Preface: James R Crawford

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 Product: Oxford Scholarly Authorities on

Series: Oxford Commentaries on International Law [OSAIL]
International Law Published in print: 20 May 2010
ISBN: 9780199296972
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
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
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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.
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).
Contents
James R Crawford


ISBN: 9780199296972
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
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
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
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
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
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
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
(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
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
List of Contributors
James R Crawford


ISBN: 9780199296972
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
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
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
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
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
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

Professor of International Law, University of Balearic Islands
Yuji Iwasawa
Professor of International Law, University of Tokyo; Chair, UN Human Rights Committee
Naoki Iwatsuki
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
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
Director, Codification Division, Office of Legal Affairs, United Nations
Djamchid Momtaz
Professor of International Law, Tehran University
Michel Montjoie
Anaïs Moutier -Lopet

Daniel Müller
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)
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
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
Sandra Szurek
Christian Tams
Professor of International Law, University of Glasgow
Paul Tavernier
Professeur de droit international, Université de Paris Sud
Jean -Marc Thouvenin

Christian Tomuschat
Emertius Professor, Humboldt University Berlin, Faculty of Law
Muriel Ubéda -Saillard

Anne -Laure Vaurs Chaumette

Joe Verhoeven
Professeur de droit international, Université de Panthéon-Assas
Michael Waibel
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)
Table of Cases
James R Crawford


ISBN: 9780199296972
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
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
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
— 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
(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
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 C-
136/01) [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
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
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
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 OC-
13/93), 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
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 I-
6263 (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
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 ,
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 C-
453/99) [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
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 Bosnia-
Herzegovina), 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
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
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,
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 ,
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 24-49-
2, 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
(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 ,
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
844 , 848 n
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
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 T-
315/01), 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 I-
135 (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
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
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
, 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
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
Mossé, 7 January & 6 October 1953, 13 RIAA 486 245
Motion for allowance of interest on awards from the date until their payment, Britain-
Venezuela 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
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
‘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
— 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
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
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
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
‘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
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 C-

208/00) [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
(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
‘White Van’ Case (Paniagua-Morales and others v Guatemala), Reparations and costs, Inter-
Am 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 non-
execution 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
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;
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.
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 258-
B [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,
<http://www.worldbank.org/icsid/cases/pdf/ARB0319_DecisionJurisdiction03-19.pdf>; 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,
<http://www.investmentclaims.com/decisions/PanAmerican_BP-Argentina-Jurisdiction.pdf>.
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
(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 Iran-
US 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
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
(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
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
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 Inter-
American 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,
available at: <http://www.idi-iil.org/idiE/annuaireE/10th_com_leger_a.pdf>. 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
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).
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, <http://www.hcch.net/index_en.php?
act=conventions.text&cid=36> (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; Panevezys-
Saldutiskis 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).
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 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 (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 Inter-
American 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
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
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
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,
<http://icsid.worldbank.org/ICSID/FrontServlet?
requestType=CasesRH&actionVal=showDoc&docId=DC510_En&caseId=C10>, para 81; Enron v
Argentina, Decision on Jurisdiction, 2 August 2004, <http://icsid.worldbank.org/ICSID/FrontServlet?
requestType=CasesRH&actionVal=showDoc&docId=DC502_En&caseId=C3,%20para%2029>;
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,
requestType=CasesRH&actionVal=showDoc&docId=DC509_En&caseId=C8>, 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
13 November 1981, paras 26–27; Velázquez Rodríguez v Honduras, Preliminary Objections, Inter-
Am 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), <http://www.oecd/org/daf/investment/fdi/mai/negtext.htm>; 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.
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.
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 II-
1675, 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 <http://www.ohr.int/ohr-offices/brcko>; 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.
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 <http://www.ohr.int/ohr-offices/brcko>; 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 non-
recognition 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
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.
(1989), para 25, quoting Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29.
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.
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 32.
(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.
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, Inter-
Am 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 I-
135, 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).
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.
(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.
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,
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 C-
397 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
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
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 <http://www.mpepil.com>.
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.
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
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
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.
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.
Table of Statutes
James R Crawford


ISBN: 9780199296972
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
(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
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
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
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
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
(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
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
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 53 689 , 696 , 937 , 1143 , 1172
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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 Non-
Compliance 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
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
(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
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
(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
Nuremberg Tribunal Statute see Charter of the International Military Tribunal
OSPAR Convention see Convention for the Protection of the Marine Environment of the North-
East 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
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
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
(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
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
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
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
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
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
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
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).
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:
<http://www.caribbeancourtofjustice.org/courtadministration/ccj_agreement.pdf>.
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.
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 OC-
10/89), 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.
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 Gabčíkovo-
Nagymaros 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
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.
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.
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.
6 See art 45, ARSIWA (‘Loss of the right to invoke responsibility’).
17 See art 48 of ARSIWA.
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.
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.
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
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
<http://www.knesset.gov.il/laws/special/eng/basic10_eng.htm>. 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.
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:
<http://www.comunidadandina.org/ingles/normativa/ande_trie2.htm>.
5 See eg Constitutive Act of the African Union, Lomé, 11 July 2000, 2158 UNTS 3.
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
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).
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.
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.
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
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.
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
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.
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.
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
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 non-
derogable 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 <http://www.mfa.gov.il>.
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 (<http://www.unglobalcompact.org>) 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).
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.
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
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).
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 peace-
keeping 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 non-
compliance’ 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
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
(III)). See now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-
Sheikh, 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.
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.
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.
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’.
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).
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’.
The Work of the ILC on Responsibility
James R Crawford


ISBN: 9780199296972
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
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
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
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
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
Draft articles adopted by the Commission
Draft Articles on the Responsibility of International Organizations adopted on first reading,
Report of the ILC, 61st Session, 2009, A/64/10, 23 (‘DARIO’)
Select Abbreviations
James R Crawford


ISBN: 9780199296972
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
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
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
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)
Part I Introduction—Responsibility and International
Law, Ch.1 The Definition of Responsibility in
International Law
Alain Pellet


ISBN: 9780199296972
Subject(s):
Responsibility of international organizations — Responsibility of individuals — Responsibility of states —
Reparations — Sovereignty — Immunity from jurisdiction, ratione materiae
(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
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
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 inter-
personal 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
[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:
• 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
(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
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
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
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
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
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.
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.
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.
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.
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.
47 See P-M Dupuy, ‘Responsabilité et légalité’, in SFDI, La responsabilité dans le système
international (Paris, Pedone, 1991), 263.
Law, Ch.2 The System of International Responsibility
James R Crawford


ISBN: 9780199296972
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
(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:
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
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,
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
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 Gabčíkovo-
Nagymaros 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
(c) The notion of ‘damage’ and the invocation of responsibility
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
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 ‘non-
violation 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,
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.
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.
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 (<http://www.unglobalcompact.org>) 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).
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
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 quasi-
contract/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 Gabčíkovo-
Nagymaros 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).
(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.
(Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, paras
65 and 66.
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
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 ‘self-
existent’ 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).
Law, Ch.3 Primary and Secondary Rules
Eric David


ISBN: 9780199296972
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
(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:
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 non-
observance 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 non-
performance 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 Quentin-
Baxter maintained that ‘the factor of consent entered into the primary obligation’; 20 consent ‘was
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
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
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.
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.
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.
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).
42 Ibid, 42 (para 23) (1539th meeting) (Quentin-Baxter).
43 Ibid, 48 (para 32) (1542nd meeting) (Schwebel).
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


ISBN: 9780199296972
Subject(s):
Codification — Sovereignty — Responsibility of states — Diplomatic protection — Wrongful acts —
Arbitration
(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
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
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
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
(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.
(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
15
• Rainbow Warrior (New Zealand/France);
16
• Corfu Channel;
17
• LaGrand (Germany v United States of America);
18
• United States Diplomatic and Consular Staff in Tehran;
• Factory at Chorzów; 19
20
• The SS ‘Wimbledon’;
21
• Certain Phosphate Lands in Nauru (Naura v Australia); 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
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:
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),
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.
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.
1992, p 240.
22 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America), Merits, ICJ Reports 1986, p 14.
and Relation with Other Laws, Ch.5 Doctrines of
State Responsibility
Martti Koskenniemi


ISBN: 9780199296972
Subject(s):
Responsibility of states — Responsibility of individuals — Countermeasures
(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
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
(p. 48) objective order was replaced by the (subjective) rights that sovereign nations enjoyed vis-
à-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
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 burden-
sharing 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
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.
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.
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.
and Relation with Other Laws, Ch.6 Private
Codification Efforts
Lucie Laithier


ISBN: 9780199296972
Subject(s):
Responsibility of states — Diplomatic protection — Wrongful acts — Responsibility of international
organizations — Codification
(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
3
International Law Association and the Association of International Law of Japan in 1926;
(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
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
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
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.
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 <http://www.idi-iil.org/>
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 <http://www.idi-iil.org/>
Final Report of the International Law Association on Accountability of International
Organisations, Report of the Seventy-first conference, Berlin, 2004, available at
<http://www.ila-hq.org/>(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.
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.
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 <http://www.idi-iil.org/>.
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.
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).
and Relation with Other Laws, Ch.7 The Hague
Conference of 1930
Clémentine Bories


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Aliens, treatment — League of Nations — Codification —
Opinio juris
(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
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.
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
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
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 Abi-
Saab (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
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
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
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.
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.
and Relation with Other Laws, Ch.8 The Work of
García Amador on State Responsibility for Injury
Caused to Aliens
Daniel Müller


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — Damages — Nationalilty of individuals — League of Nations —
United Nations (UN) — Codification
(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 re-
launched 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
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).
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
(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 self-
sufficient 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
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.
(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).
and Relation with Other Laws, Ch.9 The ILC’s Articles
on State Responsibility for Internationally Wrongful
Acts and Related Texts
Alain Pellet


ISBN: 9780199296972
Subject(s):
Responsibility of states — Responsibility of international organizations — Wrongful acts — Diplomatic
protection — League of Nations — Countermeasures
(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
(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
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
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
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 Arangio-
Ruiz. 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.
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
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
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
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
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
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
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
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
<http://untreaty.un.org/ilc/guide/9_6.htm>.
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);
(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 Abi-
Saab (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
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
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).
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).
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.’
21 R Ago, Third Report on State Responsibility, ILC Yearbook 1971, Vol II(1), 199.
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.
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
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
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 Gowlland-
Debbas (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.
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
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.
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).
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.
and Relation with Other Laws, Ch.10 Liability for
Injurious Consequences of Acts Not Prohibited by
International Law
Alan Boyle


ISBN: 9780199296972
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)
(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
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?
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,
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.
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
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, non-
governmental organizations, or public trustees.46 To that extent a limited form of actio popularis
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
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.
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
Interplay of National and International Law’ (2005) 17 Journal of Environmental Law 3.
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.
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
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.
and Relation with Other Laws, Ch.11 The Law of
Responsibility and the Law of Treaties
Joe Verhoeven


ISBN: 9780199296972
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
(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
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
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
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 quasi-
delictual matters; exclusion of adjustment of responsibility (exemption clauses, etc) in non-
contractual 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
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
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 non-
performance 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
(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
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.
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.
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,
1994), reproduced in P Weil, Ecrits de droit international (Paris, PUF, 2000), 195.
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.
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.
and Relation with Other Laws, Ch.12 Responsibility
and the United Nations Charter
Vera Gowlland-Debbas


ISBN: 9780199296972
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
(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
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
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
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
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
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
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.
(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, non-
recognition, 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?
(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
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 non-
compliance 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
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
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, quasi-
judicial determinations which have ‘operational design’ in the sense of entailing definitive and far-
reaching 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
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:
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(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.
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
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
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.
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(p. 136) Numerous discussions both outside and within the Security Council regarding the limits
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
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(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
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 Gowlland-
Debbas (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
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
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.
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.
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.
18 Introductory Commentary, para 4.
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.
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, P-
M 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.
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
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.
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
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.
(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
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.
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.
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 Gowlland-
Debbas (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).
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).
and Relation with Other Laws, Ch.13 Leges Speciales
and Self-Contained Regimes
Bruno Simma, Dirk Pulkowski


ISBN: 9780199296972
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
(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’
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
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-
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.
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 self-
contained 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 fall-
back 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 self-
contained 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
subsystems may qualify as thus closed. The Commission avoided express recognition of self-
contained 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.
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 pre-
determined 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
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
(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
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
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
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 self-
defence 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
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
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 inter-
State 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
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
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 WTO-
authorized 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 State-
responsibility 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-
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 non-
compliance, 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.
[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
(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
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
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)
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
<http://www.constitution.org/vattel/vattel.htm>).
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).
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.
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).
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
Fragmentation of Global Law’ (2004) 25 Mich J Int’l L 999, 1004.
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.
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.
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.
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).
45 LA Barnhoorn, ‘Diplomatic Law and Unilateral Remedies’ (1994) 25 NILR 39, 63.
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
forty-seventh session, ILC Yearbook 1995, Vol II(2), 64–74, with further references.
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, I-
1029.
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.
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.
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
November 2000, WTO Doc WT/DS156.
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.
and Relation with Other Laws, Ch.14 The Concept of
‘Soft Responsibility’?
Jean-Marc Sorel


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Reparations — Soft law — International Monetary Fund (IMF)
— United Nations (UN)
(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
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
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
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 non-
conventional 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
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.
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.
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.
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.
and Relation with Other Laws, Ch.15 Relations
between the International Law of Responsibility and
Responsibility in Municipal Law
Pierre-Marie Dupuy


ISBN: 9780199296972
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)
(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,
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
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
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.
(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,
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
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
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.
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)
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.
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.
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.
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.
34 Hyatt International Corporation v Government of the Islamic Republic of Iran (1985) 9 Iran-US
CTR 72, 88–94.
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.
Part III The Sources of International Responsibility,
Ch.16 Overview of Part One of the Articles on State
Responsibility
Gilbert Guillaume


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations
(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
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.
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
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.
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.
Ch.17 The Elements of An Internationally Wrongful
Act
Brigitte Stern


ISBN: 9780199296972
Subject(s):
Wrongful acts — Reparations — Damages — Responsibility of states — Ultra Vires conduct, necessity,
emergency — Customary international law — State practice — Sovereignty — Lex specialis —
Countermeasures
(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
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
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
‘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
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
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
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:

omission:
(a) is attributable to the State under international law; and
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
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
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
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;
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
(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
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,
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 ver para.
attributing to the State the acts of private individuals but rather of making the State responsible for
66-68 do
caso de
its own breach of an obligation of ‘due diligence’, the classic example being the obligation to
Teerão
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.
(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
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
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
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
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
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(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 Bosnia-
Herzegovina 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
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
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(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
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
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
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
(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
(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
(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.
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.
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.
23 Questions relating to German Settlers in Poland, 1923, PCIJ, Series B, No 6, p 4, 22.
385.
25 ARSIWA, art 4.
26 ARSIWA, art 5.
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.
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.
(Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, para 389.
35 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda),
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).
(Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, para 384.
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.
46 ICTY, Prosecutor v Tadić, Case No IT-94-1-A, Judgment, Appeals Chamber, 15 July 1999, 124
ILR 61.
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).
52 Ibid, paras 404 & 407, respectively (emphasis added).
53 J Combacau, Droit international public (5th edn, Paris, Montchrestien, 2001), 540.
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).
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.
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.
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).
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.
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
(Bosnia and Herzegovina v Yugoslavia), Preliminary Objections (Yugoslavia v Bosnia and
Herzegovina), ICJ Reports 2003, p 7.
(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).
88 ARSIWA, art 20.
89 ARSIWA, art 21.
90 ARSIWA, art 22.
91 ARSIWA, art 23.
92 ARSIWA, art 24.
93 ARSIWA, art 25.
95 Ibid, 63 (para 101).
Ch.18 The Rules of Attribution: General
Considerations
Luigi Condorelli, Claus Kress


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Responsibility of international organizations —
Circumstances precluding wrongfulness — Attribution — Armed conflict, international — Individual
criminal responsibility — War crimes
(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
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 treaty-
making 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
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
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
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
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
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
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
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
(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
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
L Condorelli & H Dipla, ‘Solutions traditionnelles et nouvelles tendances en matière
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
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
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
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.
(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
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.
nouvelles tendances’ (1984) 189 Receuil des cours 9, 145ff.
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.
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
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.
nouvelles tendances’ (1984) 189 Receuil des cours 9, 33ff.
(Bosnia and Herzegovina v Serbia and Montenegro), Merits, Judgment, 26 February 2007, 140
(para 392).
(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).
America), Merits, ICJ Reports 1986, p 14, 43–45 (paras 71–74).
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).
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.
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.
(paras 404–405).
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).
(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.
Ch.19.1 Attribution of Conduct to the State: State
Organs and Entities Empowered to Exercise
Elements of Governmental Authority
Djamchid Momtaz


ISBN: 9780199296972
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
(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
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
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
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
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 States-
Mexico 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
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
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
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
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.
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.
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.
Commission on Human Rights, ICJ Reports 1999, p 62.
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
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 <http://www.idi-iil.org>.
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.
392; the language of ‘complete dependence’ is taken from Military and Paramilitary Activities in
62–63 (paras 109–110).
44 Ibid.
45 Ibid, para 393.
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.
56 Ibid, 50–51 (para 86).
57 Separate Opinion of Judge Ago, ibid, 187–188 (para 15).
Ch.19.2 Attribution of Conduct to the State:
Insurrectional Movements
Gérard Cahin


ISBN: 9780199296972

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
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.
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
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
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 large-
scale 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
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
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 well-
established 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
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 non-
étatiques’ (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:
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
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 non-
execution 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.
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.
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.
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.
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.
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.
Ch.19.3 Attribution of Conduct to the State: Private
Individuals
Olivier de Frouville


ISBN: 9780199296972

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
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
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
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
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
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’:

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
(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
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
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
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
(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
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’:
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
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
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 co-
responsibility 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
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
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
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
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 non-
attribution, 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
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
H Dipla, La responsabilité de l’État pour violation des droits de l’Homme. Problèmes
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
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:
(Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007; merits
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.
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).
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).
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.
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.
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).
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
<http://www.icj-cij.org/court/index.php?pr=85&pt=3&p1=1&p2=3&p3=1>.
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).
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.
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).
82 Ibid, 29 (para 58).
83 Ibid, 35 (para 74).
85 Ibid, para 9.
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).
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.
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, in
particular para 430.
104 Ibid.
106 Ibid, 41 (para 20).
107 Ibid, 215 (para 16).
108 Ibid, 214.
Ch.21 State Succession and Responsibility
Václav Mikulka


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — State succession
(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 Sub-
committee 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
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
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
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
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
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
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
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
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
(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.
Ch.22 The Attribution of Acts to International
Organizations
Pierre Klein


ISBN: 9780199296972
Subject(s):
Responsibility of states — Responsibility of international organizations — Wrongful acts — Ultra Vires
conduct — United Nations (UN) — NGOs (Non-Governmental Organizations) — Peace keeping
(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
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 peace-
keeping 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
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 case-
by-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
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
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
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 peace-
keeping 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
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
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
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
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
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
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,
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
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
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.
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 peace-
keeping 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
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.
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 non-
attribution 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 ex-
Yougoslavie 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).
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).
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
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 Cohen-
Jonathan, ‘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).
Ch.23.1 The Responsibility of Other Entities: Private
Individuals
Christian Tomuschat


ISBN: 9780199296972
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
(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
(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
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.
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
(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
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
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.
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
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
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

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.
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.
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.
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.
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:
<http://www.oecd.org/document/28/0,3343,en_2649_34889_2397532_1_1_1_1,00.html>.
43 OECD Guidelines for Multinational Enterprises, §II, para 2.
44 <http://www.unglobalcompact.org>.
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.
Ch.23.2 The Responsibility of Other Entities: Armed
Bands and Criminal Groups
Gérard Cahin


ISBN: 9780199296972

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
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.
(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
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
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
(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
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
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
SC Res 1373, requiring them to take measures designed to prevent and suppress the illegal behaviour of such
28 September
2001.
organizations, in particular as regards acts of terrorism: thus ‘eliminating the supply of weapons to
SC Res 1540, terrorists’,48 and refraining ‘from providing any form of support to non-State actors that attempt to
28 April 2004. 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
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 non-
étatiques’ (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).
9 C Kress, ‘L’organe de facto en droit international public’ (2001) 105 RGDIP 93.
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
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
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.
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 non-
étatiques’ (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.
Ch.23.3 The Responsibility of Other Entities: Non-
Governmental Organizations
Anna-Karin Lindblom


ISBN: 9780199296972

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
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
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 non-
State 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
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.
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
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
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 self-
regulation, 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
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,
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,
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’:
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.
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
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 non-
governmental 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.
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 <http://www.ngocodeofconduct.org>.
38 Code of Good Practice for NGOs Responding to HIV/AIDS, 2004, available at
<http://www.hivcode.org>.
39 Sphere Humanitarian Charter, 1999, revised in 2004, available at
<http://www.sphereproject.org>.
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, Non-
Governmental Organisations in International Law (Cambridge, CUP, 2006).
44 For information on different initiatives on national, regional and global level, available at
<http://www.oneworldtrust.org>.
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.’
Ch.24 Actions and Omissions
Franck Latty


ISBN: 9780199296972
Subject(s):
Wrongful acts — Ultra Vires conduct, necessity, emergency
(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
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 treaty-
making 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’.
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
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
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 ARSIWA,
Commentary
and the event, in relation to delicts by omission it is necessary to decide whether the occurrence of to art 2, para 4.
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 United States
positive action are however more contingent than obligations imposing prohibitions; according to Diplomatic and
Consular Staff
the circumstances, a more or less strong reaction by way of ‘appropriate steps’45 may be required.in Tehran, ICJ
The finding of the existence of an unlawful omission is therefore more difficult than a similar finding Reports 1980, p
in relation to a positive action, since it requires a detailed examination of the facts of the case. 4, 31 (para 63).
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
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
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.
11 Ibid, 146–147 (paras 292(3)–(6)).
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.
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.
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.
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
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.
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
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)).
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.
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.
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’ (1939-
II) 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)).
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).
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.
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.
Ch.25 Source of the Obligation
Yumi Nishimura


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Lex specialis
(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:
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
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,
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
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.
7 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) Advisory
Opinion, ICJ Reports 1950, p 221, 228.
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.
Ch.26 Content of the Obligation: Obligations of
Means and Obligations Of Result
Constantin P Economides


ISBN: 9780199296972
Subject(s):
Diplomatic protection — Responsibility of states — Ordre public
(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).
1 Distinction between international obligations based on the
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
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
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
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 Commentary to
art 12, paras 11–
utility of the distinction, the proportion 12
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
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
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
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
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
J Salmon, ‘Le fait étatique complexe: une notion contestable’ (1982) 28 AFDI 709
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.
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
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.
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
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.
Ch.27 Duration of the Breach
Jean Salmon


ISBN: 9780199296972
Subject(s):
Responsibility of states — Diplomatic protection — Wrongful acts — Diplomatic relations — European
Court of Human Rights (ECtHR)
(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:

omission:
(a) …
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
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,
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
12
Conventions’;
• 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
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
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
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 Inter-
American 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
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
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
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:
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:

39
• denial of justice;
• 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
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
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).
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.
(para 77).
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.
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.
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.
34 Ibid, 61.
35 Phosphates of Morocco, Public Sittings and Pleadings, 1938, PCIJ, Series C, No 85, 1234.
37 See Chapter 26.
38 Draft art 21(2), Report of the ILC, 51st Session, ILC Yearbook 1996, Vol II(2), 60.
II(2), 94.
41 16 December 1966, 999 UNTS 171.
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.
Ch.28 Relevance of the Intertemporal Law
Paul Tavernier


ISBN: 9780199296972
Subject(s):
Vienna Convention on the Law of Treaties — Responsibility of states — Diplomatic relations
(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:
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:
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 Kasikili-
Sedudu 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 Inter-
American 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:
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
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, well-
established 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
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 non-
retroactivity, 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).
4 Vienna Convention on the Law of Treaties between States and International Organizations or
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.
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.
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.
problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 217.
1992, p 240.
20 See art 28, Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331.
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.
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.
Reports 1971, p 16.
27 Tyrer v United Kingdom, ECHR, Series A, No 26 (1978), 15–16.
29 Ibid, para 5.
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.
Ch.29 International Crimes of States
James R Crawford


ISBN: 9780199296972
Subject(s):
Genocide — Aggression — Apartheid — Wrongful acts — Responsibility of states — Erga omnes
obligations — International Court of Justice (ICJ)
(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
‘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:
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
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
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
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
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
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 self-
determination 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
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
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
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.
(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).
11 See R Ago, Fifth Report on State Responsibility, ILC Yearbook 1976, Vol II(1), 3, 24–54.
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
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 fifty-
fourth 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.
(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).
Merits (Bosnia-Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007.
31 Ibid, para 166.
32 Ibid, paras 168–169.
33 Ibid, para 170.
Ch.30 The Character of the Violated Obligation
Antonio Cassese


ISBN: 9780199296972
Subject(s):
Responsibility of states — Erga omnes obligations — Peremptory norms / ius cogens — State practice
— Geneva Conventions 1949 — Prisoners of war
(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
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
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
(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;
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 non-
derogable 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).
Ch.31 The Character of the Breach
Paola Gaeta


ISBN: 9780199296972
Subject(s):
Wrongful acts — Responsibility of states — International peace and security — Use of force, threat —
Aggression — Armed attack — Peremptory norms / ius cogens
(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
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, self-
determination 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
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
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.
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 self-
determination’; 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.
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.
II(2), 120.
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.
Ch.32 The Notion of Circumstances Precluding
Wrongfulness
Sandra Szurek


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Circumstances precluding wrongfulness — Self-defence —
Armed forces — Countermeasures — Necessity — Codification — Peremptory norms / ius cogens
(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
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
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, self-
defence 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.
(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
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
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
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
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 re-
evaluate 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.
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).
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.
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.
Fitzmaurice, Fourth Report on the Law of Treaties, ILC Yearbook 1959, Vol II, 37.
36 2587th meeting (15 June 1999), ILC Yearbook 1999, Vol I, 142 (para 39).
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).
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.
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.
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.
Pouvoir du droit—Mélanges offerts à Jean Salmon (Brussels, Bruylant, 2007), 244, 245, and note
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).
Ch.33.1 Circumstances Precluding Wrongfulness in
the ILC Articles On State Responsibility: Consent
Affef Ben Mansour


ISBN: 9780199296972
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
(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
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
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
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
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
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
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
(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:
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).
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’.
28 ILC Yearbook 1999, Vol 1, 144 (para 57).
30 Ibid, para 6.
31 Savarkar, 24 February 1911, 11 RIAA 243, 252–255.
32 See art 27 ARSIWA.
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.
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).
42 Ademola Abass, ‘Consent Precluding State Responsibility: A Critical Analysis’ (2004) 53 ICLQ
211, 225.
the ILC Articles on State Responsibility: Self-
Defence
Jean-Marc Thouvenin


ISBN: 9780199296972

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
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 self-
defence 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
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 self-
defence 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
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
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 self-
defence 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
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 self-
defence 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 self-
defence 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 self-

defence
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 self-
defence 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
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
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.
(b) The lawfulness of the measures of self-defence
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 self-
defence. 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 self-
defence 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 self-
defence 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 self-
defence 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
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

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)
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 <http://www.idi-iil.org/idiE/annuaireE/10th_com_leger_a.pdf>
L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990)
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
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.
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: <http://web.presidencia.gov.co/comunicados/2008/marzo/81.html>.
17 Rio Group, Declaration of Santo Domingo, 7 March 2008, paras 3–4, available at:
<http://web.presidencia.gov.co/sp/2008/marzo/07/08072008.html>.
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
(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.
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).
31 Cf Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objections,
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.
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).
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 self-
defence’.
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.
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: <http://www.idi-iil.org/idiE/annuaireE/10th_com_leger_a.pdf>. 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
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.
Judgment, ICJ Reports 2005, p 168, para 147.
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).
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.
242 (para 30).
52 Separate opinion of Judge Bedjaoui, Legality of the Threat or Use of Nuclear Weapons,
53 Commentary to Chapter V, para 2.
54 1155 UNTS 331.
the ILC Articles on State Responsibility:
Countermeasures
Hubert Lesaffre


ISBN: 9780199296972

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
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,
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
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-
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
References
(p. 474)
Footnotes:
1934), (1934) 38 Annuaire IDI 710.
3 Comments and observations received from governments, A/CN.4/488, 25 March 1998, 83.
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.
Africa ( ‘Naulilaa’) (Portugal v Germany), 31 July 1928, 2 RIAA 1011, 1027.
1934), (1934) 38 Annuaire IDI 710.
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–
28 (para 53).
23 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v United States of
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.
the ILC Articles on State Responsibility: Force
Majeure
Sandra Szurek


ISBN: 9780199296972

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
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
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.
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
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 Panthéon-
Assas, 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,
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.
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 24-49-
2, 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 24-49-
2, 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’.
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).
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.
the ILC Articles on State Responsibility: Distress
Sandra Szurek


ISBN: 9780199296972

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.
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
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
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.
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
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,
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).
6 M Kamto, 2592nd meeting (23 June 1999), ILC Yearbook 1999, Vol I, 179 (para 31).
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.
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.
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.
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).
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).
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.
the ILC Articles on State Responsibility: Necessity
Sarah Heathcote


ISBN: 9780199296972

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
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 self-
preservation.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 Gabčíkovo-
Nagymaros 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
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.
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 counter-
measures 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
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.
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
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.’
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.
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.
25 Art 27 ARSIWA.
27 See eg Russian Indemnity (Russia/Turkey), 11 November 1912, 12 RIAA 421.
29 Ibid, para 3.
30 Art 24, ARSIWA.
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.
33 Ibid, 40 (para 51).
34 ILC Yearbook. 1996, Vol II(2), 45–46.
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.
41 Ibid, para 18.
42 See S Heathcote, ‘State of Necessity and International Law’, Thèse, Université de Genève,
2005.
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:
<http://www.jac.cerdacc.uha.fr/internet/Recherche/Jcerdacc.nsf/91fe2b771e4d47c1c12570bc004f07f3/a16049776cdd4330c125711500366fbb?
OpenDocument> (accessed 19 September 2009).
51 Art 25(1)(b), ARSIWA.
Advisory Opinion, ICJ Reports 2004, p 136, 192–193 (paras 136 and 137).
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.
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.
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.
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.
Ch.34 The Concept of Liability in The Absence of an
Internationally Wrongful Act
Michel Montjoie


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Reparations — Attribution — Customary international law —
Codification
(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
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
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
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
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
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.
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, treaty-
based 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
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

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
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.
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.
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.
technologique et industrielle (Paris, Pedone, 1976), 249–255.
42 See Chapter 60 for the nuclear domain.
43 Part One, Chapter II, ARSIWA.
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.
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.
59 See Chapter 60.
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.
Ch.35 Allocation of Responsibility for Harmful
Consequences of Acts not Prohibited by International
Law
Philippe Guttinger


ISBN: 9780199296972
Subject(s):
Responsibility of states — State succession — Development — Organization for Economic Cooperation
and Development (OECD)
(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
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
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
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

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
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
<http://www.idi-iil.org/>.
4 Ibid.
5 Ibid, art 4.
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.
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.
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
Commission and the UN/ECE Task Force’ (1992) 22/1 Environmental Policy and Law 31.
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.
Ch.36 Obligations of Prevention and the
Precautionary Principle
Gerhard Hafner, Isabelle Buffard


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Diplomatic relations — Customary international law —
Precautionary principle — World Trade Organization (WTO) Dispute Settlement Body
(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,
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
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,
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
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 mid-
1980s. 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
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 North-
East 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:
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
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
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
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
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
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:
<http://www.ceras-projet.com/index.php?id=2088>
(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.
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).
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).
(para 61).
11 Trail Smelter (United States, Canada) (1941), 3 RIAA 1905; see also the Commentary to art 14,
para 14.
12 2 AJIL Supp 117.
14 Responsibility and Liability under International Law for Environmental Damage, Institut de Droit
international, Strasbourg Session 1997, available at <http://www.idi-
iil.org/idiE/resolutionsE/1997_str_03_en.PDF>.
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
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 <http://lesrapports.ladocumentationfrancaise.fr/BRP/004000402/0000.pdf>;
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).
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: <http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2000:0001:FIN:EN:PDF>.
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:
<http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/00400-
r1.%20ann.en0.htm>.
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:
<http://www.ceras-projet.com/index.php?id=2088>.
57 P Kouralski and G Viney, Le principe de précaution—Rapport au Premier ministre, 15 October
1999, 5, available at <http://lesrapports.ladocumentationfrancaise.fr/BRP/004000402/0000.pdf>;
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.
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:
<http://www.ceras-projet.com/index.php?id=2088>.
70 P-M Dupuy, ‘Le principe de précaution, règle émergente du droit international général’, in C
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
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.
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.
(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).
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.
Part IV The Content of International Responsibility,
Ch.37 Overview of Part Two of the Articles on State
Responsibility
Rosalyn Higgins


ISBN: 9780199296972
Subject(s):
Lex specialis — Opinio juris — State practice — Responsibility of states — Wrongful acts — Reparations
— Consular relations — Vienna Convention on the Law of Treaties
(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
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
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
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
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
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).
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.
2002, p 3.
12, 60 (para 123).
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).
12, 69 (para 150).
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.
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.
41 Ibid, para 9.
Ch.38 The Obligation of Cessation
Olivier Corten


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Reparations — Circumstances precluding wrongfulness —
General principles of international law
(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’:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so-
require.
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
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 non-
violation 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 non-
applicable. 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)
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:
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:
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.
55.
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
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
149 (para 292(12)).
II(2), 56.
problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 269–271 (paras
113–114).
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
Affair, 30 April 1990, 20 RIAA 215, 269–271 (paras 113–114).
19 See ARSIWA art 48(2) and Commentary.
56.
21 Ibid.
22 C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489, 487.
Ch.39 Assurances and Guarantees of Non-Repetition
Sandrine Barbier


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Reparations — Opinio juris — Peremptory norms / ius
cogens — Vienna Convention on the Law of Treaties
(p. 551) Chapter 39 Assurances and Guarantees of Non-
Repetition
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
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 non-

repetition
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
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 non-
repetition. 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 non-
repetition, 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 non-
repetition, 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
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
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 non-
repetition 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
determine whether the circumstances demand that the responsible State offer guarantees of non-
repetition. 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
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 non-
repetition. 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
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 non-
repetition’ 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,
‘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
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).
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).
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 non-
repetition’, 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
37 Ibid, para 9; Report of ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 82 (para 2).
43 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 57).
44 Ibid.
(para 128.7).
47 Ibid, 512 (para 123), 513 (para 125).
(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.
(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).
12, 72 (para 153.8).
61 See Declaration of President Guillaume, LaGrand (Germany v United States of America), ICJ
Reports 2001, p 466, 517.
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
Ch.40 The Obligation to Make Reparation
Brigitte Stern


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — Diplomatic protection — Erga omnes obligations —
Codification — Customary international law — Sovereignty — Arbitration — Arbitral agreements —
Arbitral tribunal
(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 non-
autonomous 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
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.
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
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
(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
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
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)
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).
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.
5 Ibid, 47.
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
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).
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).
24 ARSIWA, art 42(b)(i).
26 ARSIWA, art 42(b)(ii).
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).
34 ARSIWA, art 31(1).
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.
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.
Ch.41 Interaction between the Forms of Reparation
Yann Kerbrat


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — Codification — Customary international law — Sovereignty —
Unilateral acts — Peremptory norms / ius cogens
(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
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 re-
established 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
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
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
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.
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
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
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 re-
establishment 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
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
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.
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
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
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).
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.
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).
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).
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).
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.
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).
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).
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
(para 115).
42 Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12.
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.
2002, p 3, 33 (para 78(3)).
64 Temple of Preah Vihear (Cambodia v Thailand), Merits, ICJ Reports 1962, p 6, 36.
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).
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].
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.
Ch.42.1 The Different Forms of Reparation:
Restitution
Christine Gray


ISBN: 9780199296972
(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
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
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
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
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
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
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
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:
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.
13 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria;
Equatorial Guinea Intervening), Merits, ICJ Reports 2002, p 303.
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).
21 Nuclear Tests (Australia v France), ICJ Reports 1974, p 253; Nuclear Tests (New Zealand v
France), ICJ Reports 1974, p 457.
25 Vienna Convention on Consular Relations (Paraguay v United States of America), ICJ Reports
1998, p 298.
26 ICJ Reports 2001, p 466.
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.
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.
Compensation
John Barker


ISBN: 9780199296972

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
1 Introduction
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

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
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
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 fact-
specific 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.
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 non-
pecuniary 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
(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
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
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
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.
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
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
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
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 trade-
off 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).
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 Iran-
US 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.
Ch.42.3 The Different Forms of Reparation: Interest
Elihu Lauterpacht, Penelope Nevill


ISBN: 9780199296972

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
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
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
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
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.
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
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
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 <http://www.pca-cpa.org/upload/files/Neth_Fr_award_English.pdf>, 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 II-
1675, 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
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 <http://www.adr.org/sp.asp?id=22090>.
12 See: <http://arbiter.wipo.int/arbitration/rules/index.html>. Although, on its face, this paragraph
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 Inter-
American 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 C-
397 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 Inter-
American 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
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 II-
2967, 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
32 The Law Commission for England and Wales in its 2004 ‘Report on Pre-Judgment and Post-
Judgment Interest’ 2004, Law Com No 287 <http://www.lawcom.gov.uk/docs/lc287(1).pdf>, and the
Scottish Law Commission in ‘Report on Interest on Debt and Damages’, September 2006, SCOT
LAW COM No 203, SE/2006/146, <http://www.scotlawcom.gov.uk/downloads/rep203.pdf>.
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.
Satisfaction
Eric Wyler, Alain Papaux


ISBN: 9780199296972

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
(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
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
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.
(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.
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
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
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
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
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
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
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
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
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.
(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.
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 Bollecker-
Stern, 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
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.
20 RIAA 215, 273 (para 123).
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.
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.
(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.
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.
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).
Ch.43 Contribution to the Injury
Anaïs Moutier-Lopet


ISBN: 9780199296972
Subject(s):
Wrongful acts — Reparations — Responsibility of states — Circumstances precluding wrongfulness
(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
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
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
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
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
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
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.
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.
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.
Pedone, 1973), 301–351.
14 ‘Reply of Belgium’, ICJ Pleadings, Barcelona Traction, Light and Power Company, Limited, Vol
5, 389 (in French).
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.
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.
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.
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.
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.
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.
(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).
(para 191).
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.
47 Ibid.
48 Ibid.
Ch.44 Division of Reparation between Responsible
Entities


ISBN: 9780199296972
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)
(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
It seems generally agreed that the responsibility of international organizations is governed by the
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
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
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:
act; and
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
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
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
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 decision-
making. 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
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
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
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
References
(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
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
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
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
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
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.
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
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.
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.
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.
14 B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 RBDI 375.
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.
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.
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.
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.
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.
41 Separate Opinion of Judge Shahabuddeen, Certain Phosphate Lands in Nauru (Nauru v
Australia), ICJ Reports 1992, p 240, 283–285.
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.
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
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.
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.
Ch.45 Punitive Damages
Stephan Wittich


ISBN: 9780199296972
Subject(s):
Damages — Responsibility of states — Diplomatic protection — Erga omnes obligations
(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 non-
compensatory 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
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 non-
material 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,
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
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
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
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 non-
material 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.
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–
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.
10 Ibid, 131–133.
11 The Lusitania, 1 November 1923, 7 RIAA 32, 41.
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.
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.
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).
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.
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.
Ch.46 The Obligation of Non-Recognition of an
Unlawful Situation
Martin Dawidowicz


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Peremptory norms / ius cogens — Customary international
law
(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 well-
established 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 non-
recognition 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
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
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
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
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
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
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 <http://www.ohr.int/ohr-offices/brcko>; 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
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),
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.
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.
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 <http://www.ohr.int/ohr-offices/brcko>; 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.
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 Non-
Recognition: 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
<http://www.knesset.gov.il/laws/special/eng/basic10_eng.htm>. 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 <http://www.mfa.gov.il>.
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).
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.
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.
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.
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.
Reports 1971, p 16.
Advisory Opinion, ICJ Reports 2004, p 136. Although the Court also dealt with the obligation of non-
recognition 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.
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.
Advisory Opinion, ICJ Reports 2004, 200 (para 159).
67 Ibid, 200 (para 160).
Ch.47 The Obligation of Non-Assistance to the
Responsible State
Nina HB Jørgensen


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Peremptory norms / ius cogens — State practice
(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
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:

(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
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
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
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
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 non-
derogable 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.
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.
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.
Reports 1971, p 16, 54 (emphasis added).
17 Ibid, 56.
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).
Ch.48 The Obligation of Cooperation
Nina HB Jørgensen


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — United Nations (UN)
(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:
(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 non-
assistance, 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
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
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
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.
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
cooperate has a key role to play in ensuring universal support for the interests of humanity.

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).
3 ILC Yearbook 1996, Vol 1, 183 (paras 26–34).
4 A/CN.4/L.600, 11 August 2000.
6 Ibid, 200 (para 159).
7 Annex to GA Res 2625 (XXV), 24 October 1970.
9 78 UNTS 277.
10 B Simma, ‘NATO, The UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1, 2.
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.
Ch.49 International Criminal Responsibility of the
State
Antoine Ollivier


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — State entities and attribution — Individual criminal
responsibility — International peace and security — Peace keeping
(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
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
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
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
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
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
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
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.
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).
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.
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.
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).
19 Ibid.
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 Abi-
Saab (The Hague, Martinus Nijhoff, 2001), 367ff.
26 See ARSIWA art 49, and see further Chapters 79 and 80.
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).
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.
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,
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 Abi-
Saab (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
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).
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).
(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.
Ch.50 The ‘Transparency’ of the State
Rafaëlle Maison


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — International courts and tribunals, jurisdiction — Immunity from
jurisdiction, states — Disarmament — Countermeasures
(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
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
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
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
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
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
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
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.
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.
2002, p 3, 26–27 (para 61).
18 Dissenting Opinion of Judge ad hoc van den Wyngaert, ibid, 143–151 (paras 11–23).
Ch.51.1 Responsibility for Violations of Human
Rights Obligations: International Mechanisms
Susan Marks, Fiorentina Azizi


ISBN: 9780199296972
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
(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
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 Inter-
American 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
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
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
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
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
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
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 ‘multi-
lateral 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:
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) 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
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

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: <http://www.droits-fondamentaux.org>.
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.
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.
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.
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.
25 ARSIWA, art 2.
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
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.
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.
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.
Rights Obligations: Inter-American Mechanisms
Raphaële Rivier


ISBN: 9780199296972

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
(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 Inter-
American 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 Inter-
American 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
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.
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 Inter-
American 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 non-
compliance 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
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, Inter-
American 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
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 Inter-
American 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 Inter-
American 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 Inter-
American responsibility therefore provides the criteria for identification of the subject to which
wrongful conduct is to be attributed. Since
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
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
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.
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.
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 Inter-
American 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
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 self-
standing, 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 Inter-
American 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
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
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
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 Inter-
American 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.
(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
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
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 Inter-
American 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
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
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.
(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 OC-
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 Inter-
American 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, Inter-
Am 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;
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 OC-
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.
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.
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.
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 OC-
14/94), Inter-Am Ct HR, Series A, No 14 (1994), para 50.
40 Ibid, paras 41–43.
(1989), para 25, quoting Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 4, 29.
(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.
(1989), para 38.
47 Gangaram Panday v Suriname, Merits, Reparations and Costs, Inter-Am Ct HR, Series C, No
16 (1994).
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.
(1989), paras 24–26.
para 46.
(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).
58 Caballero Delgado and Santana v Colombia, Merits, Inter-Am Ct HR, Series C, No 22 (1995),
para 69.
(1989), paras 26–27, 30–31; Castillo Páez v Peru, Reparations and Costs, Inter Am-Ct HR, Series
C, No 43 (1998), para 69.
(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.
63 Ibid, paras 65–66
64 Ibid, para 68.
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 Inter-
American 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, Inter-
Am 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.
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 Inter-
American 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.
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.
para 96.
(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.
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, Inter-
Am 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).
Am 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.
Am 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).
Rights Obligations: European Mechanisms
Jean-Paul Costa


ISBN: 9780199296972

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
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 inter-
State 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
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
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
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
(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 ill-
founded, 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
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 (non-
discrimination) 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
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.
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
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.
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].
Reports 1971, p 16.
23 Banković v Belgium, Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland,
(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,
(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.
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 258-
B [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).
Rights Obligations: African Mechanisms
Habib Gherari


ISBN: 9780199296972

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
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
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
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.
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
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
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
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
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
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
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 ‘name-
and-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
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
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
(III)). See now Protocol on the Statute of the African Court of Justice and Human Rights, Sharm El-
Sheikh, 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.
14 Ibid, arts 30ff.
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.
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.
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.
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
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
(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.
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.
Ch.52 Responsibility and the World Trade
Organization
Joanna Gomula


ISBN: 9780199296972
Subject(s):
Responsibility of international organizations — Attribution — Responsibility of states — World Trade
Organization (WTO)
(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
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: ‘non-
violation’ 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
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
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
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 non-
discriminatory 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
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
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
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.
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.
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.
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.
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
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.
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
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
(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.
Ch.53 Responsibility and International Environmental
Law
Céline Nègre


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Responsibility of individuals — Precautionary principle —
Marine environment, protection — War crimes
(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
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
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
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
(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
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 oil-
tanker 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
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 non-
complying 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 non-
compliance procedure is certainly one of the reasons for its success. Initially
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
to direct human impact (health and survival). It follows that acts such as the voluntary and large-
scale 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
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.
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 Gabcíkovo-
Nagymaros 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.
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).
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.
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
<http://news.bbc.co.uk/1/hi/programmes/correspondent/883110.stm>.
17 See Chapter 59.
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 non-
compliance’ 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
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 Non-
Compliance 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, Frison-
Roche, 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.
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.
Ch.54.1 Other Specific Regimes of Responsibility:
Investment Treaty Arbitration and ICSID
Zachary Douglas


ISBN: 9780199296972
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
(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
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
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 ‘self-
contained’ 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
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:
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
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
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 sub-
system 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
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
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
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
(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
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
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
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
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
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
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
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
(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
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
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.
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
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
(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
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
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.
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.
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,
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).
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.
The Iran-US Claims Tribunal
Daniel Müller


ISBN: 9780199296972

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
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 non-
responsibility 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
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
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
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
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.
7 Art II, Claims Settlement Declaration, 1 Iran-US CTR 9.
8 See Mavrommatis Palestine Concessions, 1924, PCIJ, Series A, No 2, 12; Panevezys-
Saldutiskis 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),
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.
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.
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; Sea-
Land 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.
The UN Compensation Commission
Dražen Petrović


ISBN: 9780199296972

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
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 Gabcíkovo-
Nagymaros 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
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
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
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 sub-
categories. 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
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
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
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.

