not be invoked if: … (b) the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted. ‘Local remedies’ means the remedies which are as of right open to natural or legal persons before judicial or administrative courts or authorities whether ordinary or special. In the Ambatielos claim the Arbitral Tribunal declared that ‘it is the whole system of legal protection, as provided by municipal law, which must have been put to the test’.61 ‘Legal’ remedies clearly include judicial remedies. The foreign national must exhaust all the available judicial remedies provided for in the municipal law of the respondent State. If the municipal law in question permits an appeal in the circumstances of the case to the highest court, such an appeal must be brought in order to secure a final decision in the matter. Courts in this context include both ordinary and special courts. Legal remedies also include remedies before administrative bodies—provided the foreign national has a right to obtain redress from the tribunal. Extra legal remedies or remedies as of grace or favour do not qualify as local remedies to be exhausted. The remedies must, moreover, be available and effective both in theory and practice. The customary rule on exhaustion of local remedies is codified in article 14 of the ILC’s Draft Articles on Diplomatic Protection, which provides: 1 . A State may not present an international claim in respect of an injury to a national or other person referred to in draft article 8 before the injured person has, subject to draft article 15, exhausted all local remedies. 2 . ‘Local remedies’ means legal remedies which are open to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury. 3 . Local remedies shall be exhausted where an international claim, or request for a declaratory judgment related to the claim, is brought preponderantly on the basis of an injury to a national or other person referred to in draft article 8. The exhaustion of local remedies rule applies only to cases in which the claimant State has been injured ‘indirectly’, that is, through its national. It does not apply where the claimant State is directly injured by the wrongful act of another State, as here the State has a distinct reason of its own for bringing an international claim. This position is codified in paragraph 3. In practice it is difficult to decide whether the claim is ‘direct’ or ‘indirect’ where it is ‘mixed’, in the sense that it contains elements of both injury to the State and injury to

References (p. 1063) the nationals of the State.62 Many disputes before international courts have presented the phenomenon of the mixed claim. In the Hostages case,63 in which Iranian militants held United States diplomatic and consular personnel hostage, there was a direct violation on the part of the

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Islamic Republic of Iran of the duty it owed to the United States of America to protect its diplomats and consuls, but at the same time there was injury to the person of the nationals (diplomats and consuls) held hostage; and in the Interhandel case there were claims brought by Switzerland relating to a direct wrong to itself arising out of breach of a treaty and to an indirect wrong resulting from an injury to a national corporation. In the Hostages case the Court treated the claim as a direct violation of international law; and in the Interhandel case the Court found that the claim was preponderantly indirect and that Switzerland had failed to exhaust local remedies. In the case of a mixed claim it is incumbent upon the tribunal to examine the different elements of the claim and to decide whether the direct or the indirect element is preponderant. In the ELSI case a chamber of the International Court rejected the argument of the United States that part of its claim was premised on the violation of a treaty and that it was therefore unnecessary to exhaust local remedies holding that: the Chamber has no doubt that the matter which colours and pervades the United States claim as a whole is the alleged damage to Raytheon and Machlett [United States corporations].64 In deciding whether the claim is preponderantly direct or indirect it is necessary to have regard to factors such as the subject of the dispute, the nature of the claim and the remedy claimed. Where the subject of the dispute is a diplomatic official or State property the claim will normally be direct, but where the State seeks monetary relief on behalf of its national the claim is indirect.65 Exceptions to the exhaustion of local remedies rule are dealt within in article 15 of the ILC’s Draft Articles on Diplomatic Protection. It provides: Local remedies do not need to be exhausted where: (a) There are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress; (b) There is undue delay in the remedial process which is attributable to the State alleged to be responsible; (c) There is no relevant connection between the injured person and the State alleged to be responsible at the date of injury; (d) The injured person is manifestly precluded from pursuing local remedies; or (e) The State alleged to be responsible has waived the requirement that local remedies be exhausted.

(b) The ‘futility’ or ‘ineffectiveness’ exception This exception, which is a component of the requirement of an available and effective remedy, dispenses with the need to exhaust local remedies that are obviously futile or

References (p. 1064) manifestly ineffective. Thus local remedies need not be exhausted where the domestic court has no jurisdiction over the issue raised by the alien—as occurred in the Finnish Ships arbitration66 where there was a dispute of fact between the parties and the court of appeal was competent to decide questions of law only. Nor need local remedies be exhausted where the domestic court is subject to the will of the executive67 or fails to apply internationally accepted fairtrial standards. The ILC considered three options for the formulation of this exception: (i) the local remedies are obviously futile, as expounded by Arbitrator Bagge in the Finnish Ships arbitration; 68

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(ii) the local remedies offer no reasonable prospect of success, a test accepted by the European Commission of Human Rights in several cases; 69 (iii) the local remedies provide no reasonable possibility of an effective redress, a test with its origins in the separate opinion of Sir Hersch Lauterpacht in the Norwegian Loans case 70 and supported by the writings of jurists. 71 It preferred the third option, which avoided the ‘stringent language of the “obvious futility” test, but nevertheless [imposed] a heavy burden on the claimant’ by requiring that he or she prove that there is no reasonable possibility of effective redress.72

(c) Unreasonable delay This exception is confirmed by codification attempts, human rights instruments and practice, judicial decisions and scholarly opinion.73 The ILC refrained from attempting to prescribe a fixed time limit within which local remedies are to be implemented, as each case is to be judged on its facts.74

(d) Lack of connection with the respondent State The purpose of the exhaustion of local remedies rule is to give the State in which the injured alien resides, carries on business, or owns property an opportunity to provide redress through its own courts. Consequently where the alien is involuntarily within the territory of the respondent State— as, for instance, where he has been abducted by agents of the respondent State—or where he has been injured by transboundary environmental

References (p. 1065) harm or some other wrongful act which occurred outside the territory of the respondent State, there is no need for local remedies to be exhausted.75 This situation is well illustrated by the Aerial Incident case76 in which Israel, in claiming compensation from Bulgaria for the shooting down of an Israeli civilian aircraft over Bulgarian territory, maintained that the exhaustion of local remedies rule was inapplicable because the Israeli nationals killed in the shooting had no voluntary or deliberate connection with Bulgaria. A voluntary link or connection with the respondent State cannot be created by the unlawful act itself. (Due to jurisdictional difficulties, the International Court made no decision in this case.) Although the ILC took the view that there ought to be an express inclusion of this exception to the local remedies rule, it preferred not to use the term ‘voluntary link’ to describe it as it emphasized the ‘subjective intention of the injured individual’ rather than the ‘absence of an objectively determinable connection between the individual and the host State’.77 Hence the Commission decided to require the existence of a ‘relevant connection’ between the injured alien and the host State, in the sense that it relates in some way to the injury suffered. The language of article 15(c) reflects this position.

(e) Preclusion from pursuing local remedies The purpose of this paragraph is to give a tribunal the power to waive the requirement of exhaustion of local remedies ‘where, in all the circumstances of the case, it would be manifestly unreasonable to expect compliance with the rule’.78 The Commentary to article 15 stresses that this paragraph is ‘an exercise in progressive development’ and must be construed narrowly. The burden of proof lies on the injured person to establish that the obstacles in the way of exhausting local remedies are such to manifestly preclude him or her from pursuing these remedies. Possible examples of these obstacles include the situation in which the respondent State prevents the injured person from entering its territory, the situation in which the injured person is prevented from

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instituting proceedings by a crime syndicate or where the costs of such proceedings are so ‘prohibitively high’ as to ‘manifestly preclude’ the pursuance of local remedies.

(f) Waiver As the purpose of the exhaustion of local remedies rule is to protect the interests of the respondent State it must clearly have the competence to waive this requirement either expressly or impliedly.79 Waiver must not, however, be readily inferred: the intention to do so must be clear from the circumstances of the case. In the ELSI case a Chamber of the International Court stated that it was ‘unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so’.80

References (p. 1066) There is a serious debate over the question whether the exhaustion of local remedies rule is substantive or procedural. The substantive school maintains that the internationally wrongful act of the wrongdoing State is not complete until local remedies have been exhausted without success; that the exhaustion of local remedies is a substantive condition on which the very existence of international responsibility depends. According to the procedural school, the exhaustion of local remedies rule is simply a procedural condition which must be met before an international claim may be brought. This is not a mere academic debate as the critical time at which international responsibility arises will differ according to the approach adopted. If the rule is substantive, international responsibility will arise only after all local remedies have been exhausted, whereas international responsibility is incurred immediately on the commission of an internationally wrongfully act if the rule is procedural. This difference has serious consequences for the principle of nationality of claims, which generally requires the injured alien to be a national of the claimant State at the time the international wrong is committed. Furthermore the position adopted on the nature of the rule has decisive implications for the rendering of a declaratory judgment in the absence of the exhaustion of local remedies, and for the waiver of the need for recourse to local remedies by the respondent State as, logically, neither would be possible if the rule is characterized as substantive.81 Codification attempts, judicial decisions, State practice, and the writings of jurists are evenly divided in their support for these positions. The Permanent Court seemed to give its support to the procedural view in Phosphates in Morocco.82 On the other hand, in 1977 the ILC adopted article 22 of the Draft Articles on State Responsibility on first reading which endorsed the substantive position.83 Article 44 of the Articles on the Responsibility of States for International Wrongful Acts, by contrast, classified the principle as one of admissibility but left its elaboration to be dealt with by the Commission in its study on diplomatic protection.84 There is a compromise position advanced by Fawcett85 and other jurists which requires serious consideration. This third school distinguishes between an injury to an alien under domestic law and under international law. If the injury is caused by a violation of domestic law not constituting a violation of international law, international responsibility arises only from an act or omission constituting a denial of justice committed against the alien by the judicial organs of the respondent State in the course of his attempt to secure redress for the violation of domestic law. Here the exhaustion of local remedies rule is a substantive condition for the existence of international responsibility. In contrast, where the injury to the alien arises from a violation of international law, international responsibility occurs at the moment of injury and the requirement that local remedies must still be exhausted before an international claim is brought is merely a procedural precondition. There is no need to establish a denial of justice on the part of the judicial organs of the respondent State. Moreover, if the act or omission violates international law and not domestic law, the absence of local remedies obviates the need to exhaust such remedies.

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References (p. 1067) The compromise position was proposed in the Special Rapporteur’s Second Report on Diplomatic Protection, debated in the Commission in 2002.86 While noting that there was no clear consensus, the Special Rapporteur concluded that the third position was the most satisfactory: that is, where a State commits an internationally wrongful act, it incurs international responsibility from that moment, but the right to bring an international claim is suspended until the wrongdoing State has had the opportunity to remedy the situation through its own courts; on the other hand, where the original injury is caused by an act or omission in violation of local law only, a denial of justice arising in the course of the domestic proceedings is required before an international claim can be brought. In the latter case, the Special Rapporteur advocated the view that the denial of justice further necessitated the exhaustion of remaining local remedies, a view supported by jurists and not contradicted by codification attempts, international decisions or State practice.87 These views were reflected in draft articles 12 and 13, which provided:

Article 12 The requirement that local remedies must be exhausted is a procedural precondition that must be complied with before a State may bring an international claim based on injury to a national arising out of an internationally wrongful act committed against the national where the act complained of is a breach of both local law and international law.

Article 13 Where a foreign national brings legal proceedings before the domestic courts of a State in order to obtain redress for a violation of the domestic law of that State not amounting to an international wrong, the State in which such proceedings are brought may incur international responsibility if there is a denial of justice to the foreign national. Subject to article 14, the injured foreign national must exhaust any further local remedies that may be available before an international claim is brought on his behalf. In the debates within the ILC, there was no consensus on a particular view. Support for the compromise position taken in the draft articles was qualified by concern that the distinction between remedies available under domestic law and international law might lead to a theoretical debate which would unnecessarily complicate the issue.88 The ‘prevailing view’ was that draft articles 12 and 13 ought to be deleted since they added nothing to the rule on exhaustion of local remedies already included in draft article 14 [11].89 In consequence, the Draft Articles as adopted do not pronounce upon the question whether the exhaustion of local remedies is procedural or substantive in nature.

