Articles on responsibility of states for internationally wrongful acts (Crawford)

- Historical background and dev’t of codification

o Regarded as major area of interest in first half of 20 th
 1930: unsuccessful conference in The Hague
 1948: United Nations GA: International Law Commission
 State responsibility selected amongst 14 topics to deal with
o 1956: Amador of Cuba: ILC on state responsibility for injuries to aliens, property; gen aspects of
responsibility; but ILC did not discuss reports in detail
o 1962: Ago: ILC should shift focus towards definition of general rules governing international
responsibility of State
 Also: ILC adopted 35 articles constituting foundation of articles on origin and fundamental
features of State responsibility (ARSIWA part 1)
o 1980-6: Riphagen: provisional adoption by ILC of elaborate definition of injured state
o 1988-96: Arangio-Ruiz: ILC adopted first comprehensive text of draft Articles; reparation,
countermeasures, consequences of international crimes, dispute settlement
o 1997: Crawford second reading of draft
o 1998-2000: 59 articles adopted. Commentaries completed
o 2001: GA took note of articles; annexed to resolution; commended to governments without prejudice to
future adoption as treaty text
o 2004: again commended to governments
o 2007: commended to governments; to further examine question of convention on responsibility of
States for internationally wrongful acts, other appropriate action on basis of Articles
o 2010: similar as above. But some pressed for diplomatic conference to consider articles
- Structure of articles
o Four parts
 Part one: internationally wrongful act of the state – 1-27
 Five chapters: gen principles, attribution of conduct to state, breach of international
obligation, responsibility of state in connection with act of another state; circumstances
precluding wrongfulness
 Part two: content of international responsibility of a state
 Three chapters: gen principles; reparation for injuries; serious breaches of obligations
under peremptory norms of general international law
 Part three: implementation of the international responsibility of a state
 Two chapters: invocation of responsibility of a state; countermeasures
 Part four: general provisions of the text
- Basic principles
o State responsibility as secondary rules
 Articles provide an overarching, general framework which sets the consequences of a breach of
an applicable primary obligation
 Otherwise, articles would be too ambitious and trying to do much telling states what kind of
obligations they have
o Foundations of state responsibility
 Article one: every international wrongful act of a state entails the international responsibility of
that state
 Not limited to responsibility of states towards other states
 o Otherwise, significant curtailment of scope of obligations covered by articles
 No distinction bet treaty, non-treaty obligations; ex contractu, ex delicto
 Article 2:
 elements for existence of internationally wrongful act
o Conduct attributable to state
o Conduct inconsistent with international obligations
 No requirement concerning fault or wrongful intent on part of state to ascertain
existence of internationally wrongful act
o Does not imply that fault has no place in law of state responsibility
o Reflects consideration that different primary rules on international responsibility
may impose different standards of fault (due diligence to strict liability)
o Fault is not necessarily required in every case for international responsibility to
arise; determination left to primary rules on State obligations
 Chapter two, Part one: scope of attribution of conduct to a state
 Subjective, functional points of vew
 Chapter three:
 breach of international obligation – tempus regit actum principle
 extension in time of breach
 breach consisting of composite act
 obligations of conduct, result and preventuion, continuing, composite, complex
wrongful acts
 attribution of responsibility to state in relation to possible connections between state
and internationally wrongful acts of another state
 aid or assistance
 direction, control
 coercion
 rationale for above: state not directly committing wrong nonetheless held responsible if it has
knowledge of circumstances of the act and if the act would be, if committed by state, an
internationally wrongful act
 chapter five: circumstances precluding wrongfulness
- Consequences of state responsibility
o Part two, two issues
 Specifies the most significant consequences of state responsibility for an internationally
wrongful act (obligations of cessation, non-repetition, reparation)
 Particular category of wrongful acts: international crimes now srs breaches of obligations under
peremptory norms of gen int’l law
o Act does not affect continued duty by responsible state to perform obligation thus breached
o If breach continuing, responsible sate under obligation to cease conduct
o Offer appropriate assurances, guarantees of non-repetition
o Responsible state has duty to make full reparation for injury caused
- Nature and forms of reparation
o Art 31: state responsible for an internationally wrongful act is under the obligation to make full
reparation for the injury caused by it
 Addresses ff concerns