On the official website of the UNCC there is a full bibliography (<http://www.unog.ch/uncc>),
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
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.
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).
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.
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
<http://www.uncc.ch/>).
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 <http://www.uncc.ch/>).
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).
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).
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.
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).
Ch.55 Responsibility in the Context of the European
Union Legal Order
Jean-Marc Thouvenin


ISBN: 9780199296972
Subject(s):
Responsibility of individuals — Responsibility of states — Wrongful acts — Damages — Attribution —
European Union (EU)
(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
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
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
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
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
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.
(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
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
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
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
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
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 I-
1029 (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).
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 I-
135, 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 I-
6263 (para 80).
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).
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
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.
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
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).
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
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 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 (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.
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
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).
Ch.56 The ‘Polluter Pays’ Principle
Régis Chemain


ISBN: 9780199296972
Subject(s):
Responsibility of individuals — Responsibility of states — Reparations — Precautionary principle —
Organization for Economic Cooperation and Development (OECD)
(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
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
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
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
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
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
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, Frison-
Roche, 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)
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
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, Frison-
Roche, 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).
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.
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.
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.
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,
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.
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.
Ch.57 Reparation in the Event of a Circumstance
Precluding Wrongfulness
Mathias Forteau


ISBN: 9780199296972
Subject(s):
Reparations — Circumstances precluding wrongfulness — Responsibility of states
(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.
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
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
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
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
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
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).
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).
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).
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.
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).
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.
and Commission of the European Communities, Court of First Instance, 28 April 1998.
36 Report of the ILC, 51st Session, ILC Yearbook 1999, Vol II(2), 1, 85 (para 407).
Ch.58 Maritime Law
Gabriel Nakhleh, Mikael Quimbert


ISBN: 9780199296972
Subject(s):
Responsibility of states — Compensation — Marine environment, protection
(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.
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
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
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 fault-
based 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.
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
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

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
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
<http://www.archive.org/stream/internationalsea00interich/internationalsea00interich_djvu.txt>.
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
<http://www.official-documents.gov.uk/document/cm66/6693/6693.pdf>.
4 Convention on the Carriage of Passengers and their Luggage by Sea, Athens, 13 December
1974, 1463 UNTS 221; Draft Protocol available at <http://folk.uio.no/erikro/WWW/corrgr/prot.pdf>.
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 <http://www.imo.org/Conventions/mainframe.asp?
topic_id=256&doc_id=661>.
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 <http://www.official-
documents.gov.uk/document/cm66/6693/6693.pdf>.
9 Ibid, art 1(5).
10 See <http://www.imo.org/Conventions/contents.asp?topic_id=256&doc_id=666>.
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 <http://www.imo.org/Conventions/mainframe.asp?topic_id=247>.
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
<http://folk.uio.no/erikro/WWW/corrgr/prot.pdf>.
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.
19 The next review of the value of the SDR will take place in 2010.
into force 21 November 2008), IMO document(s): LEG/CONF 12/19 of 27 March 2001, available at
<http://www.official-documents.gov.uk/document/cm66/6693/6693.pdf>.
21 Convention on Limitation of Liability for Maritime Claims, 19 November 1976, 1456 UNTS 221.
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.
into force 21 November 2008), IMO document(s): LEG/CONF 12/19 of 27 March 2001, available at
<http://www.official-documents.gov.uk/document/cm66/6693/6693.pdf>, article 7(1).
Ch.59 Space Law
Mathias Forteau


ISBN: 9780199296972
Subject(s):
Responsibility of states — Responsibility of international organizations — Reparations — Damages —
Airspace
(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).
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
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
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
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.
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
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
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 ‘large-
scale 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 extra-
atmosferico (Padova, CEDAM, 1990)
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:
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.
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.
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
<http://www.fco.gov.uk/resources/en/pdf/pdf17/fco_ref_cm4343_chilefasatbravo>.
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.
961 UNTS 187, art XXII (3).
21 See B Stern, Chapter 17.
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.
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).
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.
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.
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,
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.
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.
961 UNTS 187, art XI (2).
52 Cf L Condorelli, ‘La réparation des dommages catastrophiques causés par les activités
en droit international et en droit communautaire (Brussels, Bruylant, 1990), 263, 284.
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.
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 <http://www.state.gov/documents/organization/81127.pdf>).
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
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
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.
Ch.60 Nuclear Energy
Michel Montjoie


ISBN: 9780199296972
Subject(s):
Responsibility of states — Vienna Convention on the Law of Treaties — Organization for Economic
Cooperation and Development (OECD)
(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 non-
prohibited 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
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
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
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.
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
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
(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
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
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.
(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
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
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.
263.
5 Additional Protocol to Paris Convention on Third Party Liability in the Field of Nuclear Energy, 28
January 1964, 956 UNTS 335.
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
<http://www.nea.fr/html/law/paris_convention.pdf>.
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.
<http://www.nea.fr/html/law/paris_convention.pdf>.
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
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.
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.
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
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).
<http://www.nea.fr/html/law/paris_convention.pdf>, art 2(a).
the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art V.
<http://www.nea.fr/html/law/paris_convention.pdf>, 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.
the Field of Nuclear Energy, Brussels, 31 January 1963, 1041 UNTS 358, art 2(a)(i).
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).
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).
<http://www.nea.fr/html/law/paris_convention.pdf>, art 9.
263, art 7(b).
<http://www.nea.fr/html/law/paris_convention.pdf>, art 21(c).
49 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art
V(1).
50 Ibid, art V(1)(a) and (b).
51 Ibid, art V(1)(c).
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.
<http://www.nea.fr/html/law/paris_convention.pdf>, art 10(b).
263, art 11.
58 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art VIII.
263, art 8.
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.
263, art 13.
63 Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265, art XI.
(1) and (2).
<http://www.nea.fr/html/law/paris_convention.pdf>, 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
1997, 241 UNTS 302, art XX(A).
Part V The Implementation of International
Responsibility, Ch.61 Overview of Part Three of the
Articles on State Responsibility
James R Crawford


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — Responsibility of non-state actors — Countermeasures
(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:
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
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;
(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) 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
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
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,
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 non-
repetition 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
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:
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
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 Gabcíkovo-
Nagymaros 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.
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
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
(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.
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.
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.
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.
Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 88–9 (para 66).
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).
Responsibility, Ch.62 The Concept of an Injured
State
Giorgio Gaja


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — Recognition of states — BITs (Bilateral Investment Treaties) —
Vienna Convention on the Law of Treaties
(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
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
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
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
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 vis-
à-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
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)
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
responsabilité internationale des États (Paris, Pedone, 2002), 57
References
(p. 948)
Footnotes:
2 See Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 62ff.
4 See L-A Sicilianos, Chapter 80.
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.
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.
16 Art 42(b)(ii) ARSIWA.
19 Art 60(2)(c), 1155 UNTS 331.
Responsibility, Ch.63 Plurality of Injured States


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Countermeasures
(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:
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.
(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-or-
nothing 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
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
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
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
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
B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 250 Recueil
des cours 219B
(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).
3 See C Rousseau, ‘Chronique des faits internationaux’ (1986) 90 RGDIP 216.
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.
10 Ibid, para 5, fn 706.
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.
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.
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.
27 Art 49(1), ARSIWA.
29 Ibid.
Responsibility, Ch.64 States having an Interest in
Compliance with the Obligation Breached
Giorgio Gaja


ISBN: 9780199296972
Subject(s):
Responsibility of states — Erga omnes obligations — Interest
(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
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
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.
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.
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
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
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
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
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
(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:
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.
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.
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).
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.
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.
Responsibility, Ch.65 Succession of States in
Respect of Rights of an Injured State
Václav Mikulka


ISBN: 9780199296972
Subject(s):
Responsibility of states — Diplomatic protection — Wrongful acts — State succession
(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
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.
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).
67–68.
9 Gabcíkovo-Nagymaros Project (Hungary/Slovakia) ICJ Reports 1997, p 7, 71–4), 81 (para 153).
Responsibility, Ch.66 Invocation of Responsibility by
Eglantine Cujo


ISBN: 9780199296972
Subject(s):
Responsibility of international organizations — Wrongful acts — Responsibility of states — United
Nations (UN) — Countermeasures
(p. 969) Chapter 66 Invocation of Responsibility by
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
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
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
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.
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
(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
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
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
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
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
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 X-
Nanterre 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
l’Etat (Paris, Pedone, 2006)
JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’
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’ex-
Yougoslavie—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.
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).
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.
Reports 1949, p 174, 177.
11 P-M Dupuy, Droit international public (Paris, Dalloz, 2004), 487; see also the position of the
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).
Reports 1949, p 174, 180.
20 See DARIO, draft art 42.
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
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).
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.
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.
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
responsabilité internationale de l’État (Paris, Pedone, 2006).
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 non-
recognition of the situation as lawful and non-assistance in the maintenance of the situation.
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).
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’ (July-
September 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.
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).
Responsibility, Ch.67 Individuals
Christian Tomuschat


ISBN: 9780199296972
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
(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
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.
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
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’
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
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 Euro-
Mediterranéens 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.
Responsibility, Ch.68 Peoples and Minorities


ISBN: 9780199296972
Subject(s):
Responsibility of states — Responsibility of individuals — Minorities — Actio popularis
(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
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 self-
determination 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 self-
determination, 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
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
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 Sub-
Commission). 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
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
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.
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
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
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
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
L-A Sicilianos, Les réactions décentralisées à l’illicite—Des contre-mesures à la légitime
B Stern, ‘Chronique de jurisprudence de la C.I.J. (1991); Affaire du Timor oriental (Portugal-
Australie)’ (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.
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).
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.
Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 32); confirmed in Application of the
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.
34 Ibid (para 49).
II(2), 97.
36 1155 UNTS 331, art 53.
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.
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.
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.
Reports 1971, p 16.
55 W Riphagen, Preliminary Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 121 (para
68).
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.
62 Uganda Embargo Act, 22 USC s. 2151 (1978).
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.
Responsibility, Ch.69 Injuries to Corporations
Vaughan Lowe


ISBN: 9780199296972
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)
(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
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
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:
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,
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
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
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(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 long-
standing 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
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
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(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
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 non-
discriminatory 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
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(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
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(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
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
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(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
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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
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(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
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
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.
Reports 1970, p 3.
4 Ibid, 46 (para 88).
Objections, Judgment of 24 May 2007.
6 Ibid, para 31.
8 Ibid, para 61. See also ibid, para 63.
9 EM Borchard, The Diplomatic Protection of Citizens Abroad; or The Law of International Claims
(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.
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.
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.
Reports 1970, p 3, 42 (para 70).
22 See eg A Giardina, ‘Compensating Nationals for Damage Suffered Abroad: Italian Practice’
(1986–1987) 7 Italian YBIL 3, 19–21.
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.
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).
Reports 1970, p 3, 36 (para 47).
34 Ibid, 37 (para 49).
Objections, Judgment of 24 May 2007, para 64.
36 Ibid, para 66.
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.
Reports 1970, p 3, 41–45 (para 69–81).
39 Ibid, 44–45 (paras 77–80).
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.
Reports 1970, p 3, 48 (paras 93–94).
44 Ibid, 48 (para 92).
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).
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.
49 Ibid, 58.
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.
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.
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: <http://www.worldbank.org/icsid/treaties/intro.htm>, and the UNCTAD
website: <http://www.unctad.org/en/docs//webdiaeia20098_en.pdf>.
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.
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,
<http://www.worldbank.org/icsid/cases/pdf/ARB0319_DecisionJurisdiction03-19.pdf>; 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,
<http://www.investmentclaims.com/decisions/PanAmerican_BP-Argentina-Jurisdiction.pdf>.
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,
requestType=CasesRH&actionVal=showDoc&docId=DC510_En&caseId=C10>, para 81; Enron v
Argentina, Decision on Jurisdiction, 2 August 2004, <http://icsid.worldbank.org/ICSID/FrontServlet?
requestType=CasesRH&actionVal=showDoc&docId=DC502_En&caseId=C3,%20para%2029>;
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,
requestType=CasesRH&actionVal=showDoc&docId=DC509_En&caseId=C8>, 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
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), <http://www.oecd/org/daf/investment/fdi/mai/negtext.htm>; 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.
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
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.
Responsibility, Ch.70 The International Community
as a Whole


ISBN: 9780199296972
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
(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
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
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
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 re-
establishment 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
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.

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
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.
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.
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.
(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.
(Paris, PUF, 2005), 250.
25 Ibid, 250, 341.
26 I Scobbie, ‘Invocation de la responsabilité pour la violation d’obligations découlant de normes
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.
Responsibility, Ch.71 Notice of Claim by an Injured
State
Jacqueline Peel


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Reparations
(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
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
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.
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.
5 Conclusion
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.
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
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).
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).
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.
Responsibility, Ch.72 Waiver, Acquiescence, and
Extinctive Prescription
Christian J Tams


ISBN: 9780199296972
Subject(s):
Responsibility of states — Diplomatic protection — Vienna Convention on the Law of Treaties — State
succession, international agreements — Treaties, interpretation — Arbitral tribunal — Arbitration
(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

(b) Conduct amounting to acquiescence 1043
(c) Relation to other concepts 1044
4 Extinctive prescription 1045

(b) Relation to acquiescence and estoppel 1047
5 Concluding remarks 1048

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:

(a) the injured State has validly waived the claim;
(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 non-
repetition 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
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
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
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
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
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
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
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 time-
limits 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
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-by-
case 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
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
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 <http://www.mpepil.com>
I Feichtner, ‘Waiver’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International
Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>
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
<http://www.mpepil.com>
JP Müller, Vertrauensschutz im Völkerrecht (Heymanns, Köln, 1971)
R Rajasingham, ‘Extinctive Prescription in International Law’ (1966) 7 Indian Journal of
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
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
<http://www.mpepil.com>(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 <http://www.mpepil.com>,
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 <http://www.mpepil.com>,
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.
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 <http://www.mpepil.com>, para 7.
11 Ibid, 1020.
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.
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 <http://www.mpepil.com>, 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
<http://www.mpepil.com>.
24 I Feichtner, ‘Waiver’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International
Law, Oxford University Press, 2008, online edition <http://www.mpepil.com>, 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)
44 ILR 301.
30 Cf First National City Bank of New York (1958) 26 ILR 325.
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).
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.
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.
44 NS Marques Antunes, ‘Acquiescence’, in R Wolfrum (ed), The Max Planck Encyclopedia of
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 <http://www.mpepil.com>.
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 <http://www.mpepil.com>.
55 See Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, ICJ Reports
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
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,
285, 372–376 (reviewing limitations of claims in conventions dealing with civil liability).
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;
214; and cf C Rousseau, Droit international public, vol V (Paris, Sirey, 1983), 181–182, K Hobér,
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.
been a party (Washington, Government Printing Office, 1898), vol IV, 1898, 4199.
77 Gentini (1903) 10 RIAA 552 (emphasis added).
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,
286, 301–304.
Responsibility, Ch.73 Diplomatic Protection
John Dugard


ISBN: 9780199296972
Subject(s):
Aliens, treatment — Wrongful acts — Nationalilty of individuals — Exhaustion of local remedies —
Codification — Customary international law — Prisoners of war — Secession
∗
(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
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
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
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
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
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
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
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
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
(b) The corporation had, at the date of injury, the nationality of the State alleged to be
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:
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
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:

…
(b) the claim is one to which the rule of exhaustion of local remedies applies and any
‘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
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 fair-
trial 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
(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
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.
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
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
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
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.
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).
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.
28 Draft Articles on Diplomatic Protection, art 7.
Reports 1970, p 3, 35 (para 43); 46 (paras 86–7); 50 (para 99).
30 Ibid, 48–9 (paras 94–6).
34 FA Mann ‘The Protection of Shareholders’ Interests in the Light of the Barcelona Traction Case’
(1973) 67 AJIL 259, 273.
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).
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.
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).
been a party (Washington, Government Printing Office, 1898), Vol 2, 1865.
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.
Objections, Judgment of 24 May 2007.
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.
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.
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.
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).
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.
Responsibility, Ch.74 Functional Protection
Myriam Benlolo Carabot, Muriel Ubéda-Saillard


ISBN: 9780199296972
Subject(s):
Ultra Vires conduct, functional test — Reparations — Diplomatic protection — United Nations (UN) —
Immunity from jurisdiction, states — Immunity from jurisdiction, ratione materiae
(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
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
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
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
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
‘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
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
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
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
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
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’ (1956-
II) 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:
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.
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.
12 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950-I) 76 Recueil des
cours 323, 342.
Reports 1949, p 174, 183.
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.
JDI 437, 438.
16 Mavrommatis Palestine Concessions, 1924, PCIJ Reports, Series A, No 2, p 4, 12.
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.
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.
cours 351.
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).
Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p 62, 84.
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.
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.
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.
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.
45 A Cassese, International Law (New York, OUP, 2005), 140.
cours 318, 361.
47 M Perez Gonzalez, ‘Les organisations internationales et le droit de la responsabilité’ (1988) 92
RGDIP 63, 75.
Reports 1949, p 174, 185.
49 Ibid, 186.
961 UNTS 187.
51 P Tavernier, ‘L’année des Nations Unies’ (1972) 18 AFDI 520.
Reports 1949, p 174, 186.
53 R Donner, The Regulation of Nationality in International Law (Irvington on Hudson, New York,
Transnational Publishers, 1994), 433.
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.
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.
Responsibility, Ch.75 The Diplomatic Channel
Michael Waibel


ISBN: 9780199296972
Subject(s):
Responsibility of states — Compensation — Negotiations and consultation — International courts and
tribunals, procedure — International Court of Justice (ICJ)
(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
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
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.
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
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
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
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
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
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
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
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.’).
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.
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.
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.
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’).
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.
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’).
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 sub-
structure 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).
1992, p 240, 250 (para 20).
63 Ibid, para 1.
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.
Responsibility, Ch.76 Conciliation and Other Forms
of Non-Binding Third Party Dispute Settlement
Nadine Susani


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — Conciliation
(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
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
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
placed in this procedure. In respect of the OSCE, article 18 of the Stockholm Convention on
Conciliation and Arbitration of 15 December 1992 provides that ‘any State party … may submit to a
conciliation commission any dispute with another State party which has not been settled within a
reasonable time through negotiation.’12 Article 66 of the Vienna Convention on the Law of Treaties
provides a conciliation procedure for resolving disputes regarding the interpretation or application
of articles concerning the nullity, extinction, and suspension of the application of treaties. It further
provides that disputes involving the contradiction of an imperative rule of international law must be
referred to the International Court of Justice.13 Conciliation certainly has a role to play in legal
disputes, although it is generally excluded from the most serious conflicts.
Conciliation appears in a large number of recent multilateral treaties concerning areas as varied as
the law of the sea, investment law, international economic law or human rights. It sometimes
presents itself as an alternative to judicial settlement.14 In other cases it is merely one step in a
15
global process of litigation resolution.15 For example, in the framework provided by Protocol 11 of
the European Convention on Human Rights,16 article 38 provides that where a Court declares an
application admissible, it will ‘pursue the examination of the case, together with the representatives
of the parties, and if need be, undertake an investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities.’ In so doing, it will ‘place itself at the disposal
of the parties
References
(p. 1102) concerned with a view to securing a friendly settlement of the matter’. If the dispute is
resolved by conciliation in this way, the Court strikes out the claim.17
Conciliation has often been favoured by States because it allows them to limit the extent of their
obligations: few obligations are imposed on States and there is a large measure of respect for
sovereignty. While the most serious disputes are sometimes excluded from conciliation
procedures, conciliation can address questions of international responsibility.
(b) A far from common practice

In practice, conciliation has been used in disputes which are admittedly of secondary importance,
but which are nevertheless politically sensitive and which can touch directly on the sovereignty of
the States involved. Sometimes, the mission of the conciliation commission is not to concentrate on
questions of responsibility but rather on the resolution of a territorial dispute.18 At other times, and
in the majority of cases, it is designed to obtain reparation for an internationally wrongful act,
thereby dealing with questions of responsibility.19
Nevertheless, this practice is far from common; the number of cases where it has been used
numbers only a little over 20 and the Stockholm Conventions of 1957 have not been used on a
single occasion. Nor is there any record of resort to conciliation in the context of ICSID or in the
European Court of Human Rights.
2 The weak relationship between conciliation and international

responsibility
Even if questions of responsibility can be addressed by conciliation, as they are in some cases,
this mechanism only presents a limited method for resolving this type of dispute. On the one hand,
it is preferred when States do not want a decision on international responsibility (subsection (a)).
On the other hand, the law plays too ambiguous a role in conciliation for it to be considered an
effective mechanism for determining international responsibility (subsection (b)).
(a) Conciliation as a forum for finding compromise solutions

States choose conciliation when important interests are at stake and they want to find a
compromise solution at all costs, even if that means they will not obtain a definitive statement of
international responsibility. The desire to reach a compromise provides conciliation with another
advantage in that allows the settling of a dispute by the offering of ex gratia payments, leaving
questions of principle unresolved. An example is provided by some decisions of the European
Court which fix the level of
References
(p. 1103) reparations which States must make to individuals, specifying in some cases that this
does not necessarily amount to an admission by the State involved to a violation of the
Convention.20
(b) The ambiguous role of the law in the conciliation procedure
The perpetual search for entente between the parties engaged in conciliation has driven some
writers to suggest that conciliation encourages the violation of the rule of law.21 A study of modern
practice suggests that this issue should be framed rather differently. If it is always easier for States
to agree on a level of compensation to be paid than on a question of principle, then the law is an
integral part of conciliation, even if its role is ambiguous. In any event, it appears that legal
differences are more easily resolved by conciliation than political differences.22
On most occasions, conciliation commissions will have to resolve questions of principle in order
bring the parties to conciliation. During the Italian-Swiss conciliation of October 1956, the
Commission was asked to decide whether an extraordinary heritage tax imposed by Italian law was
contrary to the most favoured nation clause which the Swiss wished to see applied. After having
decided the legal question in favour of Italy, the Commission proposed a compromise solution.23 On
other occasions, a legal question which would be essential before a tribunal is considered but not
resolved, in order to allow a compromise. For example, in the S/S Gorm and Svava cases between
Belgium and Denmark, the Commission had to decide whether financial compensation was due to
Belgium for the loss of two Danish ships evacuated from Anvers. Analysing the exact nature of the
evacuation appeared to be essential to determine responsibility, but the States were starkly divided
over whether the events had in fact amounted to requisition. The Commission finally reached a
satisfactory solution by which Belgium offered financial compensation to Denmark, taking into
account the legal uncertainty which existed.24 Clearly, then, the law is always present: it is a tool, it
provides objective criteria to help guide conciliators in their task; it can even become a tool for
putting pressure on a reluctant party to accept a satisfactory outcome.
Nevertheless, while questions of principle certainly play a role in the procedure, the application of
the law is not the primary purpose of conciliation. Parties elect this procedure because of their
desire to have other considerations taken into account. In the case concerning the torpedoing of
the Greek ship Roula by an Italian submarine in the Second World War, the conciliation
commission, having set out its position on the legal problems involved, reached a decision based
on equitable principles, as the parties had asked it to, and proposed that Italy compensate
Greece.25 In the Jan Mayen case, the parties gave a flexible mandate to the commission, which
was asked to take into consideration ‘important economic considerations of the Island in the
maritime zones, existing geographic and
References
(p. 1104) geological characteristics and other special circumstances’.26 Conciliation does not
appear to be a procedure designed to engage a State’s responsibility under international law, since
its primary purposes is not to determine that responsibility. Its function is to empty a dispute of its
substance and in so doing, to arrive at an agreement between the parties, using the law as one of
the factors involved, no more or less valuable than any other factors which might assist to bring the
parties to a solution.
In practice, conciliation has not been an unbridled success. The reason for this can be found in its
inability to satisfy the modern needs of international society. The judicial process is a strong
competitor, not least because States seem less reluctant today to accept obligatory solutions.27 In
this sense, the non-binding character of the solution offered by conciliation seems to be a
handicap. In practice the conciliation procedure is not always easy to organize; it can take a lot of
time and prove to be a very costly way of arriving at an uncertain result. It can only succeed if
supported by a real political will and where this will exists, negotiations will usually suffice to resolve
the dispute.
Furthermore, States wishing to resolve a conflict do not always want a compromise solution. Today
there is more confidence in the law and in recourse to a judge.28 To this end, if ARSIWA are
intended to help create an international legal order in an increasingly interdependent society, we
could conclude that conciliation does not appear to be an effective method of engaging a State’s
responsibility, since the law is not the principal basis of it. In contrast, if ARSIWA are seen as a tool
allowing for the maintenance of good relations between States, then conciliation still has an
important role to play. Ultimately, now as before, conciliation remains an imperfect procedure for an
imperfect society and can be compared, as Jean-Pierre Cot stated in 1968, to ‘a primitive stage in
the evolution of societies’.29
Further reading
DW Bowett, ‘Contemporary Developments in Legal Techniques in the Settlement of Disputes’
(1983-II) 176 Recueil des cours 177
M Breton-Jokl, ‘La Commission permanente de conciliation italo-suisse’ (1957) 3 AFDI 210
L Caflisch, Règlement pacifique des différends entre Etats : perspectives universelles et
européennes (The Hague, Kluwer, 1998)
E Canal Forgue, Institution de la conciliation dans le cadre du GATT: contribution à la
structuration d’un mécanisme de règlement des différends (Brussels, Bruylant, 1993)
J Collier & V Lowe, The Settlement of Disputes in International Law. Institutions and
Procedures (2nd edn, Oxford, OUP, 1999)
J-P Cot, La conciliation internationale (Paris Pedone, 1968)
VD Degan, ‘International Conciliation: its Past and Future’, in Völkerrecht and
Rechtspholosophie Internationale Festschrift für Stephan Verosta (Berlin, Dunker &
Humblot, 1980), 261
J Evensen, ‘La délimitation du plateau continental entre la Norvège et l’Islande dans le
secteur de Jan Mayen’ (1981) 27 AFDI 711
A Gros, ‘Remarques sur la conciliation internationale’, Etudes en l’honneur d’Achille Mestre
(Paris, Sirey, 1956), 279
(p. 1105) H Lauterpacht, The Function of Law in the International Community (Hamden,
Archon Books, 1966)
Ch Leben, ‘La mise en place de la Cour de Conciliation et d’arbitrage au sein de l’O.S.C.E.’
(1996-I) 259 Recueil des cours 135
DJ Liñan Nogueras, ‘Algunas consideraciones sobre la evolución de la conciliación’, Hacia
un nuevo orden internacional y europeo, Homenaje al Profesor Manuel Diez de Velasco
(Técnos, Madrid, 1993), 439
JG Merrills, International Dispute Settlement (3rd edn, Cambridge, CUP, 1998)
H Rolin, ‘La conciliation internationale’ (1961) 49(2) Annuaire de l’Institut de droi
international 193
H Rolin, ‘L’heure de la conciliation comme mode de règlement pacifique des litiges’ (1957)
Annuaire Européen 12
T Treves, ‘Recent Trends in the Settlement of International Disputes’ (1997-I) Cours euro-
méditerranéens de droit international 397(p. 1106)
Footnotes:
1 Article 26 ARSIWA.
2 Factory at Chorzów, Merits, 1928, PCIJ, Series A, No 17, p 29.
3 Free Zones of Upper Savoy and the District of Gex, 1929, PCIJ, Series A, No 22, p 5, 13.
4 See eg Agreement for the ceasing of hostilities between Ethiopia and Eritrea of 18 June 2000,
mediation by the OAU; propositions by South African President Mbeki, mediator responsible for
resolving the Ivorian crisis: L Belmond, ‘Chronique des faits internationaux’ (2005) RGDIP 691.
5 Art 9, Hague Convention I on the Pacific Settlement of Disputes, 29 July 1899; art 9, Hague
Convention I on the Pacific Settlement of Disputes, 20 October 1907.
6 For example, Red Crusader, Inquiry Commission established by art 15 of the 1961 Agreement
(Ch de Visscher for Belgium; A Gros for France), 35 ILR 485.
7 J-P Cot, La conciliation internationale (Paris, Pedone, 1968), 8.
8 Revised General Act for the Pacific Settlement of International Disputes, 28 April 1949, 71 UNTS
101.
9 H Rolin, ‘L’heure de la conciliation comme mode de règlement pacifique des litiges’ (1957)
Annuaire Européen 12.
10 A Gros, ‘Remarques sur la conciliation internationale’, Etudes en l’honneur d’Achille Mestre
(Paris, Sirey, 1956), 279.
11 See eg arts 1 and 4, European Convention for the Peaceful Settlement of Disputes, 29 April
1957, ETS No 23.
12 1812 UNTS 314.
13 1155 UNTS 331.
14 Art 284, UN Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS
3; arts 28 to 35, Convention on the Settlement of Investment Disputes Between States and Nationals
of Other States, Washington, 18 March 1965, 575 UNTS 159.
15 For example, art 27, Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, 1760
UNTS 79.
16 ETS No 155.
17 Ibid, art 39.
18 Franco-Siamese Conciliation Commission, 1 November 1947, see S Bastid, ‘La commission de
conciliation franco-siamoise’ in Etudes en l’honneur de Georges Scelle, Vol I (Paris, 1950), 1;
Report and Recommendations to the Governments of Iceland and Norway of the Conciliation
Commission on the Continental Shelf Area and Jan Mayen (1981) 62 ILR 108.
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.
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.
21 H Lauterpacht, The Function of Law in the International Community (Hamden, Archon Books,
1966), 260–269.
22 JG Merrills, International Dispute Settlement (3rd edn, Cambridge, CUP, 1998), 85.
23 M Breton-Jokl, ‘La Commission permanente de conciliation italo-suisse’ (1957) 3 AFDI 210.
24 H Rolin, ‘Une conciliation belgo-danoise’ (1953) RDGIP 353.
25 Roula case, see JPA François, ‘Le Palais de la Paix en 1956’ (1957) 4 NTIR 69.
26 J Evensen, ‘La délimitation du plateau continental entre la Norvège et l’Islande dans le secteur
de Jan Mayen’ (1981) 27 AFDI 711; Report and Recommendations to the Governments of Iceland
and Norway of the Conciliation Commission on the Continental Shelf Area and Jan Mayen (1981) 62
ILR 108.
27 T Treves, ‘Recent Trends in the Settlement of International Disputes’ (1997-I) Cours euro-
méditerranéens de droit international 397, 404.
28 Ibid, 401.
29 J-P Cot, La conciliation internationale (Pedone, Paris, 1968), 4.
Responsibility, Ch.77 Arbitration
Frédérique Coulée


ISBN: 9780199296972
Subject(s):
Responsibility of states — Arbitration — Countermeasures
(p. 1107) Chapter 77 Arbitration
1 The arbitration clause adopted on first reading: an ambitious clause 1108
(a) The scope of the clause 1108
(i) The scope of application of Part Three 1108

(ii) Systematization of the contentious dimension of responsibility 1109
(b) ‘Jurisdictionalization’ of the settlement of disputes relating to responsibility 1109
(i) Optional and mandatory arbitration in draft article 58 1110

(ii) The arbitral procedure as a guarantee of effectiveness 1110
2 The absence of arbitration in the 2001 Articles: a reaffirmation of

consensualism 1111
(a) Arbitration and countermeasures 1111

(b) Criticisms by Governments relating to Part Three 1112
(c) The form of the draft 1113
To consider arbitration within a global study on the law of international responsibility one must
consider the comparison between substantive rules relating to the settlement of disputes and rules
relating to compulsory submission to arbitration.
If the subject is approached from the angle of arbitral practice—the law of international
responsibility as derived from international arbitrations—it can be seen that international
responsibility has largely developed in the framework of the practice of international arbitral
tribunals and mixed commissions since the second half of the 19th century. This Chapter will not
deal with the development of the law of responsibility by this international case law. However, it can
be noted that the core dimension of reparation in the law of State responsibility, which has been
likened to civil responsibility in internal legal systems, derives from this arbitral case law.
Responsibility is materialized in reparation for damage caused.
If the subject is approached from the angle of the law of responsibility—the place of international
arbitration within the law of international responsibility—then a contrast appears. Given the
relatively frequent recourse to arbitration in order to seek reparation, the absence of provisions
concerning arbitration in ARSIWA is remarkable.
The frequency of the use of arbitration for the resolution of disputes concerning responsibility
‘classically’ understood1 at the end of the 19th century and the beginning of the 20th reveals a
partial overtaking of the reticence of States in relation to mandatory (p. 1108) mechanisms of
dispute settlement. This relative achievement can be explained by the advantages offered by this
form of settlement: its flexibility, the control of procedure by the State, the creation of the arbitral
organ, the choice of arbitrators, procedure and applicable law, and the possibility of confidentiality
of proceedings. Arbitration proves particularly adaptable to the variety of situations in which
responsibility is at issue. It is however important to underline that international responsibility has
also been the subject of several judgments of the International Court of Justice as well as numerous
compromise settlements of a diplomatic character.
It remains to be determined how the issue of arbitration translates into the work undertaken by the
ILC on State responsibility. The ILC, composed of experts charged with the codification and
progressive development of international law, had a natural predisposition to understand
responsibility in a very different way. Attention was thus placed on the rules concerning the
international responsibility of States conceived, at least to a certain extent, as the control of
international legality. An innovative approach entailing important progressive developments was
adopted: where some could have thought that it would be limited to a study of the substantial
consequences of responsibility as ‘classically’ understood, the Commission engaged in a
redefinition of the concept and understood the scope of its study accordingly, notably by including
in it countermeasures and regulating the procedural consequences of responsibility.2 After long
discussion, Part Three relating to the settlement of disputes, in which arbitration was recognized as
one of the means of choice, was adopted on first reading in 1996. In these conditions, it is
legitimate to question whether the deletion, in the final draft of 2001, of Part Three was symptomatic
of hostility against arbitration in the field of responsibility. It rather seemed that the characteristics
of the arbitration clause of the draft adopted on first reading in 1996, a particularly ambitious
clause, explain the abandonment of Part Three as a whole, including the arbitration clause, in 2001.
1 The arbitration clause adopted on first reading: an ambitious

clause
The arbitration clause (draft article 58 as adopted in 1996) was ambitious in two respects: its very
wide scope and the underlying intention towards the ‘jurisdictionalization’ of disputes concerning
responsibility.
(a) The scope of the clause

The extremely wide scope of application of Part Three also applies to the possible scope of the
arbitration clause. This tendency is consolidated by the content of the Part, which privileges and
systematizes the contentious dimension of responsibility.
(i) The scope of application of Part Three

In the draft adopted on first reading in 1996, the procedures for dispute settlement could be
invoked in relation to a ‘dispute regarding the interpretation or application of the (p. 1109) present
articles … between two or more States Parties to the present articles’. Their scope of application
was particularly wide if it is admitted that all international disputes can be understood as relating to
international responsibility, either because the dispute is presented as such, or because it may be
reformulated in that way. Responsibility often constitutes one aspect of a dispute. In addition,
behind a dispute relating to the form of reparation or the condemnation of countermeasures, there
will often be a question concerning the interpretation and application of a ‘primary rule’. Every
international obligation, present or future, could lead to an inter-State dispute potentially covered
by the dispute settlement system established in Part Three on first reading, which would thus have
taken on a very generalized application.3 The unlimited scope of dispute settlement there proposed
constitutes without a doubt an important difference when compared to treaties or conventional
clauses on dispute settlement which generally contain limitations ratione materiae and ratione
temporis.
(ii) Systematization of the contentious dimension of responsibility

In Part Three adopted on first reading, the ILC set out modes of dispute settlement including
arbitration, but did not address the procedural aspects of implementation of responsibility. Only if
an amicable settlement is not achieved and a dispute arises will a third party be called on, possibly
and under certain conditions, to decide the issue of responsibility. The contentious settlement of
disputes relating to responsibility, as included in the draft, was intended to be left to arbitral
tribunals only if it could not be solved by other diplomatic means, among which conciliation was
central.4
Since responsibility as it understood in the ILC Articles is diversified—reparation is only one of its
aspects—its contours are relatively uncertain5 and the contentious proceedings it generates must
have correspondingly expanded. In this context, Part Three of the first reading draft was all the
more innovative and significant.
(b) ‘Jurisdictionalization’ of the settlement of disputes relating to

responsibility
In the draft adopted on first reading, arbitration was presented as the final dispute settlement
mechanism to which States could have recourse after the failure of negotiation (article 54), good
offices and mediation (article 55), and conciliation (article 56). The free choice of States in relation
to the mechanisms of dispute settlement is thus maintained and States have at their disposal a
system which has multiple phases.6 The arbitration clause in article 58 probably constitutes the
most original aspect, opening the possibility of referring a dispute to optional or mandatory
arbitration. As a guarantee of effectiveness, a well-framed arbitral procedure was provided for.
(p. 1110) (i) Optional and mandatory arbitration in draft article 58

Article 58 as adopted on first reading established two possibilities for recourse to arbitration, either
in the framework of a general system of dispute settlement, or when countermeasures had been
taken. States parties had the possibility to refer to arbitration by mutual agreement if conciliation
had not been used or it had been used and had not resulted in a settlement of the dispute. States
could also conclude an arbitration agreement after the dispute had arisen. On the other hand,
article 58(2) would have conferred a un ilateral right to submit the dispute to arbitration by a State
against which countermeasures have been taken. The provision for mandatory arbitration in that
situation constituted an important benefit for a State against which countermeasures has been
taken.
Although the two cases of arbitration were clearly distinguished in these two paragraphs, its
application was capable of causing confusion. In fact, the right to take countermeasures entailed
the existence of an initial wrongful act the existence of which would have to be assessed, and the
requirement of proportionality required verification of the correlation between the countermeasures
and the gravity of the initial wrongful act and its consequences. The procedure in article 58(2),
even if triggered by the dispute concerning recourse to countermeasures, would inevitably lead
the arbitral tribunal to decide not only the dispute on the lawfulness of countermeasures, but also
the dispute concerning the initial act. Accordingly, the scope of mandatory arbitration under article
58 was significantly extended. The arbitral tribunal could be led to pronounce not only on the
‘secondary rules’ contained in the draft Articles, but also upon the ‘primary rules’, the breach of
which was alleged.7
In addition, draft article 48(2), which set out the conditions for recourse to countermeasures, would
have imposed on the State taking countermeasures obligations concerning the settlement of
dispute arising from the third part of the draft. Evidently this renvoi was unnecessary.8
(ii) The arbitral procedure as a guarantee of effectiveness

The modality of arbitration would have constituted, without doubt, an innovation of some
importance, since they were intended to be binding. In addition to the acceptance in principle of
the arbitration established in the framework of article 58(2), the draft largely specified the different
aspects of arbitral procedure in articles 59 and 60 and in annex II. Every effort was made to ensure
that the arbitral procedure was effective and that it guaranteed the effectiveness of the system: the
various stages of the procedure were stipulated, failures of States anticipated and time limits
established.
First, the various stages, from the beginning to the end of the procedure—constitution of the arbitral
tribunal, drafting of the compromis defining the object of the dispute,9 pronouncement of the
award, challenges to the validity of the award—were regulated. Different procedures were
proposed to avoid interruptions and to ensure automaticity in the stages of the procedure.
Second, the possible failures of the parties to the dispute were mitigated: if a State failed to
nominate an arbitrator, the task would have been entrusted to the President of the International
Court of Justice (or if the President was prevented from acting, (p. 1111) the Vice-President or, in
turn, by the most senior member of the Court),10 and provision was made for a solution for possible
vacancies.11 In the same spirit, the failure of one of the parties to participate in the procedure did
not constitute a bar to the proceedings.12 As in the framework of the conciliation procedure, great
importance was given to the inquiry which the Tribunal could request. A State party to the dispute
could refuse to allow an inquiry to take place in its territory, but this would suppose giving
explanations as to the exceptional reasons which would prevent the inquiry. This procedure,
however, would only be relevant if there were facts at issue in the dispute. However, the dispute
might also concern the existence or the scope of the obligation allegedly breached.
Finally, the draft proposed very narrow time-limits, both for the parties and the Tribunal: the
Tribunal had to be be constituted within a period of three months from the date of the request made
by one of the parties; 13 an agreement defining the object of the dispute had to be concluded within
a period of three months from the constitution of the Tribunal,14 and the Tribunal had to render its
award within a period of six months from the date of completion of the hearing.15 The International
Court of Justice was to be competent to address the dispute if, within a period of three months after
a challenge to the validity of the award, the parties had not agreed on another Tribunal.16 The
International Court would also have been competent to examine a challenge to the validity of an
arbitral award, a task it has undertaken in the past.17
Articles 58 to 60 and Annex II concerning the arbitral tribunal aimed to remedy the uncertainties
normally attached to arbitration, concerning the decision to have recourse to arbitration (in case of
countermeasures), the choice of the arbitrators, the applicable law, or the procedure to follow, by
trying to regulate these matters a priori. Only the precise object of the dispute was left to be
determined by the parties at a second stage.
2 The absence of arbitration in the 2001 Articles: a reaffirmation

of consensualism
The articles eventually adopted by the Commission do not contain any general dispute settlement
mechanism and the exceptional references to modes of dispute settlement are only included in
Chapter II of the Part Three relating to countermeasures, in articles 50 (obligations not affected by
countermeasures) and 52 (conditions relating to resort to countermeasures). There are no specific
or explicit references to arbitration. Three strictly interlocked elements explain the exclusion of
arbitration: first, the debate on the relationship between countermeasures and arbitration probably
harmed arbitration; second, the provisions concerning dispute settlement were negatively
assessed by numerous States; and third, the form of the draft (and in particular whether it would
lead to a convention) was influential.
(a) Arbitration and countermeasures