4 The implementation of diplomatic protection A State has a discretionary right to protect its national who has been injured by another State but it is under no legal duty under international law to do so. The position was clearly stated by the International Court of Justice in the Barcelona Traction case:

References (p. 1068) … within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and whatever extent it thinks fit, for it is its own right that the State is asserting. Should the national or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law… . The State must be viewed as the sole judge to decide whether its

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protection will be granted, and to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case.90 The constitutions of some States recognize the right of an individual to receive diplomatic protection but this is a question of internal law. In recent times there has been criticism from academic quarters of the absolute discretion vested in States in the exercise of diplomatic protection and this absolute discretion has been challenged, with limited discretion, in national courts.91 A proposal de lege ferenda that the State of nationality should be obliged under international law to exercise diplomatic protection in limited circumstances92 was rejected by the ILC in 2000 as going beyond the permissible limits of progressive development of the law.93 However, article 19 of the final Draft does recommend that a State entitled to exercise diplomatic protection should ‘give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred’. Diplomatic protection may take the form of ‘diplomatic action’ or ‘judicial proceedings’. Diplomatic action will usually be initiated by an informal complaint by the protecting State or by formal protest, followed by negotiation. If negotiations fail the protecting State may resort to judicial or arbitral proceedings if the respondent has consented to such proceedings. When there are many complaints involving injury to nationals States may agree to establish a special arbitral tribunal to adjudicate these complaints. For instance, in 1981 Iran and the United States agreed to establish the Iran-United States Claims Tribunal to consider claims arising from injuries to Iranian and United States nationals in the political turmoil following the overthrow of the Shah of Iran in 1979.94 The protecting State may claim reparation from the respondent State in the form of restitution, compensation or satisfaction. In order to induce the respondent State to comply with its obligations, the claimant State may resort to non-forcible countermeasures. On some occasions States have taken forcible measures in order to protect the lives of their nationals abroad and have sought to justify this as self-defence constituting the ultimate form of diplomatic protection. In 2000 the ILC rejected this argument and decided that the forcible rescue of nationals abroad could not be categorized as diplomatic protection.95

5 Diplomatic protection and human rights Before the Second World War and the advent of human rights treaties there were few procedures available to the individual under international law to challenge treatment by his or her own State. On the other hand, if the individual’s human rights were violated abroad

References (p. 1069) by a foreign State, the individual’s national State might intervene to protect him or her or to claim reparation for the injuries that he or she had suffered. In practice it was mainly the nationals of the powerful Western States that enjoyed this privileged position, as it was those States that most readily intervened to protect their nationals who were not treated ‘in accordance with the ordinary standards of civilization’ set by Western States. Inevitably diplomatic protection of this kind came to be seen by developing nations, particularly in Latin America, as a discriminatory exercise of power rather than as a method of protecting the human rights of aliens. Much has changed in recent years. Standards of justice for individuals at home and foreigners abroad have undergone major changes. Some 150 States are today parties to the International Covenant on Civil and Political Rights and/or its regional counterparts in Europe, the Americas and Africa, which prescribe standards of justice to be observed in criminal trials and in the treatment of prisoners. Moreover, in some instances the individual is empowered to bring complaints about the violation of his or her human rights to the attention of international bodies such as the United Nations Human Rights Committee, the European Court of Human Rights, the Inter-American Court of

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Human Rights, or the African Court of Human and Peoples’ Rights. These developments have led some to argue that diplomatic protection is obsolete. Roughly the argument runs as follows: the equality-of-treatment-with-nationals-standard and the international minimum standard of treatment of aliens have been replaced by an international human rights standard, which accords to national and alien the same standard of treatment—a standard incorporating the core provisions of the Universal Declaration of Human Rights. The individual is now a subject of international law with standing to enforce his or her human rights at the international level. The right of a State to claim on behalf of its national should be restricted to cases where there is no other method of settlement agreed on by the alien and the injuring State. In such a case the claimant State acts as agent for the individual and not in its own right. A necessary implication of this reasoning is that the individual, now a subject of international law, with rights and duties under international law, should, other than in exceptional cases, fend for himself when he ventures abroad. The flaw in this argument is that while the individual may have rights under international law his or her remedies are limited. While the European Convention on Human Rights may offer real remedies to millions of Europeans, it is difficult to argue that the American Convention on Human Rights or the African Charter on Human and Peoples’ Rights have achieved the same degree of success. Moreover, the majority of the world’s population, situated in Asia, is not covered by a regional human rights convention. To suggest that universal human rights conventions, particularly the International Covenant on Civil and Political Rights, provide individuals with effective remedies for the protection of their human rights is to engage in fantasy. The sad truth is that only a handful of individuals, in the limited number of States that accept the right of individual petition to the monitoring bodies of these conventions, have obtained or will obtain satisfactory remedies from these conventions. The position of the alien abroad is no better. Universal and regional human rights conventions do extend protection to all individuals—national and alien alike—within the territory of States parties. But there is no multilateral convention that seeks to provide the alien with remedies for the protection of her rights outside the field of foreign investment.

References (p. 1070) In 1985, the General Assembly adopted the Declaration on Human Rights of Individuals who are not Nationals of the Country in which They Live,96 which seeks to extend the rights contained in the Universal Declaration of Human Rights to aliens. The Declaration provides no machinery for its enforcement, but it does reiterate the right of the alien to contact his consulate or diplomatic mission for the purpose of protection. This starkly illustrates the current position: that aliens may have rights under inter national law as human beings, but they have no remedies under international law—in the absence of a human rights treaty—except through the intervention of their national State. Until the individual acquires comprehensive procedural rights under international law, it would be a setback for human rights to abandon diplomatic protection. As an important instrument in the protection of human rights, it should be strengthened and encouraged. As Richard Lillich wrote in 1975: Pending the establishment of international machinery guaranteeing third party determination of disputes between alien claimants and States, it is in the interests of international lawyers not only to support the doctrine [of diplomatic protection] but to oppose vigorously any effort to cripple or destroy it.97 International human rights law does not consist of human rights conventions only. There is a whole body of conventions and customs, including diplomatic protection, that together comprise international human rights law. The International Covenant on Civil and Political Rights, the

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European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and other universal and regional human rights instruments are important, particularly as they extend protection to both alien and national in the territory of States parties. But their remedies are weak. Diplomatic protection, albeit only available to protect individuals against a foreign Government, on the other hand, is a customary rule of international law that applies universally and, potentially, offers a more effective remedy. Further reading CF Amerasinghe, Diplomatic Protection (Oxford, OUP, 2008) CF Amerasinghe, Local Remedies on International Law (2nd edn, Cambridge, CUP, 2004) CF Amerasinghe, State Responsibility for Injuries to Aliens (Oxford, Clarendon Press, 1967) N Bar-Yaacov, Dual Nationality (London, Stevens, 1961) EM Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims (New York, Banks, 1915) I Brownlie, ‘The Relations of Nationality in Public International Law’ (1963) 44 BYIL 302 J Crawford, ‘The ILC Articles on Diplomatic Protection’ (2006) 31 South African YBIL 1 FS Dunn, The Diplomatic Protection of Americans in Mexico (New York, Columbia University Press, 1933) JES Fawcett, ‘The Exhaustion of Local Remedies, Substance or Procedure’ (1954) 31 BYIL 452 JF Flauss (ed) La Protection Diplomatique (Brussels, Bruylant, 2003) FV García-Amador, ‘State Responsibility. Some New Problems’, 94 (1958-II) Recueil des cours 421

References (p. 1071) C Joseph, Nationality and Diplomatic Protection—The Commonwealth of Nations (Leiden, Sijthoff, 1969) P Klein, ‘La Protection Diplomatique des Doubles Nationaux’ (1988) 21 RBDI 184 T Meron, ‘The Incidence of the Rule of Exhaustion of Local Remedies’ (1959) 35 BYIL 85 E Milano, ‘Diplomatic Protection and Human Rights before the International Court of Justice: Refashioning Tradition?’ (2004) 35 Netherlands Year Book of International Law 85 HF Van Panhuys, The Role of Nationality in International Law: An Outline (Leiden, Sijthoff, 1959) AHM Vermeer-Kunzil, The Protection of Individuals by Means of Diplomatic Protection (Leiden, Meijers Instituut, 2007) E Wyler, La Règle Dite de la Continuité de la Nationalité dans le Contentieux International (Paris, PUF, 1990)(p. 1072)

Footnotes: ∗ I wish to thank Zsuzsanna Deen-Racsmany of Leiden University and Larry Lee of New York University for their assistance in the writing of this Chapter. 1 ARSIWA, Commentary to art 44, fns 722, 726. 2 Report of the ILC, 58th Session, 2006, A/61/10, paras 34–48. The Draft Articles (hereinafter ‘Draft Articles on Diplomatic Protection’) are reproduced in ibid, para 49; see also below, Appendix 3. 3 E Vattel, The Law of Nations or, Principles of the Law of Nature Applied to the Conduct and Affairs and Nations and Sovereigns (1758, B Kapossy & R Whatmore (eds), Indianapolis, Liberty Fund, 2008), chapter VI, 136. 4 Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No. 2, p 4, 12. 5 J Brierly, The Law of Nations (6th edn, Oxford, Clarendon Press, 1963), 276.

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6 For a discussion of this notion and the criticisms directed at it, see J Dugard, First Report on Diplomatic Protection, 2000, A/CN.4/506, paras 61–74. 7 Draft Articles on Diplomatic Protection, Commentary to art 2, para 2. The Commentaries to the Draft Articles are reproduced in Report of the ILC, 58th Session, 2006, A/61/10, 22–100 (para 50). 8 Panevezys-Saldutiskis Railway (Republic of Estonia v Republic of Lithuania), 1939, PCIJ Reports, Series A/B, No 76, p 4, 16. 9 Draft Articles on Diplomatic Protection, Commentary to art 3, para 1. 10 Hague Convention on Certain Questions relating to the Conflict of Nationality Law, 12 April 1930, 179 LNTS 89, art 1; European Convention on Nationality, 6 November 1997, ETS No 166, art 3. 11 Nationality Decrees in Tunis and Morocco, 1923, PCIJ Reports, Series B, No 4, p 4, 24. 12 Hague Convention on Certain Questions relating to the Conflict of Nationality Law, 12 April 1930, 179 LNTS 89, art 1; European Convention on Nationality, 6 November 1997, ETS No 166, art 3(2). 13 See also Draft Articles on Diplomatic Protection, Commentary to art 4, paras 3–4. 14 Nottebohm (Liechtenstein v Guatemala), ICJ Reports 1955, p 4, 23. 15 Flegenheimer, Italian-United States Conciliation Commission (1958) 24 ILR 148. 16 Résolutions de l’Institut de Droit International, 1957–91 (1992) 56, art 4(c) (1965). 17 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 42 (para 70). 18 Draft Articles on Diplomatic Protection, commentary to art 4, para 5. 19 Salem, 8 June 1923, 2 RIAA 1161, 1188. 20 See also Draft Articles on Diplomatic Protection, Commentary to art 6, paras 1–4. 21 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 173, 186. 22 James Louis Drummond, 2 Knapp PC Rep 295, 12 ER 492; Milani, Birgnone Stevenson and Mathinson cases (British-Venezuelan Mixed Claims Commission), JH Ralston, Venezuelan Arbitrations of 1903 (Washington, Government Printing Office, 1904), 429–438, 710, 754–761, 438– 455 respectively; Carnevaro (Permanent Court of Arbitration, 1912), Scott, 1 Hague Court Reports 284; Hein, 26 April/10 May 1922 (Anglo-German Mixed Arbitral Tribunal), 1 ILR 216; Blumenthal (French-German Mixed Tribunal), Recueil des Décisions des Tribunaux Mixtes, vol 3 (1924), 616; de Montfort, 10 July 1926 (French-German Mixed Tribunal), 3 ILR 279; Pinson (French-Mexican Mixed Claims Commission), 4 ILR 297, 299; Tellech, 25 May 1928 (United States-Austria and Hungary Tripartite Claim Commission), 6 RIAA 248. 23 Mergé (1955) 22 ILR 455. 24 See eg Esphahanian v Bank Tejarat (1983) 2 Iran-US CTR 166; Case No A/18 (1984) 5 Iran-US CTR 251. 25 S.AC.26/1991/Rev. 1, para 11. 26 See FV García-Amador, Third Report on State Responsibility, ILC Yearbook 1958, Vol II, 47, 61 (‘In cases of dual or multiple nationality, the right to bring a claim shall be exercisable only by the State with which the alien has the stronger and more genuine legal or other tie’); F Orrego Vicuña, ‘Interim Report on “The Changing Law of Nationality of Claims” ’ in International Law Association, Report of the 69th Conference (2000), 646, para 11. 27 Draft Articles on Diplomatic Protection, Commentary to art 7, para 4. 28 Draft Articles on Diplomatic Protection, art 7.