 To preserve conceptual separateness of notions of injury and damage
 Useful to retain notion of moral damage
  Causation resolved by ‘caused by’
o Injury – any damage, material or moral, caused by the act
 But articles do not provide for punitive damages || state practice
o Forms
 Restitution
 Primary form except if materially impossible or where it would involve burden out of
proportion to benefit derived from selecting it
 Compensation
 If restitution unavailable or insufficient
 Payable for financially assessable loss
 Satisfaction
 If restitution, compensation unavailable
- Serious breaches of obligations under peremptory norms of general international law
o ILC debates and Barcelona Traction: appropriateness of providing for separate category of wrongful acts
that would be so serious as to be defined international crimes, offending int’l community as a whole and
not just the injured state
o “crime” definition: internationally wrongful act which results from breach by State of 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
o Still, idea of holding state responsible for crime remains highly divisive
 But need for stronger protection of certain significant legal interests of international community
as a whole found expression in Part Two, Ch III, arts 40-41
o Peremptory norms – based on illustrious codified antecedent in two VCLOTs
 Qualification as peremptory left to state practice and judicial bodies
o 40-41 acknowledge certain egregious breaches allow for response by all states
 Entails duty not to recognize as lawful such breaches; prohibition to render aid or assistance in
maintaining illegit situations created by wrong; duty to cooperate to bring through lawful means
such situation to an end
- Invocation of responsibility
o Part three deals with
o Which states are entitled to invoke responsibility
 Take into account diff obligations of states in sphere of IR (bilateral, multi, obligations intended
to benefit int’l community)
 Not co-extensive with circumstance of being victim of breach of obligation
 Injured state not the only one entitled to invoke responsibility
 But injured states retain priority in terms of response
 Injured state, art 42: specially affected by breach, of such a character as radically to
change the position of all other states to which the obligation is owed with respect to
the further performance of the obligation;
 art 48: non-injured invoking responsibility in collective interest
o states belonging to group holding collective interestfor the protection of which
the obligation was established
o every state seeking to invoke responsibility for a berach of an obligation owed
to the international community as a whole
o does not restrict scope to erga omnes by limiting beneficiaries to states alone
 Int’l community includes other entities
  Art 44: possibility to invoke responsibility conditioned on compliance with applicable rules
concerning nationality of claims and exhaustion of local remedies
 Art 45: when right to invoke responsibility can be lost
 Waiver as to breach or some or all of consequences
 State considered by reason of conduct to have validly acquiesced in lapse of claim
o What are the modalities through which this can be done
o Claims?
o Each state is responsible for its own conduct in respect of its own international obligations and each
injured state is entitled to claim against any resposnbile state in respect of the losses flowing from the
act of that state
 Subj to caveats
 47, par 2: state may not recover by way of compensation more than the damage it has
suffered (no double recovery)
 Questions of contribution when more than one is responsible in respect of same injury
- Countermeasures
o Part III, Ch 2
o Temporary character, limited to temporary non-performance of ceratin international obligations
towards the responsible state (art 49); should cease as soon as responsible state complied with
obligations under part 2 (art 53)
o Limitation—quantitative, qualitative
 Art 51: must be commensurate with injury suffered, taking into acct the gravity of the
internationally wrongful act and the rts in question
 Art 50: certain fundamental substantive obligations may not be affected by countermeasures
o Suspension: Art 52 (3) (b): before competent court, tribunal with power to make binding decisions
o Procedural conditions || Art 52
 Obligation to cal upon responsible state to fulfil obligations (cessation, reparation)
 Responsible state to be notified of any decision to take countermeasures
 Chance to negotiate
o Art 52 also provides for such urgent countermeasures as are necessary to preserve its rights
o Countermeasures by states other than injured = collective countermeasures
 Limited and embryonic, but not renounced
 Art 54: countermeasures chapter does not prejudice rt of non-injured state entitled to invoke
responsibility to take lawful measures against responsible state
- Part IV
o Boundaries and scope of articles in relation to other provisions of IL
o Articles do not affect law applicable to responsibility of IOs or person acting on behalf of state
o Whenever obj of articles regulated by lex specialis, latter applies or any applicable rule of IL on matter in
questions not regulated by articles
o Primacy of charter of UN in matter of responsibility