Consideration of Part Three concerning the settlement of disputes was often confused with or
disturbed by discussions as to the procedural conditions required for countermeasures,
References
(p. 1112) to the point that one commentator of the ILC work spoke of countermeasures as the ‘pivot
around which the system of dispute settlement revolved’.18 The will to bring about an important
progressive development of the law of countermeasures led to confusion in the debates. If the
discussion was difficult before first reading, after the adoption of the articles on first reading in
1996, the place of arbitration raised a violent debate. Draft article 58(2) introduced mandatory
arbitration for disputes concerning countermeasures under extremely questionable conditions and
risked increasing recourse to countermeasures. Once the decision had been made to include
countermeasures in the articles—a questionable choice which never convinced a number of
writers and numerous States—the mandatory arbitration clause was conceived as the major
bulwark built by the Commission against the possible unlawfulness of those measures. Arbitration
was not invoked other than in connection with countermeasures, to specify the procedural
conditions for their triggering or cessation.19 The discussion was excessively polarized with a
double negative effect: the virulent criticism sometimes formulated against article 58(2), raised
doubts, more generally, in relation to arbitration. In addition the Commission failed to engage in any
deeper consideration in relation to the location in the draft of dispute settlement procedures having
a mandatory character and other more specific aspects of the procedures. After having been the
object of discussion during the work of the Commission, dispute settlement in the case of a dispute
concerning an international crime or, to use the eventual wording of the 2001 Articles, of a dispute
concerning serious breaches of ‘obligations arising under a peremptory norm of general
international law’, was not included. This absence is surprising. An arbitral tribunal or the
International Court of Justice could have been recognized as competent to deal with these
disputes, in a similar way as article 66(a) of the Vienna Convention on the Law of Treaties20 in
relation to disputes concerning norms of jus cogens.
(b) Criticism by Governments relating to Part Three

In drafting Part Three, the ILC intended to include the settlement of disputes in the law of
responsibility. The ambition was even bigger—some would say, excessive—for the ILC intended the
dispute settlement provisions to concern the totality of the Articles. Governments were extremely
critical of this Part of the Articles, and challenged even its foundation: several proposed the pure
and simple suppression of Part Three whereas others called for the drafting of an additional optional
protocol relative to the settlement of disputes.21 But the fiercest criticism was probably raised in
relation to the arbitration clause. States perceived the arbitration clause as an unacceptable
mandatory mechanism (especially, France, the United States, and the United Kingdom). It must be
said that certain overarching terms used by Annex II, which seemed to indicate that unilateral
arbitration was general—and not only concerned disputes on countermeasures—lent themselves to
further confusion. Thus, for instance, under paragraph 5 if an agreement cannot be reached within
a period of three months from the date of the constitution of the Tribunal on the object of
References
(p. 1113) the dispute, the Tribunal itself can determine it on the basis of the request filed before it.
Certain objections were also voiced in relation to the provision of mandatory recourse to the
International Court to challenge the arbitral award.
If the central place given to arbitration could be considered as in conformity with a certain historical
reality, the modalities of this recognition are far from the conditions in which States traditionally
consent to arbitration. Their rigidity misreads the aspiration to flexibility and freedom which States
traditionally satisfy when referring to this means of dispute settlement. In other words, the
codification led to the negation of the advantages of arbitration and rendered the draft
unacceptable to States. States prefer to maintain all their freedom as to the choice of a dispute
settlement procedure, chosen in accordance with the object and circumstances of the dispute but
also having consideration to the privileged relationships between the disputing States.
The 1996 draft considered that it was sufficient to establish a compromissory clause to settle the
substantive difficulties concerning responsibility. This was really a codification which did not take
the principle of consensualism into account. States did not fail to express their objections to the
proposal made to infinitely extend ‘the operative scope’ of interstate arbitration.22 The bet to
ensure the revival of arbitration in this way was at the same time risky and daring. It was clearly
misplaced.
(c) The form of the draft
The questions of the final form of the draft articles and that of the relevance of the developments in
relation to the settlement of disputes have been intimately linked since the beginning of the
Commission’s work on State responsibility. The inclusion of a Part Three relative to dispute
settlement was envisaged at a time when it was thought that the Draft Articles on State
Responsibility would eventually be the object of a convention.23 The conventional form was
necessary since a real mechanism of dispute settlement was included, far more ambitious than the
general international law on the subject which is limited to laying down an obligation to solve
disputes pacifically while respecting the free choice of the parties in respect of the means of
settlement to be used. But it is possible that what was really a working hypothesis was sometimes
understood as certitude. When the ILC met to complete its work in 2001, the questions of
countermeasures, dispute settlement, and the form of the Articles were still undecided.
The ILC belatedly took heed of the lessons deriving from its codification of arbitral procedure,24 and
other experiences where codification drafts had failed or encountered serious difficulties due to the
question of dispute settlement.25 The contrast between the imperfect and questionable character of
the substantive law and the specificity of the (p. 1114) procedural rules contained in Part Three
was anticipated by the ILC. Conscious of the difficulty of achieving a text which would be adopted
by States, it recommended that the General Assembly to take note of the Articles in a resolution,
without including a Part Three on dispute settlement.26
The possibility of convening an international conference to examine the Articles for the drafting of a
convention is envisaged and only then will the question of dispute settlement procedures be
addressed. Assisted by Part Three adopted on first reading, the General Assembly could decide
whether it is appropriate to draft provisions on dispute settlement and what form they should
take.27 It cannot however be doubted that if such a conference were convened, States, again,
would judge these provisions to be too strict and would be amenable to a redrafting of the
provisions concerning arbitration.
Further reading
B Bardonnet, ‘Quelques observations sur le recours au règlement juridictionnel des
différends interétatiques’, in R Favreau and MH Debiès (eds), Mélanges offerts à Piotr
Skubiszewski par ses amis et collègues (Poitiers: Civilisation Médiévale, 1999), 737
L Condorelli, ‘Le règlement des différends en matière de responsabilité internationale des
Etats: quelques remarques candides sur le débat à la CDI’ (1994) 5 EJIL 106
V Coussirat-Coustère, ‘Le règlement des différends dans l’oeuvre de la CDI’, in Recueil
d’études à la mémoire de Gilbert Appolis (Paris, Pedone, 1991), 29
RJ Dupuy, ‘Codification et règlement des différends Les débats de Vienne sur les procédures
de règlement’ (1969) 15 AFDI 70
P Lalive, ‘Avantages et inconvénients de l’arbitrage ad hoc’, in Etudes offertes à Pierre
Bellet (Paris, Litec, 1991), 301
P Ruegger, ‘Des clauses arbitrales et de juridiction dans les conventions internationales
récentes’, in Mélanges en homage à Paul Guggenheim (Geneva, Faculté de droit the
l’Université de Genève, 1968), 687
VS Vereshchetin, ‘Some Observations on the New Proposal on Dispute Settlement’ (1994) 5
EJIL 54
Footnotes:
1 A responsibility which supposes a generating act, damage and a causal link between the two.
2 See P Reuter, ‘Trois observations sur la codification de la responsabilité internationale des Etats
pour fait illicite’, in Le Droit Internationale au Service de la Paix, de la Justice et du Development:
Melanges M Virally (Paris, Pedone, 1991), 389–398.
3 In this sense, see A Pellet, ‘Remarques sur une révolution inachevée Le projet d’articles de la
CDI sur la responsabilité des Etats’ (1996) 42 AFDI 7, 30. See the remarks by Riphagen in W
Riphagen, Sixth Report on State Responsibility, ILC Yearbook 1985, Vol II(1), 1, 16 (para 8).
4 See L Condorelli, ‘Le règlement des différends en matière de responsabilité internationale des
Etats: quelques remarques candides sur le débat à la CDI’ (1994) 5 EJIL 106; VS Vereshchetin,
‘Some Observations on the New Proposal on Dispute Settlement’ (1994) 5 EJIL 54.
5 On this aspect, see 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. See also B Stern, Chapter 17.
6 Arbitration did not always have this prominent role throughout the drafting of Part Three. See W
Riphagen, Seventh Report on State Responsibility, ILC Yearbook 1986, Vol II(1), 1, 1–20.
7 See Commentary to draft art 5, para 5, Report of the ILC, 47th Session, ILC Yearbook 1995, Vol
II(2), 79.
8 V Coussirat-Coustère, ‘Le règlement des différends dans l’oeuvre de la C.D.I.’, in Recueil
d’études à la mémoire de Gilbert Appolis (Paris, Pedone, 1991), 29, 36
9 Annex II, para 4, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2) 65.
10 Annex II, para 2, ibid .
15 Draft art 59(1), ibid .
16 Draft art 60(1), ibid .
17 Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v Nicaragua), ICJ
Reports 1960, p 192; Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), ICJ Reports 1991,
p 53.
18 Y Daudet, ‘Travaux de la Commission du droit international’ (1993) 39 AFDI 737, 740. See in
this respect G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol (II)1, 3–59,
13–15.
19 This matter will not be dealt with here. There is abundant literature dedicated to the topic. See
also Y I wasawa & N Iwatsuki, Chapter 81.
20 22 May 1969, 1155 UNTS 331.
21 See F Belaïch, ‘Les réactions des Gouvernements au projet de la C.D.I. sur la responsabilité
des Etats’ (1998) 44 AFDI 512, 516.
22 To use the wording of Virally: M Virally, ‘Le champ opératoire du règlement judiciaire
international’ (1983) 87 RGDIP 281.
23 From 1975 onwards, the plan adopted by the Commission mentioned the possibility of a Third
Part on dispute settlement and the implementation of international responsibility, see Report of the
ILC, 27th Session, ILC Yearbook 1975, Vol II, 55–59 (paras 38–51).
24 It may be recalled that the proposals of Scelle from 1958, undoubtedly constituting progressive
development, did not result in a set of model rules on arbitral procedure, see G Scelle, ‘Draft on
arbitral procedure adopted by the Commission at its fifth session”, ILC Yearbook 1958, Vol II, 1–15.
25 See P Ruegger, ‘Des clauses arbitrales et de juridiction dans les conventions internationales
récentes’, in Mélanges en homage à Paul Guggenheim (Geneva: Faculté de droit the l’Université
de Genève, 1968), 687; RJ Dupuy, ‘Codification et règlement des différends Les débats de Vienne
sur les procédures de règlement’ (1969) 15 AFDI 70.
26 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 25 (para 72).
27 Ibid, 25 (para 73).
Responsibility, Ch.78 Resort to International Courts
in Matters of Responsibility
Gilles Cottereau


ISBN: 9780199296972
Subject(s):
Responsibility of states — Reparations — International Court of Justice (ICJ) — International Tribunal for
the Law of the Sea (ITLOS) — Immunity from jurisdiction, ratione materiae — Immunity from jurisdiction,
states
(p. 1115) Chapter 78 Resort to International Courts in
Matters of Responsibility
1 The jurisdiction ratione materiae of international courts and responsibility 1117
(a) Statutory jurisdiction 1117
(i) The International Court of Justice 1117

(ii) The International Tribunal for the Law of the Sea 1118
(b) Grants of jurisdiction 1118
(i) Conventional grant of jurisdiction 1118

(ii) Concordance of unilateral declarations 1122
2 The subjects of dispute settlement and its function 1123
(a) Subjects as parties 1124
(i) The International Court of Justice 1124

(ii) The International Tribunal for the Law of the Sea 1124
(b) The function of international adjudication in responsibility cases 1124
(i) Determining the function of the rules on responsibility 1124

(ii) Guarantees against irreparable injury 1125
The implementation of international responsibility may be achieved through different means. Among
these, the procedures of pacific dispute settlement may prove useful. All the range of diplomatic
procedures may be employed as well as the two significant dispute settlement mechanisms:
arbitration and international courts.
The judge is defined by reference to the notion of jurisdiction. In one sense, a judge includes both
the person appointed as arbitrator and the person nominated as judge. Salmon’s dictionary refers
to this broad meaning: ‘person invested with the power to decide a dispute submitted to him on an
individual basis (sole arbitrator), or as a member of a collegiate organ (arbitral tribunal or judicial
body)’.1
Within the framework of this Chapter, the term judge will be understood in a narrower sense, to
avoid confusion. Here judge will be understood as a third party who decides disputes. Nominated
through the application of statutory rules rather than the free will of the parties, the judge decides
the dispute on the basis of the law through a judgment having the authority of res judicata.2
Today there are international judges authorized to decide disputes concerning responsibility in four
fields: international criminal law; international human rights law; the (p. 1116) administrative law of
international organizations; and general international law (including the law of the sea).
International criminal law judges do not have competence to decide on the responsibility of States
or of international organizations. They judge natural persons. The Statute of the International
Criminal Tribunal for the Former Yugoslavia clearly establishes this competence in article 6: ‘The
International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the
present Statute’.3 Article 5 of the Statute of the International Criminal Tribunal for Rwanda
establishes the same limit.4 Article 1 of the Statute of the International Criminal Court also limits the
jurisdiction of the Court to natural persons.5
International human rights law judges are in a quite different position. The cases within their
jurisdiction concern breaches of obligations undertaken by a subject of international law through a
treaty, and these breaches can only engage the responsibility of the State in question. But the two
regional judicial organs which exist present special characteristics justifying their analysis in other
Chapters.6
International administrative jurisdictions may also decide on the question of the responsibility of an
international judicial subject. But the disputes decided by the United Nations Administrative
Tribunal7 and other similar tribunals are of a different kind to the ones analysed here. It must
however be noted that the legal questions arising from the conduct of international agents and
officials may contribute to the development of international law, including the law of the
responsibility of States and international organizations.
Similarly to be left aside are tribunals charged with jurisdiction to decide legal disputes related to
economic integration (such as the Court of Justice of the Cartagena Agreement8 or the Caribbean
Court of Justice9 ) or economic and political integration (such as the Court of First Instance and the
Court of Justice of the European Communities10 ). In the case of these tribunals, their legal
categories and the types of relations existing among the members on the one hand, and between
the members and the organizations, on the other, are too removed from general international law.
Nor is there any point in discussing tribunals which exist only on paper. The Additional Protocol to
the European Convention on State Immunity, which provides for the creation of a European Tribunal
in matters of State immunity composed by members of the European Court of Human Rights,11 must
be considered ineffective. This is undoubtedly so also for the European Nuclear Energy Tribunal,
established by the 1957 Convention.12
References
(p. 1117) Taking into account the aforementioned restrictions, two bodies remain within the field of
general international law. Questions of the implementation of the responsibility of an international
subject before a judicial organ may occur before the International Court of Justice. The International
Tribunal on the Law of the Sea (ITLOS) also provides interesting examples. The latter tribunal in
particular introduces the idea of a judicial system and allows access to judges by entities other
than States.
1 The jurisdiction ratione materiae of international courts and

responsibility
In international law, international courts exist by virtue of the attribution of jurisdiction by States
through international instruments. There is no such thing as jurisdiction simply on the basis of the
law. Concerning the analysis of the jurisdiction ratione materiae of international courts, it is
necessary first to examine the possible statutory limitations that might limit the questions which can
be submitted to the court or the field of application; here, specifically, in relation to responsibility.
(a) Statutory jurisdiction

Analysis of the statutes of the International Court of Justice and the International Tribunal for the
Law of the Sea shows that both these tribunals may deal with questions of responsibility. In the
case of the International Court the Statute itself expressly grants it jurisdiction over matters relating
to State responsibility; and in the case of the International Tribunal for the Law of the Sea, the
Statute does not expressly exclude it from its jurisdiction, insofar as the field of application comes
within its specialty. No doubt it is possible to imagine a jurisdiction where all matters of responsibility
are statutorily excluded. But this is not the case with the two tribunals examined here.
(i) The International Court of Justice
The International Court of Justice can decide disputes concerning questions of responsibility. Article
36(2)(d) of the Statute establishes that States may declare that they recognize as mandatory and
ipso facto the jurisdiction of the Court on any dispute concerning ‘the nature or extent of the
reparation to be made for the breach of an international obligation’. If a view of responsibility is
adopted that is in keeping with that of Roberto Ago, according to which the consequences of the
wrongful act arise from responsibility itself without any concrete harm, then the Statute also
provides a foundation for competence through article 36(2)(c), which affirms the jurisdiction of the
Court if the subject of the dispute is ‘the existence of any fact which, if established, would
constitute a breach of an international obligation’. In other words, there is a statutory basis for the
Court to examine a situation where there are circumstances which preclude responsibility for an
unlawful act.
It must not be forgotten that the Statute was preceded by a proposal made by the ‘Consultative
Committee of Jurists for the institution of a Permanent Court of International Justice, envisaged in
article 17 of the Covenant of the League of Nations’.13 This proposed that the PCIJ have general law
jurisdiction for contentious disputes between States. For all other matters States would have to
grant jurisdiction to the Court through general or special
References
(p. 1118) conventions. This evidences the general character of the four fields of jurisdiction
established by the Statute of the Court, within which questions of responsibility may arise.
(ii) The International Tribunal for the Law of the Sea

The provisions of the Statute of the International Tribunal for the Law of the Sea are rather brief.
This is because a great part of the provisions which would normally be found in a statute creating
an international tribunal are in this case included in the United Nations Convention on the Law of
the Sea.14 The International Tribunal for the Law of the Sea is in a hybrid position. The judges
composing the Tribunal are appointed following statutory procedures, but the essential elements of
their functions are established in the Convention. The Tribunal’s action is thus locked in within a
specialty which forms the counterpart of its double origin: the Convention and Annex VI to the
Convention, which contains the Tribunal’s Statute. Article 1 of Annex VI clearly manifests this: ‘the
International Tribunal for the Law of the Sea is constituted and shall function in accordance with the
provisions of this Convention and this Statute’.
Nothing in the Statute prevents a matter of responsibility being decided by the Tribunal, if the
primary rules the interpretation and execution of which are disputed concern rights and obligations
of the law of the sea contained in the Convention or in other documents, as provided for by the
Statute.
(b) Grants of jurisdiction

There are two techniques to grant jurisdiction to a judicial body over a legal dispute: by
conventional grant of jurisdiction or by a special grant of jurisdiction. Conventional grants of
jurisdiction may apply to disputes which have already arisen, by bringing the dispute before a
tribunal by a special agreement or compromis, or for future disputes by adopting a compromissory
clause in a treaty or by the adoption of a treaty granting general jurisdiction. Jurisdiction by special
grant may apply to disputes which have already arisen: jurisdiction may be granted by the lodging
of a complaint and the subsequent acquiescence to the jurisdiction by the respondent or by prior
acceptance by optional declarations, the archetype of which is the compulsory jurisdiction
provided for in article 36(2) of the International Court’s statute. It is unnecessary to strongly
contrast these two grants of jurisdiction. All intermediary positions between the conventional and
the special grants of jurisdiction are possible, and the International Tribunal for the Law of the Sea
is a good example of this. The jurisdiction of the International Tribunal of the Law of the Sea rests
on the combination of statutory provisions and conventional obligations, the latter of which make it
possible to issue unilateral declarations. These declarations are of a special character since they
are declarations for the exclusion of jurisdiction.
(i) Conventional grant of jurisdiction

The ex post grant of jurisdiction through a compromis does not give rise to any special problems. It
is the grant of jurisdiction ex ante which poses more problems, especially taking into account the
mixed feelings expressed by governments in relation to the inclusion of provisions on pacific
dispute settlement. The conventional grant of jurisdiction made
References
(p. 1119) ex ante supposes that if a dispute arises, a claim must be presented by the applicant
State before an international tribunal.
States can submit to the International Court of Justice all legal disputes, insofar as in doing so they
do not require the Court to move away from its judicial mission, by a compromis freely drafted.
Thus, in Gabčíkovo-Nagymaros Project, where the Court was asked to decide on several questions
relating to the international law of responsibility, the two States concerned, Hungary and Slovakia,
approached the Court through a notification of a special agreement which complied with the
requirements of article 40 of the Statute of the Court.15
The statutory provisions concerning the International Tribunal for the Law of the Sea also allow
States to approach the Tribunal by a compromis. Article 24 of the Statute is drafted in almost
identical terms to the analogous provision in the ICJ Statute: ‘Disputes are submitted to the Tribunal,
as the case may be, either by notification of a special agreement or by written application,
addressed to the Registrar. In either case, the subject of the dispute and the parties shall be
indicated’. With the exception of the Swordfish Stocks case,16 no case has been submitted to the
Tribunal by special agreement.
Both jurisdictions analysed here differ markedly in relation to the grant of jurisdiction through
treaties and conventions. On the one hand multiple agreements establish the possibility of disputes
arising under them to be decided by the International Court. On the other hand, it is principally
through the application of a sole convention—even if other jurisdictional bases are accepted—that
the jurisdiction of the Law of the Sea Tribunal is established.
Turning first to the International Court, there are approximately 270 international conventions which
provide that disputes arising in relation to their interpretation and application may be decided by
the International Court of Justice. A retrospective examination of the case load of the Court during
the 20th century gives a representative view of the preoccupations of the time. All the treaties
brought to the attention of the Court in this period are multilateral conventions: five of them
concerned the environment17 and two concerned weapons.18
The text of the ILC Articles on State Responsibility could have provided the basis for an
international convention on responsibility including provisions for the pacific settlement of disputes
and for the referral to the International Court of Justice of disputes arising under it, but as is well
known, this was not the preference of States as it evolved throughout the ILC work, nor was it,
eventually, the preference of the ILC itself. First, the provisions on pacific settlement of dispute
were eliminated from the draft, on the basis
References
(p. 1120) that nothing justified special treatment for questions of responsibility. Second, the legal
status of the text to be adopted, either as an international convention or a simple resolution, could
not be decided upon. Finally, the specific question of judicial settlement was put aside, even before
the final decision to completely eliminate it from the draft. In fact, in its final version, the ILC
documents did not make any mention of judicial settlement of disputes. The questions concerning
the jurisdiction of international courts over international crimes and over countermeasures, which
were largely debated, found no place in the text eventually adopted by the ILC.
Arangio-Ruiz’s Seventh Report contained special provisions in relation to international crimes and
proposed a double role for the International Court of Justice. On the one hand, the Court should
play a special role in the determination of the crime; on the other hand, it would also have a role in
the settlement of disputes arising from the commission of international crimes.19 According to
Arangio-Ruiz it was necessary that following a public action the International Court in some form
determine the existence of the international crime. In the hypothesis of an alleged crime, a vote of
the Security Council or a qualified majority vote of the General Assembly would have guaranteed
the seriousness of the allegation. On the basis of this vote, any member State of the UN could bring
the case before the International Court by unilateral application. The Court would have a sole
objective at this stage: to pronounce on the existence of the crime, whether already committed or
in the course of being committed. Draft article 19(5) proposed that the provisions specifically
relating to the consequences of crime could be implemented after the judicial determination of the
crime. Subsequently, the Special Rapporteur accepted that the Security Council could nominate an
ad hoc prosecutor in charge of the inquiry while the International Court could have been reduced
to an ad hoc five judge chamber. Additionally, in the framework of the settlement of disputes, the
failure to deal with the consequences of crimes through arbitration for a period of four months
would have permitted a unilateral application to the International Court. All these provisions,
concerning the judicial consequences of crimes were considered by the Rapporteur to involve the
conventional grant of jurisdiction on the International Court. The unilateral applications would have
their legal base in a treaty on responsibility, and should not be confused with the unilateral
applications based on the Court’s Statute. All these provisions disappeared with the notion of
crime.20
In his Fifth Report, Arangio-Ruiz, like his predecessor Riphagen, considered that it was not possible
to establish in the text a mechanism for the mandatory settlement of disputes prior to the taking of
countermeasures. However, in relation to disputes possibly arising from the adoption of such
countermeasures, he proposed a three-step mechanism: initially, conciliation; if this could not be
implemented or failed, then provision for an arbitral procedure; and in case of failure of arbitration,
unilateral application to the International Court of Justice.21
Arguments in favour of the inclusion of such pacific dispute settlement procedures were of two
kinds. On the one hand, by including in the text some provisions on countermeasures, the
rapporteurs sought to promote a wide conception of the scope of application of the rules on
responsibility. It was natural that by re-introducing a conflict over a (p. 1121) conflict—adding to
the initial dispute, a dispute over countermeasures themselves—the drafters were tempted to
escape the endless dialectic of binary oppositions through the introduction of a third-party
decision-maker. On the other hand, after Ago, responsibility was mostly perceived as a ‘situation’
rather than an ‘institution’. In the past Basdevant had maintained the opposite, seeing in the
mechanisms set in motion by the injury caused by an unlawful act an institution; 22 whereas the
Italian Rapporteurs before the ILC insisted on the notion of ‘situation’: the situation in which a State
who has breached its obligations finds itself, having to grant reparation on the one hand and to
bear the reactions of the injured States on the other.23 To react or to bear the reactions justified
consideration by an international court, without doubt seen as an encouragement for moderation.
The return, with the last Rapporteur Crawford, to a more classical conception of the rules on
responsibility, without doubt closer to the wishes of States, explains the disappearance of the
provisions concerning the pacific settlement of disputes. Finally, at its fifty-third session in 2001:
On the recommendation of the open-ended working group, the Commission reached the
understanding that it would not include provisions for a dispute settlement machinery, but
would draw attention to the machinery elaborated by the Commission in the draft adopted
on first reading as a possible means for settlement of disputes concerning State
responsibility; and would leave it to the General Assembly to consider whether and what
form of provisions for dispute settlement could be included in the event that the Assembly
should decide to elaborate a convention.24
The International Tribunal on the Law of the Sea, as a specialist body, stands in marked contrast to
the International Court of Justice. The Tribunal is competent for all disputes submitted to it in
accordance with Part XV of the UN Convention on the Law of the Sea concerned with the
interpretation and application of the Convention itself and with the agreement on the application of
Part XI concerning the ‘area’ of the seabed. In addition, the Montego Bay Convention allows the
Tribunal to play a special role in the field of provisional measures. The Tribunal can not only order
such measures in disputes which will be decided by it on the merits, but it can also proceed to
order measures in disputes whose parties do not intend to have the merits decided by it. In these
cases, dealt with in article 290(5) of UNCLOS, the Tribunal—or even the Chamber for the settlement
of disputes concerning the seabed—can decide on conservatory measures which will eventually
be modified or revoked by the international court or arbitral tribunal deciding the merits. There is
here an aspiration towards the judicialization of international relations and at the same time of the
embryo of a jurisdictional system. The first four requests received by the Tribunal were based on
this provision.
In addition, other agreements may establish the Law of the Sea Tribunal as the relevant dispute
settlement body. At present, four multilateral agreements contain this possibility: the Protocol to the
Convention on the Prevention of Marine Pollution by Dumpling of Wastes,25 the Agreement for the
Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks,26 the
Agreement to Promote Compliance with
References
(p. 1122) International Conservation and Management Measures by Fishing Vessels on the High
Seas,27 and the Framework Agreement for the Conservation of Living Marine Resources in the High
Seas of the Southeast Pacific.28
(ii) Concordance of unilateral declarations

The jurisdiction of international courts can be established by the meeting of unilateral acts. This
technique may be used for disputes that have already arisen—a priori—and for future disputes. In
the first case, the court’s jurisdiction will be granted through the socalled forum prorogatum; in the
second case, the court’s jurisdiction arises from optional declarations accepting its jurisdiction.
The doctrine of forum prorogatum may be used to establish the court’s jurisdiction or to widen an
already existing jurisdiction beyond what had been initially agreed. The claimant approaches the
international court through a unilateral application concerning a dispute at a time when the subject
who will become the defendant has not yet consented to the jurisdiction of the court. The latter
subject consents to the exercise of jurisdiction of the court either by an explicit ad hoc acceptance
or by unequivocal conduct, such as the performance of procedural acts that are only relevant if
performed by the respondent. The technique of forum prorogatum can also be used to widen the
jurisdiction of the court beyond what has been agreed, for instance extending the ratione materiae
or ratione temporis limits of a compromissory clause.
This practice has been allowed before the International Court for a long time,29 and has been the
object of applications concerning questions of responsibility in the framework of the conflict in the
former Yugoslavia and in the Certain Questions of Mutual Assistance in Criminal Matters (Affaire
Borrel). This latter case was the first occasion on which it fell to the Court to pronounce on a
dispute brought before it by an application based on article 38, paragraph 5 of the Rules.30
For its part, ITLOS was approached by separate letters from Chile and the European Community in
the Swordfish Stocks case.31 How exactly these letters should be characterized is a matter raising
serious doubts. In fact, the text of the Chilean letter contains provisions that mention elements of
the argument of the EC; the letter mentions a negotiated position, but it was not formally a
compromis since the failure of Belgium to agree would have hampered the application.
As for optional declarations, the mechanism provided for in article 36 of the ICJ Statute is well
known. Without being bound to do so, States may declare in advance that they accept, under
certain conditions they may establish, the jurisdiction of the Court for future disputes. Certain States
have declarations worded very simply. The simplest is without doubt that of the Republic of Haiti,
which dates from the time of the PCIJ, which states: ‘On behalf of the Republic of Haiti, I recognize
the jurisdiction of the Permanent
References
(p. 1123) Court of International Justice as compulsory’.32 It is even shorter than that of Nicaragua,
dating from 1929, which was the subject of a decision by the International Court in 1984.33 Other
declarations are more complex and more restrictive.
The condition of reciprocity, often expressly included in declarations but anyway to be implied,
makes it impossible to determine a priori the jurisdiction of the Court. To exactly determine the
contours of the agreed jurisdiction, the texts of the declarations, which may differ, must be
examined.
Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court
enables a Party to invoke a reservation to that acceptance which it has not expressed in
its own Declaration but which the other Party has expressed in its Declaration.34
Case law on this point is constant: a tribunal is competent only within the limits of the common base
of jurisdiction accepted by the two State parties.35 In addition, States can make reservations in their
optional declarations severely restricting the Court’s jurisdiction: in practice, the limiting effect of
reservations is multiplied by the principle of reciprocity, which authorizes the defendant State to
invoke to its benefit reservations contained in the declaration of the claimant State.36
The mechanisms contained in the Montego Bay Convention also permit States to file optional
declarations under the principle of reciprocity. However, the object of these declarations is not to
grant jurisdiction to the dispute settlement mechanisms envisaged in the Convention, but rather to
exclude their jurisdiction as indicated by article 298(1):
When signing, ratifying or acceding to this Convention or at any time thereafter, a State
may, without prejudice to the obligations arising under section 1, declare in writing that it
does not accept any one or more of the procedures provided for in section 2 with respect
to one or more of the following categories of disputes …
This chapeau is followed by a list of areas which States may exclude from the dispute settlement
mechanism of the Convention. Some 15 States have filed declarations of exclusion. None of them
have as their object the question of responsibility, but they may have this effect by restricting the
scope of the conventional dispute settlement mechanism.
2 The subjects of dispute settlement and its function

As a general rule, the subjects of public international law stricto sensu are States and international
organizations. But when dealing with international courts and tribunals, it is only States which are
normally referred to as possible parties to proceedings. Yet there is some evolution in one of the
jurisdictions being examined, and it must be mentioned that advisory opinions can be more than
simple consultations on a point of law without reference to any possible responsibility. To be of the
opinion that the use of a nuclear weapon under certain conditions is not in accordance with
international law provides an indication that issues of responsibility may later arise.
References
(p. 1124) (a) Subjects as parties

The parties to contentious cases before international jurisdictions are normally States. This rule still
holds true for the International Court of Justice; but it is not longer so for the International Tribunal
for the Law of the Sea.
(i) The International Court of Justice

Only States may be parties to cases before the International Court. International organizations,
juridical persons, and individuals cannot appear before it as parties to a case. Certainly, this does
not mean that the Court’s jurisdiction in matters of responsibility does not interest other actors. In
many cases, the dispute may have had its origin in an injury suffered by a foreigner, not redressed
by internal remedies, and having been raised at the international level through the institution of
diplomatic protection exercised by its State of nationality.37
It is not possible for international organizations to resort to the Court for the settlement of disputes.
But for some time now, advisory opinions have provided valuable indications for the settlement of
disputes concerning responsibility through other means. Who could forget that, precisely in the
opinion on Reparations the questions posed related to whether the United Nations could bring
claims for injury suffered by individuals at its service?38 In sum, if questions of responsibility cannot
be dealt with directly by and for international organizations, they can without doubt be dealt with
indirectly.
It remains that the appearance on the international scene of international organizations which are
not content to be only contrasted with States, but aim to substitute for them, poses problems which
will have to be solved in The Hague. It is not reasonable that a legal person of public international
law, having exclusive competencies permanently substituted to those of States, cannot appear as
either as claimant or defendant before the International Court.
(ii) The International Tribunal for the Law of the Sea

Again by contrast, in the framework of the conventional and statutory provisions of ITLOS, this step
has been taken. Article 291 of UNCLOS gives States access to the dispute settlement mechanism
established therein, but it also specifies that entities other than the States parties may have access
to the dispute settlement procedures insofar as the Convention specifically provides for it.
The Tribunal, in its different forms and notably in the framework of the ad hoc Chamber for seabed
disputes, may accept as parties before it: States, international organizations, the International
Seabed Authority, enterprises, and commercial societies. The Tribunal thus opens its doors to
transnational law actors. It was not the States of the European Union who were parties to the
Swordfish Stocks dispute, but the European Community, itself a party to UNCLOS. The Chamber for
Seabed Disputes—which can also give advisory opinions—could have before it as parties
commercial companies exploiting the seabed and international organizations.
(b) The function of international adjudication in responsibility cases
(i) Determining the function of the rules on responsibility

The study of the ILC centred on the unlawful act, rather than the concept of injury, at least until
before the semi-final version of the text. This approach can reasonably be put down
References
(p. 1125) to the considerable influence of Ago. That eminent scholar was more interested in
tracking down the delict than in reparation for injury; the title of his course at the Hague Academy
of International Law, ‘Le Délit International’, is evidence of this.39 In a legal system which was badly
equipped from a judicial standpoint to effect objective control, the temptation to use a ‘reparation
dispute’ to control the lawfulness of acts was high. By engaging the contentious jurisdiction of a
court through the unlawful act rather than through the injury, that is, by deciding initially on the
existence of an unlawful act to then determine, if necessary, that there is no damage, the rules of
responsibility were given functions which are difficult to discern.
The case law shows hesitation over the function of the rules on responsibility because the parties
themselves were hesitant. But after the case of Gabčíkovo-Nagymaros, the International Court
adopted a clear position on the role of the law of State responsibility:
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.40
(ii) Guarantees against irreparable injury

The embryo of a judicial system appeared with the evolution of the International Court’s case law
on provisional measures, which under certain conditions can be mandatory, and the inclusion of
mandatory provisional measures in the statutes and rules of certain tribunals, like those of the Law
of the Sea Tribunal.
Statutorily, the ICJ’s indication of provisional measures did not have mandatory force. The
theoretical explanation of the non-mandatory character of the measures was to be found in the
organization of the international judicial system itself. The International Court was never intended to
have any mandatory jurisdiction; it was thought that therefore it could not exercise a jurisdictional
function before definitively determining its jurisdiction. Since provisional measures arise at a stage
where jurisdiction is only determined prima facie, the Court could not adopt measures having a
mandatory character.
But in the LaGrand case the radically irreparable and instantaneous character of the foreseeable
damage was such (the damage being the execution of a death sentence by pubic authorities) that
the Court was urged to adopt for the first time mandatory measures. In fact, the measures could
either be respected or breached, for they established that:
The United States of America should take all measures at its disposal to ensure that Walter
LaGrand is not executed pending the final decision in these proceedings, and should
inform the Court of all the measures which it has taken in implementation of this Order.41
The Court added the obligation for the Government of the United States to transmit the order to the
Governor of the State of Arizona. It appears that the case law modified the position of the Court in
the legal order, a least insofar as the question relates to radically irreparable damage.
References
(p. 1126) The competence of the International Tribunal for the Law of the Sea to order provisional
measures is to be interpreted in the same sense. ITLOS may order provisional measures, which can
be characterized as traditional, insofar as it can prescribe measures judged appropriate in the
circumstances to preserve the respective rights of the parties in dispute or to prevent the marine
environment from suffering serious damage.42 It may also prescribe provisional measures in the
case covered by article 290(5) of the Convention:if, pending the constitution of an arbitral tribunal
for the resolution of the dispute, there is no agreement to submit the case to another court or
tribunal, ITLOS can itself adopt provisional measures if it considers that the arbitral tribunal to be
constituted apparently has jurisdiction and if the urgency of the situation warrants the adoption of
the measures.43 All these measures are binding: article 290(6) establishes that ‘the parties to the
dispute shall comply promptly with any provisional measures prescribed under this article’. The
MOX Plant case, between Ireland and the United Kingdom. in which a provisional measures order
was adopted in December 2001, illustrates the special position of a tribunal called to adopt
provisional measures when in principle it will not decide on the merits of the dispute.44
ITLOS may adopt mandatory provisional measures by virtue of a competence established by treaty.
Here again, the function of the international court or tribunal in the existing legal system is modified.
All leads to the conclusion that, in the event of the adoption of provisional measures and in certain
specific fields, the international legal system moved towards the adoption of a principle of a tribunal
with general jurisdiction, at least insofar as there is the need to prevent irreparable damage.
Further reading
L Cavaré, ‘La notion de juridiction internationale’ (1956) 2 AFDI 496
J Crawford, P Bodeau, & J Peel, ‘La seconde lecture du projet d’articles sur la responsabilité
des Etats de la Commission du Droit international’ (2000) 104 RGDIP 911
G Guillaume, La Cour internationale de Justice à l’aube du XXIème siècle. Le regard d’un
juge (Paris, Pedone, 2003)
N Ros, ‘Un bilan de la première activité du Tribunal international du droit de la Mer’ (1996–
2000) 46 AFDI 496
C Santulli, ‘Qu’est-ce qu’une juridiction internationale? Des organes répressifs internationaux
à l’ORD’ (2000) 46 AFDI 58
SFDI, La juridictionnalisation du droit international—colloque de Lille (Paris, Pedone, 2003)
SFDI, Le contentieux de la fonction publique internationale—Journées d’études, 9–10
décembre 1994 (Paris, Pedone, 1996)
SFDI, La juridiction internationale permanente—colloque de Lyon (Paris, Pedone, 1987)
United Nations, Manuel sur le règlement pacifique des différends entre États (New York:
United Nations, 1992)
P Weckel, ‘La juridictionnalisation du droit international ou la révolution en trompe-l’œil’
(2001) 6 Civitas Europa 277
References
Footnotes:
1 J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 621.
2 See L Cavaré, ‘La notion de juridiction internationale’ (1956) 2 AFDI 496.
3 Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 25 May 1993, 32 ILM
1203.
4 Statute of the International Tribunal for Rwanda, SC Res 955, 8 November 1994, 33 ILM 1598.
5 Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc A/CONF. 183/9
(1998). See J Crawford, Chapter 29 & A Ollivier, Chapter 49; and H Ascencio, E Decaux, & A Pellet,
Droit International Pénal (Paris, Pedone, 2000).
6 See the contributions grouped under Chapter 51.
7 GA Res 351 A(IV), 24 November 1949.
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:
<http://www.comunidadandina.org/ingles/normativa/ande_trie2.htm>.
9 Agreement establishing the Caribbean Court of Justice, 14 February 2001, available at:
<http://www.caribbeancourtofjustice.org/courtadministration/ccj_agreement.pdf>.
European Community, Official Journal C 321E, 29 December 2006, section 4.
11 Additional Protocol to the European Convention on State Immunity, 16 May 1972, 11 ILM 470.
12 Convention on the Establishment of a Security Control in the Field of Nuclear Energy, 20
December 1957, art 12; in force 22 July 1959, 351 UNTS 235. The seat of the European Nuclear
Energy Tribunal is in Paris, at the OECD.
13 League of Nations, Official Journal, September 1921, p 4.
14 1833 UNTS 397.
15 Of cases so far submitted to the Court, 15 have been submitted by compromis.
16 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific
Ocean (Chile/European Community), ITLOS, Case No 7.
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.
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).
19 See G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3; G
Arangio-Ruiz, Eighth Report on State Responsibility, ILC Yearbook 1996, Vol II(1), 1, 2–7.
20 See J Crawford, Chapter 29.
21 G Arangio-Ruiz, Fifth Report on State Responsibility, ILC Yearbook 1993, Vol II(1), 1, 19–21.
22 J Basdevant ‘Règles générales du droit de la paix’ (1936) 58 Recueil des cours 471.
23 R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 177, 182–183 (paras
18–19).
24 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 20, 23 (para 60).
25 (1997) 36 ILM 7.
26 UN Doc A/Conf.164/37, (1995) 34 ILM 1547.
27 (1994) 33 ILM 969.
28 Available in Spanish at: <http://www.cpps-
int.org/spanish/tratadosyconvenios/tratadosregionales/acuerdodegalapagos.htm>.
29 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), Preliminary
Objections, ICJ Reports 1948, p 15.
Provisional Measures, Order of 8 April 1993, ICJ Reports 1993, p 3; Order of 13 September 1993,
ICJ Reports 1993, p 325; Preliminary Objections, Judgment, ICJ Reports 1996, p 595; Certain
Questions of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ, Judgment, 4 June
2008.
31 Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific
Ocean (Chile/European Community), ITLOS, Case No 7.
32 Available at <http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3&code=HT>.
America), Jurisdiction and Admissibility, ICJ Reports 1984, p 392. The Nicaraguan declaration was
subsequently revised.
34 Interhandel (Switzerland v United States of America), Preliminary Objections, ICJ Reports
1959, p 6, 23.
35 J Combacau & S Sur, Droit international public (5th edn, Paris, Montchrestien, 2001), 593.
36 P Daillier & A Pellet, Droit international public (6th edn, Paris, LGDJ, 1998), para 544.
37 Amadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Application
instituting proceedings, 28 December 1998.
39 R Ago, ‘Le Délit International’ (1939) Recueil des cours 68, 415–554.
40 Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, ICJ Reports 1997, p 7, 38
(para 47).
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.
42 UNCLOS, art 290(1); Statute of ITLOS, art 25(1).
43 The same reasoning applies in case of disputes concerning the seabed in relation to the
Seabed Chamber.
44 Mox Plant (Ireland v United Kingdom) Provisional Measures, Order of 3 December 2001, 126
ILR 259. See also Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v
Singapore), Provisional Measures, Order of 8 October 2003, 126 ILR 487.
Responsibility, Ch.79 The Definition of
Countermeasures
Denis Alland


ISBN: 9780199296972
Subject(s):
Responsibility of states — Countermeasures — Weapons — Reprisals — Self-defence — Vienna
Convention on the Law of Treaties
(p. 1127) Chapter 79 The Definition of Countermeasures
1 The unilateral character of countermeasures 1129
2 Pacific character of countermeasures (countermeasures and reprisals) 1130
3 Intrinsic unlawfulness of countermeasures (countermeasures and retorsion)
1131
4 Countermeasures and the challenge of treaties (countermeasures and
reciprocity) 1132
5 State control of countermeasures (countermeasures and sanctions) 1134
There is no term that is immune from being subject to differing interpretations and it is futile to hope
that there is one interpretation which is both objective and intrinsically clear: ‘countermeasures’ is
no exception. Those who attempt to define the concept should aim to avoid contentious areas and
make an effort to address its most widely used content. Like other terms of the international law
lexicon, countermeasures conventionally represent certain legal practices.1 The dominant
definition of the term can only be identified by reference to the appreciations of States. When
dealing with an expression which has only appeared recently, it is natural that those appreciations
will be more controversial and less consistent. The attempt of this Chapter to define
countermeasures must therefore be seen as an attempt to determine the contours of the possible
meanings and to evaluate which definition better reflects practice, since the ILC Articles of 2001 do
not contain any definition. A definition ends the dispute, thought Leibniz; the definition reached will
thus be given only at the end of this Chapter.
It is frequently remarked that the expression ‘countermeasures’ was not often used before the
1970s. Outside the domain of military weapons, where the word maintains a technical meaning
which is not relevant here, there are only rare occurrences in diplomatic practice at the beginning
of the 20th century where the English word ‘countermeasures’ and the German word
‘Gegenmassnahmen’ referred to acts of self-help. The French version ‘contre-mesure’ is the literal
translation of the English and German word and has no specific origin of its own; this translation
appeared only towards the end of the 1950s in the (p. 1128) ILC reports of Fitzmaurice on the Law
of Treaties. It refers to the non-performance of a treaty by way of legitimate reprisals: ‘ordinary
breaches having no effect on the continued existence of the treaty, and merely justifying counter-
action in the way of corresponding or other non-observances of a more or less significant kind, as
the case may be’.2 But the fortune of the expression is due especially to the award in Air Service
Agreement of 27 March 1946.3 In their memorials and oral pleadings, the United States often used
this expression, which—at the heart of one of the two questions posed to the tribunal (that of the
lawfulness of countermeasures)—was naturally found in the award itself. At the same time, the ILC
substituted the word ‘sanction’ (still used in Ago’s Eighth Report) with the word ‘countermeasure’ in
its Draft Articles on State Responsibility, thus greatly contributing to its acceptance. The
International Court of Justice also adopted the expression in several cases, including in Tehran
Hostages,4 Nicaragua,5 and Gabcíkovo-Nagymaros Project.6 This is not to say that, as often
happens in relation to terminological innovations, there was no objection or reticence in respect of
this new term. At the ILC, Reuter, while referring to the Air Service Agreement arbitration, argued
that the United States had employed the term ‘countermeasure’, a term that ‘meant nothing’; 7 in the
same sense, the reservation expressed by Special Rapporteur Arangio-Ruiz in his Preliminary
Report, where he made an effort not to use this expression, can be mentioned.8 But it cannot be
doubted that the expression is now part of the common vocabulary of public international law.
Taken literally, the expression ‘countermeasures’ seems to refer to a measure taken in reaction to
another. If there is no doubt that countermeasures are a reaction, it is not possible to stop at such a
vague conception, which moreover fails to reflect the different uses which have been made of this
term. A countermeasure is not necessarily a reaction to a ‘measure’: if it is possible to say that a
State reacts, for instance, against a ‘measure’ of nationalization of its goods or a ‘measure’ of
suspension of rights that it holds by virtue of an international convention, this is not the case when
a State reacts against conduct, especially passive conduct. In addition a general approach would
neglect the practice pursuant to which countermeasures often refer to mechanisms, rather than
measures. Indeed the expression countermeasure is not used exclusively to refer to the measure
of reaction, but also to refer to its structure and to the act which motivates it (the fact or act that
justifies it). Thus, the United States in Air Service Agreement often evoked ‘countermeasures’ to
refer to all the measures of reaction adopted by the Civil Aeronautic Board and their justification in
response to the French interpreatation of the 1946 Agreement. This is to suggest again that there is
an initial ‘measure’ and a responsive ‘measure’, and if the latter is justified by the former, then it
must be a ‘countermeasure’. But this is not essential. The first thing to include in any
conceptualization of countermeasures is their unilateral character. Second, all the difficulty that
exists in defining countermeasures and establishing a stable concept of the expression derives
from the different meanings that may be given to the word ‘measure’
References
(p. 1129) as applied to the reaction. In this respect, there are four principal difficulties that arise. It
must be queried whether countermeasures include: (i) measures entailing the use of force; (ii) only
measures which are objectively contrary to the law; (iii) the exception of nonperformance; and (iv)
State measures only, or also other corporate measures.
1 The unilateral character of countermeasures