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29 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 35 (para 43); 46 (paras 86–7); 50 (para 99). 30 Ibid, 48–9 (paras 94–6). 31 Draft Articles on Diplomatic Protection, art 9. 32 Draft Articles on Diplomatic Protection, Commentary to art 9, para 4. 33 Draft Articles on Diplomatic Protection, Commentary to art 11, para 3. 34 FA Mann ‘The Protection of Shareholders’ Interests in the Light of the Barcelona Traction Case’ (1973) 67 AJIL 259, 273. 35 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1989, p 11, 42. 36 Ibid, 36 (para 47). 37 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgment, ICJ Reports 1989, p 15. 38 See Agrotexim v Greece (App No 14807/89), ECHR, Series A, No 330-A (1995), 23. 39 Ibid, 23 (para 62). 40 Draft Articles on Diplomatic Protection, art 12. 41 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 40–1 (paras 65–8). 42 Ibid, 41 (para 66); Agrotexim v Greece (App No 14807/89), ECHR Series A, No 330-A (1995), 25. 43 See the discussion in Draft Articles on Diplomatic Protection, Commentary to art 11, para 5 and references. 44 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 41 (para 66). 45 Ibid. 46 Agrotexim v Greece (App No 14807/89), ECHR, Series A, No 330-A (1995), 25 (para 68). 47 JB Moore, History and Digest of the International Arbitrations to which the United States has been a party (Washington, Government Printing Office, 1898), Vol 2, 1865. 48 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 48, 72–75 (Fitzmaurice), 133–134 (Tanaka), 191–193 (Jessup). 49 See SEDCO Inc v National Iranian Oil Company and the Islamic Republic of Iran, Case No 129 of 24 October 1985, 84 ILR 484, 496 (interpreting art VII(2) of the Algiers Claims Settlement Declaration); Liberian Eastern Timber Corporation (LETCO) v The Government of the Republic of Liberia, 1987, 26 ILM 647, 652–654 (interpreting art 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States). 50 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgments, ICJ Reports 1989, p 15. 51 Ibid, 64 (para 106); 79 (para 132). 52 See Y Dinstein, ‘Diplomatic Protection of Companies under International Law’, in K Wellens (ed), International Law: Theory and Practice. Essays in Honour of Eric Suy (The Hague, Nijhoff, 1998), 505, 512. See also, generally, discussion in Draft Articles on Diplomatic Protection, commentary to art 11, paras 9–11, and references therein. 53 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007. 54 Ibid, paras 91–93. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

55 See the comment of Judge Fitzmaurice in Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 101–2; E Wyler, La règle dite de la continuité de la nationalité dans le contentieux international (Paris, PUF, 1990). 56 Draft Articles on Diplomatic Protection, Commentary to art 5, paras 1–11. 57 Ibid, art 5. 58 (2005) 7 ICSID Reports 442, 485 (para 225). 59 Interhandel (Switzerland v United States of America), Preliminary Objections, ICJ Reports 1959, p 4, 27. See also Elettronica Sicula SpA (ELSI) (United States of America v Italy), Objections and Merits, ICJ Reports 1992, p 15, 42 (para 50). 60 Draft art 22, as adopted on first reading, with Commentary: see Report of the ILC, ILC Yearbook 1977, Vol II(2), 30–50; see also ARSIWA, Commentary to art 44, cited in Draft Articles on Diplomatic Protection, Commentary to art 14, para 1. 61 Ambatielos, 6 March 1956, 12 RIAA 91, 120. 62 See the discussion in Draft Articles on Diplomatic Protection, Commentary to art 14, paras 9– 13. 63 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3. 64 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgment, ICJ Reports 1989, p 15, 43 (para 52). 65 See discussion in Draft Articles on Diplomatic Protection, Commentary to art 14, para 12 and references therein. 66 Finnish Ships, 9 May 1934, 3 RIAA 1479. 67 Robert E Brown, 23 November 1923, 6 RIAA 120; Vélasquez Rodríguez, 28 ILM (1989) 291, 304–309. 68 Finnish Ships, 9 May 1934, 3 RIAA 1479, 1504. 69 Retimag SA v Federal Republic of Germany (App No 712/60), 4 Yearbook of the European Convention on Human Rights 385, 400; X, Y, and Z v UK (App Nos 8022/77, 8027/77), 18 European Commission of Human Rights, Decisions and Reports 66, 77. 70 Certain Norwegian Loans (France v Norway), ICJ Reports 1957, p 9, 39. 71 See J Dugard, Third Report on Diplomatic Protection, 2002, A/CN.4/523, para 35. See also discussion in Draft Articles on Diplomatic Protection, Commentary to art 15, paras 2–4 and references therein. 72 Commentary to art 15, para 3. 73 See eg FV Garcia-Amador, First Report on State Responsibility, ILC Yearbook 1956, Vol II, 173, 223–6; International Covenant on Civil and Political Rights,16 December 1966, 999 UNTS 171, art 1(c); Weinberger v Uruguay, Communication 28/1978, Human Rights Committee, Selected Decisions, Vol 1, 57, 59; El Oro Mining and Railway Company (Limited) (Great Britain) v United Mexican States, decision No 55, 18 June 1931, 5 RIAA 191, 198; see also Draft Articles on Diplomatic Protection, Commentary to art 15, paras 5–6 and the references cited therein. 74 Draft Articles on Diplomatic Protection, commentary to art 15, para 5; El Oro Mining and Railway Company (Limited) (Great Britain) v United Mexican States, decision No 55, 18 June 1931, 5 RIAA 191, 198. 75 See Draft Articles on Diplomatic Protection, Commentary to art 15, para 7. 76 Aerial Incident of 7 October 1952 (United States of America v Union of Soviet Socialist Republics), ICJ Reports 1959, p 127. 77 See Draft Articles on Diplomatic Protection, Commentary to art 15, para 10. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

78 Draft Articles on Diplomatic Protection, Commentary to art 15, para 11. 79 See Government of Costa Rica, 13 November 1981, Inter-American Court of Human Rights, 67 ILR 578, 587 (para 26). See also Draft Articles on Diplomatic Protection, Commentary to art 16 (paras 12–17) and references. 80 Elettronica Sicula SpA (ELSI) (United States of America v Italy), Judgment, ICJ Reports 1989 p 15, 42 (para 50). 81 See Report of the ILC, 54th Session, 2002, A/57/10, 132 (para 155). 82 Phosphates in Morocco, Preliminary Objections, 1938, PCIJ Reports, Series A/B, No 74, p 4, 28. 83 See Commentary to draft art 22 of the Draft Articles on State Responsibility as adopted on first reading, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58. 84 See ARSIWA, Commentary to art 44, para 4. 85 JES Fawcett, ‘The Exhaustion of Local Remedies: Substance or Procedure?’ (1954) 31 BYIL 452. 86 See J Dugard, Second Report on Diplomatic Protection, 2001, A/CN.4/514, paras 32–66 (draft arts 12, 13); the debate within the ILC is summarized in Report of the ILC, 54th Session, 2002, A/57/10, 131–137 (paras 150–176). 87 J Dugard, Second Report on Diplomatic Protection, 2001, A/CN.4/514, paras 63–66. 88 Report of the ILC, 54th Session, 2002, A/57/10, 134 (paras 161–163, esp para 163). 89 Ibid, 134 (para 164). 90 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 44. 91 See Abassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (2003) 42 ILM 358; Kaunda and Others v President of the Republic of South Africa 2005 (4) South African Law Reports 235(CC). 92 J Dugard, First Report on Diplomatic Protection, 2000, A/CN.4/507, 27–34. 93 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 77–79 (paras 445–456) (draft art 5); see also Report of the ILC, 53rd Session, ILC Yearbook 2001, 28 (para 2). 94 (1981) 20 ILM 224. 95 Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 74–76 (paras 430–439) (draft art 2). 96 GA Res 40/144, 13 December 1985. 97 R Lillich, ‘The Diplomatic Protection of Nationals Abroad: An Elementary Principle of International Law under Attack’ (1975) 69 AJIL 359.

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Part V The Implementation of International Responsibility, Ch.74 Functional Protection Myriam Benlolo Carabot, Muriel Ubéda-Saillard From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Ultra Vires conduct, functional test — Reparations — Diplomatic protection — United Nations (UN) — Immunity from jurisdiction, states — Immunity from jurisdiction, ratione materiae

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(p. 1073) Chapter 74 Functional Protection 1 The concept of functional protection 1074 (a) Functional protection, a consequence of the international legal personality of the international organization 1074 (i) The legal foundations of functional protection 1074 (ii) The rights guaranteed by functional protection 1075 (b) Functional protection, a specific protection for the international agent 1076 (i) Functional protection and diplomatic protection 1076 (ii) Functional protection and privileges and immunities 1077 2 The implementation of functional protection 1078 (a) The conditions for implementation 1078 (i) Conditions ratione personae 1078 (ii) Conditions ratione materiae 1079 (b) The modalities of implementation 1080 (i) The procedure 1080 (ii) The concurrent implementation of diplomatic protection and functional protection 1081 Further reading 1083 Functional protection is an ‘expression … which denotes the action that is analogous to the protection of nationals abroad, through which an international organisation … demands respect for international law with regard to its agents and the reparation of harms caused in breach of this right’.1 This comparison should nevertheless not obscure the specificity of this protection mechanism for individuals who are in the service of international organizations, which differs fundamentally from other procedures such as diplomatic protection, even if in the end it pursues the same objective of protecting the individual in the international sphere. Functional protection is of particular interest, due to the increasingly frequent recourse to international organizations in the international sphere, the correlative modification of their missions and the development of tasks entrusted to their agents, whose increased responsibility must go hand in hand with the reinforcement of their legal status. The implementation of functional protection aims to ensure the unfailing support of the international organization for any agent, whoever he or she may be, for which the agent has acted, independent from a potential exercise of diplomatic protection by the State of nationality.

(p. 1074) 1 The concept of functional protection Because ‘it is inevitable that all institutionalization entails a minimum of the existence of the own structure that it supposes’2 and because independence follows logically and progressively from the permanence of the organization, the UN first, then all international organizations, have recognized an international legal personality, distinct from its members, as well as rights attached to this personality which allow them both to exercise their functions and be responsible for their acts. Functional protection is one of these rights, specific to the international agent and, because of

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this, it must be distinguished from some similar concepts.

(a) Functional protection, a consequence of the international legal personality of the international organization Founded on the jurisprudence on the recognition of the legal personality of international organizations, the rights guaranteed by functional protection have the aim of ensuring not only the security of the agent, but also the independence of the organization. (i) The legal foundations of functional protection The legal foundation of the right of the international organization to exercise functional protection is above all to be found in the case law, even though it could have been stated explicitly in certain constituent instruments of international functionaries. Asked for an opinion by a United Nations General Assembly resolution of 3 December 1948, the ICJ had to reply to two questions following the death of Comte Folke Bernadotte, a mediator in Palestine who was in the service of the organization: I . In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him ? II . In the event of an affirmative reply on point 1(b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national? 3 In its Advisory Opinion of 11 April 19494 the Court first affirmed the international personality of the UN, recognizing that the organization ‘is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims’.5 This reasoning has now been transposed to organizations other than the UN and there ‘exists in general international law a presumption of international personality in favour of intergovernmental organisations’.6 Based

References (p. 1075) on the theory of implicit powers7 the Court established the right for the organization to make a claim, not only for the harm suffered by itself, but also for that caused to its agents, against all States, including States not members of the UN. Even though the power to make a claim was later clearly recognized for other international organizations with regard to their members, it was more controversial when an organization seeks to challenge a State which is not a member of the organization.8 Thus, functional protection is a power that follows from the international legal personality of an organization. It constitutes the expression of a general principle of law.9 Before 1949, some cases had already shown the independence of international organizations with regard to their members and their right to demand reparation for harm caused to their agents. In 1923 the Committee of Jurists established by the League of Nations after the murder of General Tellini, who was a member of the Commission in charge of determining the frontier between Greece and Albania, recognized the special nature of the status of international agents. ‘The recognized public character of a foreigner and the circumstances in which he is present in the territory entail upon the State a corresponding duty of special vigilance on his behalf’.10 This specificity furthermore creates special obligations of cooperation and adaptation of domestic law of the host State to prevent and suppress attacks on staff of the organization, which are often taken up in the

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headquarters agreement (accords de siege) of the organization (see for example articles 7, 10, and 11 of the Convention on the Safety of United Nations and Associated Personnel).11 In the Tellini case, the League of Nations claimed and obtained reparation; neither Greece (the State on whose territory the acts causing the prejudice had been committed) nor Italy (the State of nationality of the agent) had also made claims contested the existence of harm having been caused to the organization through the attack on its agent. At the same time, other international institutions, especially the International Commission for Upper Silesia and the European Commission of the Danube were also indemnified for prejudice caused to their agents and themselves.12 The rights guaranteed by functional protection express a desire to ensure the independence of international organizations, but also, through the diversification of their missions, the security of their international agents. (ii) The rights guaranteed by functional protection Functional protection expresses the existence of true personal competence of the international organization with regard to its agents. Its first objective is to ensure the ‘efficient and independent performance’ of the functions of the organization while giving its staff ‘afford effective support’.13 As a consequence, it guarantees the best working conditions (p. 1076) for the agents. Further, it allows the atypical and dangerous character of the missions to be taken into account, as well as the potential maladjustment of diplomatic protection for the reparation of harms caused in this context. A broad interpretation of functional protection is permitted with a view to the objectives that are to be achieved. If this obligation of protection has the aim of ensuring independence of the agent or service of the organization and to avoid a situation where he suffers harm while completing his mission, the organization may have an obligation of due diligence, which leads it to intervene as a matter of prevention, even though prejudice has not yet occurred, but where the agent is already in a delicate situation, whether this may be through a breach of the obligation of vigilance by the host State or simply because of acts of an individual on the territory of that State which threaten the agent.14 Even though the extent of functional protection and the forms of reparation vary according to the category of agents, it is possible to define a collection of rights that the organization and its personnel can always have resort to. In the exercise of missions of UN officials, they must be able to carry out their work safely, and have a right to evacuation if this security is no longer guaranteed, the right to repatriation only pertaining to members recruited on an international level.15 Incidentally, they benefit from the application of international standards in the human rights matters in the host State. The competent organs of the organization must be able to ensure and must also be authorized to have access to the place of detention of an agent, to communicate with him or her and assist the agent in domestic court procedures which are conducted against him or her.

