14 State responsibility State responsibility is a fundamental principle of international law, aris- ing out of the nature of the international legal system and the doctrines of state sovereignty and equality of states. It provides that whenever one state commits an internationally unlawful act against another state, in- ternational responsibility is established between the two. A breach of an international obligation gives rise to a requirement for reparation. Accordingly, the focus is upon principles concerned with second-order issues, in other words the procedural and other consequences flowing from a breach of a substantive rule of international law This has led to a number of issues concerning the relationship between the rules of See gener J Grind Te Iteration! Law Commis: Arce om Site Repo: ‘iy, Cambridge 20 Oat Mlle, Dot inp Rejoait ternational de its (ed Mus), Pai 203; er of tt Repo bore Interatona ual sittns ed M ace and Daron, OxSord, 20 NM, Conteue Dri den Stour Glave oro dele Repenabit Irate de "Ear ui 2006, NUE B.Jgense, The Repay of Stef teraroal ies nfo 2003; neato! Reson Today ayn Memory o Oscar Seach e Me Ragra, The Hague, 200 © Vilpando, LEmerence dela Communaut ltr Sol aaa Rsontabt des Bits, ae 208; 6 tage, The Rony of Sats Inderatona aw New Yr, 1998 hestonal aw ofS Repo rs to Ae (ed.8B lich, Chiov 193, Biles of States Rearing the Ci Rigs of Aliens, 161 IR 1978p. 329, and Lilich, The aman ight of Ae sn Conteporary Iteration aw, Chatter 1984 1 Browse Sytem the aw of anon Ste Reon ar, Ontos 198, Bin Cheng Genel Ppl of La Apply erator on banal oon, 195; Ute Mo Coan Bis Reposbiy Ces M. Spine an 8, Sina), Now York, 387, Sct range de Drotntmstonal seo dase enero Pari 998 Strays Eesponsbaite lena jude in lang pa Pai 39 Neayen Quoc Dinh Dales tnd el Dro trata a dn a 2002.72, Oppenims ntraonl La ede Be fnngs a A.D. Wht) 5th ed London, 1390, caper ee aio the Secretary Generals Complaton of Dek ‘onto Inrnational Curt Toaster Body, AG, 1 Febeuny 3007 ‘Spent by Alaina 117 Apr 207 » Tero of lett 1973 ol pe 9-70 Theis of ate eponsiy ernie Sed by lc wi ented chp 3 77STATE nusPoNstnLITY 79 state responsibility and those relating to other areas of international law. ‘The question as to the relationship between the rules of state responsi bility and those relating to the law of treaties arose, for example, in the Rainbow Warrior Arbitration between France and New Zealand in 1990.’ ‘The arbitration followed the incident in 1985 in which French agents de- stroyed the vessel Rainbow Warrior in harbour in New Zealand. The UN Secretary-General was asked to mediate and his ruling in 1986* provided inter alia for French payment to New Zealand and for the transference of two French agents to a French base in the Pacific, where they were to stay for three years and not to leave without the mutual consent of both states.’ However, both the agents were repatriated to France before the expiry of the three years for various reasons, without the consent of New Zealand. The 1986 Agreement contained an arbitration clause and this ‘was invoked by New Zealand. The argument put forward by New Zealand centred upon the breach of a treaty obligation by France, whereas that state argued that only the law of state responsibility was relevant and that concepts of force majeure and distress exonerated it from liability ‘The arbitral tribunal decided that the law relating to treaties was rele vant, but that the legal consequences of a breach of a treaty, including the determination of the circumstances that may exclude wrongfulness (and render the breach only apparent) and the appropriate remedies forbreach, are subjects that belong to the customary law of state responsibility Tt was noted that international law did not distinguish between con- tractual and tortious responsibility, so that any violation by a state of any obligation of whatever origin gives rise to state responsibility and conse- quently to the duty of reparation.’ In the Gabéikovo-Nagymaros Project case, the International Court reaffirmed the point that A determination of whether a convention i or ie notin force, and whether it hae of hae not been properly suspended or denounced, ie to be made parruant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen a¢ incompatible with the law of treaties, involves the responsibilty ofthe state which proceeded tit, is tobe made under the law of state responsiblity.” The Arbitration Commission on Yugoslavia also addressed the issue of the relationship between state responsibility and other branches of SAD TLR p 499. See 81 AML, 1987, p. 325 and 74, p. 256, 5 See also the Agreement between France and Neve Zealand of9 July 1986, 74ILR,p. 274 © 42 TLR, pp. 499,551. 7 Thid See further below, p IC} Reports, 1997, pp. 7,34: LIGILR, p.780 INTERNATIONAL LAW international law in Opinion No. 13, when asked a question as to whether any amounts due in respect of war damage might affect the distribution of, assets and debts in the succession process affecting the successor states of the Former Yugoslavia, The Commission, in producing a negative answer, ‘emphasised that the question of war damage was one that fell within the sphere of state responsibility, while the rules relating to state succession fell into a separate area of international law. Accordingly, the two issues hrad to be separately decided.’ Matters regarding the responsibility of states are necessarily serious and it is well established that a party asserting a fact must prove it.” The Eritrea-Ethiopia Claims Commission has taken the position that ‘clear and convincing evidence’ would be required in order to support findings as to state responsibility" while the International Court has held that claims against a state involving ‘charges of exceptional gravity’ must be proved by evidence that is ‘fully conclusive.” In addition to the wide range of state practice in this area, the Interna- tional Law Commission worked extensively on this topic. In 1975 it took 1 decision for the draft articles on state responsibility to be divided into three parts: part I to deal with the origin of international responsibility, part II to deal with the content, forms and degrees of international re- sponsibility and part III to deal with the settlement of disputes and the implementation of international responsibility.” Part I was provision- ally adopted by the Commission in 1980 and the Draft Articles were finally adopted on 9 August 2001." General Assembly resolution 56/83 of 2 9611, pp. 726, 728 See eg, Genocide Convention Boona v, Serbia) cate IC] Reports, 2007, para. 204 "See eg Partial Award, Prisoners of War, Eite’s Claim 17 July 2003, paras. 46 and 49, and Partial Award, Civilian Claims, Ethiopia's Claim 5, 17 December 200, para. 3, {Genocide Convention (Borna Serbia) cae, CT Reports, 2007, par. 208 See sto evidence and the International Court, below, chapter 19, p. 1088. Yearbook ofthe ILC, 1975, vol. I, pp. 55-8. See also P. Alot, ‘State Responsibility and the Unmaking of International Law, 29 Harvard International Law Journal, 1988, p 1:5. Rosenne, The IDC Draft Articles on Stat Responnbility, Dordrecht, 1991; ‘Symposis The ILCs State Responsibility Articles, 96 AMIE, 2002, p. 773, ‘Symposium: Assesing {he Work ofthe International Law Commission on State Responsibility, 13 EJIL, 2002 p. 1033, and P.M, Dupuy, (Quarante Ans de Codification de Droit de Is Responcabilité Internationale ds tats: Un Bilan 107 RGDIP, 2003, p. 305 Yearbook of the ILC, 1980, ol. 1, par2, pp 30 #. TLC Commentary 2001, A/56/10, 2001. This Report contains the Commentary ofthe ILC found in Crawford, Aries. Note thatthe ILC Articles do not address itues of either the responsiblity of international organisations or the responsibilty of individuals: see anticles 87 and St.