To adopt a wide or narrow notion of the expression ‘countermeasures’ is not without consequence.
As has been said, what characterizes the practice of countermeasures is their unilateral character:
when a State decides to resort to a conduct as a countermeasure, it seeks the protection or
performance of what it considers to be its right. Most of the time it will act this way because there
are no other efficient means at its disposal. In internal law, recourse to a jurisdictional organ is
almost always the means chosen by legal subjects in an attempt to solve disputes with other
subjects or the State. In international law there are legal means which do not permit, at least
initially, recourse to means of unilateral private justice. These legal means are established in
specific instruments and must be considered—whatever their degree of precision and the number
of States which adhere to them—as a special right, which applies in certain circumstances only.
Countermeasures are an institution of general international law and they are triggered
hypothetically in the absence of any previous authorization by an external authority to interested
States. Thus a provision specifically allowing a State to trigger countermeasures is not necessary:
it is a mechanism of general international law which exists implicitly and independently of any
particular provision.9
The unilateral character of countermeasures goes hand in hand with their self-assessed character.
This point is essential to understand the importance of the definition but also the legal regime
applicable to countermeasures. This means that if a State adopts countermeasures against
another, this is not, as is often immediately said, the consequence of an internationally wrongful act
committed by the latter State, but the consequence of the belief of the reacting State that such a
wrongful act has been committed. In other words, the measure is adopted as a consequence of the
unilateral interpretation of the reacting State to an act or a situation, and not the interpretation
adopted by a competent judicial or other organ. Evidently, it is this aspect of countermeasures
which manifests the danger they represent in the international legal order: they open the possibility
to all States to take prejudicial measures contrary to the obligations incumbent upon them on the
basis of subjective unilateral claims. In fact, countermeasures seek to justify themselves through
the alleged initial unlawful act. The selfadministering character of countermeasures results from the
concrete circumstances in which they are mostly adopted, as the ILC,10 legal scholarship,11 and
12
international case law have emphasized.12
References
(p. 1130) 2 Pacific character of countermeasures

(countermeasures and reprisals)
There is a strong consensus concerning the requirement that countermeasures have a pacific
character.13 The question is whether this characteristic forms part of the definition. The problem is
further complicated by the fact that ‘countermeasures’ appear often as a contemporaneous
expression in replacement of ‘reprisals’, which were linked to the use of force. The French word
‘représailles’ derives from ‘reprisailles’, which in turn derives from the Medieval Latin word
‘represalia’, ‘an injury inflicted in reciprocity of punishment, as can undoubtedly be traced in the
Italian ‘ripresaglia’ or ‘rappresaglia’ designating the action to retake what has been taken, from
Latin ‘reprehendere’, ‘reprendere’ (‘reprendre’ in French). Legally, as the historical studies on the
subject indicate,14 the right to take reprisals is like a counterpart to denial of justice, for it is a right
granted by the sovereign to an individual to retake from a foreigner, in times of peace or by force,
his good or its equivalent after having exhausted the remedies that the State of nationality of the
foreigner offers him. An ordinance of August 1681 specified that the takings performed at sea
pursuant to ‘letters of marque’ should be presented, instructed and judged in the same way as
takings performed on our enemies. In Book III, Chaper II of De Jure Belli, Grotius, following Bartolus,
wrote:
Another Kind of forcible Execution is … Reprisals among divers Nations, called so by our
modern Lawyers … and is of force (as Lawyers say) where Right is denied. Which may be
supposed, not only when Judgment cannot within reasonable Time be obtained against a
Malefactor, or a Debtor, (for in doubtful Cases the Presumption is in favour of the Judges
established by public Authority) Sentence shall pass plainly against Right.15
It is often said that the last letter of marque was issued in France by the National Convention of 3
February 1793. It appears that contemporary public international law distinguished, at the
beginning of the last century, between armed reprisals and pacific reprisals.16 But the classic
definition of reprisals was drawn from a case where there had been recourse to force: ‘A reprisal is
an act of self-help (Selbsthilfehandlung) of the injured State in response … to an act contrary to
the law of nations of the wrongdoing State’.17 But even if this definition could raise doubts, it must
be considered that in times of peace it is only peaceful reprisals which can be assimilated to
countermeasures, the two terms being synonymous. The prohibition of the recourse to force, which
entails the prohibition of armed reprisals, definitively consolidates the inclusion of their peaceful
character in the definition of countermeasures.
References
(p. 1131) 3 Intrinsic unlawfulness of countermeasures

(countermeasures and retorsion)
Another element of the definition of countermeasures—probably the most controversial—is whether
the expression refers exclusively to measures of reaction contrary to the engagements of the State
which adopts them (intrinsic unlawfulness) or whether it is necessary to include measures of
reaction which are lawful at any stage (intrinsic lawfulness). In other words, this is the question of
the distinction (or confusion) between countermeasures and retorsion. The French term ‘retortion’
originally meant ‘curling of the lips’ (retroussement des lèvres) or reversal (retournement); it then
inherited the rhetorical meaning of retort (rétorquer) and finally acquired in everyday language the
meaning of a ‘form of reprisal’. On the ancient doctrinal origins of retorsion, one cannot but look at
the thorough study made by Rapisardi-Mirabelli in 1914. In contemporary international law, two
principal aspects of the definition of retorsion gave rise to discussion: that of the act or behaviour
against which it is supposed to respond and that of the character of the act or behaviour in which
the retorsion consists. The first aspect arose as a consequence of the constantly cited definition of
retorsion by Rivier, which is inspired by the principle of reciprocity, according to which:
A State against whom another State has taken a measure that, although legal and lawful, is
discourteous, rigorous, injurious, can in turn take, against that State, measures having the
same character, with the aim of getting the former to come to terms. This means of
coercion is called retorsion.18
This is the second aspect of the discussion mentioned earlier, for a long time considered the point
of distinction between retorsion and reprisals and today extended to countermeasures. The ILC
decided to maintain the distinction, and article 22 states:
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 taken against the latter State in accordance with chapter II of Part Three.
Even if this is not the only possible interpretation, it must be noted that the ILC made a choice within
a specific framework: that of the codification of State responsibility for internationally wrongful acts.
Now there are two principal contact points between countermeasures and international
responsibility: (1) whether the State adopting countermeasures against another State can engage
responsibility; and (2) whether and to what extent countermeasures are an instrument for the
implementation of the international responsibility of the State against which the countermeasures
are directed.
It is the first of these two contact points which must be dealt with here. It is thus clear why the only
measures of interest are those which, considered in isolation and independently from the
circumstances in which they are adopted, appear to be contrary to international law. It is the
perspective of the law of responsibility for internationally wrongful acts which explains the choice
made by the ILC since, by definition, lawful measures cannot engage the responsibility of the State
which adopts them, whatever the reason for their adoption. This does not exclude the idea that
countermeasures are a genre to which measures of retorsion and pacific reprisals belong. It is
necessary to refer to the diplomatic lexicon to
References
(p. 1132) determine whether it is possible to determine this question. It is true that declarations
made by the organs of a State in the event of one or the other case—where the terms are often
employed in a relaxed manner19 —do not provide a definitive answer, although it is the case that
intrinsically unlawful measures, without exception, are termed ‘countermeasures’. This meaning
appears also to be preferable.
This section must be concluded by evoking another aspect of the question of the unlawfulness of
countermeasures. It happens that emphasis is placed on the lawfulness of countermeasures: since
they are countermeasures, they are justified by their being linked with the unlawful act to which
they are a response. Being justified, they must be lawful. It is the problem of the identification of
countermeasures as a circumstance precluding wrongfulness which is the source of confusion. In
fact, in the brief text prepared by the ILC on State responsibility, countermeasures are a
‘circumstance precluding wrongfulness’.20 But strictly speaking it is not the measure of reaction
which is a circumstance precluding wrongfulness—this would be a linguistic approximation—but the
unlawful act which allegedly motivates them, and which could in certain conditions justify the
countermeasure. The same observation could be made in relation to self-defence. In both these
cases, it is the initial unlawfulness (every unlawful act/armed attack) which constitutes the
circumstance precluding wrongfulness. Unless countermeasures are solely identified as ‘lawful’
measures, that is, reduced to the category of retorsion, it cannot be said of countermeasures that
they are ‘lawful’ only on the condition that the notion of countermeasures which justifies them is the
initial wrong (just like the armed attack is an element of the concept of self-defence). From this point
of view, the circumstance precluding wrongfulness is an element of the concept of
countermeasure, understood as a global mechanism. Moreover, this is what explains the lawful
character of a measure which is in itself contrary to an obligation. The problem is compounded by
the fact that ‘countermeasure’ often refers to the measure of reaction against a wrong and often to
a global mechanism thus composed: an alleged initial wrong, a measure of reaction intrinsically
unlawful and a judgment of justifi cation of one by the other having the effect of rendering lawful the
measure of reaction.
4 Countermeasures and the challenge of treaties

(countermeasures and reciprocity)
Mention of the relationship between countermeasures and certain mechanisms belonging to the law
of treaties, as codified in the Vienna Convention on the Law of Treaties,21 may help to clarify the
notion of countermeasures. As mentioned above, the expression countermesures was first used by
the ILC in the 1950s to describe a mechanism for the challenging of the performance of a State’s
obligations as a matter of reciprocity. The question is whether the conventional mechanisms
inspired by reciprocity may be assimilated to the category of countermeasures, or if it is
convenient to distinguish both types of reaction. In support of the distinction, the ILC work on the
law of treaties may be quoted; Fitzmaurice’s statement (earlier quoted22 ) shows that there are, on
the one hand, countermeasures as a consequence of the ordinary breach of the treaty
(corresponding
References
(p. 1133) non-performance) and on the other hand, extinction of the treaty as the consequences of
fundamental breaches of it. The distinction was further clarified in the ILC’s subsequent work.23
Similar distinctions may be observed in diplomatic practice. For instance, a note by the Swiss
Political Department specified:
A countermeasure, if it is of the same genre as that taken by the other State and against
which it represents a measure of reciprocity, does not assume the character of a reprisal,
but that of a retorsion, that is, of a lawful measure taken agains an unlawful measure.24
More recently, the distinction between mechanisms of reciprocity in the law of treaties and
mechanisms of international responsibility was raised before the Arbitral Tribunal in Rainbow
Warrior:
France relies upon the general concept of circumstances excluding illegality, as derived
from the work of the International Law Commission on State Responsibility, contending that
those circumstances … [made] the action necessary. New Zealand asserts that a State
party to a treaty and seeking to excuse its own non-performance, is not entitled to set
aside the specific grounds for termination or suspension of a treaty, enumerated in the
1969 Vienna Convention, and rely instead on grounds relevant to general State
responsibility. New Zealand adduces that it is not a credible proposition to admit that the
Vienna Convention identifies and defines a number of lawful excuses for non-performance
… and yet contend that there may be other excuses … derived from the customary Law of
State Responsibility.25
Yet an important part of the doctrine considers mechanisms of reciprocity resulting from the law of
treaties as a special modality of countermeasures. Reactions to the substantial breach of a treaty,
such as those described at article 60 of the Vienna Convention, do not exclude countermeasures
in reaction to non-substantial breaches. Additionally, provided that the rights of third States are
protected, the general mechanism of countermeasures always allows States to cease the
performance of the obligations incumbent upon it pursuant to a treaty to which it is a party, not as a
consequence of the alleged breach of the treaty, but of an initial wrongful act which would have
been committed outside the field covered by the treaty. This is at least what the available case law
on the subject implies: in the award of 1978 in relation to the Air Service Agreement of 1946 the
Tribunal held that:
At this point, one could introduce various doctrinal distinctions and adopt a diversified
terminology dependent on various criteria, in particular whether it is the obligation allegedly
breached which is the subject of the counter-measures or whether the latter involve
another obligation, and whether or not all the obligations under consideration pertain to the
same convention. The Tribunal, however, does not think it necessary to go into these
distinctions for the purposes of the present case.26
Likewise, in the Rainbow Warrior award, the Tribunal maintained that the customary law of treaties
and the customary law of State responsibility were both relevant and applicable.
References
(p. 1134) The arbitrators explained that they were principles of general international law and it was
not useful to isolate them:
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.27
The solution, in conformity with the opinion expressed by the International Court in 1971,28
underlines the unity of a phenomenon which derives from general international law and provides
justification for an act or conduct which is objectively contrary to what is normally required by the
State undertaking that act or conduct.
5 State control of countermeasures (countermeasures and

sanctions)
The question whether and in what sense countermeasures constitute ‘sanctions’ in international
law is important for the purpose of defining countermeasures. This evidently depends on what is
understood as a sanction. Countermeasures are certainly sanctions if this term is understood in its
widest sense, by assimilating them to secondary rules or—without using the lexicon of the ILC—if
they are understood as all the consequences generated by an internationally wrongful act. This is
so for countermeasures, but also international responsibility itself is one such consequence: from
this point of view, they can both be considered sanctions. The discussions have centred (even if,
as will be seen, it seems that there is today a large consensus) on another possible meaning of the
word sanction, to designate a corporate measure. There exist a considerable number of
international organizations to which State parties have conferred, evidently following different
modalities, powers of sanction. The question is whether the definition of countermeasure includes
only State measures or also measures of reaction to the wrongful act adopted by international
organizations. In this respect, two aspects must be distinguished: the principle of the distinction
itself and its implementation.
On the principle of the distinction, the majority of authors today agree that it is both convenient and
preferable not to use the same word to designate State measures and sanctions of international
organizations. It is true that in the earlier work of the ILC both types of measures were addressed
together. Indeed, it must be remembered that in Ago’s Eighth Report, article 30 of Part I was titled
‘Legitimate application of a sanction’.29 Ago’s definition of a sanction was broad:
action the object of which is to inflict punishment or to secure performance and which
takes the form of an infringement of what in other circumstances would be an international
subjective right, requiring respect, of the subject against which the action is taken.30
References
(p. 1135) This would permit dealing at the same time with both measures decided within the
framework of an organization and measures taken by States. Following discussions which will not
be recounted here, it was decided to substitute the expression ‘countermeasure’ for ‘sanction’.
This substitution must be understood as the exclusion from the category of countermeasures those
measures taken by international organizations. This was done for several reasons. Sanctions
adopted by international organizations do not display the essential characteristic of
countermeasures, that is, their intrinsic contrariety to what is normally required from them by
international engagements. In relation to those measures adopted by international organizations
which may display this character, it can be said that their justification—that is, that they do not give
rise to a relationship of responsibility while authorizing a conduct contrary to international law—
does not derive from general international law but from the constitutive instrument of the
organization (since the measures relate to a State member of the organization). Finally, it is often
the case that measures decided by an international organization escape the subjectivity of the
lone reacting State, for they are decided within the framework of a system more or less centralized,
which is precisely the element that justifies their being distinguished from countermeasures.
Nevertheless, the application of this distinction raises difficulties. The distinction between corporate
sanctions and countermeasures could be easy to make. This is the case when a measure is
without doubt attributable to the organization and not to its members: the more or less centralized
character of the process of sanction for the defense of the interests of the community is here
opposed to the individual measures taken by a State, solely on the basis of its subjective
appreciation of the legal situation created, in its opinion, by an international wrongful act. But
practice shows that the distinction is not always this simple. For instance, one could think about the
question of attributability: even if this issue is unlikely to arise nowadays within the framework of the
European Union, the institutional character of certain reactions to wrongful acts (countermeasures
or sanctions) could seem problematic. It is thus that certain measures were adopted in the form of
communitarian acts even when they had been decided upstream, through inter-State cooperation
among member States, and when the latter States did not consider themselves bound by these
communitarian acts: this was for instance the case after the declaration of State of war in Poland, of
the measures taken against Iran in 1980, or during the Falkland Islands war in 1982. It is thus not
satisfactory to simply limit oneself to a formal analysis, which does not take into account the
character of the act adopting the measures.31 Beyond this aspect, the distinction between
countermeasures and sanctions can cause controversy in the case of measures adopted by
States for the implementation of sanctions decided by an international organ, such as the UN
Security Council. Since these measures need State mediation to be implemented, they should not
be considered countermeasures. But it is not always easy to analyse internal measures which go
beyond what required by the Security Council, or which remain in force when the UN sanctions are
suspended, as in the case of Libya.
The definition of countermeasures arrived at after this analysis is the following: countermeasures
are pacific unilateral reactions which are intrinsically unlawful, which are adopted by one or more
States against another State, when the former consider that the latter has committed an
internationally wrongful act which could justify such a reaction.

D Alland, ‘International Responsibility and Sanctions: Self-Defence and Countermeasures in
the ILC Codification of Rules Governing International Responsibility’, in M Spinedi and B Simma
(eds), United Nations Codification of State Responsibility (New York, Oceana, 1987), 143
R Arens and H Lasswell, ‘Toward a General Theory of Sanctions’ (1964) 49 Iowa Law Review
233
D Bowett, ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 AJIL 1
L Cavaré, ‘L’idée de sanction et sa mise en œuvre en droit international public’ (1937) RGDIP
385
ES Colbert, Retaliation in International Law (New York, Columbia University Press, 1948)
J Combacau, Le pouvoir de sanction de l’O.N.U. Etude théorique de la coercition non
militaire (Paris, Pedone, 1974)
A de Guttry, Le rapresaglie non comportanti la coercizione militare nel diritto
internazionale (Milan, Giuffrè, 1985)
L Delbez, ‘Le mécanisme juridique des sanctions internationales’ (1937) Revue du dvoit
Public 245
C Dominicé, ‘Observations sur les droits de l’État victime d’un fait internationalement illicite’,
in P Weil (ed), Droit international 2 (Paris, Pedone, 1982), 1
P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” de l’illicite’ (1983) RGDIP
505
OY Elagab, The Legality of Non-Forcible Counter-Measures in International Law (Oxford,
L Forlati Picchio, La sanzione nel diritto internazionale (Padua, Cedam, 1974)
E Fukatsu, ‘Coercion and the Theory of Sanctions in International Law’, in R St McDonald and
DM Johnston (eds), The Structure and Process of International Law: Essays in Legal
Philosophy Doctrine and Theory (Dordrecht, Nijhoff, 1986), 1187
JL Kunz, ‘Sanctions in International Law’ (1960) 54 AJIL 324
C Leben, ‘Contre-mesures’, Répertoire international (Paris, Dalloz, 1998)
C Leben, Les sanctions privatives de droit ou de qualité dans les organisations
internationales spécialisées. Recherches sur les sanctions internationales et l’évolution du
droit des gens (Brussels, Bruylant, 1979)
H Morgenthau, ‘Théorie des sanctions internationales’ (1935) 67 RDILC 474
R Paniagua Redondo, ‘Las represalias en el derecho internacional. Perspectiva historica’
(1984) Revista Juridica Catalunya 149
N Politis, ‘Le régime des représailles en temps de paix’ (1934) 38 Annuaire IDI 1
A Rapisardi-Mirabelli, ‘La rétorsion. Etude de droit international’ (1914) 46 RDILC 223
L-A Sicilianos, Les réactions décentralisées à l’illicite. Des contre-mesures à la légitime
J-C Venezia, ‘La notion de représailles en droit international public’ (1960) RGDIP 465
E Zoller, Peacetime Unilateral Remedies. An Analysis of Countermeasures (Dobbs Ferry,
New York, Transnational Publishers, 1984)
Footnotes:
1 For some time discussed by a section of the doctrine who saw in it the purely factual defence of
States and their interests. See A Rapisardi-Mirabelli, ‘La rétorsion. Etude de droit international’
(1914) 46 RDILC 223; D Alland, Justice privée et ordre juridique international. Etude théorique
des contre-mesures en droit international public (Paris, Pedone, 1994), §64.
2 G Fitzmaurice, Second Report on the Law of Treaties, ILC Yearbook 1957, Vol II, 53 (para 121).
3 Air Service Agreement of 27 March 1946 (United States of America and France), 9 December
1978, 18 RIAA 417, 454.
Judgment, ICJ Reports 1980, p 3, 27–28 (para 53).
82).
8 Cf G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 6.
9 See eg Répertoire français de droit international public (1962), Vol I, No 234.
10 Cf ILC Yearbook 1986, Vol I. See also the wording of article 60 of the Vienna Convention on the
Law of Treaties, 1155 UNTS 331, concerning the exception of non-performance, according to
which a State may ‘invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part’.
11 See eg J Basdevant, ‘Règles générales du droit de la paix’ (1936-IV) 58 Recueil des cours 471,
588; JL Kunz, ‘Sanctions in International Law’ (1960) 54 AJIL 324; P Reuter, ‘Principes de Droit
International Public’ (1961-II) 103 Recueil des cours 425, 440; M Virally, ‘Panorama du droit
international contemporain: Cours général de droit international public’ (1983-V) 183 Recueil des
cours 9, 82.
12 Lac Lanoux (Spain/France), 16 November 1957, 12 RIAA 281, 310–311 (para 16); Air Service
Agreement of 27 March 1946 (United States of America and France), 11 December 1978, 18 RIAA
417, 443 (para 81): ‘Under the rules of present-day international law, and unless the contrary
results from special obligations arising under particular treaties, notably from mechanisms created
within the framework of international organizations, each State establishes for itself its legal
situation vis-à-vis other States. If a situation arises which, in one State’s view, results in the
violation of an international obligation by another State, the first State is entitled, within the limits set
by the general rules of international law pertaining to the use of armed force, to affirm its rights
through “counter-measures”.’
13 ‘Measures taken by a State with a view to affirm and protect its interests when these are injured
by another State’, Dictionnaire de droit international public (Brussels, Bruylant-AUF, 2001).
14 R de Mas Latrie, Du droit de marque ou droit de représailles au Moyen-Age, suivi de pièces
justificatives (Paris, Baur, 1875).
15 H Grotius, De Jure Bellis ac Pacis, 1625, Book III, Chapter II, paras IV, V.i, in R Tuck (ed), Hugo
Grotius’ De Iure Bellis ac Pacis (reprinted, Indianapolis, Liberty Fund, 2005), 1238–1239.
16 F Kalshoven, Belligerent Reprisals (Leiden, Sijthoff, 1971).
Africa (Portugal v Germany) (‘Naulilaa’), 31 July 1928, 2 RIAA 1011, 1026.
18 A Rivier, Principes du droit des gens (Paris, A Rousseau, 1896), Vol II, 189.
19 D Alland, Justice privée et ordre juridique international. Etude théorique des contre-mesures
en droit international public (Paris, Pedone, 1994), §§100ff.
20 Art 22, ARSIWA.
21 22 May 1969, 1155 UNTS 331.
22 G Fitzmaurice, Second Report on the Law of Treaties, ILC Yearbook 1957, Vol II, 53 (para 121).
23 G Fitzmaurice, Fourth Report on the Law of Treaties, ILC Yearbook 1959, Vol II, 44–46; H
Waldock, Second Report on the Law of Treaties, ILC Yearbook 1963, Vol II, 76 (para 14).
24 Note of 14 June 1928, in Répertoire suisse de droit international public, Vol III, 1789 (Nos 8–
57).
problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 249–250 (para 74).
On this question see D Bowett, ‘Treaties and State Responsibility’, in Bardonnet, Combacau, Dupuy,
& Weil (eds), Le Droit international au service de la paix, de la justice et du développement:
Mélanges Michel Virally (Paris, Pedone, 1991), 137.
26 Air Service Agreement of 27 March 1946, (United States of America and France), 11
December 1978, 18 RIAA 417, 443 (para 82).
Reports 1971, p 16, 47 (para 96).
29 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, 39.
30 Ibid, 39 (para 79).
en droit international public (Paris, Pedone, 1994), §§251ff.
Responsibility, Ch.80 Countermeasures in Response
to Grave Violations of Obligations Owed to the
International Community
Linos-Alexandre Sicilianos


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — National liberation movements — Erga
omnes obligations — United Nations (UN)
(p. 1137) Chapter 80 Countermeasures in Response to
Grave Violations of Obligations Owed to the International
Community
1 The sources of controversy 1138
(a) The large number of States with the power to react 1138
(b) The imprecise links between the institutional and the individual 1140
2 The ambiguity of the retained solution 1142
(a) The changes in the ILC’s attitude 1142
(i) The ambiguities of the version adopted on first reading 1142

(ii) The clarity of the text in the 2000 Report 1143
(b) Article 54: ‘everything goes’ 1144
(i) A compromise provision 1144

(ii) A justified solution? 1145
The question of countermeasures in response to violations of obligations representing a general

interest—also characterized as ‘collective’ countermeasures—number among the most
controversial subjects in the field of State responsibility.1 There are essentially two sources of
controversy. The first touches upon the view which has been formed of international responsibility.
The term ‘collective countermeasures’ is understood as referring to measures which are in
themselves unlawful but which could be adopted on an individual level by any State not individually
injured, in response to grave violations of erga omnes obligations, or even essential obligations for
the protection of a collective interest. The expression ‘obligations representing a general interest’
aims precisely at covering those two categories of obligations. However, to concede to all States
the power to react in such a manner is inconsistent with the traditional view of the law of
international responsibility, according to which the perpetration of a wrongful act creates only
bilateral consequences between the responsible State and the injured State.2 The second source
of controversy is closely related to the first: that to treat multiple or even all States as possessing
authority to react by means of countermeasures risks impinging upon the powers of the Security
Council under Chapter VII of the Charter of the United Nations (Section 1).
References
(p. 1138) These controversies were reflected in the process of codification of the law of
international responsibility. The changes in the attitude of the ILC in relation to collective
countermeasures, combined with the critical remarks of a number of States, led to the adoption of a
provision—article 54 ARSIWA—which is ambivalent in order not to prejudge the lawfulness of
measures taken in response to violations of obligations representing a general interest (Section 2).3
1 The sources of controversy

The difficulties the ILC encountered can be explained, at least partly, by the large number of States
which might potentially respond (subsection (a)). In addition, even if article 59 ARSIWA provides
that ‘[t]hese articles are without prejudice to the Charter of the United Nations’, the Commentary
does not specify with the desired clarity that collective counter measures assume a subsidiary
character in relation to the powers of the Security Council or that if the latter acts in the institutional
framework of Chapter VII, the power to adopt such measures on an individual level disappears
(subsection (b)). The persistent ambiguities concerning the relation between the institutional and
the individual have created a certain bewilderment on the part of governments.
(a) The large number of States with the power to react

Without returning in extenso to earlier developments relating to the multilateralization of the
relations of responsibility,4 it is important briefly to recall the contents of article 48 ARSIWA, as the
provision on collective countermeasures expressly refers to it. In accordance with paragraph 1 of
article 48:
[a]ny State other than an injured State is entitled to invoke the responsibility of another
(a) the obligation breached is owed to a group of States including that State, and is
The phrase ‘any State other than an injured State’ calls for a preliminary observation.
Distinguishing between the ‘injured State’ and ‘States other than the injured State’ tends to reflect
the idea that the perpetration of a wrongful act, even if it can affect a majority of States, does not
necessarily affect all States in the same way. The wrongful act can affect the interests of other
States to see international obligations complied with. This is not to say, however, that this warrants
their characterization as an ‘injured State’.
While fully subscribing to the ratio of the distinction proposed by the ILC, it seems that the
terminology used is problematic. Referring to ‘States other than the injured State’ could make one
think that the ‘other’ States are third parties in respect of the wrongful act. However, it is one of two
situations: either a State is not at all affected by a wrongful act, in which case it should be qualified
as a ‘third party’ and it cannot invoke the responsibility of the responsible State; or the State is
affected—even if only indirectly—by the wrongful act, in which case it should not be treated as if it
were a third party. It seems, therefore, that instead of speaking of ‘injured States’ and of ‘States
other than the injured State’,
References
(p. 1139) we should distinguish between States ‘directly’ or ‘individually’ injured by the breach, and
States ‘indirectly’ or ‘not individually’ affected, the latter not being true third parties in respect of
the wrongful act.
Concerning the substance of article 48, it can be remarked that it refers to two categories of
obligations: obligations erga omnes partes and obligations erga omnes. The obligations belonging
to the first category would be ‘collective obligations’, that is, obligations emanating from a treaty or
other source of international law which bind a group of States and which are created in the
common interest, transcending ‘the sphere of bilateral relations’ between State parties. These may
concern the environment, the security of a region (including disarmament), human rights, or more
generally the protection of a group or a people.5
Those rather heterogeneous examples raise the question whether the notion of ‘collective
obligations’ is not as homogeneous as one might imagine. The obligations which result from a
disarmament treaty, for example, are ‘integral’ or interdependent obligations, which certainly
transcend the sphere of bilateral relations between the parties, but which are dominated by a kind
of global reciprocity in the sense that each State disarms because others do the same. It follows
that a substantial breach of such a treaty may ‘radically change’ the situation of all other States as
to the subsequent execution of their own disarmament obligations.6 It is a different situation in
respect of obligations relating to the protection of the environment or human rights. These tend to
promote extra-State interests; they do not have a bilateral character; and they do not operate on
the basis of reciprocity. A violation of human rights by State A, however grave it is, does not modify
the situation of other States as to the observation of their own obligations.
It can be remarked, in addition, that obligations due to a group of States party to a certain judicial
regime—such as, a regional convention for the protection of human rights—may overlap with
certain obligations erga omnes insofar as the regional instrument incorporates a general
international law obligation owed to the international community as a whole. In other words, the
distinction between obligations erga omnes partes and obligations erga omnes may be blurred in
reality: the same obligations may be put in both categories at the same time.
Particularly in respect of the invocation of responsibility in the case of a breach of an erga omnes
obligation, it can be observed that article 48 does not mention the gravity of the breach. This
appears only in articles 40 and 41, which concern the particular consequences of breaches of
obligations deriving from peremptory norms of general international law. It follows that a
grammatical interpretation of article 48 leads one to consider that any State could invoke any
breach of an erga omnes obligation with all the attendant consequences, including the adoption of
‘lawful measures’ against the responsible State.7 However, this is a striking novelty which does not
correspond to State practice and nor does it, it appears, to the intention of the ILC and its last
Special Rapporteur. The entire debate on the universalization of relations of responsibility as well
as the relevant State practice concerns ‘flagrant’ or ‘systematic’ (according to the terms of article
40(2)) violations of peremptory norms or erga omnes obligations, and not minor violations of those
obligations.8 It seems that no one
References
(p. 1140) has suggested that a minor breach of an erga omnes obligation justifies the taking of
countermeasures by every State in the international community. One may recall that, according to
the draft adopted on first reading, only ‘international crimes’ entailed the universalization of
relations of responsibility.9 The element of gravity of the violation is inherent in the notion of a
‘crime’.
In short, article 48 as finally adopted by the ILC uses vague expressions—such as the notion of
States ‘other than the injured State’—while enlarging the circle of States authorized to invoke the
responsibility of the responsible State and without setting sufficiently clear conditions including a
requirement of a certain threshold of gravity of the breach. These considerations partly explain, it
seems, the reluctance of certain governments in respect of article 48 and on the relation of that
provision with article 54.10 It is significant to note that at the Sixth Committee of the General
Assembly it was suggested that the ‘vague and imprecise’ definition of countermeasures by the
State ‘other than the injured State’ introduced elements similar to ‘collective sanctions’ in State
responsibility.11 That observation leads one to question the link between sanctions adopted in an
institutional framework and countermeasures taken at the inter-State level.
(b) The imprecise links between the institutional and the individual
It cannot be doubted that the major concern relating to the power of States to adopt counter
measures in response to grave breaches of erga omnes obligations is linked to the risk of
entanglement of this power with the powers of the Security Council under Chapter VII of the UN
Charter.
From a conceptual point of view, decentralized countermeasures distinguish themselves clearly
from institutional sanctions, if only because they create ‘horizontal’ links between the State
responsible for the wrongful act and the States who respond, whereas institutional sanctions create
‘vertical’ relations between the member State which threatens the peace and the institution which
enacts the sanction. Similar considerations apply mutatis mutandis when the reaction emanates
from a regional or sub-regional organization and is aimed at a non-member State. In the absence of
any hierarchy between the regional organization and third States, the reaction of the former takes
place on a horizontal level. It is precisely to avoid confusion between the categories that the ILC
decided in 1979 to reserve the term ‘sanction’ for measures taken in an institutional framework and
to characterize decentralized responses as ‘countermeasures’, a distinction which was faithfully
followed since then.12
During the Cold War the risk of entanglement of countermeasures and sanctions was minimal for
the simple reason that the Security Council was often frozen. The only example is that of South
Africa when, at the beginning of 1986, the member States of the EEC, the United States, New
Zealand, Australia, and Canada decided to adopt countermeasures which went beyond the
sanctions previously recommended by UN organs. That coexistence of the institutional and
individual did not pose problems in the event, as the General Assembly and the Security Council
had called for those initiatives and then commended that
References
(p. 1141) these had been taken by certain States on their own initiative.13 Since the Security
Council was mostly unable to act in the period 1946–1989, it is arguable that collective
countermeasures in response to flagrant violations of erga omnes obligations were necessary.
Since 1990 the situation has changed. The Security Council increasingly occupies with sanctions,
to such an extent that the last decade has been called the ‘sanctions decade’.14 Through an
expansive interpretation of the notion of ‘threat to the peace’ in article 39 of the Charter, the
Security Council has frequently responded to situations resulting from grave breaches of
obligations deriving from peremptory norms or erga omnes obligations. It is true that in certain
cases the drafting of resolutions imposing sanctions is either not very clear—often because it
conceals differences in the Security Council—or it contains general notions which need to be made
concrete when put into effect. In other cases, Security Council resolutions deliberately leave a
margin of appreciation to States as to the measures to be taken in application of the UN sanctions.
However, it must be asked whether, beyond that margin, States can allocate to themselves the
power to auto-interpret Security Council resolutions in order to take significant liberties regarding
the content of the measures to be taken in execution of the sanctions.
The practice of the EC/EU during the 1990s provides numerous examples of implementation of UN
sanctions. It can be noted that since 1992, the Community has considered all measures ‘in
conformity with or in application of or in relation to’ pertinent decisions of the Security Council ‘or
any action … authorised’ by it as ‘measures taken pursuant to Security Council resolutions’.15 This
‘catch all’ formula has led to the adoption of measures having no more than a remote connection
or no connection at all with UN sanctions, and measures which have even contradicted UN
objectives.16 Certainly, the grounds for Security Council resolutions were recalled to demonstrate
that the measures adopted were situated ‘in the slipstream’ of sanctions enacted by the UN.
However, this has not concealed the fact that some sanctions have moved from the institutional
regime to individual measures.
Beyond concrete examples, it is important to emphasize that the recognition of a large power of
auto-interpretation on the part of States of mandatory decisions of the Security Council enacting
sanctions under Chapter VII does not find any support in the UN Charter and would risk distortion of
Chapter VII. It can be seen that in its recent practice the Council usually tries to adopt so-called
‘intelligent’ sanctions, that is to say measures targeted at political elites or at the ‘trouble-makers’,
and not comprehensive sanctions which would affect, sometimes very heavily, the innocent civilian
population. The adoption of targeted sanctions implies an attentive study of the situation prevailing
in the targeted country and of the concrete impact of the measures taken. To concede, in those
circumstances, that States may react as they please in adopting at an individual level measures
other than those specifically enacted by the Security Council risks disturbing the often delicate
balance of the ‘intelligent’ sanctions and undermining their effectiveness. It is necessary to recall
that
References
(p. 1142) the imposition of sanctions is generally the outcome of intense negotiations in the Council
and that, consequently, unilateral adoption of measures different than those decided by the Council
itself distorts the institutional balance envisioned by the Charter.
Those considerations lead to two preliminary conclusions which are, in effect, two sides of the
same coin. First, the problem of ‘collective’ countermeasures presents itself in the case of a failure
of the Security Council, which manifests itself either because the Council does not judge itself
competent to deal with a situation concerning a grave breach of an relevant rule of international
law or because it cannot enact sanctions because of the use of the veto, or because it is slow to
do so. Second, beginning from the moment when the Council occupies itself with the adoption of
mandatory sanctions, member States transform into agents for the execution of these sanctions,
their duty being to implement them in good faith without undermining their effective application. For
States not individually injured, this implies an obligation to suspend countermeasures already
adopted at the individual level, if they are different or incompatible with the measures decided on
the by Security Council, or in any case, to modify them in order to harmonize them with the UN
sanctions. A fortiori, the States in question should not adopt ‘collective’ countermeasures after the
pronunciation of mandatory sanctions, but only measures which are necessary and sufficient for
the execution of those mandatory sanctions. In short, unless the Security Council invites States to
go further than its own measures—a rare event in practice—the triggering of Chapter VII ends the
power of States not individually injured to react as they please at the individual level. This view is
consistent with the spirit of the Charter as a ‘constitutional’ instrument of the international
community, and it is also consistent with article 59, which stipulates that the articles are ‘without
prejudice’ to the Charter. However, the Commentary to article 59 is not explicit on the point,
allowing ambiguities as to the link between the institutional and the individual to linger.17
2 The ambiguity of the retained solution

During the process of codification, the question of ‘collective’ countermeasures went through three
phases. The relevant provisions of the articles adopted on first reading, without ruling out collective
countermeasures, were rather ambivalent. In contrast, the text in the 2000 Report of the ILC
dedicated an article to the subject which explicitly allowed the adoption of those measures.
Amended in 2001, article 54 ARSIWA again became ambiguous.
(a) The changes in the ILC’s attitude
(i) The ambiguities of the version adopted on first reading

Article 40(3) of the 1996 Draft Articles adopted on first reading stipulated that if the internationally
wrongful act constituted an international crime, the phrase ‘injured State’ referred to ‘all other
States’. The Special Rapporteur at the time, Arangio-Ruiz, suggested that that provision extended
‘the option to resort to countermeasures … to all States’.18 However, in order to avoid an
avalanche of countermeasures founded on the subjective assessments of States as to the
perpetration of a crime, the Special Rapporteur proposed a procedure for an objective
determination of the existence and the attribution of such an
References
(p. 1143) act qualified as wrongful. That procedure combined ‘the political element with the judicial
element’ by involving first, the adoption of a resolution by a qualified majority of the General
Assembly or the Security Council and second, a ‘judgment’ by the International Court ‘that an
international crime has been or is being committed’.19
Cumbersome and complex as the procedure was, the Special Rapporteur’s suggestion could not
have been implemented. Consequently, the ILC was divided, with certain members in favour of the
adoption of collective countermeasures, while others saw it as a risk of entanglement of Security
Council powers with the individual reactions of States.20 The existence of such contrasting views
translated into ambivalence in other provisions in the articles as adopted on first reading.
It can be noted that draft articles 51 to 53, concerning the specific consequences of international
crimes, did not explicitly touch upon the question of collective countermeasures. Draft article 51
provided that ‘[a]n international crime entails all the legal consequences of any other
internationally wrongful act and, in addition, such further consequences as are set out in articles 52
and 53’.21 One may deduce from this that as countermeasures constituted a judicial consequence
of an ‘offence’, draft article 51 recognized a fortiori the power of every State ‘injured’ by a crime to
resort to countermeasures. The commentary to article 51, however, carefully avoided referring to
countermeasures.22 Similar observations apply mutatis mutandis to draft article 53, which
provided that ‘[a]n international crime committed by a State entails an obligation for every other
State: … (d) to cooperate with other States in the application of measures designed to eliminate the
consequences of the crime’.23 The very short commentary to that provision referred to the
cooperation of States in the implementation of sanctions adopted by the Security Council. It added:
‘[b]ut apart from any collective response of States through the organized international community,
the Commission believes that a certain minimum response to a crime is called for on the part of all
States’.24 What form of ‘minimum response’ was referred to? One could think of protests, diplomatic
pressure, retorsions, but also countermeasures. It should still be recalled that countermeasures are
seen as legal powers and not as obligations. However, article 53 enunciated obligations for States
and not powers. In short, the set of relevant provisions of the Articles adopted on first reading
contained references which could, eventually, be interpreted as permitting the adoption of
countermeasures by States not individually affected by a ‘crime’, while remaining evasive and, in
the final analysis, inconclusive on the point.
(ii) The clarity of the text in the 2000 Report

When re-examining the project of the Articles and under the impetus of a new Special Rapporteur,
the ILC clarified its position on collective countermeasures for the first time. The Special Rapporteur
proposed an interesting system distinguishing between two situations: one where a State is a victim
of a breach of an erga omnes partes obligation or an erga omnes obligation; and one where no
State is directly affected by a grave breach of an obligation owed to the international community as
a whole.25 That distinction featured in the text in the 2000 Report of the ILC.26
(p. 1144) In the first case, States not directly affected could take countermeasures ‘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’.27 Offering obvious analogies with lawful collective self-
defence, this wording made clear the distinction between the position of a State directly injured by
the breach and States not individually affected. The latter could not be ‘more Catholic than the
Pope’. They benefitted from an authority to resort to countermeasures subordinate to the demands
of the victim State, and more generally, to the conditions governing who may validly respond to the
wrongful act. Moreover, countermeasures by States not individually affected would be taken in the
interest of the victim State. In other words, the States in question would not ask, for example, for
compensation on their own behalf.
The second situation was aimed at flagrant or systematic violations of the right to selfdetermination
or human rights. In the case where there is no directly injured State, States not individually affected
act ‘in the interest of the beneficiaries of the obligation breached’, while first and foremost
demanding the cessation of the breach, but also guarantees and assurances of non-repetition, and
even compensation for victims.
In both situations, the concerned States should cooperate in order to assure themselves that the
conditions for resorting to countermeasures would be fulfilled.28 This was to ensure respect for the
principle of proportionality, a subject of particular concerns in the field of collective
countermeasures.
On the whole, draft article 54 of the 2000 version of the Articles reflected a well-balanced solution
which would have deserved support, even if it had to be clearly explained that collective
countermeasures assumed a subsidiary character in relation to the powers of the Security Council.
The fact of not having been very explicit on this point led certain ILC members to ask precisely
‘how much the question concerned the responsibility of States, as opposed to the maintenance of
international peace and security’ and to argue that in absence of a clear demarcation between the
individual and the institutional, ‘support for collective countermeasures was only possible in the
context of the action of competent international organizations’.29 Similar questions were asked in
the Sixth Committee of the General Assembly, which led finally to the ILC retreating and proposing a
provision as ambiguous as that adopted on first reading.30
(b) Article 54: ‘everything goes’
(i) A compromise provision

Article 54 ARSIWA, adopted in 2001, entitled ‘measures taken by States other than an injured
State’, is of an ambiguity worthy of the oracle at Delphi. Placed at the end of Part Three, Chapter II
on countermeasures, article 54 stipulates that:
[t]his 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
References
(p. 1145) The ambiguity lies both in the title—which speaks of ‘measures’ and not of
‘countermeasures’— and in the text, which refers to ‘lawful measures’. Those terms were employed
‘so as not to prejudice any position concerning measures taken by States other than the injured
State in response to breaches of obligations for the protection of the collective interest or those
owed to the international community as a whole.’31 In short, this is a formula which leaves all
options open.
In fact, the term ‘lawful measures’ can be interpreted in two ways, according to the position one
adopts on the question of ‘collective’ countermeasures. Those that are against collective
countermeasures will presumably argue that ‘lawful measures’ should be understood as measures
lawful per se, that is to say, retorsion. Those who adopt the opposite view will recall that retorsion
was explicitly excluded from the scope of application of ARSIWA; 32 that expressly permitting
retorsion does not make sense given that that retorsion is in any case permitted; and that
countermeasures are also ‘lawful measures’ considering that their unlawfulness is excluded in the
light of article 22—and customary law—to the extent that they are taken in conformity with the
relevant procedural and substantive conditions which are mostly codified in articles 49 to 53.33 In
addition, placing article 54 in the scope of a chapter on countermeasures suggests that the
provision in question aims at a particular form of those measures rather than mere retorsion
measures.
The second interpretation, which seems correct, conforms to the spirit and the other provisions of
ARSIWA. However, the ambiguities of article 54 are certainly intended and tend to respond to some
critical observations made by governments.34 From a point of view of ‘legal policy’ one can
certainly understand the approach of the ILC, which was concerned with securing a favourable
reception for the Articles in the Sixth Committee of the General Assembly, an objective that was
mostly achieved. However, like every compromise formula, article 54 perpetuates the debate on
‘collective’ countermeasures without being able to satisfy everyone.35
(ii) A justified solution?