(b) Functional protection, a specific protection for the international agent A link can be established between functional protection and diplomatic protection as well as privileges and immunities, either because it rests on the same legal fiction that allows the protection of the individual in the international sphere, or because it obeys the same imperative of guaranteeing independence to the agent. It nevertheless remains distinct from these mechanisms. (i) Functional protection and diplomatic protection Mostly deprived of the possibility of recourse on the international level, individuals cannot ordinarily enforce their rights in the international legal order, from which a real risk of denial of justice arises. Diplomatic protection and functional protection derive from the same logic in this regard: in the former case the State, in the latter the international organizations, endorse the claim of the individual, national, or agent in their capacity as subjects of inter national law, equipped with legal From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

personality, to demand reparation for the harm suffered. The parallelism between diplomatic protection and functional protection becomes clear when the terms that are used by the ICJ and PCIJ respectively are compared. In Mavrommatis, the PCIJ stated that:

References (p. 1077) [b]y taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.16 ‘When it claims redress for a breach of these obligations’, declared the ICJ in 1949, ‘the Organization is invoking its own right, the right that the obligations due to it should be respected’.17 These analogies nevertheless do not imply a true assimilation of the two mechanisms. Diplomatic protection is justified by the link of nationality connecting the individual to the State. It can always be implemented, although the State may not decide, in its discretion, to exercise it. In this aspect it differs from the protection that is exercised by the international organization, which is based on the link of function between the agent and the organization, which should not be assimilated by ‘a strained use of the concept of allegiance … to the bond of nationality existing between a State and its nationals’.18 Some go even further in the distinction between the two systems and state that: more than functional protection by the international organisation with regard to its agent, this is the case of a situation in which the international organisation demands reparation for a harm that is immediate and that it has suffered itself, since its agents are in truth to be assimilated to its organs and thus to itself.19 The comparison with the relationship of allegiance that bonds a State to its national is thus misleading. (ii) Functional protection and privileges and immunities Established in order to guarantee the independence of agents, and indispensable to the realization of the missions of the organization, privileges and immunities are now established not only in the constitutive instruments of the majority of international organizations, but also in international conventions, especially that of the United Nations of 13 February 1946. It was the same concern of independence which led to the establishment of the notion of functional protection, considering that the agent must be able to obtain reparation through the intermediary of his organization, rather than resorting to diplomatic protection by his State of allegiance, which would compromise his independence. The two mechanisms may overlap, especially in the case where privileges and immunities constitute a guarantee to directly ensure the protection of international functionaries.20 Nevertheless, the two concepts should—again—not be confused. As far as legal bases are concerned, functional protection is an invention of the case law, while immunities most often are based on treaty. Above all, functional protection is a broader concept than privileges and immunities. This is confirmed by certain reports of the Secretary General

References (p. 1078) concerning security, safety, and independence of the public international function, which analyse in detail all legal means that are necessary for the functional protection of international agents.21

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The ICJ clearly recalled this distinction, where it stated that ‘the question of immunity from legal process is distinct from the issue of compensation for any damages incurred as a result of acts performed by the United Nations or by its agents acting in their officia1 capacity’.22 Privileges and immunities are thus presented as a modality of functional protection.23 Furthermore, some case law of the UN Administrative Tribunal shows that functional protection may also be used as a means to enforce to privileges and immunities, even where the agent does not benefit.24

2 The implementation of functional protection Although there can be no doubt that the concept of functional protection covers certain obligations of the international organization, the political risks inherent in the structure of international society can make its implementation difficult and the cooperation of the State becomes an inescapable parameter.

(a) The conditions for implementation Only the ratione personae and the ratione materiae conditions will be discussed here. As far as the latter are concerned, functional protection can only be exercised for the benefit of the agent on the one hand, as far as he or she exercises a public mission or function in the service of the organization, and on the other hand, the place where the agent is in service is unimportant, since the agent will be covered by functional protection in any host State, including where it is the agent’s State of nationality. As for the exhaustion of local remedies under the law of the country where the agent has his or her functional residence, this is not a strict condition for the implementation of functional protection. If it seems desirable to allow the State to repair the harm by its own means, it must, for practical reasons, be the subject of subtle appreciation.25 (i) Conditions ratione personae In its Advisory Opinion of 1949 the Court said: [t]he Court understands the word ‘agent’ in the most liberal sense, that is to say, any person who, whether a paid officia1 or not, and whether permanently employed or not, has been charged by an organ of the Organization with carrying out, or helping to carry out, one of its functions—in short, any person through whom it acts.26 Such a definition can easily be understood with regard to the objectives of the mechanism of functional protection: in order to safeguard its independence and efficiency, the

References (p. 1079) organization must provide assistance to any person who works for it, regardless of the administrative situation that derives from the mode of recruitment, insofar as this person might not benefit from the privileges and immunities granted to official agents. The concept of agent covers different categories. First of all, the agent can be an international functionary. There is no treaty definition of this concept but we can use that of Suzanne Bastid, according to whom an international functionary is: any individual charged by the representatives of several States or by an organism acting in their name, following an inter-State agreement and under the control of one or the other, to exercise, subject to special legal rules, in a continuous and exclusive manner, functions in the interest of the collection of States in question.27 These characteristics distinguish an international functionary from an agent who carries out a public function in the service of the organization but does not do this on a continuous basis and

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may not have an international status. Taking into account the broad interpretation preferred by the ICJ, the obligation of functional protection nevertheless applies whichever mode of recruitment (local or international) may have been used. In the Mazilu case,28 the International Court even admitted that a Romanian national, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, who was neither a representative of a State nor a functionary of the UN, could use the quality of expert on mission, and thus benefit from the application of section 22 of article VI of the Convention on the Privileges and Immunities of the United Nations. This highlights that ‘[t]he essence of the matter lies not in their administrative position but in the nature of their mission’.29 It has also recently insisted on the ‘pivotal role’ of the Secretary-General in determining whether an expert enjoys ‘in the prevailing circumstances’ the immunity set out by the General Convention, stating that he ‘as the chief administrative officer of the Organization, has the authority and the responsibility to exercise the necessary protection where required’; linking this directly to the notion of ‘functional protection’ that materialized in the Opinion of 1949.30 (ii) Conditions ratione materiae In its Advisory Opinion of 1949, the ICJ distinguished harm arising from ‘a breach of an obligation designed to help an agent of the Organization in the performance of his duties’ from those that occur in cases where ‘the wrongful act or omission would merely constitute a breach of the general obligations of a State concerning the position of aliens’.31 Functional protection of the organization can thus only be exercised for official acts, carried out during the service, in the exercise of the mission. Acts carried out in the context of private activities, linked to the private life of the agent, can potentially be covered by diplomatic protection exercised by the State of nationality. Identifying the area of application of functional protection is sometimes difficult. The distinction between an act of service and a private act is sometimes strained, since there

References (p. 1080) is no global definition of the two concepts and they are intermittently specified by the international jurisprudence. (‘The UN has viewed expressions such as “official capacity”, “official duties”, or “official business” as functional expressions, which are related to a particular context and which it was undesirable to define in abstracto.’32 ) So, the risk of theft an international functionary bears during the exercise of his mission must be covered by the organization, which will have to indemnify the loss suffered.33 Nevertheless, an international functionary cannot ask the organization for which he works to exercise functional protection and to intervene in the national courts deciding on his divorce.34 Above all in practice, the organ which is appointed by the international organization to examine whether the acts that the agent is complaining of can be covered by functional protection is dependent on the cooperation of the State on whose territory the acts have taken place; it must have access to the agent and must be informed of the reasons for arrest. Thus, by denying an existing link between for example the arrest and the official functions of the agent, the State will attempt to apprehend the acts as acts carried out in the context of private activities.

(b) The modalities of implementation The implementation of functional protection is subject to certain modalities that are fixed by the international organization and does not provide an obstacle to the concurrent exercise of diplomatic protection by the competent State. (i) The procedure In its Advisory Opinion of 1949 the ICJ did not indicate a procedure for the effective implementation 35

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of functional protection. In his report of 23 August 194935 the UN Secretary General thus proposed some guidelines that were approved by the General Assembly36 and have since become current practice of the UN in this area. The report attributes a central role to the Secretary-General. It is for him to determine in which cases the responsibility of the State can be engaged. He consults with the victim’s State of nationality in order to learn of its potential objections. To determine whether the agent has suffered a harm in the context of his functions (sine qua non condition for the activation of functional protection) the Secretary-General, in the case of arrest of the agent, must be able to visit him and be duly informed on the reasons for the arrest.37 Despite broad powers, the Secretary-General cannot request an advisory opinion from the ICJ before consulting with the General Assembly or a specialized organ, which are often reluctant to initiate such a procedure. The latest stance of the ICJ confirms this limit, when it denied that the Secretary General could change the terms of a request for an

References (p. 1081) advisory opinion.38 The practical problems which could result from such a solution have led some academics to call for increased powers for the Secretary-General in the effective implementation of functional protection.39 International claims are presented ‘especially by way of protest, demand for inquiries, negotiation or request for arbitrational or judicial resolution’.40 They can concern all types of harm, including sometimes moral suffering inflicted on an agent. Where specialized UN institutions have the capacity to claim reparation for the harm suffered, this task falls on their respective administrative authorities. The case of subsidiary organs is more problematic: the United Nations Relief and Works Agency for Palestine Refugees in the Near East for example was able to present claims by the means of General Assembly resolutions,41 legal instruments the enactment of which is not sufficient to procure international legal personality. It would have to be considered that these claims come from the UN itself, which is hard to conceive of considering that these entities are independent of the Secretary-General.42 Reparation may take the form of official apologies, guarantees of non-repetition (especially if the international organization still has agents in the location), judgment of the guilty individual, indemnification which covers directly related costs (hospitalization, funerals, or indemnities for the persons in charge) as well as the sums that will be required to pay for contractual or statutory provisions that set out the working conditions of the agent.43 The principle is one of full reparation. On the other hand, the agent must be conscious of his obligations. This was recently recalled by the Court in obiter dictum, recalling that ‘all agents of the United Nations, in whatever official capacity they act, must take care not to exceed the scope of their functions, and should so comport themselves as to avoid claims against the United Nations’.44 What remains is the examination of the real efficiency of functional protection, which is often confronted by the problem of sanctions. Where a State does not cooperate or does not comply, the only solution is to suspend his participation rights or voting rights, or even to expel it from the organization. If the State is not a member, the organization could possibly resort to the general rules on State responsibility.45 (ii) The concurrent implementation of diplomatic protection and functional protection Difficulties appear particularly where there is concurrent implementation of diplomatic protection and functional protection. Where both diplomatic and functional protection are implemented simultaneously, consultation with the victim’s State of nationality becomes essential in order to avoid a State being the object of several concurrent claims. (p. 1082) Whose claim takes priority in such a situation? Some consider that priority must be given 46

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to the claim of the international organization46 or that the issue must be resolved by the organization itself.47 The ICJ, albeit aware of the problem, has not provided a general solution. In stating that ‘[i]n such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the State or the Organization to refrain from bringing an international claim’,48 it contented itself to appealing to the ‘goodwill and common sense’ of States, which are invited to settle potential conflicts by means of treaties or international agreements.49 In consequence, some treaties set out and regulate the potential concurrence of the two mechanisms: this is for example the case with article IX of the Convention on the International Liability for Damage Caused by Space Objects of 29 March 1972.50 Some cases have demonstrated that this is not a purely academic problem. One example is Belov, who was a functionary of the United Nations of Soviet nationality who, according to the USSR, was subjected to ill treatment by the American authorities. By lodging a complaint with the Committee of Relations with the host country, the Soviet Union intended to exercise diplomatic protection. Because of this act it clashed with the American position, which was in favour of intervention by the Secretary-General, and thus an activation of functional protection.51 Particularly delicate problems arise when the State to which the organization makes the complaint is the victim’s State of nationality. Expressly accepted by the ICJ in its opinion of 1949,52 this constitutes the most innovative aspect of the functional protection mechanism, while part of the doctrine considers it to be in contradiction with the traditional rules of diplomatic protection.53 Nevertheless, the ICJ took care to distinguish the situations, refusing to liken this issue to that of the diplomatic protection of individuals who have both the nationality of the claimant and the defendant State. According to the Court: The action of the Organization is in fact based not upon the nationality of the victim but upon his status as agent of the Organization. Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim.54 Despite the judges’ caution, the implementation of functional protection has turned out to be most difficult in this situation, especially where the international agent is detained in his or her country of nationality. The Alicja Wesolowska case is englightening in this regard:

References (p. 1083) being a functionary of the UN, this Polish national was arrested and imprisoned in Poland in 1979. The UN’s claim and attempts to obtain a right to visit failed because the Polish State refused to cooperate.55 If it is true that the concept of functional protection itself has caused ‘hardly any problems’56 since 1949, it could in future be the subject of renewed interest, considering the increasing integration of international organizations. As for the European Union, article 20 of the Treaty Establishing the European Community states that all citizens shall ‘in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State’. Even though the implementation of this provision has only emerged into simple consular protection,57 its insertion into European citizenship shows a will to exceed the framework of functional protection which traditionally limits the study of international organizations. Furthermore, even though the intergovernmental character of international military cooperation remains clearly with the Union and NATO, the unification of the chain of command on a structural level, as well as the existence of the organization’s own normative competences, allow us to envisage, in time, the transformation of the quasi-exclusive relationship between the military, which is acting in a multinational operation, and the sending State, in favour of a statutory protection which is assured 58

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by the organization directing the operation.58 Further reading E David, ‘L’avis de la CIJ du 15 décembre 1989 sur l’applicabilité de la section 22 de l’article VI de la Convention sur les privilèges et immunités des Nations Unies (affaire Mazilu)’ (1989) 35 AFDI 298 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des cours 323 MJL Hardy, ‘Claims by International Organizations in Respect of Injuries to Their Agents’ (1961) 37 BYIL516 T Meron, ‘Status and Independence of the International Civil Servant’ (1980-II) 167 Recueil des cours 285 C Parry, ‘Some Considerations Upon the Protection of Individuals in International Law’ (1956II) 90 Recueil des cours 653

References (p. 1084) M Perez Gonzalez, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92 RGDIP 63 D Ruzié, ‘L’avis consultatif de la CIJ du 29 avril 1999 sur la demande du Conseil économique et social des Nations Unies’ (2000) 104 RGDIP 667 D Ruzié, ‘La sécurité du personnel des Nations Unies recruté sur le plan local’ (1999) 126 JDI 437 D Ruzié, ‘L’avis consultatif de la C.I.J. du 15 décembre 1989 sur la demande du Conseil économique et social des Nations Unies (L’affaire Mazilu)’ (1990) 117 JDI 365 SFDI, Les agents internationaux, Actes du Colloque d’Aix-en-Provence, 24–26 May 1984 (Paris, Pedone, 1985)

Footnotes: 1 Dictionnaire de la terminologie du droit international (Paris, Sirey, 1960), 485. 2 R-J Dupuy, ‘Etat et organisation internationale’, in R-J Dupuy (ed), Manuel sur les organisations internationales—A Handbook on International Organizations (Dordrecht, Martinus Nijhof Publishers, 1998), 13 , 22. 3 See GA Res 258(III), 3 December 1948. 4 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174. 5 Ibid, 179. 6 P-M Dupuy, Droit international public (Paris, Dalloz, 2006), 184 (para 164). 7 See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 182. 8 See J Combacau & S Sur, Droit international public (Paris, Montchrestien, 2006), 712. 9 See D Ruzié, ‘La sécurité du personnel des Nations Unies recruté sur le plan local’ (1999) 126 JDI 437, 439; see also the ILO Administrative Tribunal, Jurado, Judgment No 70 of 11 September 1964, 40 ILR 296, analysed by J Lemoine, ‘Jurisprudence du Tribunal administratif de l’Organisation internationale du travail’ (1964) 10 AFDI 429, 450. 10 Cited by MJL Hardy, ‘Claims by International Organizations in Respect of Injuries to Their Agents’ (1961) 37 BYIL 516, 517. 11 GA Res 49/59, 17 February 1995.

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12 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des cours 323, 342. 13 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 183. 14 See D Ruzié, ‘La sécurité du personnel des Nations Unies recruté sur le plan local’ (1999) 126 JDI 437, 439–440; D Ruzié, ‘La protection des agents internationaux’, in SFDI, Les agents internationaux, Société française pour le droit international, Colloque d’Aix-en-Provence (Paris, Pedone, 1985), 281, 319. 15 See D Ruzié, ‘La sécurité du personnel des Nations Unies recruté sur le plan local’ (1999) 126 JDI 437, 438. 16 Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12. 17 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 1 74, 184. 18 Ibid, 182. 19 P-M Dupuy, Droit international public (Paris, Dalloz, 2006) 505 (para 479) (emphasis added); cf J Combacau and S Sur, Droit international public (Paris, Montchrestien, 2006), 712. 20 D Ruzié, ‘La protection des agents internationaux’, in SFDI, Les agents internationaux, Colloque of the SFDI d’Aix en Provence (Paris, Pedone, 1985) 281; see also Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, p 177. 21 Reports of the Secretary General, 20 October 1983, A/C.5/38/17 and 4 November 1981, A/C.5/36 /31. 22 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 88 (para 66). 23 Ibid, 84 (para 50). 24 UNAT judgment no 759, cited by D Ruzié, ‘La sécurité du personnel des Nations Unies recruté sur le plan local’ (1999) 126 JDI 437, 439 fn 17. 25 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des cours 351. 26 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 177. 27 A Pellet & D Ruzié, Les fonctionnaires internationaux, Que sais-je? (Paris, PUF, 1993), 10. 28 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, p 177. 29 Ibid, 194 (para 47). 30 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 84. 31 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 182. 32 T Meron, ‘Status and Independence of the International Civil Servant’ (1980-II) 167 Recueil des cours 285, 332. 33 UNAT, Hoppenbrouwer, Judgment No 259 of 6 November 1980. 34 ILO Administrative Tribunal, Jurado, Judgment No 70, 11 September 1964, 40 ILR 296; see T Meron, ‘Status and Independence of the International Civil Servant’ (1980-II) 167 Recueil des cours 285, 335 and J Lemoine, ‘Jurisprudence du Tribunal administratif de l’Organisation internationale du travail’(1964) 10 AFDI 429, 453. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

35 Report of the Secretary General, 23 August 1949, 4th Session of the General Assembly, A/955. 36 GA Res 365(IV), 1 December 1949. 37 T Meron, ‘Status and Independence of the International Civil Servant’ (1980-II) 167 Recueil des cours 285, 333; see also P Tavernier, ‘La sûreté et la sécurité personnelles des agents internationaux’, in SFDI, Les agents internationaux, Colloque de la SFDI d’Aix en Provence (Paris, Pedone, 1985), 325, 345. 38 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 81. 39 T Meron, ‘Status and Independence of the International Civil Servant’ (1980-II) 167 Recueil des cours 285, 337; D Ruzié, ‘L’avis consultatif de la CIJ du 29 avril 1999 sur la demande du Conseil économique et social des Nations Unies’ (2000) 104 RGDIP 667, 67. 40 P-M Dupuy, Droit international public (Paris, Dalloz, 2006), 188 (para 167). 41 Report of the Director of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, A/3212, supplement no 14, annex G (para 17). 42 MJL Hardy, ‘Claims by International Organizations in Respect of Injuries to Their Agents’ (1961) 37 BYIL 516, 525. 43 In this sense, ibid, 524. 44 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 89. 45 A Cassese, International Law (New York, OUP, 2005), 140. 46 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des cours 318, 361. 47 M Perez Gonzalez, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92 RGDIP 63, 75. 48 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 185. 49 Ibid, 186. 50 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187. 51 P Tavernier, ‘L’année des Nations Unies’ (1972) 18 AFDI 520. 52 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 186. 53 R Donner, The Regulation of Nationality in International Law (Irvington on Hudson, New York, Transnational Publishers, 1994), 433. 54 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 186. 55 For a more detailed account of this case, see T Meron, ‘Status and Independence of the International Civil Servant’ (1980-II) 167 Recueil des cours 285, 336; see also P Tavernier, ‘La sûreté et la sécurité personnelles des agents internationaux’, in SFDI, Les agents internationaux, Colloque de la S.F.D.I. d’Aix en Provence (Paris, Pedone, 1985), 325, 326. 56 P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (Brussels, Bruylant, 1998), 5. 57 Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations, No 95/553/CE, OJ L 314, 28.December 1995, 73.

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58 As for the current state of international military cooperation and the protection of servicemen on mission, see P Daillier, ‘Les opérations multinationales consécutives à des conflits armés en vue du rétablissement de la paix’ (2005) 314 Recueil des cours 237; A Mendras, ‘La protection juridique du militaire, mis en cause et victims’, in Droit pénal et Défense, Colloquium organized by the Ministry of Defence, 27–28 March 2001, Paris, 2001, 83.

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Part V The Implementation of International Responsibility, Ch.75 The Diplomatic Channel Michael Waibel From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Compensation — Negotiations and consultation — International courts and tribunals, procedure — International Court of Justice (ICJ)

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(p. 1085) Chapter 75 The Diplomatic Channel 1 The character and conduct of negotiations 1086 (a) Characteristics of negotiations 1087 (b) The advantages and disadvantages of negotiations 1090 (c) The role of international law in negotiations 1091 2 When States negotiate 1092 (a) Duties to negotiate 1092 (b) The relationship of negotiations to other means of dispute resolution 1094 3 The link between negotiations and State responsibility 1095 (a) Negotiating compensation 1095 (b) The effect of negotiations on State responsibility 1096 3 Conclusion 1096 Further reading 1097 Only a small subset of international disputes ever reaches international courts and tribunals. Despite the growing prominence of judicial and arbitral proceedings, adjudication is just the tip of the iceberg. Diplomacy still reigns supreme in settling international disputes, especially when confidentiality and flexibility are important. To this day, negotiations remain the predominant tool for managing and settling international disputes.1 Indeed this is probably more the case than ever, especially with the rise of international organizations and multilateral co-operation. The post-World War II period has been called ‘an age of negotiations’.2 Disputes associated with the most difficult issues of the day, ranging from war and peace, to nuclear disarmament, economic dislocations, and global warming, are by and large addressed by negotiation, rather than adjudication.

References (p. 1086) What explains the prevalence of negotiations in international relations? Beyond the natural advantages of negotiation that this Chapter explores, a chief reason for its popularity is the absence of compulsory dispute settlement procedures in international law and broad immunity that states enjoy for their sovereign acts. The lack of a general method or forum for enforcing obligations under international law increases their attractiveness of negotiations in relative terms. Given the importance of negotiations in international relations, the dearth of literature on the subject is surprising.3 The International Court in the North Sea Continental Shelf Case highlighted the ‘fundamental character’ and universal acceptance of ‘the direct and friendly settlement of … disputes between parties’.4 States select the dispute settlement procedure based on the strength of their legal, policy, and negotiating position, and according to which will yield the best result for them. In many cases, negotiations turn out to be the preferred method. Collier and Lowe emphasize this point: ‘recourse to legal processes for the adjustment of conflicts and settlement of disputes is optional … Law is chosen as the framework within which to resolve disputes when it is advantageous to use that framework’.5 The Chapter proceeds as follows. Section 1 explains the use and characteristics of negotiations as a tool to manage and settle disputes in international affairs. Section 2 explores what happens when States negotiate, with a focus on potential duties to negotiate and the relationship of negotiations to

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other dispute settlement procedures. Section 3 sets out the link and effects of negotiated settlements with state responsibility claims. Section 4 concludes.

1 The character and conduct of negotiations Negotiation is the most important function and chief tool of peaceful diplomacy.6 The terms negotiation and diplomacy are sometimes even used synonymously.7 The starting point for most negotiations is a concrete disagreement on law, fact or policy concerning rights or interests.8 Negotiation may be defined as ‘a process in which divergent values are combined into an agreed decision’,9 whereas diplomacy is an ‘essentially political activity’ whose ‘chief purpose is to enable states to secure the objectives of their foreign policies

References (p. 1087) without resort to force, propaganda, or law’.10 Negotiations thus defined refer to the process by which States combine divergent values into agreed decisions. In many disputes, negotiations are the only means to settle disputes that the parties employ. But negotiations play an important role in other methods of dispute settlement as well.11 Such negotiations may lead to a negotiated agreement that forms the basis for another form of dispute settlement. Negotiations here help focus the points of concrete disagreement to render them justiciable in adjudication or conciliation. They set the terms for inquiries, lead to the conclusion of a compromissory clause for judicial settlement or arbitration, establish the modalities for the execution of a decision, or precede diplomatic protection. The term consultation, also known as preventive negotiation, refers to a subset of negotiations, namely those negotiations before a dispute has even arisen.12 The most wellknown, mandatory consultation procedure in modern international law is the WTO Dispute Settlement Understanding. Article 3(3) of the DSU provides that on request parties ‘shall enter into consultations in good faith within a period of no more than 30 days after the date of the receipt of the request’. According to article 3(7), if such consultations fail, the establishment of a panel may be requested. With consultations, the parties to a potential disputes adjust their policy and accommodate the other party’s interests in advance, before any harm has even occurred. Early warning procedures can greatly reduce diplomatic frictions. Policies are modified at decision-making stage, which is typically less costly than modifications after implementation has started. For instance, this approach is widely used in anti-trust matters and underpins a policy of co-operation between regulators in cross-border cases.