Beyond ‘political’ reasons, which are at the base of the solution retained by the ILC, it is similarly
important to ask whether article 54 reflects the current state of general international law. According
to the Commission, the practice on countermeasures taken in the general or collective interest is
‘limited and rather embryonic’.36 Quantatively it is ‘sparse’ and it mostly emanates from a limited
number of States, that is to say Western States, which leaves ‘uncertainty’ on the matter.37 Hence
a specific provision in a form of ‘saving clause’ was adopted, which leaves ‘the resolution of the
matter to the further development of international law’.38
In addition to the fact that the overview of practice drawn up by the Special Rapporteur Crawford a
year before was appreciably more positive, the overall assessment of the ILC
References
(p. 1146) leaves one puzzled.39 Concerning the quantitative aspect and the duration of the
practice, it can be remarked that the Commission, without purporting to be exhaustive, cited
numerous examples, the first dating as far back as 1978, when the United States adopted
countermeasures against Uganda because of the ‘genocide’ committed by the government of that
country against its own citizens.40 The ILC similarly recalled that after the imposition of martial law
by the Polish government on 13 December 1981 and the massive human rights violations which
followed, the United States and other Western countries adopted a series of measures against
Poland and the Soviet Union, of which certain constituted countermeasures. One year later, in
1982, Argentina’s military intervention on the Falkland Islands (Malvinas) provoked
countermeasures from the members of the European Community, Australia, New Zealand, and
Canada. The ILC also referred to the aforementioned example of the adoption of countermeasures
against South Africa in 1986.41
To complete the overview of western State practice between 1970 and 1989, one can add the
responses against the Soviet Union after its invasion of Afghanistan; the countermeasures of the
Member States of the EEC—with which Japan, Canada, and Australia sympathized—at the time of
the hostage taking of US diplomatic and consular staff in Tehran; and finally the aerial boycott of
the Soviet Union following the destruction on 1 September 1983 of a Boeing 747 of Korean Air Lines
by a Soviet military aircraft.42
During the 1990s, collective countermeasures taken on the individual level became more rare, a
development that can easily be explained if one takes the ‘overheating’ of Chapter VII of the
Charter into account and the abundance of institutional sanctions enacted by the Security Council
during that period. However, the ILC observes that immediately after Iraq’s invasion of Kuwait on 2
August 1990, the United States and the member States of the European Community proceeded to
implement commercial embargos and decided to freeze Iraqi assets, actions taken with the consent
of the government of Kuwait, before the adoption of sanctions by the Security Council.43 In addition
it can be remarked—subject to the preceding observations concerning the entanglement of the
institutional and the individual—that from 1991 and during the different phases of the Yugoslav confl
ict, the Member States of the European Community adopted measures which certainly went beyond
the limits of the UN sanctions.44 Also, in response to the grave violations of human rights and
humanitarian law in East Timor, the Council of the European Union adopted a common position on
the imposition of a series of restrictive measures against the Republic of Indonesia, including an
arms embargo covering contracts already in force with the targeted State, as well as the
suspension of bilateral military cooperation between it and the Member States.45
(p. 1147) It thus appears that, far from ‘embryonic’, the practice of western States on the subject of
collective countermeasures is rather dense and consistent, and that it spans almost three decades.
The group of States in question has responded to a large range of grave breaches of obligations
deriving from peremptory norms of international law or erga omnes obligations, and particularly to
the use of force, acts of aggression, acts of genocide, racial discrimination, and other massive
violations of human rights and to flagrant violations of norms which form the core of diplomatic law
and which have an ‘imperative character’.46
If the practice of western States is the most resounding, that of eastern European States and non-
aligned States is also significant. It is true that eastern European States have not unilaterally used
an ‘economic weapon’ against States responsible for wrongful acts considered grave and that non-
aligned States have only used them quite exceptionally and subsidiary to other action. Hence there
is a widespread tendency to pass silently by the practice of those groups of States when analysing
the regime of grave breaches of erga omnes obligations, thinking only in terms countermeasures of
a purely economic character. It is also true that the responses of different constituents of the
international community often manifest themselves in a different political context. Without wanting
to extrapolate, it can be said that, generally speaking, western States appear to be particularly
concerned with grave human rights violations, whereas former Socialist States and non-aligned
States essentially worry about the ‘remnants of colonialism’ and racism. If it is evident that those
concerns were converging largely because racism, colonial oppression, and violations of human
rights go hand in hand, the uncertainties of language merely illustrate too many of the ideological
differences of the Cold War period, some of which still persist.
However, beyond particular forms that responses of different groups of States assume and beyond
the political framework in which these are taken, a common denominator emerges as to the
question of legitimate subjects to react to determined violations of international law. It is clear that,
notwithstanding the principle of non-intervention, the former Socialist States have on numerous
occasions actively supported national liberation movements, notably in Africa but also in other
continents, including logistic and military support. Expressed numerous times, the belief that every
State is authorized to respond to colonial or racist regimes was solidly rooted in the conception of
international relations of that group of States. The same idea has long dominated the foreign politics
of non-aligned States.47 In addition, it can be noted that, under pressure of former Socialist, Asian,
and African States the General Assembly declared in Resolution 2625 (XXV) that peoples which act
against and resist measures of oppression in the exercise of their right to self-determination ‘are
entitled to seek and to receive support in accordance with the purposes and principles of the
Charter’.48 The Security Council, for its part, has gone beyond verbal condemnations of apartheid
by explicitly commending, at the beginning of 1985, the steadfast support which the neighbouring
States of South Africa gave to the people of
References
(p. 1148) Namibia.49 In other words, the political organs of the UN have been led to endorse, in
substance, ‘collective’ countermeasures adopted by those States against South Africa in the form
of assistance to national liberation movements.
It thus appears that, far from being limited to western States, the practice of countermeasures
adopted by States not individually injured by grave breaches of erga omnes obligations can be
seen across all constituents of the international community, at least if different forms of those
measures are taken into account. It therefore appears that the ILC could have proceeded with the
codification of ‘collective’ countermeasures following, in substance, the proposal made in the 2000
Report of the Special Rapporteur. The acceptance of that wording could have been made easier if
the conditions for the form of responding were more strictly delimitated; if it had been explicitly
made clear that the power to resort to those measures on an individual level was subsidiary to the
powers of the Security Council; and if a more complete overview of the practice of different groups
of States on the subject had been given.
Further reading
M Akehurst, ‘Reprisals by Third States’ (1970) 44 BYIL 1
D Alland, ‘Countermeasures of General Interest’ (2002) 13 EJIL 1221
D Alland, Justice privée et ordre juridique international. Étude théorique des contre-
JI Charney, ‘Third State Remedies in International Law’ (1988) 10 Michigan Journal of
A de Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto
internazionale (Milan, Giuffrè, 1985)
J Delbrück, ‘International Economic Sanctions and Third States’ (1992) 30 Archiv des
Völkerrechts 86
P-M Dupuy, ‘Observations sur la pratique récente des ‘sanctions’ à l’illicite’ (1983) 87 RGDIP
505
J Petman, ‘Resort to Economic Sanctions by not Directly Affected States’, in L Picchio & L-A
Sicilianos (eds), Les sanctions économiques en droit international (Leiden, Martinus Nijhoff,
2004), 309
L-A Sicilianos, ‘La codification des contre-mesures par la Commission du droit international’
(2005) 38 RBDI 447
L-A Sicilianos, ‘Sanctions institutionnelles et contre-mesures: tendances récentes’, in L
Picchio & L-A Sicilianos (eds), Les sanctions économiques en droit international (Leiden,
Martinus Nijhoff, 2004), 3
L-A Sicilianos, ‘The Classification of Obligations and the Multilateral Dimension of the
Relations of International Responsibility’ (2002) 13 EJIL 1127
L-A Sicilianos, Les réactions décentralisées à l’illicite: des contre-mesures à la légitime
B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 250 Recueil
des cours 217
Footnotes:
1 See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 386.
2 See D Anzilotti, Cours de droit international (trans G Gidel, Paris, Sirey, 1929), 467.
3 Art 54 ARSIWA and Commentary thereto.
4 See G Gaja, Chapter 64.
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.
7 See art 54 ARSIWA, which refers to art 48.
8 See L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à la Légitime
Défense (Paris, LGDJ, 1990), 137–177.
9 See draft art 40(3) as adopted on first reading in 1996, Report of the ILC, 48th Session, ILC
10 See ‘Summary of the Debate in the Sixth Committee of the General Assembly at its 55th
Session’, A/CN.4/513, paras 138, 174.
11 Ibid, para 175.
13 See L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à la Légitime
Défense (Paris, LGDJ, 1990), 164.
14 D Cortright & GA Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s
(Boulder/London, Lynne Rienner Publishers, 2000).
15 Reg 3541/92, OJ L 361/1, arts 2, 3; Reg 3275/93, OJ L 295/4, arts 1, 3.
16 See the criticism of N Angelet, ‘La mise en oeuvre des mesures coercitives économiques des
Nations Unies dans la Communauté européenne’ (1993) RBDI 500, 502, 511; S Karagiannis,
‘Sanctions internationales et droit communautaire: A propos du règlement 1901/98 sur l’interdiction
de vol des transporteurs yougoslaves’ (1999) RTD eur 363, 376.
17 Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58, 393.
18 G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, 11
(para 35).
19 Ibid, 30 (draft art 19).
21 Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58, 164.
22 Ibid, 165–167.
23 Ibid, 169.
24 Ibid, 170.
25 See draft arts 50A and 50B in J Crawford, Third Report on State Responsibility, 2000,
A/CN.4/507, para 413.
26 Cf also draft art 54: Report of the ILC, 52th Session, ILC Yearbook 2000, Vol II(2), 70–71.
27 Ibid, para 2.
28 Ibid, para 3.
30 ‘Summary of the Debate in the Sixth Committee of the General Assembly at its 55th Session’,
A/CN.4/513, para 176.
31 Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 139.
32 See the Commentary to Part Three, Chapter II, para 3.
33 See Y Iwasawa & N Iwatsuki, Chapter 81; R O'Keefe, Chapter 82; and M Kamto, Chapter 83.
34 See the Commentary to art 54, para 7; J Crawford, Fourth Report on State Responsibility, 2001,
A/CN.4/517, paras 59–60.
35 One thus notes, for example, the strong criticism of the final version of art 54 expressed by the
representative of Finland in the Sixth Committee of the General Assembly, M Koskenniemi, on behalf
of the Nordic countries (A/C.6/56/SR.11).
37 Ibid, para 6.
38 Ibid.
39 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 395 and 401.
42 See P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” à l’illicite’ (1983) 87
RGDIP 505; A de Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto
internazionale (Milan, Giuffrè, 1985), 106, 136; L-A Sicilianos, Les Réactions Décentralisées à
l’Illicite: Des Contre-mesures à la Légitime Défense (Paris, LGDJ, 1990), 157, 164; and the
comprehensive review by M Davidowicz, ‘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.
44 M Vaucher, ‘L’évolution récente de la pratique des sanctions communautaires à l’encontre des
Etats tiers’ (1993) 29 RTD eur 38, 45; D Wibaux, ‘A propos de quelques questions juridiques
posées par l’interdiction des vols des compagnies yougoslaves’ (1998) 44 AFDI 262.
45 Common Position 1999/624/CFSP, 16 September 1999, OJL 245, 17 September 1999, 53.
47 See C Alibert, Du droit de se faire justice dans la société internationale depuis 1945 (Paris,
LGDJ, 1983), 238; G Carella, La responsabilità dello Stato per crimini internazionali (Naples,
Jovene, 1985), 192; L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à
la Légitime Défense (Paris, LGDJ, 1990), 167.
48 GA Res 2625 (XXV), 24 October 1970. See also GA Res 3314 (XXIX), 14 December 1974 on
the Definition of Aggression, art 7.
49 See, amongst others, SC Res 577, 6 December 1985, para 5.
Responsibility, Ch.81 Procedural Conditions
Yuji Iwasawa, Naoki Iwatsuki


ISBN: 9780199296972
Subject(s):
Reparations — Wrongful acts — Countermeasures — Necessity
(p. 1149) Chapter 81 Procedural Conditions
1 Introduction 1149
2 The ILC’s consideration of the issues 1150
3 Call for reparation and notification 1151
(a) Call for reparation (sommation) 1151

(b) Notification 1151
4 Countermeasures and procedures for the peaceful settlement of disputes 1152
(a) Implications for the peaceful settlement of disputes 1152

(b) Application of the principle of necessity 1153
(c) Urgent countermeasures 1154
5 Conclusion 1154
1 Introduction
The wrongfulness of countermeasures can be precluded only if the target State has committed an
internationally wrongful act. However, the wrongfulness of the act of the target State will not have
been objectively determined when countermeasures are taken. This uncertainty surrounding the
wrongfulness of the initial act gives special importance to the procedural conditions for
countermeasures. These conditions seek to ensure the legality of countermeasures by regulating
when and under what circumstances the ‘injured’ State may unilaterally resort to countermeasures.
The procedural conditions of countermeasures became the subject of heated discussion in both
the ILC and the Sixth Committee of the General Assembly. Some members of the ILC and some
governments contended that ARSIWA should not include articles on countermeasures, claiming
that they would allow individual States to act as judges in their own cause. Most members of the
ILC, however, believed that ARSIWA should regulate the manner in which countermeasures are
taken in order to prevent abuses. By means of procedural conditions, the ILC sought to strike a fair
balance between controlling the use of countermeasures and not giving undue advantage to the
State alleged to have committed an internationally wrongful act.
Under the traditional law of reprisals, States were required to demand reparation before resorting to
reprisals. This condition of a prior demand is also considered to be applicable under current
international law. Another issue which merits consideration is whether the principle of peaceful
settlement of disputes, as provided for in article 2(3) of the UN Charter, restrains the exercise of
countermeasures. One must remember that by definition
References
(p. 1150) countermeasures involve conduct which is otherwise unlawful, and that they are
coercive in nature; they thus carry the risk of exacerbating the dispute. For these reasons the
exceptional nature of countermeasures should be emphasized and the relation between
countermeasures and amicable means of dispute settlement as listed in article 33 of the Charter
clarified.
2 The ILC’s consideration of the issues

The ILC began deliberating on the chapter on countermeasures in 1991. Arangio-Ruiz, the Special
Rapporteur, thought it necessary to devise a system which would effectively control
countermeasures in order to prevent abuse. The procedural conditions proposed by him were
twofold: ex ante procedures and ex post procedures. For ex ante procedures, Arangio-Ruiz
proposed that an injured State could not take countermeasures ‘prior to the exhaustion of all the
amicable settlement procedures available under general international law, the Charter of the United
Nations or any other dispute settlement instrument to which it is a party’.1 Some members of the ILC
opposed the proposal, contending that it was unrealistic to demand prior exhaustion of all available
procedures for amicable settlement. Bowett, among others, maintained that it might take a long time
to resolve a dispute through negotiations, and that it would be difficult for the injured State to argue
that the responsible State did not cooperate in good faith. He thus advocated that a State taking
countermeasures should only be required to offer an amicable procedure, which, if accepted,
would result in the suspension of those measures. While the Special Rapporteur stressed the
exceptional and subsidiary nature of countermeasures, those who opposed his proposal approved
of countermeasures as an essential means of enforcing the rule of law in international society. A
compromise between the two opposing views was struck in the 1996 draft as follows. Draft article
48 provided, on the one hand, that ‘prior to taking countermeasures, an injured State shall fulfil its
obligation to negotiate’, and on the other hand, that ‘this obligation is without prejudice to the taking
by that State of interim measures of protection which are necessary to preserve its rights’.
For ex post procedures, Arangio-Ruiz asserted that some procedures were needed by which an
impartial body verified that all the requirements for the countermeasures were met. Thus, he
proposed innovative dispute settlement procedures, consisting of two successive compulsory
procedures of conciliation and arbitration. Some ILC members opposed the proposal, arguing that
such procedures ignored the reality of international relations. Many members, however, welcomed
it, believing that it would make States more cautious in taking countermeasures. The 1996 draft
provided for dispute settlement procedures which were largely consistent with the proposals of the
Special Rapporteur. The draft provided for compulsory conciliation procedures, and the target
State was entitled to unilaterally submit a dispute concerning the legality of countermeasures to
arbitration.
Comments and observations by various governments on the 1996 draft showed that their opinions
were sharply divided with respect to which procedural conditions were imposed on
countermeasures as a matter of positive international law, and which procedures were desirable as
a matter of progressive development. As far as the ex ante procedures were concerned, (p. 1151)
the focus of discussion was the exhaustion of the obligation to negotiate and the concept of
provisional measures by way of exception. In the case of the ex post procedures, many
governments reacted strongly to the compulsory dispute settlement procedures.
On second reading the ILC attempted to construct a more balanced regime of countermeasures in
light of these comments. With regard to the ex ante procedures, the 2001 Articles no longer
required the injured State to exhaust the obligation to negotiate prior to taking countermeasures.
The State intending to take countermeasures is only required to call on the responsible State to
make full reparation and to notify the responsible State of its decision to take countermeasures.
‘Provisional’ countermeasures were renamed ‘urgent’ countermeasures because all
countermeasures were believed to be provisional in nature. ILC members were divided on the
question of whether the ex post procedures should be retained, and this question depended on the
form that the draft articles would eventually take. In the end, the ILC decided to recommend that the
General Assembly take note of the Articles in a resolution. As a result, provisions on dispute
settlement were eliminated from the draft, and thus, the 2001 Articles do not provide for ex post
procedural conditions of countermeasures.
3 Call for reparation and notification
(a) Call for reparation (sommation)
The Articles provide for ‘Conditions relating to resort to countermeasures’. Specifically, article 52(1)
(a) states that, before taking countermeasures, an injured State must call on the responsible State
to make reparation for the injury caused by the internationally wrongful act. This requirement to
demand reparation before taking countermeasures is well established under customary
international law. The arbitral tribunal in the Naulilaa case stated that reprisals are illegal if they are
not preceded by a request to remedy the alleged wrong.2 While the Naulilaa case was concerned
with armed reprisals under the pre-UN Charter law, the International Court of Justice has confirmed
that the requirement applies also to nonarmed countermeasures under contemporary international
law. In Gabcíkovo-Nagymaros Project, the Court stated as follows: ‘… the injured State must have
called upon the State committing the wrongful act to discontinue its wrongful conduct or to make
reparation for it’.3 The purpose of the requirement to demand reparation is to give the responsible
State an opportunity to review the action alleged to be unlawful. The target State may provide
justifications for its action, or may even discontinue the action and make reparation for the injury
caused. Thus, this requirement helps the States concerned to identify issues and settle disputes in
a rational manner.
(b) Notification
Article 52(1)(b) provides that ‘an injured State shall … notify the responsible State of any decision
to take countermeasures and offer to negotiate with that State’. If a State takes countermeasures
without explaining its intentions, the target State may regard the measures as unlawful and resort to
counter-countermeasures, which may worsen the conflict.
References
(p. 1152) To avoid such a sequence of events, the injured State must notify the target State that it
is taking the countermeasures with a view to assuring its legitimate interests without eliminating the
possibility of reaching a peaceful settlement of the underlying dispute. Thus, the requirement of
prior notification can prevent escalation of the conflict.
No particular form of notification is prescribed. The injured State need not specify the content or
timing of the measures. However, detailed explanations of contemplated countermeasures may
prompt the target State to discontinue the challenged act. The prior notification should not serve as
an ultimatum, but rather should be a means of inducing the target State to cease its injurious acts
and to cooperate in settling the dispute through amicable procedures.
4 Countermeasures and procedures for the peaceful settlement

of disputes
(a) Implications for the peaceful settlement of disputes

The most controversial matter concerning procedural conditions is whether and to what extent the
conditions of making a prior demand for reparation and issuing prior notification have been
strengthened by the principle of peaceful settlement of disputes provided for in articles 2(3) and 33
of the UN Charter. Some commentators have contended that under the principle of peaceful
settlement of international disputes, the traditional requirement of sommation has developed into
the requirement that all amicable means of dispute settlement be exhausted before
countermeasures are taken.4 Others have denied such a requirement, emphasizing that
countermeasures not involving the use of force themselves constitute ‘peaceful’ means of settling
a dispute.5
The principle of peaceful settlement of disputes should not always bar States from resorting to
countermeasures while an amicable means is being pursued. However, it should be noted that
when article 2(3) of the UN Charter was adopted, the fundamental idea behind the principle of
peaceful settlement of international disputes was understood as follows:
A state would not be permitted to settle its disputes by force or to exert coercion and fight
in order to impose its own solution to a controversy. The paragraph thus establishes
clearly the principle of peaceful solution versus coercive solution. In that same order of
ideas, parties to a controversy shall be encouraged to settle it themselves by peaceful
means.6
Given the unilateral and coercive nature of countermeasures, the injured State must endeavour to
settle disputes through amicable means. In the exceptional situation where countermeasures are
necessary to continue and promote the process of peaceful settlement of disputes, injured States
are permitted to resort to countermeasures. In other words, whether countermeasures may be
taken is determined by the situation in question, and their lawfulness should be measured in the
light of the principle of necessity. To determine whether countermeasures are necessary, one must
take into account the attitude of the
References
(p. 1153) target State toward the dispute settlement procedures proposed by the injured State.7 On
the other hand, the principle of peaceful settlement of disputes requires States to refrain from any
action that may aggravate the situation and hinder or impede the peaceful settlement of the
dispute.8 Accordingly, countermeasures must not aggravate the dispute but rather contribute to its
peaceful settlement.9
(b) Application of the principle of necessity

A question arises as to whether an injured State is prohibited from resorting to countermeasures
while negotiations are underway for the settlement of the dispute. In the Air Services Agreement
case, the Tribunal responded to this question in the negative, stating as follows:
… it is necessary carefully to assess the meaning of counter-measures in the framework of

proportionality. Their aim is to restore equality between the Parties and to encourage them
to continue negotiations with mutual desire to reach an acceptable solution … But the
Arbitral Tribunal does not believe that it is possible, in the present state of international
relations, to lay down a rule prohibiting the use of countermeasures during negotiations,
especially where such counter-measures are accompanied by an offer for a procedure
affording the possibility of accelerating the solution of the dispute.10
When the target State is engaged in negotiations in good faith, there should be no need to resort to
countermeasures, and thus countermeasures would not be permitted under the requirement of
necessity. It is only when the target State refuses to cooperate in dispute settlement in good faith
that countermeasures become necessary. It is, however, not an easy task to identify the degree of
non-cooperation that makes countermeasures necessary and justifiable. In the Lac Lanoux
Arbitration, the Tribunal expressed the view that the obligation of negotiating an agreement was
not fulfilled:
… in the event, for example, of an unjustified breaking off of the discussions, abnormal
delays, disregard of the agreed procedures, systematic refusals to take into consideration
adverse proposals or interests, and, more generally, in cases of violation of the rules of
good faith.11
Even when the target State cooperates in dispute settlement, if it continues the challenged act, the
circumstances are different. When irreparable damage is likely to be caused to the rights of the
injured State by the continued act of the target State, countermeasures will be recognized as
necessary.
If the target State accepts the demands of the injured State, the injured State must withdraw the
countermeasures. This is a corollary to the exceptional and subsidiary nature of countermeasures.
Similarly, if the target State makes concessions on some matters in the dispute, the necessity of
countermeasures must be re-evaluated. These observations should apply mutatis mutandis to
cases in which procedures other than negotiation are employed in settlement of the dispute.
References
(p. 1154) As regards a case in which the dispute has been referred to judicial procedures, article
52(3) of ARSIWA provides that:
Countermeasures may not be taken, and if already taken must be suspended without
undue delay if
(a) the internationally wrongful act has ceased, and
(b) the dispute is pending before a court of tribunal which has authority to make decisions
binding on the parties.
As the Tribunal pointed out in the Air Services Agreement case, countermeasures are no longer
necessary, if the purpose of countermeasures is achieved by interim measures of protection
ordered by a court. According to the Tribunal, ‘the powers of the tribunal to decide on interim
measures of protection … leads to an elimination of existing countermeasures to the extent that the
tribunal so provides as an interim measures of protection’.12 The necessity of countermeasures,
however, should not disappear, unless a court is actually constituted, has prima facie jurisdiction
over the dispute, and possesses the power to order interim measures which are binding on the
parties.13
If a treaty provides for special procedures for the settlement of disputes arising under the treaty,
the contracting parties should seek to settle disputes through those procedures. However, unless
the procedures are mandatory and exclude countermeasures, the general principles explained
above should apply.
(c) Urgent countermeasures

The Articles introduced the concept of urgent countermeasures, which are exempted from the
condition of prior notification (article 52(2)). The Articles thus recognize the need of the injured
State to urgently resort to countermeasures in some cases in order to preserve its rights.
According to the commentary, the rights to be preserved include not only ‘[the injured State’s]
rights in the subject-matter of the dispute’ but also ‘its right to take countermeasures’. If the injured
State notifies the target State of its intention to take countermeasures, the target State may
immunize itself from countermeasures, for example, by withdrawing assets from banks in the
injured State. Urgent countermeasures are meant to prevent such actions by the target State. The
principle of proportionality should determine whether urgent countermeasures need to be limited to
temporary measures such as the freezing of assets or whether they include definitive—but
reversible—measures such as the sequestration of assets. The purpose of urgent
countermeasures must be the maintenance of the status quo.
5 Conclusion
All the procedural conditions of countermeasures may be traced to the two guiding principles of
necessity and non-aggravation of the dispute. In order to prevent abuse of countermeasures, one
must continue to expand upon the details of these principles in the context of countermeasures,
taking into consideration the process of dispute settlement. It
References
(p. 1155) is particularly important to clarify the circumstances under which urgent countermeasures
may be taken. Urgent countermeasures are nothing but a form of countermeasures in an urgent
situation, and their necessity must be shown in a precise manner. If the injured State escapes from
procedural conditions in the name of urgency, a notion susceptible to abuse, countermeasures fall
into the ‘law of the jungle’, destroying the 20th century development of legal conscience and
amicable procedures concerning peaceful settlement of disputes.
Further reading
‘Symposium: Counter-measures and Dispute Settlement: The Current Debate within the ILC’
(1994) 5 EJIL 64
D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 373–427
J Alcaide Fernández, ‘Contre-mesures et règlement des différends’ (2004) 108 RGDIP 347
L Boisson de Chazournes, Les contre-mesures dans les relations internationales
économiques (Paris, Pedone, 1992), 157–186
Ch Dominicé, ‘Observations sur les droit de l’Etat victime d’un fait internationalement illicite’,
in Droit international 2: Cours et travaux de l’I.H.E.I. de Paris (Pedone, Paris, 1982), 40–56
Ch Dominicé, ‘La vaine sommation, condition d’exercice des contre-mesures’, in Mélanges
en hommages à Michel Waelbrœck, vol 1 (Brussels, Bruylant, 1999) 57
C Economidès, ‘La déclaration de Manille sur le règlement pacifique des différends
internationaux’ (1982) 28 AFDI 613
OY Elagab, The Legality of Non-Forcible Counter-Measures in International Law (Oxford,
Clarendon Press, 1988), 64–79, 165–189
Y Matsui, ‘Countermeasures in the International Legal Order’ (1994) 37 Japanese Annual of
International Law 1
M Noortmann, Enforcing International Law: From Self-help to Self-contained Regimes
(Aldershot, Ashgate, 2005)
L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 178–240
B Simma (ed), The Charter of the United Nations: A Commentary, Vol I (2nd edn, Oxford,
OUP, 2002), 102–111 (Article 2, Paragraph 3 by C Tomuschat)
V Vadapalas, ‘Aspects de processus de la responsabilité internationale’ (1994) 21 Polish
Yearbook of International Law 87
K Zemanek, ‘The Legal Foundations of the International System’ (1997) 266 Recueil des
cours 319–327
E Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Dobbs Ferry,
Transnational Publishers, 1984), 118–124(p. 1156)
Footnotes:
1 Draft art 12(1)(a), G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol
II(1), 1, 22 (para 52).
2 Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of
Africa (Portugal v Germany) (‘Naulilaa’), 31 July 1928, 2 RIAA 1011, 1026.
4 See eg L Condorelli, ‘La règlement des différends en matière de responsabilité international des
Etats: quelques remarques candides sur le débat à la C.D.I.’ (1994) 5 EJIL 106.
5 B Simma, ‘Counter-measures and Dispute Settlement: A Plea for a Different Balance’ (1994) 5
EJIL 102.
6 Documents of the United Nations Conference on International Organization, San Francisco, 1945,
vol 6, 399 and 147.
7 See Restatement (Third) of the Foreign Relations Law of the United States (St Paul’s, American
Law Institute, 1987), §905, Comment c, Reporters Note 3.
8 GA Res 37/10, Declaration of Manila for the peaceful settlement of disputes, 15 November 1982,
Section I, para 8.
10 Air Services Agreement of 27 March 1946 (United States v France) (1978) 54 ILR 304, 339–
340 (paras 90–1).
11 Lac Lanoux (France v Spain), 16 November 1957, 12 RIAA 285, 307 (para 11).
12 Air Services Agreement of 27 March 1946 (United States v France) (1978) 54 ILR 304, 341
(para 96).
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).
Responsibility, Ch.82 Proportionality
Roger O'Keefe


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — Proportionality and immediacy
(p. 1157) Chapter 82 Proportionality
1 Introduction 1157
2 Underlying rationale 1159
3 ‘Quantitative’ and ‘qualitative’ injury 1160
4 ‘Proportionality’—an inexact science 1165
5 Proportionality of countermeasures under WTO law 1166
1 Introduction
Countermeasures are lawful only if taken in accordance with certain conditions. One such
condition is the requirement of proportionality, which finds expression in article 51 (‘Proportionality’)
of the ILC Articles on Responsibility of States for Internationally Wrongful Acts:
Countermeasures must be commensurate with the injury suffered, taking into account the
gravity of the internationally wrongful act and the rights in question.
The requirement, in some essential form, has long been established as a matter of general
international law.1 While a precise formulation of the requirement has been slower to settle, the
wording of article 51 represents far more codification than progressive development and can
probably be considered to have crystallized the customary statement of the rule. Even before the
ILC’s Articles had been taken note of by the UN General Assembly, article 51 was cited by the WTO
Appellate Body as an authoritative statement of general international law.2 It has subsequently
been treated as such by an arbitral tribunal constituted under Chapter XI of NAFTA.3
The contemporary object of countermeasures as laid down in article 49(1)—viz to induce the
responsible State to comply with its secondary obligations, in practice to cease
References
(p. 1158) its internationally wrongful conduct and to make reparation to the injured State—might be
taken to suggest that the proportionality of such measures be assessed by reference to the degree
of compulsion needed to secure this end. Article 51, however, expresses the view that the
condition that countermeasures be commensurate with the injury suffered constitutes a restriction
over and above that implied by their stated object. Even if it is arguably necessary to secure the
injured State’s compliance with its secondary obligations, it is now settled that a countermeasure
incommensurate with the injury suffered will be unlawful. Proportionality in the context of
countermeasures ‘has a function partly independent of the question of whether the
countermeasure was necessary to achieve the result of ensuring compliance’.4
At the same time, the assessment of the proportionality of a countermeasure is not wholly unrelated
to its object, in that ‘a clearly disproportionate measure may well be judged not to have been
necessary to induce the responsible State to comply with its obligations but to have had a punitive
aim and to fall outside the purpose of countermeasures enunciated in article 49’.5 Consider, for
example, the following. While article 52(3)(b) states that countermeasures may not be taken, and if
already taken must be suspended without undue delay, if the dispute is pending before a court or
tribunal with the authority to make decisions binding on the parties, the reference to a tribunal does
not encompass a tribunal with jurisdiction between a private party and the responsible State, even
if the dispute between them has given rise to the controversy between the injured State and the
responsible State.6 But, in a situation such as this, the requirement of proportionality remains an
overriding condition, and the fact that the underlying dispute has been submitted to mixed
arbitration, although not implicating article 52(3)(b), will be relevant for the purpose of article 51,
7
with the consequence that ‘only in exceptional cases will countermeasures be justified’.7
As actually worded in article 49(1), the object of countermeasures is to induce the responsible
State to comply with ‘its obligations under Part Two’. In this light, it is worth recalling that, in
accordance with articles 34 and 37, the obligation to make full reparation can involve not only
restitution and/or compensation but also the giving of satisfaction, insofar as the injury caused by
the internationally wrongful act cannot be made good by restitution and compensation. The ILC did
not consider unlawful per se countermeasures taken in order to induce the giving of satisfaction.
That said, the condition of proportionality would render highly dubious all but the most sparing of
such measures. Indeed, it appears to have been the existence of article 51 which explains why the
Commission felt no need to rule out a priori countermeasures taken to compel satisfaction.8
The requirement of proportionality is relevant both to the type of countermeasure that may be
adopted and to its degree of intensity.9
As to the type of countermeasure that may be applied, it is clear, given the broader rejection in the
context of countermeasures of a requirement of ‘reciprocal measures’, that proportionality does
not necessarily imply reciprocity, viz the breach of the same obligation
References
(p. 1159) as that breached by the responsible State. But in an apparent response to the criticism
that ‘proportionality was a false friend’ in cases involving the breach of a different obligation, giving
‘the impression [of ] a yardstick … when in fact none was there’,10 the ILC’s Commentary to article
49 cautions that countermeasures are more likely to satisfy the requirement of proportionality if
they are taken in relation to the same or a closely related obligation.11 Equally, proportionality does
not demand that the breach of a single obligation be met with the breach of a single obligation. As
long as the overriding condition of proportionality is complied with, a countermeasure may implicate
the performance of several obligations simultaneously.12
Whereas the draft article on the proportionality of countermeasures provisionally adopted by the
Commission in 1995, draft article 13, referred to the effects of the internationally wrongful act ‘on
the injured State’,13 article 51 demands that countermeasures be commensurate simply with ‘the
injury suffered’. It does not stipulate that the injury in question be that suffered by the injured State
—that is, the State taking the countermeasures—alone.
2 Underlying rationale
No imperative of reason demands that one State’s right be restricted by reference to another’s
wrong, even when, and perhaps especially when, it is the other’s wrong which gives rise to the
right in the first place, whatever equity might suggest as to the latter. At the same time, it goes
without saying that States can agree to any positive restriction on a right that they consider
appropriate, and considerations of equity are an obvious source of positive restrictions on rights.
It was less abstract notions of equity, however, than concrete considerations of equivalence that
gave initial historical rise to the requirement that countermeasures (or ‘reprisals’) be commensurate
with the injury suffered. As well as often ascribing to them a punitive function, classical jurists saw
reprisals as a means of securing directly—that is, without recourse to the agency of the
responsible State—restitution or compensation for injury caused by the responsible State’s
internationally wrongful act. In this light, the measure of the reprisal could plainly not exceed the
debt without injustice; hence Sir Robert Phillimore’s statement, consonant with Grotius and Vattel
before him, that it was lawful to seize goods by way of reprisal ‘so far as it [was] necessary to
satisfy the original debt that caused, and the expenses incurred by the Reprisal’.14
The rise of the modern object of countermeasures—namely, the cessation of the internationally
wrongful act and the securing of reparation for injury through the inducement of the responsible
State—saw no abandonment, however, of the requirement that such measures be commensurate
with the debt owed or, in more general terms, the injury
References
(p. 1160) suffered. The artefactual rule was simply recast in terms more expressive of the
principled concern for net equity that had underpinned it, a concern equally applicable to the
modern object of countermeasures as a means of pressuring the responsible State to comply with
its secondary obligations. Proportionality in the field of countermeasures is now explicitly ‘a
relationship between the two evils represented by the breach and the reaction thereto’.15 The
avowed function of the requirement is ‘to ensure that the adoption of countermeasures does not
lead to inequitable results’.16 In plain terms, the rule that the countermeasure be commensurate
with the injury suffered seeks to ensure that that the harm which results from the response to a
wrong does not outweigh the harm occasioned by the wrong in the first place.
The rationale for the condition of proportionality in the adoption of countermeasures is also often
stated in less abstract terms as a safeguard against abuse.17 But since the proportionality of a
countermeasure is logically unconnected with the injured State’s subjective motivation for taking it,
the function of the condition remains essentially the same. Even if characterized as a check on
countermeasures adopted in bad faith, the requirement of proportionality exists to ensure that the
harm resulting from such measures does not exceed the harm that led to their adoption.
A further, more pragmatic rationale for the required proportionality of countermeasures is the desire
to avoid the aggravation and embittering of disputes through cycles of mutual, recriminatory
countermeasures. It is a truism that the legal rights and wrongs of interstate relations are not
always easy to assess, and ‘[i]t goes without saying that recourse to counter-measures involves a
great risk of giving rise, in turn, to a further reaction, thereby causing an escalation which will lead
to a worsening of the conflict’.18 A State against which a countermeasure is taken commonly
denies the unlawfulness of its original conduct and, as a countermeasure is prima facie an unlawful
act, it will tend to view itself as the injured State, entitled as such to adopt countermeasures. The
requirement of proportionality, while no guarantee, injects ‘a spirit of … moderation’19 and thereby
‘provides a measure of assurance’.20
3 ‘Quantitative’ and ‘qualitative’ injury