(a) Characteristics of negotiations Negotiations come in many different forms. They may involve sizeable delegations meeting with strict diplomatic protocol, an informal meal, a hallway conversation or a joint commission. A modern example is the High-Level Technical Group established by Argentina and Uruguay to settle their dispute on pulp mills.13 Negotiations do not require a table.14 They can take place in almost any setting, even without direct lines of communication between the parties. Other negotiations are conducted in international organizations or at large conferences under public scrutiny. The advantage of such negotiations is that third

References (p. 1088) parties may help the disputing parties to settle their dispute. In such cases, the boundary with other methods of dispute settlement becomes blurred. Third parties can, for instance, merely mediate or open up a channel of communications where none existed before.

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Mediation and negotiation are often combined into a single process, especially in the context of peace negotiations.15 An interesting example of such a hybrid mechanism is the Israel-Lebanon Monitoring Group, a novel form of negotiation-cum-mediation. The Group was established in 1996 to monitor the implementation of four understandings on appropriate behaviour in the low-intensity armed conflict in Southern Lebanon. According to paragraph 3.E. of the Group’s Protocol on the Working Rules, the five parties—Lebanon, Syria, Israel, United States, and France—negotiate reports for non-compliance with the four undertakings. These may be adopted by unanimity, or if no consensus is reached, referred to the Foreign Ministers for follow-up.16 The actors in international negotiations vary. Foreign ministries are often heavily involved. But so are technical experts from various governmental departments. Negotiators often come from different levels or parts of government. Lower-level civil servants may reach a draft or framework agreement, before such draft is sent to their political superiors for approval. If departments are unable to reach agreement, the dispute may be referred to the heads of govern ment or heads of State to overcome the impasse, for instance at a summit meeting. Negotiations at summits have a number of advantages and drawbacks. Leaders may gain political capital by reaching agreements that their bureaucracies failed to resolve, even if in reality civil servants worked out many details in advance. As Merrills rightly notes, ‘summit diplomacy is usually the culmination of a great deal of conventional negotiation’.17 Good personal relations between leaders may give rise to out-of-the-box solutions and thereby help overcome deadlock. Conversely, their high visibility may create exaggerated expectations.18 Game theory offers much insight on international negotiations.19 Negotiations require at least some overlapping of interests between the parties, for otherwise there is nothing to negotiate about.20 This overlapping creates what the negotiation literature calls a Zone of Possible Agreement (ZOPA). How much value parties attach to the start and successful conclusion of negotiations is shaped by their respective Best Alternative to a Negotiated Agreement (BATNA) and the Worst Alternative to a Negotiated Agreement (WATNA). States are typically repeat players in international negotiations, and therefore concerned about their reputation as negotiators and their perceived trustworthiness. They rarely play one-shot games, but are concerned about the effect of any negotiation for their future ability to negotiate to achieve their interests. For instance, the terms and conditions for

References (p. 1089) accepting or rejecting an agreement in any given negotiation affect the government’s future bargaining strength.21 They may also set a disadvantageous precedent. Negotiations may be either zero sum or non-zero sum. With zero sum games, one side wins, the other loses. These negotiations distribute a fixed sum. The better the bargain for one party, the less the other party receives. In non-zero sum games, the efficiency aspect dominates. Cooperation through negotiation here lies in the joint interest of the parties, since they may implement mutually profitable adjustments. The parties may manage to convert a given negotiation from a zero sum game to a mutually beneficial game. One way of achieving this shift is by focusing on value creation. The negotiators can distribute this surplus among the parties.22 Various negotiation techniques may help to reach a settlement. Two separate disputes may be bundled together, or one dispute split into smaller piece. The slicing and dicing facilitates package deals acceptable to both sides (issue linkages). Negotiations on one important aspect may be brought to a conclusion, while leaving other sensitive issues open. Negotiations between Spain and the United Kingdom on Gibraltar focus on cooperation on a range of technical areas, leaving the question of sovereignty aside. To prevent any perception of unfairness, the less-favoured party may be given control over the agenda and the place of negotiations. There are several stages to the typical international negotiation.23 In the first stage—the so-called

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pre-negotiations—the parties agreeing on the need to negotiate. A major threshold is crossed when all the parties accept that a negotiated settlement is a better way forward. Preconditions may stand in the way. For instance, Syria’s established policy was not to negotiate with Israel on Lebanon until the return of the Golan Heights. In some cases, a government may not be prepared to negotiate with governments of a certain ideological slant.24 In the second phase, when the negotiation process is typically the most fragile, the parties agree on the agenda, which often incorporates implicit deals. Parties sometimes agree on broad principles for settlement, such as the ‘land for peace’ formula or one ‘one country, two systems’.25 They also set the procedure for negotiations, in particular the format, venue, level and composition of delegations as well as the timing. A record of hostility or reluctance to compromise with the other side will often insulate the negotiator from the charge of not defending the national interest. The actual negotiations are the third stage. A good example was the early negotiations on European integration. The details stage consists of resolving any disagreement within the broad negotiating terms agreed to earlier. The parties need to agree on common language, as a particular term may advantage one side. This exercise is often time-consuming (p. 1090) and requires the participation of specialists. Step-by-step negotiations may offer a useful way forward when there is a lot of mistrust or many contentious or far-reaching points that require discussion.

(b) The advantages and disadvantages of negotiations The revealed preference for negotiation in international dispute settlement points to a number of distinct advantages of this method of resolving disputes. First, the diplomatic channel is the most flexible method. For any given dispute, negotiations may be adapted to the parties’ preferences, needs, and desired outcomes. Negotiations can thus be tailored to the dispute in question, the specific issues that arise in its resolution and the likely solutions. As a result of such individualization, negotiations are typically more efficient than any other methods of dispute settlement. A solution may be reached more quickly, and under the conditions and guidelines set by the parties alone. These factors increase the legitimacy and trust of the parties in the process. A second major advantage of negotiations is that the parties they retain complete control, unlike when referring a dispute to an international court or arbitral tribunal. The loss of control involved in adjudication explains why States devote so much attention to the threshold of moving from negotiation to adjudication. With negotiations, States do not run the risk of an adverse outcome from an impartial body. To the contrary, they can end the negotiations at any time, provided they bear the consequences of such termination. In negotiations, third party involvement is extremely limited, or indeed often non-existent. Diplomacy has become gradually more public over the course of the 20th century, a development with significant implications for the conduct of negotiations. The increasing openness of the negotiating process presents its own challenges. Negotiators need to pay greater head to public concerns. Domestic political considerations often constrain the negotiator’s room for manoeuvre.26 When domestic pressures not to give any ground are strong an impasse may result. In these circumstances, the submission to an international court or tribunal may offer a way out. When the government commits to resolving a dispute through an impartial tribunal, advances the best legal arguments it can muster and still loses the case, then domestic constituencies may more readily accept the need for changing course. Some features of negotiations offer advantages in some scenarios, but not in other disputes. Negotiators typically like to follow well-trodden paths. This inherent conservatism gives much weight to precedents derived from past negotiations. A party that wishes to change the status quo in a substantial way may thus bear a heavy burden of persuasion, especially when negotiations take a previously negotiated text as a starting point. Relying on precedents often saves considerable amount of time and is easier to ‘sell’ at home. Constructive ambiguity can help

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overcome impasse, but also simply postpone the fundamental source of the dispute to a later time. Negotiations may encounter a range of problems, even before they have started. In boundary disputes, the party in possession of a disputed territory has a much stronger negotiating position, and may not see a need to negotiate. Gibraltar may offer a good example. The parties may fail to agree on the agenda for negotiations. Such disagreements (p. 1091) often reflect deeper substantive disagreements. The terms of agreement will frequently reflect not the merits of each party’s case, but their relative power. A party with a weaker negotiation position may thus refuse to negotiate. Failed negotiations may give rise to bitterness, and complicate further dispute resolution.27 Successful negotiations often occur in the following circumstances: a set of common interests among the parties, prior identification of possible solutions, however distant; both parties suffer large costs without negotiations; broad domestic support for negotiations; and considerable scope for issue linkages and trade-offs between the parties.28 Such linkages may of course not be acknowledged in the final agreement, especially if such acknowledgment would inconvenience one party. This could be the case, for instance, when that party insisted in the past that it would refuse such linkage. Most diplomatic settlements of disputes come about in a piecemeal fashion. Agreed parts serve as elements of an overall agreement, and thereby facilitate negotiation. Parties reciprocate concessions or return favours as a sign of negotiating in good faith. Dealing with emotions, at a personal and agency level, is also essential.29 Emotions often become involved in international negotiations. If not successfully managed, they do more harm than good, in particular when they sow distrust. Trust is of cardinal importance for fruitful negotiations.

(c) The role of international law in negotiations The flip side of negotiation’s innate flexibility is that international law may play only a subordinate role. This explains why this Chapter has thus far focused largely on non-legal aspects. The importance of international law in diplomacy is disputed. One school posits that international law plays only second fiddle, helpful perhaps as a common language or for public appearance.30 In this view, the role of the international lawyer in negotiations consists mainly in providing his client with legal arguments that bolster the legitimacy of claims or to garner third-party support for one’s own positions in the international community. A lawyer may also be tasked with preventing that a specific legal argument becomes a boomerang in the future. But in essence, the role of law of is tightly circumscribed. A second school believes that that international law plays a much more central role in inter-State negotiations.31 The first reason is that legitimacy and lawful authority are key components of political power.32 The second is that the law provides a backstop to negotiations, independent of its dispositive character. The parties may thus depart from any legal (p. 1092) rules that bind them. But negotiations still occur in the shadow of law. Nevertheless, even in this view, law is only one determinant of the outcome of the negotiations. Other factors, such as commercial relations, negotiation skill and issue linkages all come into play. Parties to negotiations often wish to prevent that any concessions or statement offered in the context of confidential negotiations affect the outcome in a subsequent adjudication. One way of achieving this goal is found in article 5 of the Special Agreement between the United States and Canada in the Gulf of Maine case: Neither party shall introduce into evidence or argument, or publicly disclose in any manner, the nature or contents of proposals directed to maritime boundaries settlement, or responses, thereto, in the course of negotiations or discussions between the parties undertaken in 1969.33 The absence of such a provision is likely to temper the parties’ willingness to offer concessions in

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the preceding negotiations.

2 When States negotiate (a) Duties to negotiate Article 2(4) of the UN Charter obliges States to ‘settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. This provision is not limited to the class of disputes that threaten international peace and security. All international disputes are covered. Unlike article 33, article 2(4) refers to justice as well. These differences result from the central role which the Charter vests in the Security Council in settling international disputes. According to article 33(2), the Security Council may call upon parties to settle their disputes by such means. As a general rule, States retain the discretion of which dispute settlement method to use. The UN Charter bars only the use of force. Article 33 of the UN Charter specifies a range of peaceful methods to settle those international disputes whose continuance threatens international peace and security: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, or any other peaceful method of their choice. There is no order of priority in these means.34 The choice among the various methods of peacefully settling disputes is up to the disputing States. The General Assembly has the power to recommend a means of settling a dispute. Section II, paragraph 3(a) of the Manila Declaration on the Peaceful Settlement of Disputes provides that the General Assembly may: discuss any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations and, subject to Article 12 of the Charter [the Security Council exercising its functions under the Charter], recommend measures for its peaceful settlement. The General Assembly most frequently recommends negotiations as means of settling disputes.35

References (p. 1093) The guiding principle is thus the parties’ freedom of choice with respect to the choice of dispute settlement procedure, in line with foundational principle of consent in international law. Generally speaking, the parties may also decide not to negotiate, though this statement might require some qualification in light of the ICJ’s case law. In the North Sea Continental Shelf and the Fisheries Jurisdiction cases, the ICJ came close to enunciating a general obligation to negotiate in good faith. The source of the obligation to negotiate might derive from general international law, rather than from specific treaty obligations undertaken by the parties.36 Notwithstanding the general rule, duties to negotiate are founds in treaties, often coupled with reference to good faith.37 States are then required to negotiate towards concluding an agreement.38 In these circumstances, failure to live up to the duty to negotiate engages the State’s responsibility, including the potential use of countermeasures by the injured State. Such failure can also consist in the unjustified breaking off of negotiations or the systematic disregard for agreed procedures.39 Provided a State has assumed a treaty obligation to negotiate in good faith, active conduct of the negotiations with some readiness for compromise is required. In the North Sea Continental Shelf case the Court stated: The parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation or a sort of prior

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condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either them insists upon its own position without contemplating any modification of it.40 In the Fisheries Jurisdiction case, the ICJ similarly exhorted parties to ‘conduct their negotiations on the basis that each must in good faith pay reasonable regard to the legal right of the other’.41

References

(p. 1094) (b) The relationship of negotiations to other means of dispute resolution A dispute may be referred to adjudication even in the absence of any prior diplomatic contact.42 However, it will rarely be sound policy to bring international claims without any prior attempt to settle the dispute through negotiations. As a general rule, international law does not require the exhaustion of diplomatic remedies before using another dispute settlement procedure.43 Some treaties, however, require negotiations before bringing an international claim,44 or condition the admissibility of a claim on the failure of negotiations.45 But negotiations do not generally preclude other methods of dispute settlement.46 In the Diplomatic Staff in Tehran case, one instrument gave the ICJ jurisdiction over disputes ‘not satisfactorily adjusted by diplomacy’.47 The Court found that Iran’s refusal to negotiate could not affect its jurisdiction. Dilatory tactics to delay legal proceedings by one State are no bar to the exercise of jurisdiction. More difficult questions arise when negotiations have taken place, but failed. A good way of avoiding this problem is to include a specific time-limit for negotiations in the jurisdictional clause. When negotiations run parallel to other methods of dispute settlement, is the judge bound to defer to the negotiator?48 The answer is no. Ongoing negotiations do not affect the competence of the tribunal. In the Aegean Sea Continental Shelf case, the Court rejected the notion that adjudication and negotiation may not proceed in parallel.49 The Genocide case likewise was heard while the parties simultaneously attempted to reach a settlement by negotiation, mediation and conciliation. The referral to the Court was just one element in a broad dispute resolution strategy that concurrently used other levers for possible

References (p. 1095) resolution. Further support for the view that simultaneous recourse to dispute settlement methods is possible is provided by a number of contentious cases that were discontinued after the parties reached a settlement while the Court considered the dispute.50 From a policy perspective, the simultaneous pursuit of various methods of dispute settlement maximizes the chances of peaceful settlement and is therefore desirable.

3 The link between negotiations and State responsibility (a) Negotiating compensation States often negotiate compensation or some other performance due for an internationally wrongful act (article 36 ARSIWA).51 The ILC Commentaries cite instances when compensation has been negotiated after wrongful attacks on ships or aircraft causing damage, injury or loss of life,52 damage or injury to personnel on diplomatic premises, and for environ mental damage. Such settlements rarely admit State responsibility, and are frequently on an ex gratia or without prejudice basis.53

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An undertaking to compensate assumed in diplomatic negotiations may, but need not reflect an underlying internationally wrongful act. States may assume responsibility by agreement for an injury or loss even in the absence of any international legal obligation, when the perceived gains of assuming responsibility outweigh the costs associated with a refusal. Nevertheless, the possibility of the injured State successfully invoking State responsibility in a binding dispute settlement procedure is an important factor in this calculus. Lump sum settlements provide a means to settle a large number of claims by individuals or corporations, sometimes only with token payments. The settlement agreement provides for payment of a global sum by the injuring State, and sometimes sets out a process, eligibility requirements and standards for distribution to individual claimants.54 The amount available for distribution to those injured may differ substantially from their damage. Particularly well-known examples of lump-sum agreements are the Holocaust settlements with Germany and Austria.55 Many agreements negotiated between States do not take binding form. States use a range of means to record the results of negotiations, such as administrative agreements, press communiqués, joint statements or executive agreements.56 There are several advantages of these types of agreements: they may be concluded by those whose treaty making

References (p. 1096) power may be in doubt; they can be concluded more quickly; at the domestic level, no ratification is necessary, and hence a meeting of the minds between the two executives suffices.

(b) The effect of negotiations on State responsibility A valid settlement of the dispute with prejudice (‘a full and final settlement’) precludes any further claims for reparation.57 In return for any consideration received under the settlement, the injured State waives its right to any further claims against the responsible State. The scope of the waiver may vary. For example, it could be limited to the damage suffered by the government, leaving the possibility of claims by private individuals open. Such waiver needs to be clear and unequivocal.58 Negotiations may prevent lapse. An international claim may lapse by a combination of passage of time and the conduct of the injured State. According to article 45 ARSIWA, State responsibility may no longer be invoked if the injured State, ‘by reason of its conduct, validly acquiesced in the lapse of the claim’. An application may become inadmissible by passage of time.59 There is no precise time limit for lapse.60 Bilateral negotiations on the claims concerned are sufficient to put the respondent State on notice of eventual legal proceedings.61 As a general rule, therefore, negotiations prevent lapse of the claim. Before resorting to countermeasures, States are under an obligation to negotiate. In practice, extensive negotiations typically precede the adoption of countermeasures.62 According to article 52(b) ARSIWA, any injured State shall inform the injuring State of its decision to take countermeasures and offer negotiations, except when urgent countermeasures are necessary to preserve its rights under paragraph (c). These two procedural conditions constrain countermeasures, a form of self-help.63 Countermeasures must cease once the parties have referred the dispute to a court or tribunal with authority to decide with binding effect (article 52(3) (b)). Conversely, countermeasures may lawfully be adopted while negotiations continue, provided the injured State has complied with the two procedural safeguards above, though their imposition will rarely create a positive atmosphere for negotiations.

3 Conclusion Negotiations are omnipresent in international relations. As this chapter explained, States negotiate to settle disputes on almost any conceivable subject, in many different settings and forms. They negotiate about detentions of their nationals, the safety of nuclear power plants, reductions in From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

carbon emissions, and impairment of foreign investment. Even concepts that are not used to describe as negotiations may fall under that heading. In the early days of international law, treaties resembled a ‘negotiation process’ that

References (p. 1097) encouraged adherence to the undertaking more than as a positive legal commitment.64 Self-determination may be thought of as the right of marginalized minorities to negotiate with their governments.65 For all the advantages of negotiations, in some cases judicial settlement or arbitration may offer better chances for just outcomes that stand the test of time. In the political reality of unequal power that characterizes the international community of states, political and economic levers may favour larger States in negotiations. Alas, the advice given by Elihu Root to James Brown Scott, his legal advisor at the State Department, is not always heeded in the practice of States: ‘We must always be careful, and especially so in our relations with the smaller states, that we never propose a settlement which we would not be willing to accept if the situation were reversed.’66 Hans Blix best captures the essence of this downside of negotiations: ‘Nowhere is the juridical principle of equality of states better respected than in an international tribunal.’67 No general answer may be given to the question when negotiations are desirable for the parties to a dispute. Much depends on the circumstances of each dispute. Factors to consider include the relative bargaining strength of the parties, the issue in question, the strength of the respective legal positions, domestic political pressures, and the future relations between the contesting parties. As the parties retain complete control over the process, compliance with voluntary undertakings assumed in negotiations is generally high. Whenever negotiations are successfully used, they are probably the most effective and least costly way of settling international disputes. Further reading G Berridge, Diplomacy: Theory and Practice (3rd edn, New York, Palgrave Macmillan, 2005) JG Collier and AV Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford, OUP, 1999) K Hakapää, ‘Negotiation’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn, Oxford University Press, 2008) FC Iklé, How Nations Negotiate (New York, Harper & Row, 1964) SMG Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation (The Hague, TMC Asser, 2008) JW Salacuse, The Global Negotiator: Making, Managing and Mending Deals Around the World in the Twenty-First Century (New York, Palgrave Macmillan, 2003)(p. 1098)

Footnotes: 1 JG Collier & AV Lowe, The settlement of disputes in international law: institutions and procedures (Oxford, OUP, 1999), 20; Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 11–15 (negotiation as the chief method by which States settle disputes and define the subject-matter of claims); JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 2 (‘the principal means of handling all international disputes … negotiation is employed more frequently than all the other methods put together’); United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 10; MN Shaw, International law (6th edn, Cambridge, CUP, 2008), 918. 2 IW Zartman & MR Berman, The practical negotiator (New Haven, Yale University Press, 1982), 3; SMG Koopmans, Diplomatic dispute settlement: the use of inter-state conciliation (The Hague, TMC Asser, 2008), 22 (‘the diplomatic method par excellence’); I Brownlie, ‘Why do States Take Disputes to the International Court?’, in N Ando and others (eds), Liber Amicorum Judge Shigeru From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

Oda (Leiden, Brill, 2002), 829; JW Salacuse, The Global Negotiator: Making, Managing and Mending Deals Around the World in the Twenty-First Century (New York, Palgrave Macmillan, 2003). 3 SMG Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation (The Hague, TMC Asser, 2008), 22 attributes this to the fact that ‘international negotiations can cover everything’, and cites the General Assembly’s unsuccessful attempt to draw up general guidelines for negotiation, GA Res 55/101 (1999) (with further references in note 69). 4 North Sea Continental Shelf, ICJ Reports 1969, p 3, 48–49 (para (88) (the delimitation of the continental shelf between neighbouring States must be effected by agreement with reference to equitable principles); Cf also Free Zones of Upper Savoy and the District of Gex, PCIJ Reports, Series A, No 22, p 4, 13 (‘Whereas the judicial settlement of international disputes … is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, as far as is compatible with its Statute, such direct and friendly settlement.’). 5 JG Collier & AV Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford, OUP, 1999), 3. 6 G Berridge, Diplomacy: Theory and Practice (3rd edn, New York, Palgrave Macmillan, 2005), 27. Before the 20th century, gunboat diplomacy was notorious: note the contradiction in terms. 7 Revised General Act for the Pacific Settlement of Disputes, adopted by the UNGA on 28 April 1949, 71 UNTS 101; 1948 Charter of the Organization of American States, 119 UNTS 3, entered into force December 13, 1951 (‘through the usual diplomatic channels’). 8 Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 11–15. 9 IW Zartman & MR Berman, The Practical Negotiator (New Haven, Yale University Press, 1982), 1; see also K Hakapää, ‘Negotiation’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, online edn, 2008), para 1 (‘discussions at different levels of authority with a view to achieving a common understanding or agreement’ to develop international law or settle disputes). 10 Emphasis added. G Berridge, Diplomacy: Theory and Practice (3rd edn, New York, Palgrave Macmillan, 2005), 1 (recalling that Edmund Burke applied the label diplomacy to what was previously called ‘negotiation’, or ‘négociation continuelle’ by Cardinal Richelieu). 11 SMG Koopmans, Diplomatic Dispute Settlement: The Use of Inter-State Conciliation (The Hague, TMC Asser, 2008), 24. 12 JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 3; United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 10; Convention on succession of States in Respect of Treaties, art 41; 1983 Convention on the Succession of State Property, Archives and Debts, 8 April 1983, not yet entered into force, 22 ILM 306 (1983), art 42 both provide for ‘a process of consultation and negotiation’; art XI of the 1959 Antarctic Treaty, 402 UNTS 71, entered into force June 23, 1961; art 283 UNCLOS, 10 December 1982, 1833 UNTS 3 (exchange of views as a form of consultation). 13 ICJ Press Release 2006/17, 4 May 2006. 14 K Hakapää, ‘Negotiation’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn, Oxford University Press, 2008), para 2. 15 C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford, OUP, 2008), 176. 16 A Waldman, Arbitrating Armed Conflict: Decisions of the Israel-Lebanon Monitoring Group (Huntington, Juris, 2003); G Blum, Islands of Agreement: Managing Enduring Armed Rivalries (Cambridge, Harvard University Press, 2007), 190–241. For the text of the Understanding see Mideast Accord: Restricting the Violence in Lebanon, NY Times, Apr 27, 1996, A8.