Against exactly what injury a countermeasure is to be weighed has been expressed in various
ways and, while now formally settled for the purposes of the ILC’s Articles, it remains, to some
extent, elusive.
With countermeasures originally conceived of partly as a form of do-it-yourself debt recovery, a
material notion of injury has consistently informed the proportionality calculus. But with
countermeasures also formerly viewed as partly punitive, some inchoate concept of moral harm
has never been far from the equation. A resolution of the Institut de Droit International of 1934
spoke of proportionality ‘à la gravité de l’acte dénoncé comme illicite et à l’importance du
dommage subi’ (‘to the gravity of the allegedly unlawful act and to the
References
(p. 1161) importance of the damage suffered’).21 According to the arbitral tribunal in Air Services, it
was essential ‘to take into account not only the injuries suffered … but also the importance of the
questions of principle arising from the alleged breach’.22 Special Rapporteur Arangio-Ruiz thought
that ‘proportionality should be linked [inter alia] to the degree of fault (dolus or culpa in a narrow
sense) by which the wrongful act is characterized’.23 Co-opting terms coined by Special
Rapporteur Riphagen, he promulgated the view that ‘proportionality should be assessed by taking
into account not only the purely “quantitative” element of damage caused, but also what might be
called “qualitative” factors, such as the importance of the interest protected by the rule infringed
and the seriousness of the breach’.24
The relevant draft article provisionally adopted by the ILC in 1995, draft article 13, spoke of
proportionality ‘to the degree of gravity of the internationally wrongful act and the effects thereof
…’.25
Two years later, in Gabčíkovo-Nagymaros Project, the International Court of Justice stated that ‘the
effects of a countermeasure must be commensurate with the injury suffered, taking account of the
rights in question’.26 After citing the common legal right of all riparian States to the non-navigable
use of a river, it held that:
Czechoslovakia, by unilaterally assuming control of a shared resource, and thereby

depriving Hungary of its right to an equitable and reasonable share of the natural
resources of the Danube—with the continuing effects of the diversion of these waters on
the ecology of the riparian area of the Szigetköz—failed to respect the proportionality
which is required by international law.27
‘Thus’, in the words of the ILC’s Commentary to article 51:
the Court took into account the quality or character of the rights in question as a matter of
principle and (like the Tribunal in the Air Services case) did not assess the question of
proportionality only in quantitative terms.28
It is not clear, however, from either the phrasing or the factual context of the Court’s statements
whether ‘the rights in question’ were to be taken account of strictly as a moral component of the
overall injury suffered by Czechoslovakia as a result of Hungary’s breach or whether the rights of
the wider riparian community of Danube States was also a lawful consideration.
In the event, the rule adopted by the Commission in article 51 demands that countermeasures be
commensurate ‘with the injury suffered, taking into account the gravity of the internationally
wrongful act and the rights in question’. This formulation brings together the wording of former draft
article 13 and the International Court’s words in Gabčíkovo-Nagymaros Project.
Subsequently applying article 51 as an authoritative statement of customary international law, the
NAFTA Chapter XI arbitral tribunal in ADM v Mexico emphasized that
References
(p. 1162) the assessment of whether a particular countermeasure is lawful ‘requires a qualitative
comparison between all the international obligations involved …’.29
It should be noted that the French version of article 51 does not correspond exactly with the
English. Whereas the English says ‘taking into account the gravity of the internationally wrongful
act and the rights in question’, the French reads ‘compte tenu de la gravité du fait
internationalement illicite et des droits en cause’30 —that is, ‘taking into account the gravity of the
internationally wrongful act and of the rights in question’. Nor, for that matter, does the relevant
passage of the English version of the Commentary to article 51 correspond precisely to the English
text of article 51 itself, the former referring to ‘the gravity of the internationally wrongful act, and the
rights in question’—in other words, inserting a comma between the two phrases.31 Compounding
the imprecision, the French version of the Commentary does not insert a comma at this spot.32
Finally, this passage of the French version of the Commentary differs from the French version of
article 51 itself: whereas the latter speaks of ‘la gravité du fait internationalement illicite et des
droits en cause’,33 the former reads ‘la gravité du fait internationalement illicite et les droits en
cause’,34 viz ‘the gravity of the internationally wrongful act and the rights in question’—precisely
the same as the English text of the provision, although not the English Commentary!
In the final analysis, however, the slight divergence in the English and French versions of article 51
has no real significance. It makes no practical difference to how one interprets article 51, since a
consideration of ‘the rights in question’ amounts, in the end, to a consideration of ‘[the gravity] of
the rights in question’, even if ‘gravity’ would not be the best way of expressing in English the idea
of their relative importance. Nor do the differences in the respective commentaries, and between
the commentaries and article 51 itself, have any greater material bearing on the construction of the
provision. These drafting inconsistencies are surprising, perhaps irritating, but no more.
Drafting issues aside, the relationship in article 51 between ‘the injury suffered’ and the factors to
be taken into account remains ambiguous. The Commentary to article 51 could be taken to imply an
antinomy between the crucial phrases when it adopts, with slight modifications, the statement from
Special Rapporteur Arangio-Ruiz’s fourth report to the effect 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’35: the contrasting use of ‘element’ and ‘factors’ suggests that the
phrase ‘of the injury suffered’ is not to be repeated implicitly after the latter. The impression of an
opposition is reinforced by the following sentence, which states that ‘[a]rticle 51 relates
proportionality primarily to the injury suffered but “taking into account” two further criteria: the
gravity of the internationally wrongful act, and the rights in question’.36
If the ‘two further criteria’ cited are not to be characterized as moral components of the total ‘injury
suffered’, then article 51 would seem to imply that the object of countermeasures is partly
exemplary—in other words, punitive. This runs counter to the object of countermeasures as
stipulated in article 49(1). It also sits uneasily with (even if it need (p. 1163) not ultimately
contradict) the Articles’ rejection of the criminal responsibility of States, at least by that name.
But if, on the other hand, the two criteria to be taken into account are properly to be viewed as
moral elements of the overall injury suffered, as they surely must be, article 51 is more in accord
with principle. Article 31(2) makes clear that the concept of injury ‘includes any damage, whether
material or moral, caused by the internationally wrongful act of a State’.37 Although the ILC’s
Commentary explains that ‘ “[m]oral” damage includes such things as individual pain and suffering,
loss of loved ones or personal affront associated with an intrusion on one’s home or private life’,38
it does later quote the tribunal in the Rainbow Warrior arbitration, which spoke of ‘the affront to the
dignity and prestige’ of the injured State and, more generally, of ‘acts affecting the honor, dignity or
prestige of a State’ as ‘non-material damage … of a moral, political and legal nature’39 , and
presumably of a nature that the provision has in mind.
It is not difficult to conceive of affront to a State being partly a function of the gravity of the
internationally wrongful act. This and similar forms of moral damage depend to an extent on factors
such as the scale of the breach, its duration and, perhaps, whether it was due to mere negligence
or lack of due diligence or was, alternatively, intentional, malicious, or even contumacious.40 Nor is
it hard to envisage how ‘the rights in question’, reference to which ‘has a broad meaning’,41 might
influence the degree of moral damage sustained. For example, the continuing breach of a technical
provision of a bilateral investment treaty is one thing, the ongoing violation of diplomatic immunity
arguably another. These sorts of comparisons are all the more compelling when the normative
relativity is that between an ‘ordinary’ rule of international law and a rule having the status of a
peremptory norm. Nor, in situations such as the latter, would proportionality necessarily dictate that
countermeasures be lifted on the cessation of the internationally wrongful act: although
compensation is not payable for moral damage to a State,42 the breach of a peremptory norm
seems the paradigm case where satisfaction could rightly be compelled.
The ‘rights in question’ of which account is to be taken are not restricted to those of the injured
State.43 First, the rights of the responsible State may also be considered when assessing the
proportionality of a countermeasure, according to the Commentary to article 51.44 No further
elaboration is provided, however, and it is not clear what this might mean, although it is probably no
more than the obvious, namely that a State injured by the infringement of a relatively trivial right will
usually act unlawfully if it violates by way of countermeasure a weighty right of the responsible
State—unless, that is, the infringement of the former is especially grave and causes considerable
material damage (which is, by definition, unlikely) and the violation of the latter is essentially
symbolic and harmless.
The Commentary further remarks that ‘the position of other States which may be affected may also
be taken into consideration’.45 The proposition that the effects of a breach on third States may
properly be taken into account when an injured State assesses
References
(p. 1164) the proportionality of any countermeasure it adopts suggests the permissibility of
countermeasures taken in the common interest, a question which article 54 makes clear is not
prejudiced by Part Three, Chapter Two of the Articles. The choice of the neutral word ‘affected’
appears deliberately inclusive and intended to allow for the possibility—one of several left open by
article 54—that a State, in its capacity as a State entitled to invoke responsibility under article
48(1), may adopt countermeasures for the sole purpose of compelling a responsible State to cease
its breach of an obligation owed to the international community as a whole or established for the
protection of a collective interest of a group to which the former belongs. In other words, the use of
‘affected’, instead of ‘injured’, seems an attempt to avoid the implication that countermeasures may
be taken only when there is a State injured by the internationally wrongful act—and to avoid, in
turn, the more fundamental presupposition, rejected by the Articles, that the responsibility of a State
is necessarily linked to injury on the part of another. (It is crucial to stress in this regard that a
responsible State’s interference with a mere legal interest of what might be called an ‘article 48’
State does not constitute injury to the latter: article 48 speaks of ‘any State other than an injured
State’.) That said, it is difficult to see how a countermeasure can be proportionate to the injury
suffered when no injury is suffered, and logic would imply that what the Commentary refers to as
‘other States which may be affected’ must, in practice, be other injured States. In this regard, it is
worth recalling that article 51 speaks of countermeasures being commensurate with ‘the injury
suffered’, tout court, and hence does not restrict itself to the injury suffered by the State taking the
countermeasures. Indeed, even where the former draft article 13 referred to the effects ‘on the
injured State’, a phrase signally omitted when article 51 was finally adopted, the Commentary to it
explained that these words were ‘not intended to narrow the scope of the article and unduly restrict
a State’s ability to take effective countermeasures in respect of certain wrongful acts involving
obligations erga omnes, for example violations of human rights’.46
The phrase ‘the rights in question’ is also capable, at least on its face, of encompassing the
internationally-guaranteed rights of individuals, be they victims of the responsible State’s breach or
persons likely to be affected by the countermeasure. As regards the former, it is, of course, the
case that the violation of internationally-established rights of individuals also constitutes injury to
the individuals’ State of nationality, in which case their rights will already be taken into account
indirectly when assessing the injury suffered by their State. At the same time, it is not clear that the
two distinct obligations violated in such a case—namely, the rights of the individuals under the
relevant international guarantee and the rights of their State under the traditional rules governing
the treatment of aliens—are to be conflated for the purposes of weighing ‘the injury suffered’ within
the meaning of article 51. Moreover, recalling article 54, it might not always be the State of
nationality of the injured individuals which takes the countermeasure. As for the rights of individuals
implicated not by the original breach but by the countermeasure, it should be noted that most
individual rights under international law are human rights and that countermeasures which ‘affect
… obligations for the protection of fundamental human rights’ are prohibited by article 50(1) (b),
making consideration of their proportionality unnecessary. Article 50(1)(b) may, however, leave
some scope for countermeasures which impinge on the exercise by individuals of certain human
rights: it depends on how the word ‘fundamental’ is interpreted (and there is
References
(p. 1165) some indication in the Commentary to article 50(1)(b) that what the provision has in mind
is only those international human rights guarantees of a non-derogable character47 ); it also
depends on whether ‘affect’ is taken to mean ‘violate’ (for example, a countermeasure might have
a severely adverse impact on the enjoyment by children in the responsible State of the highest
attainable standard of health and yet still not violate article 24(1) of the Convention on the Rights of
the Child, since the children will not be within the jurisdiction of the State taking the countermeasure
as required by article 2(1) of the Convention). In addition, it is worth recalling that not all individual
rights under international law are human rights.48 In this light, the wording of article 51 suggests
that any effect of a countermeasure on the internationally-guaranteed rights of individuals—if such
a countermeasure is permissible at all—is to be taken into account when assessing its
proportionality.
Not dissimilarly, the arbitral tribunal in ADM v Mexico held that ‘notwithstanding the fact that
[individuals] do not hold independent substantive rights’ under Section A of Chapter XI of NAFTA,
the fact that ‘investors from the Member State are the direct objects and beneficiaries of the
standards endorsed under Section A’49 weighed heavily in the balance when comparing the
obligations violated by Mexico by way of countermeasure with the respective obligations under
Annex 703.2.A and Chapter XX allegedly breached by the US in the first place. The tribunal stated:
Any of the obligations allegedly breached by the United States do not involve investment
protection standards for private individuals and companies, but only provide inter-state
obligations concerning international trade and the settlement of state-to-state disputes.
However, [Mexico’s countermeasure] resulted in the nonperformance by [it] of its
obligations under Section A. The adoption of the [countermeasure] was not proportionate
…50
As such, Mexico’s countermeasure was not in accordance with customary international law.51
4 ‘Proportionality’—an inexact science

The assessment of proportionality ‘is not an easy task and can at best be accomplished by
approximation’.52 Quantitative factors must be weighed against qualitative factors and vice versa.
Even as between likes, the relative importance of different rights to different States is a matter of
subjective appreciation, and material comparisons are never as straightforward as they appear
—‘even in measuring, for example, the amount of damages to be paid in case of the wrongful
taking of the property of an alien, questions arise as to the elements to be taken into account’.53
This inexactitude is compounded by the fact that the severity of a countermeasure is necessarily a
projection: consider, for example, the comparison in Air Services between ‘the losses suffered by
Pan Am’ and ‘the losses which the French
References
(p. 1166) companies would have suffered as a result of the counter-measures’.54 All this is further
complicated by the fact that the condition of proportionality in the specific context of
countermeasures ‘requires weighing lawful measures in relation to an unlawful act’.55
The standard of proportionality has become stricter over time. The tribunal in the Naulilaa award
stated that, ‘[e]ven if one were to admit that the law of nations does not require that the reprisal
should be approximately in keeping with the offence, one should certainly consider as excessive
and therefore unlawful reprisals out of all proportion to the act motivating them’.56 The tribunal in
Air Services spoke of ‘some degree of equivalence’ and held that the countermeasures in question
‘[did] not appear to be clearly disproportionate’.57 While draft article 13 provisionally adopted in
58
1995 was also phrased negatively, requiring that countermeasures ‘not be out of proportion’58 , it
rejected ‘the use of expressions such as “manifestly disproportionate” [which] could have the
effect of suggesting that some disproportion was acceptable’: the Commission took the view that
‘[a] countermeasure which is disproportionate, no matter what the extent, should be prohibited to
avoid giving the injured State a degree of leeway that might lead to abuse’.59 For its part, the Court
in Gabcíkovo-Nagymaros Project stated the condition in positive terms, requiring that the effects of
a countermeasure ‘must be commensurate’ with the injury suffered.60
Article 51 reproduces the Court’s positive formulation in Gabcíkovo-Nagymaros Project when it
stipulates that countermeasures ‘must be commensurate’ with the injury suffered. It was thought
that ‘[a] negative formulation might allow too much latitude, in a context where there is concern as
to the possible abuse of countermeasures’.61 At the same time, the Commentary recognizes that
‘what is proportionate is not a matter which can be determined precisely’.62
5 Proportionality of countermeasures under WTO law

The Understanding on Rules and Procedures Governing the Settlement of Disputes (‘Dispute
Settlement Understanding’ or ‘DSU’) and the Agreement on Subsidies and Countervailing Measures
(‘SCM Agreement’) annexed to the Marrakesh Agreement Establishing the World Trade
Organization63 provide for an institutionalized, centralized, and tightly regulated regime of what are
commonly referred to—although formally only in the SCM Agreement—as ‘countermeasures’. (For
its part, the DSU speaks of ‘the suspension of concessions or other obligations [under the covered
agreements]’.64 ) Such measures must be authorized by the WTO Dispute Settlement Body
(‘DSB’),65 and an arbitral panel may be tasked with reviewing their form and
References
(p. 1167) scale.66 Although one might speculate whether the measures envisaged by the DSU and
SCM Agreement as a response of last resort to a violation or other nullification or impairment are
rightly to be characterized as countermeasures, at least precisely as the term is used in general
international law, it is beyond doubt that the WTO regime represents lex specialis to the lex
generalis of countermeasures reflected in Part Three, Chapter II of the ILC Articles.67
The WTO regime embodies requirements analogous to the requirement of proportionality found in
article 51 of the ILC Articles. Article 22.4 of the DSU provides that ‘[t]he level of the suspension of
concessions or other obligations authorized by the DSB shall be equivalent to the level of the
nullification or impairment’. Article 7.9 of the SCM Agreement states that, in relevant cases, ‘the DSB
shall grant authorization to the complaining Member to take countermeasures, commensurate with
the degree and nature of the adverse effects determined to exist …’.68 Article 4.10 of the same
agreement stipulates that, in relevant cases, ‘the DSB shall grant authorization to the complaining
Member to take appropriate countermeasures’, the word ‘appropriate’ being followed by a footnote
which explains that the term ‘is not meant to allow countermeasures that are disproportionate in
light of the fact that the subsidies dealt with under these provisions are prohibited’.69
The reports of the various arbitrations which have examined the scale of WTOpermitted responses
of last resort to violations or other nullifications or impairments70 neatly illustrate the difficulty and
approximation inherent in the task of assessing the proportionality of countermeasures.
References

D Alland, Justice privée et ordre juridique international: Etude théorique des contre-
mesures au droit international publique (Paris, Pedone, 1994)
M Andenas & S Zleptnig, ‘Proportionality and Balancing in WTO Law: A Comparative
Perspective’ (2007) 20 Cambridge Rev Int’l Aff71
économiques (Paris, Pedone, 1993)
E Cannizzaro, ‘The Role of Proportionality in the Law of International Countermeasures’
(2001) 12 EJIL 889
E Cannizzaro, Il principio della proporzionalità nell’ordinamento internazionale (Milan,
Giuffrè, 2000)
A Desmedt, ‘Proportionality in WTO Law’ (2001) 4 JIEL 441
Y Elagab, ‘The Place of Non-Forcible Counter-Measures in Contemporary International Law’, in
GS Goodwin-Gill & S Talmon (eds), The Reality of International Law. Essays in Honour of Ian
Brownlie (Oxford, Clarendon Press, 1999), 125
Y Elagab, The Legality of Non-Forcible Counter-Measures in International Law (Oxford,
T Franck, ‘On Proportionality of Countermeasures in International Law’ (2008) 102 AJIL 715
A Mitchell, ‘Proportionality and Remedies in WTO Disputes’ (2006) 17 EJIL 985
T Sebastian, ‘World Trade Organization Remedies and the Assessment of Proportionality:
Equivalence and Appropriateness’ (2007) 48 Harvard ILJ 337
L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990)
E Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Dobbs Ferry,
New York, Transnational Publishers, 1984)
Footnotes:
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.
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.
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.
7 Ibid, reference omitted.
10 Report of the ILC, 44th Session, ILC Yearbook 1992, Vol II(2), 71 (para 209).
13 See Report of the ILC, 47th Session, ILC Yearbook 1995, Vol II(2), 144.
14 R Phillimore, Commentaries upon International Law, 1885, Vol III, p 32, quoted in Commentary
to draft art 13, para 1, fn 130, Report of the ILC, 47th Session, ILC Yearbook 1995, Vol II(2),144,
also citing Grotius, De Jure Belli ac Pacis, 1625, Bk III, Chap II, para VII and Vattel, Le Droit des
Gens, ou Principes de la Loi Naturelle appliqués à la Conduite et aux Affaires des Nations et des
Souverains, 1758, Bk II, Chap XVIII. See also E Cannizzaro, ‘The Role of Proportionality in the Law of
International Countermeasures’ (2001) 12 EJIL 889, 890.
15 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 22, para
56.
17 See eg Commentary to art 51, para 5; introductory Commentary to Part Three, Chapter II
(‘Countermeasures’), paras 2 and 6.
18 Air Services Agreement of 27 March 1946 (United States of America v France), 9 December
1978, 18 RIAA 416, para 91.
19 Ibid.
21 ‘Le Régime de représailles en temps de paix’, Annuaire de l’IDI 1934, 708, art 6(2).
1978, 18 RIAA 416, para 83.
23 G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, 21, para
66, fn 141.
24 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 23, para
55.
25 See Report of the ILC, 47th Session, ILC Yearbook 1995, Vol II(2), 144. See also Commentary to
draft art 13, paras 6 to 8, ibid, 147–149.
26 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, para 85.
27 Ibid.
29 Archer Daniels Midland Company and another v United Mexican States (ICSID Case No AR
B(AF)/04/05), 21 November 2007, para 155.
30 Emphasis added.
32 Rapport de la commission du droit international cinquante-troisème session, 23 avril–1 juin
et 2 juillet–10 août 1991 A/56/10, 370.
33 Ibid (emphasis added).
37 Emphasis added.
40 As regards the related question of the possible impact of fault on the forms and degrees of
reparation, see G Arangio-Ruiz, Second Report on State Responsibility, ILC Yearbook 1989, Vol
II(1), 1, 53–55, paras 183–190.
42 See art 36(2) and Commentary thereto, especially paras 1 and 4.
44 Ibid.
45 Ibid.
II(2), 144, 149, using the old terminology of ‘a materially injured State’ and ‘a legally injured State’.
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.
49 Archer Daniels Midland Company and another v United Mexican States (ICSID Case No
ARB(AF)/04/05), 21 November 2007, para 157.
50 Ibid, para 158.
51 Ibid, para 160.
1978, 18 RIAA 416, para 83.
53 W Riphagen, Preliminary report on the content, forms and degrees of international responsibility
(Part 2 of the Draft Articles on State Responsibility), ILC Yearbook 1980, Vol II(1), 107, 128, para 95.
1978, 18 RIAA 416, para 83.
II(2), 144, 147.
56 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.
1978, 18 RIAA 416, para 83.
II(2), 146–7.
60 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p 7, para 85.
62 Ibid (fn omitted).
63 Marrakesh Agreement Establishing the World Trade Organization, Annexes 2 and 1A
respectively, in Final Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations, Marrakesh, 15 April 1994, 33 ILM 1125 (1994).
64 See Dispute Settlement Understanding, arts 2.1 (‘and’ for ‘or’), 22 and 23.2(c).
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.
67 See, in this regard, ARSIWA, art 55. See also para 9 of the introductory Commentary to Part
Three, Chapter II.
68 See also SCM Agreement, art 7.10.
69 See also SCM Agreement, art 4.11 and accompanying footnote.
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
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
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
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.
Responsibility, Ch.83 The Time Factor in the
Application of Countermeasures
Maurice Kamto


ISBN: 9780199296972
Subject(s):
Wrongful acts — Responsibility of states — Countermeasures
(p. 1169) Chapter 83 The Time Factor in the Application
of Countermeasures
1 The time factor in the implementation procedure of countermeasures 1169
(a) The temporal requirement for the starting point of countermeasures 1169
(b) Urgency and the taking of countermeasures 1172
(c) The suspension of countermeasures 1173
2 The limitation of countermeasures in time 1173
(a) The duration of countermeasures 1174

(b) Reversibility of countermeasures 1174
(c) Termination of countermeasures 1176
A State taking countermeasures seeks to induce the responsible State to comply with its obligations
and thus to restore the legal relationships which were interrupted by the internationally wrongful
act. Countermeasures thus appear to be of a provisional character. ‘They are essentially
temporary measures, taken to achieve a specified end, whose justification terminates once the end
is achieved.’1
The temporary character of countermeasures is central to the legal regime. In fact, the role of time,
its influence and its implications are more decisive in this context than in any other. This is because
the phenomenon of countermeasures entails an ensemble of rules of procedure relating time limit
and duration, and their provisional character immediately associates them with a limited time frame.
In other words, time conditions the procedure for the implementation of countermeasures.
1 The time factor in the implementation procedure of

countermeasures
Three moments mark the implementation of countermeasures. These are: the commencement of
the countermeasure; the urgency; and the suspension of the countermeasures.
(a) The temporal requirement for the starting point of countermeasures

As a form of self-help responding to the position of the injured State ‘in an international system in
which the impartial settlement of disputes through due process of law is not yet
References
(p. 1170) guaranteed’,2 countermeasures carry the risk of spiralling out of control. It was
necessary to limit those risks, for it is not possible to eliminate them. As the ILC has said: ‘Like other
forms of self-help, countermeasures are liable to abuse and this potential is exacerbated by the
factual inequalities between States’.3 In this respect, the legal regime of countermeasures set out in
ARSIWA subjects countermeasures to certain ‘procedural conditions’. These conditions refer to
temporal requirements and these requirements condition the lawfulness of countermeasures.
There are two preliminary obligations-conditions for the resort to countermeasures by the injured
State set out in ARSIWA: first, a call upon the responsible State to return to international legality,
and second, the notification to this State of the decision to take countermeasures, accompanied by
an offer to negotiate. These two conditions, set out in article 52(1), are cumulative. The idea that
these two conditions must precede the taking of countermeasures is expressed through the
formula: ‘before taking countermeasures, an injured State shall …’ in the chapeau of article 52(1).
First, countermeasures must be preceded by steps taken by the injured to avoid having to take
countermeasures; but they cannot be taken before the injured State has requested the responsible
State to comply with the international obligations incumbent upon it.4 This condition indicates the
exceptional character and the potentially serious consequences of countermeasures. The
International Court held in Gabcíkovo-Nagymaros Project that ‘the injured State must have called
upon the State committing the wrongful act to discontinue its wrongful conduct or to make
reparation for it’.5 The idea is that a responsible State must not be subject to countermeasures by
an injured State without having first been given the chance to respond to its complaints. This is
what article 47(1) of the Articles adopted on first reading referred to: according to this article, the
necessity for countermeasures is assessed in the light of the responses of the responsible State to
the demands of the injured State.6 The justification of the commencement of countermeasures is to
be found either in the refusal by the responsible State to provide reparation, in the case where the
unlawful act has already exhausted its effects, or the refusal to put an end to the unlawful conduct
and to assume the legal consequences flowing from the failure to respect its obligations, in the
case of a repetitive or continuous act.
Second, the injured State must ‘notify the responsible State of any decision to take
countermeasures and offer to negotiate with that State’.7 This second condition operates after the
first one has failed. It is the second moment in the process of taking countermeasures. It offers
another way out to the target State which should ‘have the opportunity to reconsider its position
faced with the proposed countermeasures’.8
This condition entails two sub-obligations. Not only does the injured State have to notify the
responsible State of its decision to take countermeasures, but it must also offer
References
(p. 1171) to negotiate to that State. These two sub-conditions were completely separated in the
version of article 48 of the draft examined by the Commission during its 52nd Session in 2000,
where they constituted paragraphs (b) and (c) of the article.
In relation to the first sub-condition, draft article 48(1)(b) of 2000 was more precise than article 52
finally adopted. Some would say it was more rigorous. It required the injured State to notify the
responsible State ‘of the countermeasures it intends to take’.9 This approach had advantages and
disadvantages: on the one hand, while unveiling in advance the countermeasures it would take to
the responsible State, it would allow the latter to take the provisions necessary to eliminate their
effects; on the other hand, it might permit the responsible State to comprehend the scope and
seriousness of the actions it could suffer, and induce it to restore the lawful situation or comply with
its obligation of reparation. In any case, the obligation to notify ‘any decision to take
countermeasures’ aims at putting the responsible State on notice of its responsibilities. It certainly
has a psychological effect and may be used as a means of exerting pressure on the State in
question to induce it to cooperate. And this is, in the end, the purpose of countermeasures.10
In relation to the second sub-condition imposing on the injured State the obligation to offer to
negotiate with the responsible State, this is a condition which gave rise to ‘lively debates’ within the
ILC. The particularly brief character of the commentary on article 52(1)(b) reveals a ‘central
disagreement’.11 Some members considered it necessary to establish as a preliminary condition to
the taking of countermeasures the exhaustion of all available procedures, in application of article
33 of the UN Charter.12 Some other members maintained that no preliminary procedure for the
settlement of disputes—even negotiation—was required in the award in Air Services Agreement.13
But whatever the value of this award, ‘one swallow does not make a summer’. The positive law on
this point was yet to be settled, and the ILC considered in the end that negotiation was the only
aspect of peaceful dispute settlement whose implementation which ought to constitute a preliminary
condition to the taking of countermeasures.
The performance of the obligation to negotiate does not have a specific time limit. It was not
possible to establish such a time limit.14 It can only be said that the negotiation must be subject to
the general requirement of a reasonable delay.15 What constitutes a reasonable duration of a
negotiation will in fact depend on the circumstances, including the attitude of the responsible State,
the urgency of the questions at stake, the likelihood that damage may be exacerbated if a speedy
resolution is not achieved, etc.16
References
(p. 1172) (b) Urgency and the taking of countermeasures

During the discussions within the ILC on the pre-conditions for recourse to countermeasures, it
appeared that if the requirement of the exhaustion of means of pacific dispute settlement was a
necessary precondition to their implementation, the probability that a responsible State unduly
prolong the negotiations and engage in dilatory procedures is not to be excluded. Such a
requirement also clashes with the fact that ‘some forms of countermeasures (including some of the
most readily reversible forms, for example, the freezing of assets) can only be effective if taken
promptly’.17 In fact, the modern system of communication offers the responsible State who does not
want to comply with its obligations a possibility to protect itself against countermeasures, for
example by retracting its assets from the banks of the injured State within a short period. With a
view to resolving the opposition between the guarantee of effectiveness of countermeasures on
the one hand, and the will to prevent them from being taken prematurely on the other, a distinction
was created between ‘interim countermeasures’, called ‘interim measures’, and other measures.18
But the expression ‘interim measures’ created confusion with the jurisdictional measures of the
same character which inspired them, and the expression ‘provisional measures’ seemed
inadequate, for all countermeasures are by their nature provisional.
In reality, what characterizes and justifies the type of countermeasures referred to, is not their
being provisional, but their urgency; it is their immediacy, without which they would risk having not
utility because of their lateness or because they are impossible to take. The expression of urgency
finally adopted in article 52(2) provided that the injured State can, notwithstanding the obligation to
notify and to offer to negotiate in article 52(1)(b), take ‘such urgent countermeasures as are
necessary to preserve its rights’. Here, urgency dictates the action and justifies the suspension of
normal procedures.
Nevertheless, the fine balance reached on this point in former draft article 53 adopted in 200019
was broken in the framework of article 52 finally adopted. Draft article 53(3) established that the
injured State could take ‘provisional countermeasures’ (now ‘urgent countermeasures’) necessary
for the preservation of its rights. But paragraph 4 of the same article immediately established that
outside these countermeasures of an interim character, other countermeasures could not be taken
‘while the negotiations are being pursued in good faith and have not been unduly delayed’.20 This
last provision gave countermeasures their real significance. If the objective of countermeasures is
not punitive, but rather to bring the responsible State to comply with the obligations it has
breached, to take countermeasures against a State which is negotiating ‘in good faith’ as
authorized by ARSIWA article 52 entails the taking of sanctions against the responsible State. This
is neither the function nor the purpose of countermeasures. At all stages, the risk incurred by the
injured State in the assessment of the situation justifying ‘normal’ countermeasures equally exists in
the case of ‘urgent’ countermeasures.21
References
(p. 1173) (c) The suspension of countermeasures

Pursuant to ARSIWA article 52(3), countermeasures can be suspended on a double condition: if, on
the one hand, ‘the internationally wrongful act has ceased’, and on the other, the dispute ‘is
pending before a court or tribunal which has the authority to make decisions binding on the
parties’. The latter condition only operates when the dispute settlement procedure has been
implemented in good faith. Moreover, a dispute is not considered ‘before a court or tribunal’ unless
the court or tribunal exists and is in a position to deal with the case. It is equally necessary that the
jurisdiction in question be authorized to order provisional measures, for the rationale of article 52(3)
lies in the fact that once the dispute between the injured State and the responsible State is
submitted to a jurisdiction, the injured State can request it to ‘order provisional measures to
protectitsrights’.22
But this is not always sufficient in practice. In the Tehran Hostages case,23 while the International
Court was deliberating on the merits of the dispute, and after having indicated on 15 December
1979 the provisional measures requested by the United States, the United States adopted a series
of countermeasures in April 1980 (including the suspension of commercial relations) and attempted
on 24–25 April a military expedition to Taba, within Iranian territory. However, at the time, the
LaGrand case,24 where the Court established the mandatory character of provisional measures
adopted by it, had not yet been decided, and there was great uncertainty surrounding the question
of the obligatory character of provisional measures.
The reference to a ‘court or tribunal’ is to be interpreted broadly: the expression includes all forms
of procedures for the resolution of disputes by a third party, whatever its name, to the exclusion of
political organs, such as the Security Council and jurisdictions competent to deal with disputes
between individuals and the responsible State.25
From the moment when the internationally wrongful act has ceased, the dispute has been submitted
to an adequate jurisdiction and the responsible State has consented in good faith to the dispute
settlement procedure, the countermeasures taken must be suspended ‘without undue delay’. This
expression grants the injured State a limited margin of appreciation to suspend the measures in
question. This implies a contrario that an ‘undue delay’ could entail the responsibility of the injured
State.
Countermeasures may be reactivated at any time after the conditions for the suspension have
disappeared. In fact, the suspension temporarily places countermeasures in brackets. Depending
on the conduct of the responsible State, countermeasures may be effectively reactivated.
2 The limitation of countermeasures in time

Countermeasures are time-limited. First, their duration varies depending on the situations created
by the responsible State. Second, they must be reversible. Finally, counter measures must end at a
certain time: the element of cessation is a logical consequence of their temporal limitation.
References
(p. 1174) (a) The duration of countermeasures

Countermeasures must be strictly limited to the needs of the situation which triggered them.
Countermeasures must have ‘an instrumental role’ notably because they ‘are temporary in
character’: their objective is the cessation and reparation of the internationally wrongful act, and
not punishment.26 ARSIWA article 49(1) and (2) establish in this respect, on the one hand that the
‘injured State may only take countermeasures against a State which is responsible for an
internationally wrongful act in order to induce that State to comply with its obligations under Part
Two’, and on the other hand that ‘countermeasures are limited to the non-performance for the time
being of international obligations of the State taking the measures towards the responsible State’.
These two paragraphs have a different character: the first one clearly states the object of
countermeasures. This object is defined through a temporal element: the injured State only acts to
bring the responsible State to put an end to the internationally wrongful act, if it is a continuous act,
and obtain reparation from the responsible State. Countermeasures are not a form of repression of
an unlawful conduct whose effect is exhausted in the repressive act itself; it is a means to bring the
responsible State to comply with the international obligations incumbent upon it and which it has
breached. As stated by the ILC: ‘the limited object and exceptional nature of countermeasures are
indicated by the use of the word “only” in paragraph 1 of article 49’.27 The word ‘only’ also applies
to the target of countermeasures as to their purpose.28
Article 49(2) elaborates a ‘fundamental preliminary condition of the lawfulness of countermeasures’
that weighs on the injured State: the measures that it takes in reaction to the unlawful act must be
‘limited to the temporal non-performance’ of its own international obligations. This condition
reinforces the inherent temporal limitation of countermeasures. A State which has recourse to
countermeasures engages in a self-assessment of the situation. But, like other forms of private
justice, countermeasures ‘entail control in their utilisation’.29 The assessment of the injured State of
the situation triggering countermeasures is made at the risk and peril of engaging its own
responsibility, either by virtue of an inexact assessment of the situation or because the injured
State maintained the nonperformance of its own obligations towards the responsible State beyond
the necessary time. In relation to the self-assessment by the injured State, it is important to note
that the observation made by the Tribunal in the Air Services Agreement arbitration pursuant to
which ‘each State establishes for itself its legal situation vis-à-vis other States’30 cannot be
understood as implying that an unjustified belief of the injured State regarding the existence of a
breach would be sufficient.
(b) Reversibility of countermeasures

Reversibility is one of the four fundamental conditions that countermeasures must satisfy in order to
be justified. The other three conditions are that the countermeasure be a response to an
internationally wrongful act of another State; that the injured State invites
References
(p. 1175) the responsible State to put an end to its unlawful conduct or provide reparation; and that
countermeasures be proportionate to the damage suffered.31
The idea of the reversibility of countermeasures is drawn from article 49(2) which includes the
expression ‘for the time being’, clearly confining countermeasures to a limited duration and
affirming that their objective is:
the restoration of a condition of legality as between the injured State and the responsible
State, and not the creation of new situations which cannot be rectified whatever the
response of the latter State to the claims against it.32
In Gabcíkovo-Nagymaros Project the International Court recognized the existence of this condition
in unequivocal terms, although clarifying that it was not required to pass upon the existence of this
condition. The Court concluded its reasoning on this point affirming that:
It is therefore not required to pass upon one other condition for the lawfulness of a counter
measure [other than proportionality], namely that its purpose must be to induce the
wrongdoing State to comply with its obligations under international law, and that the
measure must therefore be reversible.33
While the judgment of the Court appears to be unequivocal on this point, the ILC seems to have
found there some nuances to justify its wording. Pursuant to article 49(3) ‘countermeasures shall as
far as possible be taken in such a way as to permit the resumption of performance of the
obligations in question’. The expression ‘as far as possible’ was not used by the Court. Article 49(3)
offers the injured State a margin not provided for in the 1997 judgment, and that the ILC created to
express the idea according to which ‘the duty to choose countermeasures that are reversible is
not absolute’. The Commission explained:
The phrase ‘as far as possible’ in paragraph 3 indicates that if the injured State has a
choice between a number of lawful and effective countermeasures, it should select one
which permits the resumption of the performance of the obligation suspended as a result of
countermeasures.34
There is nothing in the judgments of the Court which would directly or indirectly support this
statement.
It is interesting to note that the ILC’s conceptualization of reversibility of countermeasures as not
absolute and implies that irreversibility shifts the burden of proof. While in the Court’s formulation of
reversibility it would be for the injured State to demonstrate, if necessary, that the measures taken
are or were reversible, in the ILC’s formulation it is the responsible State which must prove that the
injured State had the possibility to choose between several countermeasures, that it could choose
a reversible measure and that it preferred to take an irreversible one. Thus there exists a
discrepancy between the state of the current case law and the text adopted by the ILC, although
this does not necessarily dictate that the Court in subsequent decisions will not follow the ILC’s
approach.
References
(p. 1176) (c) Termination of countermeasures

The reversibility of countermeasures leads to the idea that the countermeasures must be
terminated once there is resumed compliance by the responsible State with its international
obligations. Article 53 establishes that: ‘countermeasures shall be terminated as soon as the
responsible State has complied with its obligation under Part Two in relation to the internationally
wrongful act’. Nothing justifies the maintenance of countermeasures once the responsible State has
fulfilled with his obligations, that is, from the moment when the conditions that legitimized the
adoption of countermeasures have disappeared. Thus, they must ‘be terminated forthwith’.35
The idea of the immediate termination of countermeasures is present in several of the provisions
concerning countermeasures. No delay is acceptable in this hypothesis, even a reasonable delay.
Any delay, however long, will constitute a breach of an international obligation of the injured State
capable of engaging its responsibility.
Further reading
M Chemillier-Gendreau, ‘Le rôle du temps dans la formation du droit international’, in Droit
international 3 (Paris, Pedone, 1987)
O Corten, L’utilisation du ‘raisonnable’ par le juge international (Brussels, Bruylant, 1997)
J Crawford, ‘Counter-measures as Interim Measures’ (1994) 5 EJIL 65
E Roucounas, ‘L’urgence et le droit international’, in Le droit international et le temps:
Colloque de Paris de la SFDI (Paris, Pedone, 2001), 203
J Salmon, ‘Le concept de raisonnable en droit international public’, in Le Droit International:
Unité et Diversité, Mélanges Offerts à Paul Reuter (Paris, Pedone, 1982)
J-M Thouvenin, ‘Le délai raisonnable’, in Le droit international et le temps: Colloque de Paris
de la SFDI (Paris, Pedone, 2001)
References
Footnotes:
1 Commentary to Part Three, Chapter II, para 4.
3.
84).
9 Report of ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 52 (note 95).
10 C Leben, ‘Les contre-mesures inter-étatiques et les réactions à l’illicite dans la société
internationale’ (1982) 28 AFDI 9, 25.
11 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 299 and 356.
II(2), 68–69.
1978, 18 RIAA 416.
14 According to the expression variété de temps by M Chemillier-Gendreau, ‘Le rôle du temps
dans la formation du droit international’, in Droit international 3 (Paris, Pedone, 1987), 4.
15 See eg J Salmon, ‘Le concept de raisonnable en droit international public’, in Le Droit
International: Unité et Diversité, Mélanges Offerts à Paul Reuter (Paris, Pedone, 1982), 462–467;
O Corten, L’utilisation du ‘raisonnable’ par le juge international (Brussels, Bruylant, 1997), 139ff;
J-M Thouvenin, ‘Le délai raisonnable’, in Le droit international et le temps: Colloque de Paris de la
SFDI (Paris, Pedone, 2001), 109ff.
II(2), 69.
18 Ibid.
19 Draft articles provisionally adopted by the Drafting Committee on second reading, 2000,
A/CN.4/ L.600, 15.
20 Ibid.
21 E Roucounas, ‘L’urgence et le droit international’, in Le droit international et le temps:
Colloque de Paris de la SFDI (Paris, Pedone, 2001), 203.
Merits, ICJ Reports 1980, p 3.
24 LaGrand (Germany v USA), ICJ Reports 2001, p 466.
en droit international public (Paris, Pedone, 1994), 15.
1978, 18 RIAA 417, 443 (para 81).
82).
33 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 56–57
(para 87).
Responsibility, Ch.84 Obligations Relating to Human
Rights and Humanitarian Law
Silvia Borelli, Simon Olleson


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — Reprisals — Geneva Conventions 1949
— Belligerents — Erga omnes obligations — State practice
(p. 1177) Chapter 84 Obligations Relating to Human
Rights and Humanitarian Law
1 Introduction 1177
2 The work of the ILC 1178
3 The prohibition of countermeasures affecting human rights obligations 1182
(a) The prohibition of suspension of human rights obligations by way of

countermeasure 1182
(b) The prohibition of countermeasures ‘affecting’ fundamental human rights
obligations 1186
4 Countermeasures affecting obligations under humanitarian law 1188
(a) Conventional rules limiting recourse to belligerent reprisals 1189

(b) Customary rules prohibiting belligerent reprisals against civilians during the
conduct of hostilities 1191
(c) The approach of the ILC to the issue of countermeasures affecting obligations
under international humanitarian law 1194
5 Conclusion 1195
1 Introduction
In 1928, the tribunal in the ‘Naulilaa’ arbitration held that the range of actions open to a State in
response to a breach by another State of its international obligations was ‘limited by the
requirements of humanity’.1 A few years later, the Institut de droit international adopted a resolution
declaring that in the adoption of measures of reprisal, a State must ‘abstain from any harsh
measure which would be contrary to the laws of humanity and the dictates of the public
conscience’.2
Since these early pronouncements, the idea that the performance of certain obligations which
protect the ‘requirements of humanity’ may not be suspended by way of countermeasure has
become firmly entrenched in the international legal system. The range of
References
(p. 1178) obligations which fall within that category has become much clearer. In particular, that
category includes, on the one hand, obligations in the field of humanitarian law prohibition of
belligerent reprisals, and, on the other, substantive obligations arising under the international law of
human rights.
In the context of the ILC’s work on State responsibility, the exclusion of counter measures in
relation to obligations relating to human rights was proposed at a comparatively early point in the
consideration of the specific sub-topic of countermeasures. However, until relatively late in the
elaboration of the ILC’s Articles on State Responsibility, the principal concern was to delimit the
categories of human rights obligations which could and could not legitimately be the object of
countermeasures. As far as obligations under international humanitarian law are concerned, the
specific prohibition of the adoption of certain forms of belligerent reprisals was for a long period
treated by the ILC as being merely a part of the broader prohibition of countermeasures in relation
to human rights, and was only separated out at a relatively late stage.
Article 50(1) of the ILC’s Articles reflects these developments, providing that countermeasures
‘shall not affect … (b) obligations for the protection of fundamental human rights; (c) obligations of
a humanitarian character prohibiting reprisals’.3 Also of relevance in this regard is article 50(1)(d),
which adds that countermeasures may not affect ‘other obligations under peremptory norms of
general international law’. The following Section traces the genesis of those provisions in the work
of the ILC. The next two Sections consider in detail, respectively, the specific prohibition of
countermeasures affecting fundamental human rights and the prohibition of countermeasures in
respect of certain obligations under international humanitarian law.
2 The work of the ILC