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17 JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 10. 18 H Nicolson, The Evolution of Diplomatic Method (London, Constable, 1954), 89, offers a deeply sceptical view of summitry: ‘diplomacy by loud-speaker … do[es] much to diminish the utility of professional diplomatists and, in that they entail much publicity, many rumours, and wide speculation,—in that they tempt politicians to achieve quick, spectacular and often fictitious results, —they tend to promote rather than allay suspicion, and to create those very states of uncertainty which it is the purpose of good diplomatic method to prevent.’ See also AL Davérède, ‘Negotiations, Secret’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn, Oxford University Press, 2008). 19 Cf the classic TC Schelling, The Strategy of Conflict (Cambridge, Harvard University Press, 1960), 21. 20 FC Iklé, How Nations Negotiate (New York, Harper & Row, 1964), 2. 21 Ibid, 76. 22 RH Mnookin, SR Peppet, & AS Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Cambridge, Belknap Press, 2000), 1–43. 23 See G Berridge, Diplomacy: Theory and Practice (3rd edn, New York, Palgrave Macmillan, 2005), 29–87, for a concise general overview of negotiations (diplomacy), and its stages. 24 H Kissinger, Diplomacy (New York, Simon & Schuster, 1994), 756 contrasts the US and British attitude to negotiations with communist countries. ‘In its entire history, Great Britain had not often had the luxury of confining negotiations to friendly or ideologically compatible countries … Great Britain negotiated with ideological adversaries as a matter of course regarding practical arrangements relating to coexistence’. The wisdom of negotiating was almost universally accepted. The US, however, ‘wanted to change the Soviet system rather than negotiate with it’. 25 IW Zartman & MR Berman, The Practical Negotiator (New Haven, Yale University Press, 1982), 109–114. 26 Cf RD Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ (1988) 42 International Organization 427. 27 LN Rangarjan, The Limitation of Conflict: A Theory of Bargaining and Negotiation (London, 1985), 283. 28 C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford, OUP, 2008), 56–60. 29 IW Zartman & MR Berman, The Practical Negotiator (New Haven, Yale University Press, 1982), 27. 30 W Levi, Law and Politics in the International Society (Beverly Hills, Sage Publications, 1976), 187 (‘References to law are virtually absent in papers of statesmen responsible for the shaping of foreign policy … International law occurs as an afterthought, when for a number of reasons the formulation of policy decisions in legal language appears desirable before its public appearance.’); G Blum, Islands of Agreement: Managing Enduring Armed Rivalries (Cambridge, Harvard University Press, 2007), 43–44 (‘rules [of international law] are seldom useful in resolving disputes’, while acknowledging its ‘potentially powerful presence’ as ‘a basis for mutual dealings, in feeding divergent positions with a common formal language to borrow from and build on’). 31 R Sabel, ‘The Role of International Law in Negotiations Between States’ (2009) Justice 35; C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford, OUP, 2008), 298 (‘international norms forms the common language through which the [negotiation] process is conducted, even though different parties find the implications of that language to be different.’) 32 R Fisher, Points of Choice (Oxford, OUP, 1978), 12. 33 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), ICJ Reports 1984, p 246. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber: OUP - Marketing; date: 01 January 2015

34 K Hakapää, ‘Negotiation’, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn, Oxford University Press, 2008), para 25 (‘no preference’). 35 United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 12. 36 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, 48 (para 86) (the obligation to negotiate under the Special Agreement ‘merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in art 33 of the Charter of the United Nations’); Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3, 32 (para 74) (‘It is implicit in the concept of preferential rights that negotiations are required in order to define or delimit the extent of those rights … the obligation to negotiate thus flows from the very nature of the respective rights of the Parties’); United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 12; JG Collier and AV Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford, OUP, 1999), 22. 37 Eg art IX of the Canada-Poland BIT provides that disputes shall ‘to the extent possible, be settled amicably between both parties concerned [the host state and the investor]’; C Schreuer, ‘Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road’ (2004) 5(2) Journal of World Investment and Trade 231 has other examples taken from the investment arbitration context. Obligations to negotiate are also often in bilateral agreements for avoiding jurisdictional conflicts in antitrust matters. 38 Railway Traffic between Lithuania and Poland, 1931, PCIJ Reports, Series A/B, No 42, p 4, 116: (‘not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements’, although they are not obliged actually to reach agreement); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p 226, 264 (para 99) (exceptionally, the court held that art VI of the Treaty on Non-Proliferation is ‘an obligation to achieve a particular result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely the pursuit of negotiations on the matter in good faith’). 39 Lac Lanoux (France v Spain) (1957) 24 ILR 101, 127. Cf also art 41 of the 1978 Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946 UNTS 3. 40 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p 3, 47 (para 85(a)). 41 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, p 3, 33, (para 78). 42 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1985, p 192 (‘the manifestation of the existence of dispute in a specific manner, as for instance by diplomatic negotiations, is not required’, though perhaps desirable in many cases). United States Diplomatic Staff in Tehran. 43 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary Objections, ICJ Reports 1998, p 275, 302–303 (para 56); United Nations Handbook on the Peaceful Settlement of Disputes (New York, United Nations, 1992), 11. 44 UNCLOS, art 283; NATO Agreement, 4 April 1949, art 3, 34 UNTS 243. 45 Revised General Act for the Settlement of Disputes 1949; South West Africa, Preliminary Objections, ICJ Reports 1962, p 319 (objection that no proof adduced that the dispute incapable of being settled by negotiation). The PCIJ elaborated on the concept of failed negotiations in Mavrommatis (negotiations fail ‘if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation’). Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 13. See also South West Africa, Preliminary Objections, ICJ Reports 1962, p 319, 346.

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46 JG Collier & AV Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford, OUP, 1999), 20–21; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Jurisdiction and Admissibility, ICJ Reports 1984, p 392, 440; Aegean Sea Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29) (ongoing negotiations no impediment to the exercise of the court’s jurisdiction: ‘The jurisprudence of the court provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued pari passu … the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function’). 47 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3. The same formulation is also found in a number of bilateral investment treaties, such as art 13, Agreement between Japan and the Democratic Socialist Republic of Sri Lanka, 1 March 1982; cf also art XXI of the Friendship, Commerce and Navigation Treaty between Iran and the United States, at issue in Oil Platforms (Islamic Republic of Iran v United States of America), ICJ Reports 2003, p 161. 48 JG Merrills, International Dispute Settlement (4th edn, Cambridge, CUP, 2005), 21–22. 49 Aegean Sea Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29) (‘the fact that negotiations are being actively pursued during the present proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function’). 50 Trial of Pakistani Prisoners of War (Pakistan v India), ICJ Reports 1973, p 347, referred to in Aegean Sea Continental Shelf, ICJ Reports 1978, p 3, 12 (para 29). 51 See also Commentary to art 36. 52 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order of 22 February 1996, ICJ Reports 1996, p 6 (case discontinued following settlement of dispute arising out of the destruction of an Iranian aircraft with 290 passengers and crew). 53 Commentary to art 36, para 12 (citing the US-China agreement for an ex gratia payment of US$4.5 million to families of the deceased and injury in the US bombing of the Chinese Embassy in Belgrade). 54 RB Lillich and BH Weston, International Claims: Their Settlement by Lump Sum Agreements (Charlottesville, University of Virginia Press, 1975); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China concerning the Settlement of Mutual Historical Property Claims, 5 June 1987, 1656 UNTS 77. 55 For details on the negotiations, see the fascinating account by S Eizenstat, Imperfect justice: looted assets, slave labor, and the unfinished business of World War II (New York, 2003). 56 J Klabbers, The Concept of Treaty in International Law (The Hague, Kluwer Law International, 1996), 100, goes so far calling ‘international agency law’ a third legal order. Cf Baxter’s ‘vast substructure of intergovernmental paper’, RR Baxter, ‘International Law in “Her Infinite Variety” ’ (1980) 29 ICLQ 549. 57 Commentary to art 45, para 1; see also C Tams, Chapter 72. 58 Commentary to art 45, para 3; Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240 (Nauru did not implicitly waive its rehabilitation claim, as negotiations ‘did not at any time effect a clear and unequivocal waiver’). 59 Ibid, 253 (in the circumstances, application admissible). 60 Commentary to art 45, para 9. 61 Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, ICJ Reports 1992, p 240, 250 (para 20). 62 Commentary to art 52, para 4.

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63 Ibid, para 1. 64 C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford, OUP, 2008), 89, (quoting Pruchta with reference to American Indian agreements from 1778 to 1905). 65 Ibid, 38. 66 (1937) 31 ASIL Proceedings 8. 67 H Blix, The Principle of the Peaceful Settlement of Disputes, in MK Nawaz (ed), The Legal Principles Governing Friendly Relations and Co-operation Among States in the Spirit of the United Nations Charter (Leiden, AW Sithoff, 1966), 60.

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Part V The Implementation of International Responsibility, Ch.76 Conciliation and Other Forms of Non-Binding Third Party Dispute Settlement Nadine Susani From: The Law of International Responsibility Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant) Content type: Book Content Series: Oxford Commentaries on International Law ISBN: 9780199296972

Product: Oxford Scholarly Authorities on International Law [OSAIL] Published in print: 20 May 2010

Subject(s): Responsibility of states — Reparations — Conciliation

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(p. 1099) Chapter 76 Conciliation and Other Forms of Non-Binding Third Party Dispute Settlement 1 Conciliation as a method of dispute resolution capable of addressing issues of international responsibility 1101 (a) A method designed to resolve any possible dispute 1101 (b) A far from common practice 1102 2 The weak relationship between conciliation and international responsibility 1102 (a) Conciliation as a forum for finding compromise solutions 1102 (b) The ambiguous role of the law in the conciliation procedure 1103 Further reading 1104 The choice of a method of dispute resolution has important consequences for both the kind of outcome and the place that States accord to law in international relations. A judicial process would appear to be the ideal tool for establishing in an impartial fashion when a State’s responsibility is engaged and to ensure respect for the law. The continued performance of the obligation breached1 is one of the essential objectives of international responsibility, alongside the more traditional objectives of reparation.2 But recourse to a judge is far from being the exclusive mechanism for dispute resolution. It is ‘simply an alternative to the direct and friendly settlement of disputes between the Parties’.3 Other procedures which have non-binding results provide for the intervention of a third party when negotiations have reached an impasse: these include inquiry, good offices, mediation and conciliation. It remains to be seen whether these procedures permit a determination that a State has failed to meet its international obligations to the extent that another State can meaningfully invoke its international responsibility. The role of third parties in non-judicial procedures for dispute resolution varies according to the circumstances of the case and the wishes of the parties. Someone offering their good offices will see that mission accomplished when the parties renew negotiations. The mediator’s job is to provide an informal solution, sometimes only temporary (like a ceasefire), on

References (p. 1100) the basis of the parties’ own negotiations.4 These two methods, frequently used in the case of humanitarian emergency or armed conflict, are principally designed to put a stop to the conflict, irrespective of ultimate questions of causality. They will seek to resolve a standing dispute without necessarily resolving any questions of international responsibility. By contrast, recourse to an inquiry is designed to ‘facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation’.5 An inquiry can therefore resolve problems of international responsibility. In certain exceptional cases, the parties have accepted the conclusions of the report of a commission of inquiry, thus resolving the dispute.6 Conciliation is a more sophisticated method for dispute resolution which began to be used in the inter-war period. It has been defined as: the intervention in the resolution of a dispute of an organ, without its own political authority, enjoying the confidence of the parties, given the task of examining all aspects of the dispute and of proposing a solution which is not binding on the parties.7 Inspired by other procedures such as mediation and inquiry, conciliation has the popular characteristic aspect of being flexible. The parties have control of the procedure and even of the

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result, since it is entirely optional. They establish the task of the conciliation commission, which is classically ‘to elucidate the questions in dispute, to collect with that object all necessary information by means of enquiry or otherwise, and to endeavour to bring the parties to an agreement’.8 The methods used to carry out this task vary according to the wishes of the parties and the subject matter of the dispute. Rolin suggests, to this end, that ‘the task of conciliation is infinitely variable and always delicate’.9 The variability and delicacy of the conciliator’s task has led some to question the utility of the procedure for the resolution of disputes. Is it just an extension of negotiations, designed to bring together the different parties to a conflict,10 or is it a quasi-legal mechanism designed to resolve a legal problem and establish the respective responsibilities of the States which are party to a dispute? The question needs to be looked at afresh in light of the modern use of conciliation. What drives States to choose such a method of dispute resolution? Is it motivated by the desire to defuse a crisis, to obtain ex gratia reparation for harm suffered, or to address the responsibility of another State? Can conciliation be considered an effective procedure for giving effect to obligations in the field of responsibility? Conciliation appears to be a method of dispute resolution which does not exclude questions of responsibility (Section 1). However, its interest in realizing this objective is secondary: with its emphasis on compromise, and its tendency to accord an uncertain

References (p. 1101) role to the application of the law, conciliation does not seem well-adapted to the needs of the international community. This explains why States prefer to turn to judicial processes which are more apt to produce a definitive legal solution to disputes between States (Section 2).

1 Conciliation as a method of dispute resolution capable of addressing issues of international responsibility An analysis of the field of application of treaties providing for recourse to conciliation as a method of dispute resolution shows that conciliation allows the resolution, amongst other things, of disputes relating to international responsibility (subsection (a)), which is confirmed by sporadic practice (subsection (b)).

(a) A method designed to resolve any possible dispute Conciliation was originally intended to resolve non-legal disputes and, thus, not to resolve disputes relating to international responsibility. However only two recent texts have limited its field of application in this way.11 Today, conciliation, like all forms of dispute resolution, is liable to be used to resolve any type of legal dispute, including those involving responsibility. The inclusion of conciliation in a large number of bilateral and multilateral conventions shows the stock which is p