Article 50(1)(b) and (c) can be seen as constituting the direct descendant and logical extension in
the field of State responsibility of the principle contained in article 60(5) of the Vienna Convention
on the Law of Treaties, which provides for an exception to the general possibility of termination or
suspension of a treaty, or part thereof, in response to a material breach of that treaty by another
party.4 In particular, under article 60(5) of the Vienna Convention, such a course of conduct is
excluded in relation to:
provisions relating to the protection of the human person contained in treaties of a

humanitarian character, in particular to provisions prohibiting any form of reprisals against
persons protected by such treaties.5
References
(p. 1179) Article 60(5) of the Vienna Convention had no precursor in the final draft Articles on the
Law of Treaties produced by the ILC.6 However, in his Second Report on the Law of Treaties, Sir
Gerald Fitzmaurice had canvassed the exclusion of the possibility of terminating or suspending
certain obligations by way of response to a fundamental breach of a treaty. In particular, he
proposed that termination and suspension should be excluded ‘where the juridical force of the
obligation is inherent, and not dependent on a corresponding performance by the other parties to
the treaty … so that the obligation is of a self-existent character, requiring an absolute and integral
application and performance under all conditions’.7 Fitzmaurice regarded obligations in the field of
human rights (together with obligations under the 1949 Geneva Conventions) as among the prime
examples of such ‘integral’ obligations.8
The addition of the provision which was to become article 60(5) of the Vienna Convention was
proposed at the Vienna Conference by Switzerland—apparently on behalf of the ICRC9 —with the
principal aim of removing any justification for suspension or termination of the 1949 Geneva
Conventions and other international humanitarian law treaties as a result of a breach by another
party.10 However, in introducing the amendment, the Swiss delegate expressly referred to
obligations under human rights treaties.11 Indeed, despite the specific reference to provisions
prohibiting reprisals, the more general reference to ‘treaties of a humanitarian character’ is widely
interpreted by the dominant strand in the doctrine to exclude termination or suspension in response
to a material breach not only of obligations deriving from treaties prohibiting reprisals in the field of
international humanitarian law, but also as regards the substantive obligations deriving from human
rights treaties more generally.12
(p. 1180) In the context of the ILC’s consideration of the topic of State responsibility, the issue of
countermeasures was first subjected to in-depth scrutiny in the reports of Willem Riphagen. As for
the possibility of countermeasures in relation to human rights obligations, Riphagen proposed a
wide formulation, providing for the exclusion of countermeasures consisting of the suspension of
obligations contained in a multilateral treaty to which both States were party and which were
stipulated for the protection of either ‘collective interests of the States parties to the multilateral
treaty’ or ‘of individual persons irrespective of their nationality’.13 Riphagen’s formulation was
sufficiently wide to capture all human rights obligations deriving from treaties; however, given that it
was explicitly limited to treaty-based obligations, it did not as such deal with human rights
obligations under customary international law. That said, insofar as a customary human rights
obligation derived from a norm having jus cogens status, a countermeasure consisting of its
suspension would nevertheless have been prohibited.14
When Gaetano Arangio-Ruiz in turn came to consider the issue, he proposed that
countermeasures could not consist of conduct ‘not in conformity with the rules of international law
on the protection of fundamental human rights’.15 In Arangio-Ruiz’s view, the notion of ‘fundamental
human rights’ was to be understood as being limited to ‘core’ rights, a ‘minimum irréductible des
droits de la personne humaine’.16 Accordingly, countermeasures consisting of the non-
performance of other human rights obligations implicitly remained permissible.17 The principal
example given of a human right which did not fall into the cate gory of the ‘core’, or ‘more
essential’, human rights was the right to property, in light of the relatively widespread practice of
expropriation or freezing of assets of nationals of another State in response to an alleged violation
by that State of its international obligations.18
Although this position appeared to leave a number of human rights obligations unprotected from
suspension by way of countermeasure, the gap was more apparent than real, given that Arangio-
Ruiz recognized that the situation was different in relation to certain obligations deriving from a
multilateral treaty (‘obligations erga omnes partes’) and where the obligations in question
constituted a customary obligation erga omnes or a rule of jus cogens.19 Arangio-Ruiz, in language
which recalled the formulation of Fitzmaurice in relation to suspension and termination in the law of
treaties, opined that countermeasures could not be adopted in relation to such obligations due to
the ‘ “legal indivisibility” of the content of the obligation, namely … the fact that the rule in question
provides for obligations which bind simultaneously each and every State concerned with respect to
all the others’.20 As a consequence, he reasoned, ‘any measure adopted by a State vis-à-vis a
responsible State infringes not only the right of the latter but also the rights of all the other parties to
which the erga omnes rule that has been infringed applies …’.21 Accordingly, he proposed that
conduct consisting of ‘a breach of an obligation towards any State other than the State which has
committed the internationally wrongful act’ should be excluded from the scope of permissible
countermeasures, this provision being intended to cover (p. 1181) both obligations under
multilateral treaties having effects erga omnes partes, and erga omnes obligations under
In the Drafting Committee, Arangio-Ruiz’s proposals underwent substantial modification and the
exclusion was reformulated in terms of a prohibition of countermeasures consisting of ‘conduct
which derogates from basic human rights’.23 Although that formulation could be read as being
wider than that proposed by the Special Rapporteur, it was made clear that the change was
intended to reflect the language of the International Court in Barcelona Traction,24 and covered
only the ‘core’ human rights.25 At the same time, the proposed exclusion of countermeasures
affecting obligations owed to third States was regarded as being too sweeping and was transformed
into a saving clause in the general provision relating to countermeasures to the effect that the
wrongfulness of such countermeasures was not precluded as against third States.26
The provision concerning prohibited countermeasures in relation to human rights as reformulated
by the Drafting Committee was provisionally adopted, substantially unchanged, on first reading by
the ILC in 1996 as draft article 50. The accompanying Commentary explained that the reference to
‘basic human rights’ was intended to refer to the ‘core’ human rights, thus implicitly permitting
countermeasures in respect of some human rights obligations.27 In addition, it contained extensive
references to the rules of international humanitarian law prohibiting inter alia certain forms of
belligerent reprisals.28
In his Third Report, the last Special Rapporteur, James Crawford, reviewed various criticisms of the
provision adopted on first reading and proposed the introduction of a distinction between
obligations:
which may not be suspended by way of countermeasures, and obligations which must be
respected in the course of taking countermeasures—in other words, between the subject
of countermeasures and their effect.29
Specifically in relation to human rights obligations, Crawford noted and endorsed the comment of
one government that ‘since human rights obligations are not, in the first instance at least, owed to
particular States … it is accordingly difficult to see how a human rights obligation could itself be the
subject of legitimate countermeasures’.30 He further proposed that separate provision should be
made in relation to the prohibition of certain types of belligerent reprisals under international
humanitarian law.31
On the basis of this division between ‘the subject of countermeasures and their effect’, Crawford
proposed two separate articles, covering ‘Obligations not subject to countermeasures’ and
‘Prohibited countermeasures’.32 Obligations prohibiting reprisals as a matter of humanitarian law
were covered in the former, while obligations relating to human rights were covered in the latter,
which provided that ‘[c]ountermeasures must not … impair the rights of third parties, in particular
basic human rights’.33
References
(p. 1182) But Crawford’s proposed approach did not prevail, and article 50 of the ILC’s Articles is
based on a different distinction. Article 50 distinguishes between, on the one hand, ‘sacrosanct’
obligations, which may not under any circumstances be the object of countermeasures, and, on
the other hand, those obligations (relating to the peaceful settlement of disputes and to diplomatic
and consular inviolability) the performance of which can not be suspended due to their special
importance for the resolution of disputes.34
The ‘sacrosanct’ obligations referred to in article 50(1) of the ILC’s Articles comprise—in addition to
the obligation to refrain from the threat or use of force under the UN Charter35 and the catch-all
category of ‘other obligations under peremptory norms of general international law’36 — a category
of ‘obligations for the protection of fundamental human rights’.37 In addition, taking account of
Crawford’s proposal, a separate category of ‘obligations of a humanitarian character prohibiting
reprisals’ was included.38
3 The prohibition of countermeasures affecting human rights

obligations
Two situations may be envisaged in which a countermeasure may have a more or less direct
impact on the enjoyment of internationally protected human rights. The first and most obvious
situation is that in which, in response to a breach of an obligation owed to it, a State purports to
suspend performance of its human rights obligations, whether generally, including in relation to its
own nationals, or solely in relation to nationals of the responsible State (or indeed of third States).
Apart from the specific situation of the freezing of the assets of nationals of a responsible State,
such action is extremely rare, if not non-existent, in recent State practice.
However, the formulation of article 50(1)(b), insofar as it provides that countermeasures ‘shall not
affect …’ clearly limits the range of permissible countermeasures in relation to a second scenario.
The provision clearly targets not only the suspension by a State of the performance of its
obligations relating to human rights per se, but also the adoption of counter measures which,
although not directly involving the suspension of performance of its human rights obligations,
nevertheless have the effect of indirectly affecting the enjoyment of those rights.39
(a) The prohibition of suspension of human rights obligations by way of

countermeasure
The variety of proposals by the successive Special Rapporteurs in relation to the prohibition of
countermeasures affecting human rights obligations can be seen as an attempt to give effect to the
specific characteristics of human rights obligations, taking into account both the fact that the
primary beneficiaries of such obligations are individuals and that they fall into the category of
obligations erga omnes.
It is undoubtedly the case that human rights obligations are, in fundamental regards, different from
most ‘traditional’, synallagmatic obligations under international law. A series of pronouncements of
the International Court and the relevant monitoring bodies has
References
(p. 1183) emphasized the pre-dominant character of treaty-based human rights obligations as
being stipulated for the protection of the individuals who are the beneficiaries of such obligations,
while minimizing the effects of their formal creation through the conclusion of treaties between
States. In an oft-cited dictum, the International Court in 1951 observed in relation to the Convention
for the Prevention and Punishment of the Crime of Genocide that:
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. Consequently, in a convention of this type one cannot
speak of individual advantages or disadvantages of states, or of the maintenance of a
perfect contractual balance between rights and duties.40
Subsequently, other bodies have made similar observations in relation to the major international
instruments for the protection of human rights. The Human Rights Committee initially stated in 1994
that ‘[human rights treaties], and the Covenant specifically, are not a web of inter-State exchanges
of mutual obligations. They concern the endowment of individuals with rights’.41 More recently,
however, the Committee has emphasized that:
[w]hile article 2 is couched in terms of the obligations of State Parties towards individuals
as the right-holders under the Covenant, every State Party has a legal interest in the
performance by every other State Party of its obligations. This follows from the fact that the
‘rules concerning the basic rights of the human person’ are erga omnes obligations and
that, as indicated in the fourth preambular paragraph of the Covenant, there is a United
Nations Charter obligation to promote universal respect for, and observance of, human
rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty
involves any State Party to a treaty being obligated to every other State Party to comply
with its undertakings under the treaty …42
A similar approach has been taken in relation to the European Convention on Human Rights. In the
‘Pfunders’ case, the European Commission of Human Rights opined that the provisions of the
European Convention are ‘essentially of an objective character, being designed rather to protect
the fundamental rights of individual human beings from infringement by any of the High Contracting
Parties than to create subjective and reciprocal rights for the High Contracting Parties
themselves’.43 The European Court of Human Rights, again in the context of an inter-State case,
further developed that reasoning. Although recognizing the inter-State element of the substantive
obligations under the European Convention, the European Court stated that those obligations
constitute ‘more than mere reciprocal engagements between contracting States’ and emphasized
that the European Convention ‘creates, over and above a network of mutual, bilateral undertakings,
objective obligations which, in the words of the Preamble, benefit from a
References
44
(p. 1184) “collective enforcement” ’.44 More recently, the Court has emphasized the special
character of the European Convention as ‘an instrument of European public order (ordre public) for
the protection of individual human beings’45 and as ‘a constitutional instrument’ of European public
order.46
While the Human Rights Committee and the European Court of Human Rights have recognized that
the fact that the obligations under their respective instruments derive, in the final analysis, from
treaties and that the inter-State nature of those obligations therefore retains an important, albeit
residual, role, the Inter-American Court of Human Rights has gone further, apparently entirely
eliminating any such inter-State element. In its Advisory Opinion on Effect of Reservations,47 the
Inter-American Court observed that the object and purpose of the American Convention was not
‘the exchange of reciprocal rights’ between the States parties but was rather the protection of
human rights of individuals, irrespective of their nationality.48 The Court concluded that, as a result,
the States parties to the American Convention ‘can be deemed to submit themselves to a legal
order within which they, for the common good, assume various obligations, not in relation to other
States, but towards all individuals within their jurisdiction’.49 Accordingly, the Court stated:
the Convention must be seen for what in reality it is: a multilateral legal instrument of
framework [sic] enabling States to make binding unilateral commitments not to violate the
human rights of individuals within their jurisdiction.50
Although there thus appears to be agreement on the character of human rights obligations as being
primarily intended to confer rights on individuals, as shown by the passages cited above, there
exists a range of views as to the relevance of the inter-State aspect of those obligations. In this
connection, the better view would appear to be that, despite the predominance of the
characteristic trait of human rights treaties as conferring rights directly on individuals, it is still the
case that the obligations created by those treaties in some sense remain owed to the other States
parties, which therefore have an interest in ensuring their performance. As observed by Bruno
Simma:
human rights treaties are ‘built’ like all other multilateral treaties. They, too, create rights
and obligations between their parties to the effect that any State party is obliged as against
any other State
References
(p. 1185) party to perform its obligations and that, conversely, any party has a correlative
right to integral performance by all the other contracting States.51
As a result, it is clear that, quite apart from the express prohibition of countermeasures in relation to
human rights obligations, if a State were to purport to suspend performance of one of its treaty-
based human rights obligations by way of countermeasure, the wrongfulness of such action would
not be precluded as against any State party other than the responsible State.52
As regards at least the most fundamental customary human rights obligations, the same effect
arguably results from their peremptory status. The International Court in Barcelona Traction
observed that such obligations are ‘owed to the international community as a whole’ and that ‘[b]y
their very nature … [they] 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’.53 The Court identified in its catalogue of examples of such obligations ‘the basic rights of
the human person’, giving as examples protection from slavery and racial discrimination.54
Although the Court has since recognized other obligations within the field of human rights as falling
within the category of obligations erga omnes,55 there is no clear consensus among States on
which other obligations fall within that category, nor indeed, as to which human rights obligations
constitute customary international law.
However, as regards the question of which obligations constitute obligations erga omnes, the better
view would appear to be that any human rights obligation, insofar as it is established as a matter of
customary international law, is owed erga omnes. Such obligations are clearly established for the
protection of a collective interest of the international community as a whole, namely the protection
of the fundamental rights of individuals regardless of their nationality, and their respect is therefore
‘the concern of all States’.56 As a consequence, and quite apart from the effect of article 50(1)(b)
of the ILC’s Articles, the purported suspension of performance of a customary human rights
obligation will in any case constitute a breach of that obligation vis-à-vis all States other than the
State at which the purported countermeasure is directed.
Accordingly, despite their different formal sources, there is a strong parallelism between the
obligations deriving from multilateral human rights treaties, one of the most
References
(p. 1186) obvious cases of obligations established for the protection of a collective interest of the
States involved (so-called obligations erga omnes partes), and obligations owed erga omnes under
customary international law (i.e. those ‘owed to the international community as a whole’).57
Therefore, to the extent that a State is bound by human rights obligations deriving from a treaty, it
will in any case breach its obligations to all other States parties to that treaty if it purports to
suspend performance of obligations under the treaty (whether or not solely in relation to the
nationals of the target State) in response to an alleged internationally wrongful act. This is so
whether or not the wrongdoing State is also party to that instrument. Similarly, to the extent that a
particular human rights obligation constitutes customary international law, any suspension of
performance of that obligation will likewise constitute a breach as against all other States. Seen
from this perspective, in the absence of a treaty obligation binding the two States, the distinction
between the ‘core’ or ‘minimum irreductible’ human rights and other ‘lesser’ human rights
identified by Arangio-Ruiz becomes in the end a question of whether or not the obligation in
question constitutes customary international law.
Further, on this approach, the legality of the practice identified by Arangio-Ruiz of the adoption of
countermeasures consisting in the freezing of the assets of nationals of an allegedly responsible
State need not be explained on the basis that certain human rights obligations outside the core or
‘minimum irréductible’ may legitimately be the object of countermeasures. Rather, to the extent
that the right to property has not attained customary status,58 the better view would appear to be
that the question of the legality of such measures in the end depends on whether there is a treaty
obligation in force binding the State taking the measures in question to respect the right to property
in such circumstances.59
(b) The prohibition of countermeasures ‘affecting’ fundamental human

rights obligations
As noted above, article 50(1)(b) also precludes the adoption of countermeasures which, although
not taking the form of the suspension of human rights obligations per se, neverthe less indirectly
have a negative effect on human rights. The potentially detrimental effect on the enjoyment of
certain fundamental rights of countermeasures which do not as such involve the suspension of
performance of human rights obligations is clear, for instance, in the case of imposition of
economic sanctions.
In many cases, economic sanctions may amount to no more than measures of retorsion, insofar as
they do not involve the suspension of performance of any obligation owed to the target State. In
such circumstances, the sanctions merely amount to unfriendly but lawful
References
60
(p. 1187) action and therefore require no justification as a countermeasure.60 However, in other
cases, the sanctions in question may involve the suspension of performance of an obligation owed
to the target State and therefore would amount to an internationally wrongful act except to the
extent that they qualify as countermeasures. This would be the case, for instance, where there is
an economic cooperation agreement in force between the two States and one party purports to
suspend performance of that agreement in response to an alleged breach by the other party of
another of its international obligations.61 It is selfevident that measures such as the suspension of
performance of an economic cooperation agreement or a firm commitment to provide aid, or the
interruption of trade relations, may, depending on the economic situation of the States involved,
have an adverse impact upon the effective enjoyment of certain human rights in the target State.
In this regard, the Committee on Economic and Social Rights has emphasized that ‘whatever the
circumstances … sanctions should always take full account of the provisions of the International
Covenant on Economic, Social and Cultural Rights’,62 and this is so whether the economic
sanctions are imposed unilaterally by individual States or groups of States, or adopted collectively
under the auspices of a universal or regional international organization.63
Although the reasoning of the Committee may have some justification in the specific case of the
International Covenant on Economic, Social and Cultural Rights, which contains no express
limitation on the scope of its application,64 it is questionable whether it may be transposed to other
human rights treaties. In that regard, it may be noted that the majority of human rights treaties
contain some express limitation on their material applicability in terms of the ‘territory’ and/or
‘jurisdiction’ of the States parties,65 and it is not generally accepted that the mere ability of a State
to take action affecting the enjoyment of human rights of individuals outside its territory is sufficient
to render its human rights obligations applicable as regards those individuals.66 Given these
express limitations on the extra-territorial applicability of human rights treaties, it is by no means
clear that the obligations deriving from such treaties are even applicable to the effects of economic
sanctions on individuals within the territory of the target State. Such effects by definition take place
outside the territory of the State adopting the measures and will normally be outside its ‘jurisdiction’.
Further, if a claim of responsibility for breach of human rights
References
(p. 1188) obligations consequent upon the adoption of such countermeasures were to be brought,
there would be obvious problems relating to proof of causation between the adoption of the
countermeasure in question and the impact on human rights, which in most cases will be causally
remote.
Nevertheless, the emphasis of the Committee on Economic, Social and Cultural Rights on respect
for human rights in the context of implementation of economic sanctions was endorsed more
generally as regards all human rights obligations by the ILC.67 As noted above, in article 50(1)(b) of
the ILC’s Articles the requirement of respect for human rights takes effect as a prohibition at the
level of the secondary rules of responsibility governing the permissibility of countermeasures,
rendering illegitimate those countermeasures which ‘affect’ obligations for the protection of
fundamental human rights. That formulation seems to be motivated to a large extent by
humanitarian concerns, rather than constituting a statement of either existing human rights law or
being based upon a strict legal analysis that the adoption of such countermeasures by a State will
necessarily result in a violation of its applicable primary human rights obligations.
4 Countermeasures affecting obligations under humanitarian law

Article 50(1)(c) of the ILC’s Articles deals with the impermissibility of countermeasures affecting
certain obligations under international humanitarian law. Further, the international law of armed
conflict itself regulates the possibility for a party to the conflict to suspend performance of certain
obligations in response to violations of the laws of war committed by the enemy.
Traditionally, international humanitarian law permitted the adoption of ‘belligerent reprisals’ as being
one of the few effective mechanisms for ensuring compliance with the rules of international
humanitarian law. A useful working definition of belligerent reprisals is that they are acts ‘in breach
of a rule of the law of armed conflict directed by one belligerent party against the other with a view
to inducing the latter party to stop violating that or another rule of [humanitarian law]’.68 In other
words, belligerent reprisals may be seen as constituting a particular species of the genus
countermeasure within the specific area of international humanitarian law.
The categories of permissible belligerent reprisals in armed conflict have progressively been
reduced as part of the development of international humanitarian law. Accordingly, quite apart from
the secondary rules of the law of State responsibility, international humanitarian law contains
primary rules aimed at ensuring that the most important obligations of restraint, aimed at protecting
the various categories of protected persons, may not be suspended in response to violations by
other parties to the conflict.
Section (a) below examines the positive treaty rules prohibiting belligerent reprisals, as well the
question of whether the performance of other specific treaty obligations under international
humanitarian law likewise may not be suspended by way of reprisal.
References
(p. 1189) Section (b) deals briefly with the specific question of the extent to which the prohibition of
reprisals targeting civilians constitutes customary international law. Finally, section (c) briefly
discusses the logic underlying the ILC’s approach of prohibiting countermeasures affecting
‘obligations of a humanitarian character prohibiting reprisals’, rather than counter measures
affecting the underlying prohibition of particular conduct.
(a) Conventional rules limiting recourse to belligerent reprisals

Over the course of the 20th century, international humanitarian law has witnessed a progressive
reduction of the categories of permissible measures of reprisal in the context of international armed
conflicts.
In relation to combatants, the prohibition of the taking of measures of reprisal against prisoners of
war, already contained in article 2 of the 1929 Geneva Convention Relative to the Treatment of
Prisoners of War,69 was subsequently reiterated in article 13(3) of the Third Geneva Convention of
1949.70 At the same time, the prohibition of reprisals was extended to cover the wounded and sick
on land, and medical establishments and their personnel,71 as well as the wounded, sick and
shipwrecked at sea, and hospital ships and their crew.72
As far as civilians are concerned, no protection against reprisals was provided by the Hague
Regulations of 1907,73 nor by the 1929 Geneva Convention. The protection of certain categories of
civilians against belligerent reprisal is however envisaged in the Fourth Geneva Convention, article
33(3) of which prohibits the taking of reprisals against ‘protected persons and their property’.
However, due to the somewhat limited scope of application ratione personae of the Fourth Geneva
Convention, only civilians in occupied territories and other categories of civilians in the hands of
the enemy (such as, for instance, enemy nationals within the territory of one of the belligerents)
enjoy protection against belligerent reprisals under the Convention.74 By contrast, civilians in non-
occupied enemy territory remained a legitimate object of reprisals. Steps were taken to remedy this
situation in Additional Protocol I, article 51(6) of which sets forth, for the first time, an explicit
References
(p. 1190) general prohibition of reprisals consisting in ‘attacks against the civilian population or
75
civilians’.75 The ICRC Commentary on that provision explains that:
The prohibition [of reprisals against civilians] is not subject to any conditions, and it
therefore has a peremptory character; in particular it leaves out the possibility of
derogating from this rule by invoking military necessity.76
The prohibition of belligerent reprisal against civilians is further reinforced by the provision
contained in article 51(8) of Additional Protocol I, which provides that:
[a]ny violation of [the rules concerning protection of the civilian population] shall not
release the Parties to the conflict from their legal obligations with respect to the civilian
population and civilians.
Prohibitions against measures of reprisal also exist in relation to particular categories of objects. For
instance, the 1954 Hague Convention on the protection of cultural property prohibits ‘any act
directed by way of reprisals against cultural property’.77 Additional Protocol I also added specific
prohibitions of reprisals to the obligations not to attack civilian objects,78 historic monuments, works
of art and places of worship which constitute the cultural or spiritual heritage of peoples,79 objects
indispensable to the survival of the civilian population,80 the natural environment,81 and works,
installations or military objectives containing dangerous forces (eg dams, dykes and nuclear power
stations).82
In light of the conventional legal framework briefly sketched above, as a matter of treaty-law, the
residual scope for adoption of measures of reprisal in the context of international armed conflict is
extremely limited.83 However, the rules of international humanitarian law relating to non-
international armed conflicts are much less explicit. The only provision dealing with non-
international armed conflict in the Geneva Conventions, common article 3, contains no express
prohibition of reprisals and the same is true of Additional Protocol II.84 At least part of the reason for
the absence of any such express prohibition is the reluctance of States to introduce the legal
notion of reprisal, which is
References
(p. 1191) seen as concerning only inter-State relations, into the legal framework concerning
noninternational armed conflict.85
However, as noted by the ICRC, although the application of common article 3 and Additional
Protocol II has no legal effect on the status of the parties to a non-international armed conflict,
those parties nevertheless are ‘still subjects of international law in the limited context of
humanitarian rights and obligations resting upon them under these two instruments’86 and
‘[w]henever there is a possibility of rules of international law not being respected, there may be
reprisals’.87 Accordingly, the ICRC has consistently interpreted common article 3 as containing an
implied prohibition of reprisals in relation to the specific acts prohibited ‘at any time and in any
place whatsoever’ by common article 3(1), on the basis that they:
… are prohibited absolutely and permanently, no exception or excuse being tolerated.

Consequently, any reprisal which entails one of these acts is prohibited, and so, speaking
generally, is any reprisal incompatible with the ‘humane treatment’ demanded
unconditionally in the first clause of sub-paragraph (1).88
Similarly, the general prohibition of attacks on the civilian population set forth in article 13(2) of
Additional Protocol II, the associated obligations not to make objects indispensable to the survival of
the civilian population,89 works and installations containing dangerous forces,90 and cultural
objects and places of worship91 the target of attack, coupled with the absolute character of the
rules protecting civilians, which ‘shall be observed in all circumstances’,92 has led the ICRC to take
the position that, under Additional Protocol II, ‘there is in fact no room left at all for carrying out
93
“reprisals” against protected persons’.93
(b) Customary rules prohibiting belligerent reprisals against civilians

during the conduct of hostilities
Whilst, as a matter of positive treaty-law, both in international and non-international armed conflict
the freedom of action of States parties to the relevant instruments to take belligerent reprisals is
tightly circumscribed, the question of the existence of parallel customary prohibitions of reprisals is
to some extent less clear. There can be no doubt that the various norms prohibiting reprisals
against protected persons enshrined in the 1949 Geneva Conventions, including those prohibiting
reprisals against civilians in occupied territory, are reflected in analogous prohibitions under
References
(p. 1192) Similarly, it is generally recognized that reprisals against objects protected under the
Geneva Conventions and the Hague Convention for the Protection of Cultural Property are
prohibited as a matter of customary international law.95 Further, it is clear that, under the
customary rules regulating armed conflict, belligerent reprisals have only a very limited scope and
are subject to very stringent conditions.96 However, a far more controversial point concerns the
existence and the extent of a customary rule prohibiting any reprisals against civilians, paralleling
that under Additional Protocol I.
The fact that Additional Protocol I contains an express prohibition of such reprisals has been put
forward by the United States as one of the principal reasons for not ratifying.97 Further, while other
States have ratified Additional Protocol I, they have entered reservations to the provisions relating
to belligerent reprisals.98 For instance, upon ratification the United Kingdom reserved the right to
take reprisals against the civilian population or civilian objects in response to ‘serious and
deliberate attacks’ of the same nature by another party to the conflict.99 Similarly, France’s
ratification of Additional Protocol I was accompanied by a reservation to article 51(8), stating that it
will apply that provision:
to the extent that its interpretation does not pose an obstacle to the adoption, in conformity
with international law, of measures which it considers indispensable for the protection of its
civilian population from serious, clear and deliberate violations of the Geneva Conventions
and this Protocol by the enemy.100
The apparent intent underlying such a reservation is effectively to enter a general reservation to
the entirety of article 51 of Additional Protocol I, including the prohibitions of belligerent reprisals
contained therein, so as to retain the possibility of belligerent reprisals
References
(p. 1193) against civilians and civilian objects in extreme circumstances. Reservations which
arguably are intended to have the same effect have been made by Italy, Germany, and Egypt.101
Despite the doubts which may be engendered by the practice of some States in relation to the rules
prohibiting reprisals against civilians contained in Additional Protocol I, the prohibition of belligerent
reprisals against civilians was recognized as constituting customary international law even prior to
the conclusion of the Additional Protocols in relation to both international and non-international
conflicts. In particular, GA Resolution 2675 (XXV), which was adopted unanimously in 1970,
declared that ‘civilian populations, or individuals thereof, should not be the object of reprisals …
’.102
Two decisions of the International Criminal Tribunal for the former Yugoslavia have affirmed the
103
customary nature of the rule. In Prosecutor v Martic,103 the Trial Chamber of the ICTY held that, in
the light of, inter alia, common article 3 to the Geneva Conventions, the Martens Clause and GA
Resolution 2675 (XXV), under customary international law the rule that civilians should not be the
object of attack was a ‘fundamental rule of international humanitarian law applicable to all armed
conflicts’.104 The Trial Chamber went on to hold that this prohibition must be respected:
in all circumstances regardless of the behaviour of the other party … [N]o circumstances
would legitimize an attack against civilians even if it were a response proportionate to a
similar violation perpetrated by the other party.105
In Prosecutor v Kupreškić,106 the Trial Chamber, having rejected the tu quoque principle as a
defence in the context of individual criminal responsibility and affirmed the ‘absolute’ non-
reciprocal nature of international humanitarian law,107 again had occasion to discuss the question
of reprisals against the civilian population.108 Starting from the proposition that ‘reprisals against
civilians are inherently a barbarous means of seeking compliance with international law’,109 the
Trial Chamber went on to opine that
while reprisals could have had a modicum of justification in the past, when they constituted
practically the only effective means of compelling the enemy to abandon unlawful acts of
warfare and to comply in future with international law, at present they can no longer be
justified in this manner.110
It further held that ‘[d]ue to the pressure exerted by the requirements of humanity and the dictates
of public conscience, a customary rule of international law has emerged’,111 absolutely prohibiting
reprisals against civilians regardless of the nature of the conflict.
Although these pronouncements point strongly in the direction of the existence of a customary rule
prohibiting reprisals against civilians in all situations, given the contrary
References
(p. 1194) State practice they must be approached with some caution.112 In this regard, probably
the most that can to be said is that:
[b]ecause of existing contrary practice, albeit very limited, it is difficult to conclude that
there has yet crystallised a customary rule specifically prohibiting reprisals against
civilians during the conduct of hostilities. Nevertheless, it is also difficult to assert that a
right to resort to such reprisals continues to exist on the practice of only a limited number
of States, some of which is also ambiguous. Hence, there appears, at a minimum, to exist a
trend in favour of prohibiting such reprisals.113
(c) The approach of the ILC to the issue of countermeasures affecting

obligations under international humanitarian law
In relation to obligations in the field of humanitarian law, article 50(1)(c) of the ILC’s Articles limits
itself to prohibiting the adoption of countermeasures which affect ‘obligations of a humanitarian
character prohibiting reprisals’. In that regard, the ILC’s Commentary merely refers in general terms
to the principal relevant provisions of instruments under international humanitarian law and notes
that, in accordance with their terms, ‘reprisals are prohibited against defined classes of protected
persons, and these prohibitions are very widely accepted’.114
However, a peculiarity may be noted as to the formulation of the provision. The effect of the
wording chosen by the ILC is to create a prohibition of the suspension of certain prohibitions of
particular conduct.115 One may wonder why the provision expressing the (secondary) obligations
under the law of State responsibility was not phrased in terms of a prohibition of suspension of
certain substantive (primary) obligations under international humanitarian law, in that way
116
paralleling the existing prohibitions of particular forms of belligerent reprisal.116 However, the
somewhat abstract and metaphysical layering of prohibition upon prohibition would appear to
present at least two clear advantages. First, the general approach of the Articles is to attempt to
codify the secondary rules of State responsibility, without attempting to specify the underlying
primary obligations; 117 the formulation adopted involves the definition of an abstract (and
expandable) class without having to descend into the detail of which particular conduct may or
may not exceptionally be adopted by way of reprisal. The second advantage of the formulation is a
more practical one: by stipulating the
References
(p. 1195) prohibition at a further level of remove from the primary rules prohibiting the adoption of
certain conduct by way of reprisals, the ILC’s Articles ensure that it is not possible to argue that
such conduct may be justified on the basis that compliance with the primary rule prohibiting
reprisals has itself been suspended by way of countermeasure.118 The prohibition of the adoption
of particular conduct by way of belligerent reprisal is thus substantially reinforced.
5 Conclusion
The obligations covered by article 50(1)(b) and (c) of the ILC’s Articles have certain characteristics
in common. Those characteristics concern, on the one hand, the very structure of the obligations
in question, and, on the other, at least as regards some such obligations, their jus cogens status.
As a consequence, it is arguable that, quite apart from the express prohibition of their suspension
in response to an internationally wrongful act, in any case those obligations can never be the
subject of countermeasures.
As to the first, structural, characteristic, there can be little doubt as to the essentially non-
reciprocal and erga omnes nature of the obligations in question.119 As to human rights obligations,
it is well-established that, at one and the same time, they are both owed to, and create rights for,
individuals, whilst retaining an important inter-State element, being owed erga omnes partes (in the
case of treaties), or to the international community as a whole (in the case of customary
obligations). As for obligations under international humanitarian law, despite the fact that
considerations of reciprocity historically played an important role, the development of international
law relating to armed conflict has resulted in the progressive elimination of such considerations.
Complementing the affirmation of the ICTY in Kupreškić of the ‘absolute’ and non-reciprocal
character of international humanitarian law, reference may also be made to the views expressed
by the International Court of Justice in its Advisory Opinion on the Wall. Recalling its previous
observations in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the
Court observed that:
… ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental
to the respect of the human person and “elementary considerations of humanity” …’, that
they are ‘to be observed by all States whether or not they have ratified the conventions
that contain them, because they constitute intransgressible principles of international
customary law’. … [T]hese rules incorporate obligations which are essentially of an erga
omnes character.120
Although the Court refrained from specifically enumerating the obligations to which it was referring,
it is arguable that the various prohibitions of belligerent reprisals fall within that category. Even if
that were not the case, the primary obligations which form the subjects of the prohibitions of
belligerent reprisals undoubtedly are within that category and are owed erga omnes. Accordingly,
as is the case with human rights obligations, those obligations in any case can never be the object
of countermeasures.
References
(p. 1196) As to the second characteristic, relating to the hierarchically superior character of the
underlying norms, it is arguable that a large number of the obligations covered by article 50(1)(b)
and (c) of the ILC’s Articles arise under norms which are considered to be peremptory (jus
cogens). As a result, countermeasures affecting such obligations are in any case never permissible
in accordance with article 50(1)(d) of the ILC’s Articles. As far as human rights obligations are
concerned, as discussed above, at least the most important of those obligations have attained the
status of jus cogens. Similarly, in line with the observations of the Court in the Nuclear Weapons
and the Wall Advisory Opinions, a large number of the obligations under international humanitarian
law which cannot be disregarded by way of reprisal constitute ‘intransgressible principles of
international customary law’.
Accordingly, although the approach of the ILC was to identify particular categories of obligation
which may not be affected by countermeasures according to their subject matter, it is arguable that
the underlying reason why those obligations may not be affected by counter measures is found in
their specific characteristics. Nevertheless, as a general matter, the provisions of article 50(1)(b)
and (c) of the ILC’s Articles play an important role in emphasizing the impermissibility of
countermeasures which affect such obligations. The obligations in question, relating to fundamental
human rights and basic principles for the protection of the individual in armed conflict, are among
those which are most fundamental for the international community and it is therefore vital that their
respect should not be put in jeopardy on the pretext of a breach by another State of its
international obligations.
Further reading
D Alland, Justice privée et ordre juridique international. Étude théorique des contre-
L Condorelli, ‘Responsabilité étatique et responsabilité individuelle pour violations graves du
droit international humanitaire: quelques remarques a propos du rejet du principe tu quoque
dans le jugement Kupreškić du Tribunal Penal International pour l’ex-Yougoslavie’, in LC
Vohrah et al (eds) Man’s Inhumanity to Man; Essays on International Law in Honour of
Antonio Cassese (The Hague/London/New York, Kluwer Law International, 2003), 211
S Darcy, ‘The Evolution of the Law of Belligerent Reprisals’ (2003) 175 Military Law Review
184
(1994-IV) 248 Receuil des Cours 345
FJ Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of
1949’ (1988) 37 ICLQ 818
J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law; Volume I:
Rules (Cambridge, ICRC/CUP, 2005)
L Henkin, ‘Inter-State Responsibility for Compliance with Human Rights Obligations’, in LC
Vohrah et al (eds) Man’s Inhumanity to Man; Essays on International Law in Honour of
Antonio Cassese (The Hague/London/New York, Kluwer Law International, 2003), 383
F Kalshoven, Belligerent Reprisals (Leiden, Sijthoff, 1971;
reprinted Leiden/Boston, Martinus Nijhoff, 2005)
KJ Partsch, ‘Reprisals’, in R Bernhardt (ed) Encyclopedia of Public International Law
(Amsterdam, North Holland, 2000), vol 4, 200
R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP, 2002)
R Provost, ‘Reciprocity in Human Rights and Humanitarian Law’ (1994) 65 BYIL 383
PL Sutter, ‘The Continuing Role for Belligerent Reprisals’ (2008) 13 Journal of Conflict and
Security Law 93
References
Footnotes:
1 Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa
(Portugal v Germany) (‘Naulilaa’), 31 July 1928, 2 RIAA 1011, 1026 (‘limitée par les expériences
de l’humanité’).
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).
3 See also art 52(1) of the Draft Articles on Responsibility of International Organizations, as
adopted on first reading in 2009, Report of the ILC, 61st Session, 2009, A/64/10, 19ff.
4 Art 60(1)–(3), Vienna Convention on the Law of Treaties, 23 May 1969 1155 UNTS 331.
5 Of course, while art 60(5) of the Vienna Convention applies only to obligations deriving from
treaties, the prohibition of the adoption of countermeasures affecting certain categories of
obligation contained in art 50 ARSIWA is more general in scope, being applicable to both obligations
arising under treaties as well as obligations deriving from customary international law: see arts 1, 2,
and 12, ARSIWA. As to the parallel applicability of the rules of the law of treaties and the rules of
State responsibility, see eg Difference between New Zealand and France concerning the
20 RIAA 215, 251–252 (para 75); Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ
Reports 1997, p 7, 38–39 (paras 46–48).
6 Cf ILC Yearbook 1966, Vol II, 184 (draft art 57); see ibid, 253–255 for the accompanying
commentary.
7 G Fitzmaurice, Second Report on the Law of Treaties, ILC Yearbook 1957, p 16, 31 (draft art
19(1)(iv)).
8 See the Commentary to Fitzmaurice’s draft art 19, ibid, 54–55 (paras 125–128).
9 See G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 34 (para
93, fn 240).
10 See Official Records of the United Nations Conference on the Law of Treaties, 1968–1969:
Second Session (UN Doc A/CONF.39/11/Add.l), 112 (paras 20–21); for the text of the proposed
amendment (UN Doc A/CONF.39/L.31), see ibid, Documents (UN Doc A/CONF.39/11/Add.2), 269.
For the earlier oral proposal of the amendment, see ibid, First Session (UN Doc A/CONF.39/11),
354–355 (para 12). For discussion, see also IM Sinclair, The Vienna Convention on the Law of
Treaties (2nd edn, Manchester, Manchester University Press, 1984), 190; T Meron, Human Rights
and Humanitarian Norms as Customary Law (Oxford, Clarendon, 1989), 241; MM Gomaa,
Suspension or Termination of Treaties on Grounds of Breach (The Hague, Martinus Nijhoff, 1996),
107; ME Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice
of the Interrelation of Sources (2nd edn, The Hague/London/Boston, Kluwer Law International,
1997), 269; R Provost, International Human Rights and Humanitarian Law (Cambridge, CUP,
2002), 178.
11 Official Records of the United Nations Conference on the Law of Treaties, 1968–1969: Second
Session (UN Doc A/CONF.39/11/Add.l), 112 (para 21).
12 See, eg, O Schachter, International Law in Theory and Practice (Dordrecht/Boston/London,
Martinus Nijhoff, 1991), 181; L-A Sicilianos, Les reactions décentralisées à l’illicite (Paris, LGDJ,
1990), 352–358; the discussion in MM Gomaa, Suspension or Termination of Treaties on Grounds
of Breach (The Hague, Martinus Nijhoff, 1996), 109–111; R Provost, International Human Rights
and Humanitarian Law (Cambridge, CUP, 2002), 169–171. The International Court of Justice has
expressed the view that the rules of the Vienna Convention ‘concerning termination of a treaty
relationship on account of breach … may in many respects be considered as a codification of pre-
existing customary international law on the subject’ (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, 47 (para 94)), and
likewise observed that ‘a right of termination on account of breach must be presumed to exist in
respect of all treaties, except as regards provisions relating to the protection of the human person
contained in treaties of a humanitarian character (as indicated in art [60(5)])’ (ibid, 47 (para 96)).
See also Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 38
& 62 (paras 46, 99).
13 See W Riphagen, Fifth Report on State Responsibility, ILC Yearbook 1984, Vol II(1), 3–4, art 11;
and see the accompanying Commentary, W Riphagen, Sixth Report on State Responsibility, ILC
Yearbook 1985, Vo l II(1), 12–13.
14 Ibid, 13 (draft art 12(b)).
15 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 35 (draft art
14 (1)(b)(i)).
16 Ibid, 31 (para 80).
17 Ibid, 30–33 (paras 78–83).
18 Ibid, 32 (para 83).
19 Ibid, 33–35 (paras 89–95).
20 Ibid (para 92); see also ibid, 31–32 (fn 213).
21 Ibid (para 93).
22 Ibid, 33 (para 95); 35 (draft art 14(1)(b)(iv)).
23 ILC Yearbook 1993, Vol I, 140 (para 3) (2813rd session) (draft art 14(d)).
Reports 1970, p 3, 32 (para 33).
25 ILC Yearbook 1993, Vol I, 144–145 (para 32) (2813rd session).
26 Ibid, 140, 141, 145 (paras 3, 8 and 33).
27 Commentary to draft art 14, paras 23 and 24, ILC Yearbook 1995, Vol II(2), 73–74.
28 See the Commentary to draft art 14, paras 17 and 20, ibid, 71–73.
29 J Crawford, Third Report of State Responsibility, 2000, A/CN.4/507/Add.3, para 334.
30 Ibid, para 340.
31 Ibid, para 341.
32 Ibid, para 367 (draft Arts 47bis and 50).
33 Ibid (draft art 50).
34 See Commentary to art 50, paras 2 and 11.
35 Art 50(1)(a), ARSIWA.
36 Art 50(1)(d), ARSIWA.
37 Art 50(1)(b), ARSIWA.
38 Art 50(1)(c), ARSIWA.
ICJ Reports 1951, p 15, 23.
41 General Comment No. 24, ‘Issues relating to reservations made upon ratification or accession
to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of
the Covenant’, UN Doc CCPR/C/21/Rev.1/Add.6 (1994), para 17.
42 General Comment No 31, ‘Nature of the General Legal Obligation Imposed on States Parties to
the Covenant’, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 2.
43 Austria v Italy (‘Pfunders’) (App No 788/60), (1961) 4 Yearbook ECHR 116, 140.
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
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.
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.
46 See Banković v Belgium et al (App No 52207/99), ECHR Reports 2001-XII [GC], para 80.
47 Effect of Reservations on the Entry into Force of the American Convention on Human Rights
(Articles 74 and 75), Advisory Opinion OC-2/82, I/ACHR, Series A, No 2 (1982).
48 Ibid, para 27.
49 Ibid, para 29.
50 Ibid, para 33 (emphasis added).
51 B Simma, From Bilateralism to Community Interest in International Law (1994-VI) 250 Recueil
des Cours, 217, 370 (para 117).
52 Cf art 49(1) and (2) ARSIWA, and Commentary to art 49, para 4.
Reports 1970, p 3, 32 (para 33).
54 Ibid, 32 (para 34).
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).
2004, p 136, 199 (para 155).
57 See eg the Resolution of the Institut de droit international, ‘Obligations erga omnes in
international law’ (Krakow, 27 August 2005), Annuaire de l’Institut de droit international 2005,
161, which assimilates the two concepts under the heading ‘Obligations erga omnes’.
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.
59 See L-A Sicilianos, Les reactions décentralisées à l’illicite (Paris, LGDJ, 1990), 358.
60 Cf arts 22 and 49, ARSIWA.
61 See eg the suspension by France of such an agreement with the Central African Empire in 1979
following human rights abuses by Emperor Bokassa’s personal guard; see ‘Chronique des faits
internationaux’, 84 (1980) RGDIP 361, 364.
62 General Comment No 8, ‘The relationship between economic sanctions and respect for
economic, social and cultural rights’, UN Doc E/C.12/1997/8 (1997), para 1; see also para 12.
63 Ibid, para 11.
64 See eg F Coomans, ‘Some Remarks on the Extra-territorial Application of the International
Covenant on Economic, Social and Cultural Rights’, in F Coomans & MT Kamminga (eds), Extra-
territorial Application of Human Rights Treaties (The Hague, Intersentia, 2004), 183; R
Kunnemann, ‘Extra-territorial Application of the International Covenant on Economic, Social and
Cultural Rights’, in ibid, 201.
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.
66 See P de Sena, La nozione di giurisdizione statale nei trattati sui diritti dell’uomo
(Giappichelli, Turin, 2002); the various contributions in F Coomans and MT Kamminga (eds), Extra-
territorial Application of Human Rights Treaties (The Hague, Intersentia, 2004), and R Wilde,
‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’
(2007) 40 Israeli Law Review 503.
68 See F Kalshoven, ‘Belligerent Reprisals Revisited’ (1990) 21 NYIL 43, 44; cf C Greenwood, ‘The
Twilight of the Law of Belligerent Reprisals’ (1989) 20 NYIL 35, 38: ‘action which would normally be
contrary to the laws governing the conduct of armed conflict (the ius in bello) but which is justified
because it is taken by one party to an armed conflict against another party in response to the
latter’s violation of the ius in bello’; and the discussion in Y Dinstein, The Conduct of Hostilities
under the Law of International Armed Conflict (Cambridge, CUP, 2004), 220–222.
69 Convention Relative to the Treatment of Prisoners of War (‘1929 Geneva Convention’),
Geneva, 27 July 1929, 118 LNTS 343.
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).
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.
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.
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.
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.
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
Indiscriminate Effects (Geneva, 10 October 1980) (as amended in 1996), 1342 UNTS 137).
76 Commentary on art 51(6) of Additional Protocol I in Y Sandoz, C Swinarski, & B Zimmerman
(eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (Geneva, ICRC, 1987), 626 (para 1984).
77 Art 4(4), Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, The Hague, 14 May 1954, 249 UNTS 215.
78 Art 52(1), Additional Protocol I.
79 Art 53, Additional Protocol I.
83 See eg FJ Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of
1949’ (1988) 37 ICLQ 818, 828–829, noting that, at least with regard to State Parties to Additional
Protocol I, ‘reprisals may now … be taken only against belligerent armed forces and certain very
specific groups. This would almost certainly have to involve either the unlawful use of a lawful
weapon or the use of an unlawful weapon, in breach of 1907 Hague Convention IV or the
provisions of the Protocol which update and incorporate the Hague Law’. See also Y Dinstein, The
Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, CUP, 2004), 224.
84 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (‘Additional Protocol II’), Geneva, 8 June
1977, 1125 UNTS 609.
85 See Y Sandoz, C Swinarski, & B Zimmerman (eds), Commentary on the Additional Protocols of
8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 1372 (para
4529, fn 18); Cf J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law,
Volume I: Rules (Cambridge, ICRC/CUP, 2005), 526. Rule 148: ‘Parties to non-international armed
conflicts do not have the right to resort to belligerent reprisals. Other countermeasures against
persons who do not or who have ceased to take a direct part in hostilities are prohibited’. For
discussion of the relevant practice, see ibid, 526–529.
86 Y Sandoz, C Swinarski, B Zimmerman (eds), Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 1372 (para 4529, fn
18).
87 Ibid.
88 JS Pictet (ed), Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (Geneva, ICRC, 1958), 39–40.
89 Additional Protocol II, art 14.
92 Additional Protocol II, art 13(1).
93 Y Sandoz, C Swinarski, & B Zimmerman (eds), Commentary on the Additional Protocols of 8
June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1987), 1372 (para 4530).
94 See J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law, Volume I:
Rules (Cambridge, ICRC/CUP, 2005), Rule 146 and commentary, 519–520.
95 See ibid, Rule 147 and the practice discussed at 523–525.
96 As to the conditions for resort to belligerent reprisals under customary law, see ibid, 515–518;
see also PL Sutter, ‘The Continuing Role for Belligerent Reprisals’ (2008) 13 Journal of Conflict and
Security Law 93
97 See Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949
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.
98 For discussion, see J Gaudreau, ‘Les réserves aux Protocoles additionnels aux Conventions de
Genève pour la protection des victimes de la guerre’ (2003) 85 International Review of the Red
Cross (No 849), 143, 167–170.
99 See Corrected Letter of 28 January 1998 sent to the Swiss Government by Christopher Hulse,
HM Ambassador of the United Kingdom, para (m). The text of the reservation can be accessed on
the website of the ICRC, at <http://www.icrc.org/ihl.nsf/>.
100 See Declaration of 11 April 2001, accompanying the instrument of adhesion, para 11,
available at <http://www.icrc.org/ihl.nsf/>; see also J Gaudreau, ‘Les réserves aux Protocoles
additionnels aux Conventions de Genève pour la protection des victimes de la guerre’ (2003) 85
International Review of the Red Cross (No 849) 143, 168 (‘dans la mesure ou l’interprétation de
celles-ci ne fait pas obstacle a l’emploi, conformément au droit international, des moyens qu’il
estimerait indispensables pour protéger sa population civile de violations graves, manifestes et
délibérées des Conventions de Genève et du Protocole par l’ennemi’).
101 See ibid, 168–169. For the text of the reservations, see <http://www.icrc.org/ihl.nsf/>.
102 GA Res 2675 (XXV) (9 December 1970), para 7.
103 Case No IT-95-11-R61, Prosecutor v Martić; Decision on Review of Indictment Pursuant to
Rule 61, 8 March 1996.
104 Ibid, para 10.
105 Ibid, para 15.
106 Case No IT-95-16-T, Prosecutor v Kupreškić, judgment of 14 January 2000.
107 Ibid, paras 514–520.
108 Ibid, paras 521–536.
109 Ibid, para 528.
110 Ibid, para 530.
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).
112 The two decisions of the Tribunal have been subjected to strong criticism in relation to their
holdings as to the customary nature of the prohibition of belligerent reprisals against civilians under
the law applicable to international armed conflicts, in particular in light of the State practice of
reservations to Additional Protocol I: see C Greenwood, ‘Belligerent Reprisals in the Jurisprudence
of the International Criminal Tribunal for the Former Yugoslavia’, in H Fischer, C Kress, & SR Lüder
(eds), International and National Prosecution of Crimes Under International Law: Current
Developments (Berlin, Bochum, 2001), 539; see also F Kalshoven, ‘Reprisals and the protection of
civilians: two recent decisions of the Yugoslavia tribunal’, in LC Vohrah et al (eds), Man’s
Inhumanity to Man; Essays on International Law in Honour of Antonio Cassese (The
Hague/London/New York, Kluwer Law International, 2003), 481.
113 J-M Henckaerts & L Doswald-Beck, Customary International Humanitarian Law, Volume I:
Rules (Cambridge, ICRC/CUP, 2005), 523; and see the practice discussed ibid, 523–525.
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.
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).
117 See ARSIWA, Introductory Commentary, paras 1–4.
118 This is precisely the scenario which some of the reservations to Additional Protocol I,
discussed above in section 4(b), appear to envisage.
119 See eg R Provost, ‘Reciprocity in Human Rights and Humanitarian Law’ 65 (1994) BYIL 383.
120 Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory,
Advisory Opinion, ICJ Reports 2004, p 136, 200 (para 157), citing Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, ICJ Reports 1996(I), p 226, 257 (para 79).
Responsibility, Ch.85 Obligations Relating to the
Use of Force and Arising from Peremptory Norms of
International Law
Charles Leben


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — Armed forces — Peremptory norms /
ius cogens — Erga omnes obligations
(p. 1197) Chapter 85 Obligations Relating to the Use of
Force and Arising from Peremptory Norms of
International Law
1 Obligations with reinforced normative authority: jus cogens and erga omnes
obligations 1198
(a) Peremptory norms 1198

(b) Erga omnes obligations 1199
(i) Erga omnes obligations and obligations owed to the international community
as a whole 1199
(ii) Erga omnes obligations and countermeasures 1200
2 Use of force 1202
(a) Simple peremptory norms and reinforced peremptory norms 1202

(b) Armed force and economic sanctions 1203
Countermeasures are by definition wrongful in themselves but are justified by a prior violation of an
international law obligation by the State against which the measures are taken.1 Any
countermeasure, defined by the ILC as any (unarmed) reprisal, therefore implies a violation of
international law, in response to a prior violation. Countermeasures are acceptable only if the
violation taken in response does not constitute an intolerable outrage. In other words, although the
principle of countermeasures is accepted as codified in ARSIWA, it is necessary to specify that
there may be cases where countermeasures are prohibited. This is the object of article 50 ARSIWA,
entitled ‘Obligations not affected by countermeasures’. The article’s title emphasizes that it is
inadmissible to infringe certain international legal obligations through the mechanism of
countermeasures.
The principle of the prohibition of certain countermeasures was adopted without difficulty by the
International Law Commission on the basis of a proposal by the third Special Rapporteur, Arangio-
Ruiz.2 The final article was adopted with some criticism from the final Special Rapporteur.3 In the
final text of article 50 there are two broad categories
References
(p. 1198) of obligations which are ‘adverse to the system of reprisals’,4 meaning on the one hand,
peremptory obligations and other obligations with reinforced normative authority, and on the other
hand, so-called ‘integral’ obligations. Both of these characteristics may attend the same norm, as is
the case for fundamental human rights (article 50(1)(b)) and humanitarian-type obligations (article
50(1)(c)).5 Additionally, article 50(2)(a) is innovative in that it expressly includes among the
obligations which cannot be affected by countermeasures any obligation which requires the injured
State to comply with ‘any dispute settlement procedure applicable between it and the responsible
State’.6
This Chapter does not follow the sequence of article 50 as it sets out obligations not affected by
countermeasures: rather it begins with the more general prohibition on obligations ‘under
peremptory norms of general international law’ (article 50(1)(d)), and then examines one of the
cases specifically mentioned: the prohibition on threat or use of force (article 50(1)(a)).
1 Obligations with reinforced normative authority: jus cogens
and erga omnes obligations
Two categories of obligations with reinforced normative authority must be mentioned. The first
category—peremptory norms (jus cogens)—benefits from a broad consensus, while the second
category—obligations erga omnes—gave rise to long debates within the ILC.
(a) Peremptory norms

The notion of peremptory norms is widely upheld in ARSIWA and several articles refer to it,7 even
though, as noted by Special Rapporteur Crawford (adopting the words of Ian Brownlie), ‘the vehicle
of jus cogens has rarely, if ever, left the garage of article 53 of the Vienna Convention on the Law
of Treaties’.8 The prohibition of recourse to countermeasures violating peremptory norms is self-
evident and did not create difficulty in the ILC.9 Indeed, it would be incongruous if a State could do
unilaterally (by imposing countermeasures) what two States could not agree upon in a treaty.10
The four subparagraphs of article 50(1) prohibit derogations from peremptory norms. Article 50(1)
(d) implies this when it refers to ‘other obligations under peremptory norms of general public
international law’.11 The norms mentioned in subparagraphs (a), (b), and (c) are specifically set out
because of their eminent character and possibly also because they fall within the category of
integral obligations. By the term ‘integral obligation’ we mean at the minimum obligations not
affected by the reciprocity mechanism.12 Indeed, it is
References
(p. 1199) universally admitted that ‘obligations for the protection of fundamental human rights’13
and ‘obligations of a humanitarian character prohibiting reprisals’14 may not be suspended or
abrogated by way of a countermeasure. This is true at least for the most important obligations,
which no doubt explains the fact that article 50(1)(c) specifies that among all humanitarian
obligations, only those which prohibit reprisals are targeted.15 Hence these obligations have both
an integral and a peremptory character.
The peremptory character of a conventional norm may be deduced from the fact that the text of
the treaty itself prohibits any derogation to this obligation. An example is found in the Four Geneva
Conventions, which prohibit reprisals against protected persons and their property16 and in the
First Protocol of 1977.17 Similarly, though less explicitly, common article 3 prohibits certain acts
(violence to life and person, torture, hostage taking, etc) ‘at any time and in any place
whatsoever’.18 Although these provisions are incorporated in treaties they also have a customary
character and are therefore ‘peremptory norms of general international law’. This is true also of the
other norms specified in article 50: the obligation not to have recourse to the threat or use of force,
obligations regarding protection of fundamental human rights, and the most important obligations of
humanitarian law.19
(b) Erga omnes obligations

Article 50(1) ARSIWA prohibits countermeasures which are contrary to peremptory norms of
international law. Nevertheless, in discussions within the Commission, another prohibition was
suggested: of countermeasures contrary to erga omnes obligations. The Articles as adopted,
although they recognize the existence of obligations owed to the international community as a
whole, no longer uses the standard expression ‘erga omnes obligations’.
(i) Erga omnes obligations and obligations owed to the international community as a
whole
In his Fourth Report on State Responsibility, Arangio-Ruiz excluded countermeasures contrary to
peremptory norms of international law, and also those contrary to erga omnes obligations, that is,
obligations owed to a determined group of States (parties to a multilateral treaty, for example: erga
omnes partes obligations) or obligations owed to the international community as a whole.20
According to Arangio-Ruiz’s analysis, although all
References
(p. 1200) peremptory norms constitute erga omnes obligations, there are some erga omnes
obligations which are not peremptory norms, under the definition in the Vienna Convention on the
Law of Treaties.21 What characterizes these erga omnes obligations is the ‘legal indivisibility’ of
their content, which means that each addressee of the norm is bound vis-à-vis all the others. The
result is that ‘any measure adopted by a State vis-à-vis a wrongdoing State infringes not only the
right of the latter but also the rights of all other parties to which the erga omnes rule that has been
infringed applies’.22
The notion of obligations owed to the international community, that is erga omnes obligations, was
invoked in relation to the modification of former draft article 19(2), eliminating the reference to the
notion of international crimes.23 The initial formulation referred to a ‘serious breach by a State of an
obligation owed to the international community as a whole and that is essential to the protection of
its fundamental interests’. Articles 40 and 41 as adopted replaced the reference to obligations
owed to the international community and linked the dispositions enunciated in these articles with
the category of norms ‘arising from peremptory norms of general international law’. But the notion
of obligations owed to a group of States or to the international community as a whole was
maintained in article 48 on the invocation of State responsibility by a State other than the injured
State.24 This article addresses this possibility in two hypotheses: in the case where ‘the obligation
breached is owed to a group of States including [the third] State and is established for the
protection of a collective interest of the group’,25 and in the case where ‘the obligation is owed to
the international community as a whole’.26 However, ARSIWA is silent as to whether erga omnes
obligations may be permissibly infringed through the use of countermeasures.
(ii) Erga omnes obligations and countermeasures

Draft article 47(3) adopted on first reading provide that:
where a countermeasure against a State which has committed an internationally wrongful

act involves a breach of an obligation towards a third State, such breach cannot be
justified under this chapter against the third State.27
The idea is that if the countermeasure contemplated by the injured State targets an obligation that it
owes not only to the State which is internationally responsible, but also erga omnes either to a
delineated group of States or to the international community as a whole, such suspension would be
a breach vis-à-vis other States.
As adopted, ARSIWA does not include provisions relating to erga omnes obligations in respect of
countermeasures. It seems that Special Rapporteur Crawford, and with him the rest of the
Commission, held doubts as to the specific character of norms comprising
References
(p. 1201) such obligations in comparison with peremptory norms.28 This does not mean that erga
omnes obligations were completely omitted: as noted above, they were dealt with in other
provisions. However, the Articles ‘avoid use of the term “obligations erga omnes”, which conveys
less information than the Court’s reference [in Barcelona Traction] to the international community
as a whole and has sometimes been confused with obligations owed to all parties to a treaty’.29
In the end, uncertainties regarding the character of erga omnes obligations and the fact that the
subparagraphs of article 50(1) cover the most often cited erga omnes obligations lead the
Commission to omit reference to erga omnes obligations from article 50. But are all erga omnes
obligations necessarily peremptory norms? This is probably the case where obligation is owed to
the international community as a whole. But the obligation may be owed to a group of State parties
to a multilateral treaty for purposes of the protection of a collective interest of the group.30
Nevertheless Special Rapporteur Arangio-Ruiz’s idea that countermeasures resulting in ‘a breach
of an obligation owed to a State other than the State that has committed the international wrongful
act’ are unlawful is justified even where the norm is not owed to the international community as a
whole. The problem arises in particular when a State adopts countermeasures with extraterritorial
effects.31 Where it does so, the measures adopted by the inured State could constitute a wrongful
act against third States affected by the extraterritorial reach of the measures. The latter may in turn
adopt countermeasures against the injured State. The potential for anarchy arising out of the use of
countermeasures is therefore obvious.
A different type of problem is raised when article 48 (Invocation of responsibility by a State other
than an injured State) and article 54 (Measures taken by States other than an injured State) are
taken together: can a State other than the injured State—which may invoke the responsibility of a
State under article 48(1)—adopt countermeasures against the responsible State?32
Article 54 carefully avoids mentioning countermeasures and only discusses the adoption of ‘lawful
measures’ by the State acting on the basis of article 48. In the Commentary, it is stated that the
practice of countermeasures taken pursuant to a general or collective interest is too uncertain to
allow at this time for recognition of a customary rule allowing the adoption of countermeasures in
this circumstances. This is why article 54 refers to lawful measures rather than countermeasures,
‘so as not to prejudice any position taken by States other than the injured State in response to
breaches of obligations for the collective interest or those owed to the international community as a
whole’.33
References
(p. 1202) 2 Use of force

The prohibition on countermeasures affecting ‘[t]he obligation to refrain from the threat or use of
force as embodied in the Charter of the United Nations’ is mentioned in article 50(1)(a). This
obligation is the most often cited and has not engendered much discussion despite the continued
importance of the prohibition on the use of force.34 It is one of the major examples of both a
peremptory norm and an obligation ‘owed to the international community as a whole and essential
to the protection of its fundamental interests’.35
(a) Simple peremptory norms and reinforced peremptory norms

The prohibition on the use of force is a peremptory norm. However it must be noted that it differs in
one respect from peremptory norms on the protection of the rights of persons in the broadest
sense (including humanitarian law, the prohibitions of genocide, slavery, torture). Indeed, it is
necessary to distinguish between two types of peremptory norms. The first type do not exclude
sanctions imposed by a central authority (simple peremptory norms): for example, use of armed
force in international law, which is prohibited except in the case of self-defence and in the case of
United Nations sanctions. Hence there is an analogy with domestic law where, for example, murder
is prohibited except when it is a sanctioned by a competent tribunal. The second type (reinforced
peremptory norms) prohibit certain acts in all and every circumstance. For instance, torture is
condemned in most domestic laws, whether perpetrated by individuals or State authorities. Clearly
the line between these two types of peremptory norms is a moveable one.
This distinction between types of peremptory norms is useful in analysing the problem of the use of
force in international society. Special Rapporteur Ago, who, in his first version of what is now article
23 mentioned ‘the legitimate exercise of a countermeasure’, ultimately accepted the critiques of
members of the Commission who wanted to reserve the term sanction to measures imposed by
international organizations.36 And indeed countermeasures presuppose a decentralized legal
order, while sanctions by international organizations presuppose a centralization (even if minimal)
of the jurisdictional function within the institutional legal order.
This point was underlined by Ago in his commentary, where he showed that a sanction imposed by
an international organization, for instance, the United Nations, may not be evaluated under the
general rules applying to countermeasures. In that case, indeed, United Nations sanctions:
[are] justified precisely because under the rules laid down in the treaty containing the
Charter and subscribed to by both the subject which may apply and the subject which may
suffer the measures
References
(p. 1203) in question, the applicability of such measures is provided for in the form of the
‘legitimate’ or even ‘mandatory’ enforcement of sanction against a State recognized within
the same system as guilty of certain unlawful acts.37
This distinction between countermeasures and sanctions forms the backdrop for article 59 which
states that ‘[t]hese Articles are without prejudice to the Charter of the United Nations’.38 To take an
example which has been the object of numerous analyses, the Security Council’s reaction to Iraq’s
invasion of Kuwait had nothing to do with the issue of countermeasures, but rather referred to
sanctions under Chapter VII of the Charter. The conditions for recourse to article 42 may only be
discussed in the framework of lawfulness internal to the United Nations, and not on the basis of the
law of countermeasures in international society more broadly, which prohibits armed reprisals and
war.39
(b) Armed force and economic sanctions

In an earlier draft, Special Rapporteur Arangio-Ruiz had proposed, in the framework of ‘the
progressive development of international law’, to add economic coercion to obligations for which
countermeasures were prohibited. A subparagraph was specifically dedicated to ‘extreme
measures of political or economic coercion jeopardizing the territorial integrity or political
independence of the State against which they are taken’.40 Such a provision would only be
possible if it was coupled with an obligation to resort to a jurisdiction able to determine whether a
particular economic countermeasure constitutes an extreme economic coercion measure or an
infringement on a State’s political independence. This is the way Arangio-Ruiz conceived of the
notion. But the third part of the draft articles established a procedure for mandatory dispute
settlement which did not materialize, as we know.41 As for the current article 50(1)(a), it only refers
to ‘the threat or use of force as embodied in the Charter of the United Nations’, meaning armed
force, as opposed to economic force.42
However, the idea of prohibiting extreme countermeasures, which constituted the basis of former
article 14(2), may be more or less reintegrated in ARSIWA. It is sufficient to take into account article
49(1), which limits countermeasures to those necessary to induce the responsible State to meet its
obligations vis-à-vis the injured State.43 Moreover article 51 requires that countermeasures be
proportionate to the injury.44 Additionally one may
References
(p. 1204) ask whether article 35 requiring the responsible State to provide restitution (only where it
‘does not involve a burden out of all proportion to the benefit deriving from restitution instead of
45
compensation’45) provides a tool of interpretation also valid for the implementation of
countermeasures.
In any case, the Commentary notes that coercive measures may not infringe on certain
fundamental human rights for which no derogation is possible. It refers to article 54(1) of Additional
Protocol I46 which stipulates that ‘starvation of civilians as a method of warfare is prohibited’. It
recalls General Observation 8 (1997) of the Committee on Economic, Social and Cultural Rights,
which replied to a query on economic sanctions by declaring that ‘such sanctions should always
take full account of the provisions of the International Covenant on Economic, Social and Cultural
Rights’47 and specifically ‘the collateral infliction of suffering upon the most vulnerable groups
within the targeted country’.48
Further reading
mesures en droit international public (Paris, Pedone, 1994), 257
économiques (Geneva/Paris, IUHEI, Pédone, 1992), 150–156
OY Elgab, The Legality of Non-Forcible Countermeasures in International Law (Oxford,
Ch Leben, ‘Contre-mesures’, Répertoire Dalloz international (Paris, Dalloz, 1998), paras 63–
79
défense (Paris, LGDJ, 1990), 339–426
E Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (New York,
Transnational Juris Publications Inc, 1984)
References
Footnotes:
1 See D Alland, Chapter 79.
2 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, paras 57–
95, draft art 14 is reproduced at para 96.
4 C Dominicé, ‘Représailles et droit diplomatique’, in Mélanges Hans Huber (Berne, Stämpfli,
1981), 541, 543.
5 On these issues, see D Alland, Justice privée et ordre juridique international (Paris, Pedone,
1994), 264–278 and D Alland, ‘Countermeasures of General Interest’ (2002) EJIL 1221.
6 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 339 and Commentary to
art 50 , paras 12–13.
7 ARSIWA, arts 26, 40, 41, 50(1)(d).
8 J Crawford, ‘The Relationship between Sanctions and Countermeasures’, in V Gowlland-Debbas
(ed), United Nations Sanctions and International Law (The Hague, Kluwer, 2001), 57.
10 Commentary to art 50, para 10; and L-A Sicilianos, Les réactions décentralisées à l’illicite
(LGDJ, Paris, 1990), 344.
11 Cf Commentary to art 50, para 9.
12 For another definition of integral obligations, see J Crawford, Third Report on State
Responsibility, 2000, A/CN.4/507, para 91 and J Crawford, Fourth Report on State Responsibility,
2001, A/CN.4/517, para 38, ‘obligations which operate in an all or nothing fashion’.
14 ARSIWA, art 50(1)(c).
15 On these issues, see D Alland, Justice privée et ordre juridique international (Paris, Pedone,
1994), 265–269 and 274–275, and L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris,
LGDJ, 1990), 351–360.
Forces in the Field, 12 August 1949, 75 UNTS 31, article 1; Geneva Convention II for the
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, 12 August 1949, 75 UNTS 85, art 7; Geneva Convention III Relative to the Treatment of
Prisoners of War, 12 August 1949, 75 UNTS 135, art 13; Geneva Convention IV Relative to the
Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, art 8.
17 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection
of Victims of International Armed Conflicts (‘Additional Protocol I’), 8 June 1977, 1125 UNTS 3, art
20.
19 See above, S Borelli & S Olleson, Chapter 84.
20 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, paras
92–95. For a general study on the problem of erga omnes obligations, see D Alland, Justice privée
et ordre juridique international (Paris, Pedone, 1994), 350–371, and their relationship with
peremptory norms, G Gaja, ‘Obligations Erga omnes, International Crimes and Jus cogens:
Tentative Analysis of Three Related Concepts’, in JHH Weiler, A Cassese, M Spinedi, & A de Gruyter
(eds), International Crimes of States: a Critical Analysis of the ILC’s Draft Article 19 on State
Responsibility (Berlin, De Gruyter, 1989), 151–160; AJJ de Hoogh, ‘The Relationship between Jus
cogens, Obligations Erga omnes and International Crimes: Peremptory Norms in Perspective’ (1991)
AJPIL 183.
21 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, para 95.
22 Ibid, para 93.
23 See J Crawford, First Report on State Responsibility, 1998, A/CN.4/490, paras 87–88 and J
Crawford, Second Report on State Responsibility, 1999, A/CN.4/498, para 372; and see also above,
J Crawford, Chapter 29.
24 Commentary to art 48, paras 6, 8, and 9.
25 ARSIWA, art 48(1)(a).
27 Report of the ILC, 48th Session, ILC Yearboook 1996 Vol II(2), 1, 67.
28 Report of the ILC, 44th Session, ILC Yearbook 1992, Vol II(2), paras 241–244 and J Crawford,
Fourth Report on State Responsibility, 2001, A/CN.4/517, para 49, noting that ‘there is at the very
least a large area of overlap between them’ and that ‘the two substantially overlap’.
30 ARSIWA, art 48(1)(a).
31 D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 229–230, Ch
Leben, ‘Contre-mesures’, Répertoire international Dalloz (Paris, Dalloz, 1998), n 58; L-A Sicilianos,
Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 88–97.
32 See measures adopted by the United States against Uganda in 1978, measures adopted by
western countries against the Soviet Union in the aftermath of the Afghan invasion (December
1979) and later after the events in Poland (1981), etc. See cases mentioned in the Commentary to
art 54, para 3; D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 68–
76; L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 156–169.
33 J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507/Add.4, paras 391–394 and
34 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, paras
57–69, and W Riphagen, Fourth Report on State Responsibility ILC Yearbook 1983, Vol II(1), 3, para
84 (on the prohibition of military reprisal ‘which is in itself another international crime can never be
justified even in response to an international crime committed by another State’).
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).
36 R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, 115–122.
37 ILC Yearbook 1979, Vol II(1), 44, (para 93).
38 J Crawford, ‘The Relationship between Sanctions and Countermeasures’, in V Gowlland-Debbas
(ed) United Nations sanctions and international Law (The Hague, Kluwer, 2001), 57.
39 On sanctions in the context of the universal organization, see J Combacau, Le pouvoir de
sanction de l’O.N.U. Etude théorique de la coercition non militaire (Pedone, Paris, 1974); see also
28ème Colloquium SFDI, Le chapitre VII de la Charte des Nations unies (Paris, Pedone, 1994); 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’ (1993) 97 RGDIP 297.
40 Report of the ILC, 44th Session, ILC Yearbook 1992, Vol II(2), para 250 and G Arangio-Ruiz,
Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, paras 70–77.
41 See above, Y Iwasawa & N Iwatsuki, Chapter 81.
42 On the latter, see L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990),
248–253; L Boisson de Chazournes, Les contre-mesures dans les relations internationales
économiques (Geneva/Paris, IUHEI, Pedone, 1992), 152–156; OY Elagab, The Legality of Non-
Forcible Counter-measures in International Law (Oxford, Clarendon Press, 1988), 190–213; WM
Reisman & DL Stevick, ‘The applicability of international standards to United Nations economic
sanctions programs?’ (1998) 9 EJIL 86.
44 See above, C Gray, Chapter 42.1 on restitution and R O’Keefe, Chapter 82 on proportionality;
see also D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 294–296.
45 ARSIWA, art 35(b).
46 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection
of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3.
47 E/C.12/1997/8, 5 December 1997, para 1.
Responsibility, Ch.86 Other Non-Derogable
Obligations
Laurence Boisson de Chazournes


ISBN: 9780199296972
Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — Reprisals — Diplomatic relations
(p. 1205) Chapter 86 Other Non-Derogable Obligations
1 Countermeasures and diplomatic law 1206
2 Countermeasures and measures of economic and political coercion 1209
3 Countermeasures and international protection of the environment 1211
The topic of prohibited countermeasures requires consideration of those norms from which no
derogation is permitted. What is at issue is the intransgressible character of certain norms, or
whether they belong to the category of peremptory norms (jus cogens). Equally, prohibited
countermeasures raises the issue of the relationship between, on the one hand, the general rules
of State responsibility, and on the other, the specific rules which a given treaty or group of treaties
may enunciate in relation to their violation. According to Special Rapporteur Arangio-Ruiz:
this problem seems to arise in the presence of those treaty-based systems or combinations
of systems which tend to address, within their own contractual or special framework, the
legal regime governing a considerable number of relationships among the States parties,
including in particular the consequences of any breaches of the obligations of States
parties under the system. Such consequences include, in some cases, special, sometimes
institutionalized, measures against violations. It follows that such systems may, to some
extent, affect, with varying degrees of explicitness, the faculté of States parties to resort to
the remedial measures which are open to them under general international law.1
The notion of ‘self-contained’ regimes has been evoked in this regard. According to Special
Rapporteur Riphagen, the notion of ‘self-contained regimes’ can be conceived as ‘an ordered set
of conduct rules, procedural rules and status provisions, which [form] a closed legal circuit for a
particular field of factual relationships’.2 Within such a system, primary and secondary rules are
closely intertwined. The notion is understood differently by Bruno Simma, who uses the expression
‘self-contained regime’ in a narrower and more precise sense to designate a category of sub-
systems, namely those comprising, in principle, a complete (exhaustive and defined) collection of
secondary rules. A ‘self-contained regime’ would thus be:
(p. 1206) a subsystem which is intended to exclude more or less totally the application of
the general legal consequences of wrongful acts, in particular the application of the
countermeasures normally at the disposal of an injured party.3
In the course of its work, the ILC has equally used other criteria in addressing the issue of
prohibited countermeasures, relating to the content or nature of the norms. Without attempting to
elaborate a general theory of prohibited countermeasures, one can nevertheless identify certain
elements which appear to be crucial for determining the illegality of resort to certain measures as
countermeasures in diplomatic law (Section 1); in the field of economic and political coercion
(Section 2); and in the area of the environment (Section 3). This analysis complements studies
made by other authors concerning the prohibition of countermeasures in the jus ad bellum,
international humanitarian law and international human rights law, and within particular
conventional frameworks, whether the WTO or the European Union.
1 Countermeasures and diplomatic law

Pursuant to article 50(2) of ARSIWA:
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.
It follows that any countermeasures which do not respect the right to inviolability of the person,
premises, documents and archives of diplomatic and consular agents would be illegal under article
50. The provision must be assessed in the light of the statements of the International Court of
Justice in United States Diplomatic and Consular Staff in Tehran. The Court observed that:
the rules of diplomatic law, in short, 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. These means are, by their nature, entirely efficacious,
for unless the sending State recalls the member of the mission objected to forthwith, the
prospect of the almost immediate loss of his privileges and immunities, because of the
withdrawal by the receiving State of his recognition as a member of the mission, will in
practice compel that person, in his own interest, to depart at once.4
Article 50 ARSIWA codifies customary international law in this regard. Countermeasures may no
more derogate from the inviolability of the diplomatic mission than from that of diplomatic agents.
According to the Court:
… there is no more fundamental requisite for the conduct of relations between States than
the invio lability of diplomatic envoys and embassies, so that throughout history nations of
all creeds and cultures have observed reciprocal obligations for that purpose; and … the
obligations thus assumed, notably those for assuring the personal safety of diplomats and
their freedom from prosecution, are
References
(p. 1207) essential, unqualified, and inherent in their representative character and their
diplomatic function … the institution of diplomacy, with its concomitant privileges and
immunities, has withstood the test of centuries and proved to be an instrument essential for
effective co-operation in the international community, and for enabling States, irrespective
of their differing constitutional and social systems, to achieve mutual understanding and to
resolve their differences by peaceful means.5
The inviolability of a diplomatic mission in substance means the inviolability of the premises of the
mission6 and of the goods, furniture, archives and documents of the mission.7 The inviolability of
diplomatic agents means the inviolability of their person.8 Article 50 also takes into account the
inviolability of consular posts and agents.9
The academic literature supports the view that countermeasures are unlawful if taken in violation of
international obligations destined to ensure the protection of diplomatic and consular personnel or
of heads of State. According to Oppenheim:
… individuals, such as heads of state and diplomatic envoys, who enjoy the privilege of
extraterritoriality when abroad must not be the object of reprisals, although that has indeed
occurred on occasion in practice.10
Diplomatic agents cannot be subjected to reprisals, whether against their person or their
possessions, by a nation which has received them in the capacity of envoys (legati), since they
have placed themselves and their possessions under its protection in good faith.11 Examples of
authors who contest the existence of a rule of general international law condemning such acts are
rare.12 Some reason that norms of international law cannot be subject to countermeasures by
virtue of their jus cogens character.13 Others believe the explanation lies in the peculiar nature of
14
the law of diplomatic relations, in that this body of rules is a ‘self-contained regime’.14 This position
was defended by Special Rapporteur Riphagen in his Fourth Report on the ‘Content, Forms and
Degrees of International Responsibility’.15 According to Riphagen:
[a]part from the exclusion of specific reprisals by a universal rule of jus cogens, and the
exclusion of specific reprisals by an objective régime (otherwise than in case of a breach
of such objective régime), there may be cases of exclusion of specific reprisals even
where no extra-State interests are involved.
References
(p. 1208) A typical example is the case of diplomatic immunities. It would seem, however,
that this is a case which does not lend itself to generalization within the context of the
inadmissibility of specific reprisals. Indeed, the case seems rather within the scope of a
deviation from the general rules concerning the legal consequences of internationally
wrongful acts, implicitly provided for at the time the primary relationship is established.16
However, in the view of Reuter:
[t]he Court had perhaps been unwise to refer, in that connection, to a ‘self-contained
régime’, an expression which had been interpreted by some as meaning that, in response
to the violation by a State of rules concerning privileges and immunities, the injured State
could only break off diplomatic relations or declare certain persons non grata … in so far
as more general obligations such as humanitarian obligations were not involved, the
injured 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 a 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 régime of privileges
and immunities did not seem to be particularly self-contained.17
The problem is determining the threshold of legality of countermeasures in diplomatic law, in other
words, knowing from what moment and in response to what acts a State may adopt
countermeasures, and a contrario, to determine the nature and content of acts which are
unacceptable by way of countermeasure in the field of diplomatic relations. International practice
demonstrates that not all forms of reprisals exercised against diplomats are considered
impermissible. It would be difficult to characterize as illegal measures adopted with a view to
restraining the freedom of movement of diplomatic envoys.18 Rather, the category of prohibited
countermeasures targets those adopted against diplomatic envoys which are directed against the
physical person of diplomats, and which thereby breach the rule of personal inviolability.19
According to Sicilianos:
there is undoubtedly an irreducible core of diplomatic law having a peremptory character—

the inviolability of the person of diplomatic agents, the inviolability of premises and
archives—which is thereby impervious to countermeasures. Conversely, there are other
obligations which do not appear to be binding in all cases and which could, admittedly with
all precaution, form the object of proportionate countermeasures.20
In 1992, several members of the ILC observed that the breaking-off of diplomatic relations was a
very effective countermeasure which was often resorted to in practice, both on the bilateral level
(cessation or suspension of diplomatic relations, non-recognition of governments, recall of
ambassadors or of the diplomatic mission en bloc, declarations of persona non grata) and on the
multilateral level.21 They also emphasized that there was no reason to prohibit reciprocal measures
within the framework of diplomatic law which concerned, for instance, restrictions on the freedom of
movement of diplomatic agents. It followed that recourse to countermeasures in this area should
22
not be prohibited, but rather considerably limited.22 The ILC followed this path in the Articles as
finally adopted.
(p. 1209) 2 Countermeasures and measures of economic and

political coercion
In the Draft Articles adopted in 1995 (there seems to have been no specific provision on economic
and political coercion before this date), the ILC incorporated a provision providing that an injured
State may not resort, by way of countermeasures, to ‘extreme economic or political coercion
designed to endanger the territorial integrity or political independence of the State which has
committed an internationally wrongful act …’.23 Article 50 of the Articles as finally adopted makes
no mention of the illegality of countermeasures adopted by way of economic and political coercion.
In truth this issue gave rise to much equivocation within the ILC.24 It is of interest to retrace certain
elements of the debate so as to evaluate the impact of the ILC’s silence on this matter.
In 1979 the ILC provided for the possibility for a State to resort to economic and political
countermeasures.25 However, in the commentary adopted in 1995, the ILC indicated that:
[a] great variety of forms of economic or political measures are frequently resorted to and
are considered admissible as countermeasures against internationally wrongful acts. Their
admissibility, however, is not totally exempt from restriction since extreme economic or
political measures may have consequences as serious as those arising from the use of
armed force.26
The threshold of seriousness27 required in order for an economic or political measure to be judged
illegal, namely that of ‘extreme’ economic or political coercion, bears witness to a movement which
tended to approximate such measures to countermeasures involving the use of force. This appears
clearly from the ILC’s Commentaries, which themselves seem oriented in favour of a broad
interpretation of the notion of use of force. According to the ILC, State practice, although not going
so far as to permit the conclusion that certain forms of economic or political coercion are
equivalent to forms of armed aggression, nonetheless reveals a distinct and very clear trend
towards limiting the ability of States to resort to economic or political measures.28
However, the ILC limited its assessment of the illegality of economic and political countermeasures
by drawing on the principle of non-intervention. To this end it evoked a
References
(p. 1210) certain number of international and regional instruments condemning recourse to
economic and political coercion which breaches the principle of non-intervention. In this vein, the
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection
of their Independence and Sovereignty adopted by the UN General Assembly affirmed that:
No State may use or encourage the use of economic, political or any other type of
measures to coerce another State in order to obtain from it the subordination of the
exercise of its sovereign rights or to secure from it advantages of any kind.29
Similarly, the Charter of the Organization of American States prohibits States from using ‘coercive
measures of an economic or political character in order to force the sovereign will of another State
and obtain from it advantages of any kind’,30 and in the same way, the Helsinki Final Act of the
Conference on Security and Co-operation in Europe provides that all participating States should:
in all circumstances refrain from any other act of military, or of political, economic or other
coercion designed to subordinate to their own interest the exercise by another
participating State of the rights inherent in its sovereignty and thus to secure advantages
31
of any kind.31
In the same manner, the ICJ has recognized the illegality of economic measures in the context of
the principle of non-intervention principle in the Military and Paramilitary Activities in and against
Nicaragua case. According to the Court:
… [a] State is not bound to continue particular trade relations longer than it sees fit to do
so, in the absence of a treaty commitment or other specific legal obligation; but where
there exists such a commitment, of the kind implied in a treaty of friendship and commerce,
such an abrupt act of termination of commercial intercourse as the general trade embargo
of 1 May 1985 will normally constitute a violation of the obligation not to defeat the object
and purpose of the treaty.32
Special Rapporteur Arangio-Ruiz explained that, unlike the general prohibition of armed
countermeasures in all circumstances, the prohibition on economic or political coercion concerned
only ‘non-armed measures with specifically reprehensible aims, such as the ‘subordination of the
exercise of [the target State’s] sovereign rights’, or the effort to secure ‘advantages of any kind’.33
The condemnation of coercive measures other than those consisting of the threat or use of force
therefore targets only those economic or political measures destined to cause very grave, if not
catastrophic, consequences for the target state. Such consequences are not necessarily different
to those which may result from an illegal use of force. It is this which has led certain authors to
dispute that the distinction between the two prohibitions—of recourse to the use of force, and of
recourse to extreme economic or political coercion—is valid in practice.
References
(p. 1211) Is the absence of any reference to the unlawfulness of certain economic and political
countermeasures in article 50 indicative of an intention to assimilate the prohibition of recourse to
measures of economic and political coercion to that of countermeasures involving the threat or use
of force? In this regard, it may be argued that this follows from the fact that during the discussions
leading to the adoption of the first reading draft in 1996, the members of the ILC enthusiastically
adopted article 50(b) which addressed measures of economic or political coercion.34 However, it
should also be recalled that in Military and Paramilitary Activities in Nicaragua, the Court used the
generic concept of force to refer to the economic measures taken by the US against Nicaragua.35 It
may equally be asked whether the absence of any reference to the prohibition of such measures
might not indicate a desire to exclude extreme measures of economic and political coercion from
the field of prohibited countermeasures. On balance, the better view appears to be that economic
and political countermeasures may be illegal if they are aimed at coercing a State to subordinate
the exercise of its sovereign rights or its independence.36
3 Countermeasures and international protection of the

environment
Article 50 of ARSIWA makes no mention of the possible illegality of countermeasures by reason of
potential damage to the environment. The Gabčíkovo-Nagymaros Project case has, however, shed
light on some aspects of the question which deserve mention. During the course of the
proceedings before the Court, Slovakia argued that Hungary’s decision to suspend, then to
abandon, the construction of the works had made it impossible for Czechoslovakia to carry out the
construction work as originally envisaged by the 1977 Treaty, and that the latter thus was entitled
to resort to a solution as close as possible to the original design.37 Slovakia equally maintained that
Czechoslovakia had been under an obligation to mitigate the damage resulting from Hungary’s
illegal acts. It argued that a State which is confronted by the illegal act of another State is bound to
minimize its losses, and thus reduce the damages claimable from the responsible State.38 The
damages claimed by Slovakia were nonetheless considerable, taking into account the investments
made and the extra damage, economic as much as ecological, which would have resulted from
leaving the works at Dunakiliti/Gabčíkovo unfinished and from the non-operation of the system; on
this basis it was argued that Czechoslovakia had not only a right, but was even under an
obligation, to put Variant C into action. Although Slovakia had asserted that Czechoslovakia’s
conduct had been lawful, it maintained, as a secondary argument, that, even were the Court to find
otherwise, the putting into action of Variant C could be justified as a countermeasure.
Was such a ‘countermeasure’ lawful? In answering that question, the Court enumerated the
conditions to be satisfied in relation to the recourse to countermeasures, including the condition
according to which the ‘effects of a countermeasure must be commensurate with the injury
suffered, taking account of the rights in question’.39 It concluded that the
References
(p. 1212) countermeasure was unlawful by reason of the fact that it deprived Hungary of its right to
a fair and reasonable share of the natural resources of the Danube. The Court thus favoured an
economic approach, without attaching much importance to an ecological approach to
proportionality.40 It was only in an incidental and rather timid manner that the Court considered that
the unilateral diversion of the Danube could have continuing effects on the ecology of the riparian
region of Szigetköz.41 The judicial body adopted a classic approach to assessment of the impact of
countermeasures, one which is certainly important, but nevertheless is somewhat limited, given the
way in which international environmental law is currently developing and taking root in the
international legal system.
Could it nevertheless be argued that countermeasures disturbing the ecological and ecosystemic
balance of a given area are prohibited? Can countermeasures be permitted to have negative
repercussions on the environment? In other words, above and beyond the issue of proportionality
or potential reversibility, could it not be envisaged that there are measures prone to damage the
environment which cannot be taken in any circumstances?
Having found Slovakia’s countermeasure to be illegal by reason of its disproportionality, the Court
went on to hold that it did not need to rule on further conditions on which the legality of
countermeasures depends, namely that the latter must have the aim of encouraging the
responsible state to carry out its obligations under international law, and that the measure must
consequently be ‘reversible’.42 However, the issue of ‘reversibility’ could have provided the Court
with an opportunity to hold that countermeasures having an impact on the environment are
unlawful. After all, the particular and substantial characteristic of much environmental damage is its
irreversibility.
The restrictive list as set out in article 50 ARSIWA does not take into account all of the complexity of
the system of countermeasures. Scientific uncertainty in environmental matters makes it necessary
to rethink the criteria of validity or legality of countermeasures according to different paradigms.43
One is led to the conclusion that the uncertainty which might surround the risks and effects of a
countermeasure on the environment could be a factor in assessing the inadmissibility of a
countermeasure. In this context the precautionary principle could act as a framework norm which
would oblige all States to refrain from adopting in any significant way countermeasures which would
threaten the environment and human health.44
References
(p. 1213) In this context, the notion of ‘collective/multilateral treaties’ appears to be another
relevant criterion for comprehending the applicability of countermeasures in the environmental
field. This category of treaties highlights the notion of ‘collective interests’.45 The traditional
approach, bearing the imprint of bilateralism, is ill-adapted to the subject of the environment
because it places countermeasures in a closed relational procedure, limited to the
injured/responsible State relationship.46 The protection of the environment demands the
incorporation of an open relational process, that is to say, one which takes into account in the
taking of countermeasures the damage which could affect States other than the State breaching its
international obligation due to the relationship between the different components of the
environment in areas under the jurisdiction of a State (the notion of ecosystem thus calls into
question again the compartmentalized view of the regime of countermeasures, in favour of a global
vision), but also, and above all, because of the necessity and obligation to preserve the
environment as a common good or as a common interest of mankind. As early as his 1970 report
on State Responsibility, Special Rapporteur Ago argued that:
whilst in all cases an internationally wrongful act creates a new relationship between the
guilty state and the injured state … new problems present themselves once one considers
that the new legal relationship may extend not only to the guilty state but to other states
and to international organizations; thus, a state committing an internationally wrongful act
can assume responsibilities towards all states.47
Although Ago’s analysis is interesting, it is nevertheless limited; it does not take into account the
fact that the injured State, in taking countermeasures, can cause damage to other States not guilty
of the original wrongful act, and thus engage its responsibility towards these States. This concern is
ever-present in relation to the category of multilateral treaties.48
Thus the assessment of the legality of a response to a violation of international law by way of
countermeasures cannot be limited to the relationship between the States responsible for, or
injured by, the violation. It must reflect the global dimension of the relationship between the injured
State, the State committing the violation and other States which could be injured by a
countermeasure. For instance, in the Nuclear Tests cases, New Zealand sought to draw a
distinction between France’s violation of erga omnes obligations (prohibition of nuclear
experiments causing radioactive fallout, prohibition of unjustified contamination resulting from
artificial radioactivity of the terrestrial, maritime or aerial environment) and France’s violation of
New Zealand’s own rights (violation of territorial integrity, harm to the health of its population,
infringement of its navigational freedom, etc).49
References
(p. 1214) Although it does not prohibit countermeasures completely, the environmental law regime
imposes additional conditions to the procedural framework governing their exercise. For example,
obligations to notify and consult other States beforehand, or indeed to obtain authorization from a
collective body, or to undertake studies of environmental impact may be applicable, although it
may be envisaged that some adjustments may have to be made to the procedure. These remarks
contribute to the broadening of the scope of conditions for validity of countermeasures, and thus to
the restriction of recourse to them.50
Further reading
D Anzilotti, Corso di diritto internazionale (Padova, CEDAM, 1955)
économiques (Paris, Pedone, 1992)
P Cahier, Le droit diplomatique contemporain (2nd edn, Geneva, Droz, 1964)
B Conforti, Diritto internazionale (3rd edn, Naples, Scientifica, 1990)
OY Elagab, The Legality of non-forcible countermeasures in International Law (Oxford,
A de Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto
internazionale (Milan, Giuffré, 1995)
L Oppenheim, International Law: A Treatise, vol II, Disputes, War and Neutrality (7th edn, H
Lauterpacht (ed), London, Longmans, Green and Co, 1948)
L-A Sicilianos, Les réactions décentralisées à l’illicite- Des contre-mesures à la légitime
T Twiss, On The Rights and Duties of Nations in Time of Peace, vol. I, The Law of Nations
(considered as Independent Political Communities) (London, OUP, 1984)
L Boisson de Chazournes, ‘Economic Countermeasures in an Interdependent World’ (1995)
89 ASIL Proceedings 337
L Boisson de Chazournes, ‘La mise en œuvre du droit international dans le domaine de la
protection de l’environnement: Enjeux et défis’ (1995) 99 RGDIP 37
D Bowett, ‘Economic Coercion and Reprisals by States’ (1972) 13 Virginia Journal of
International Law 1
Ch Dominicé, ‘Reprisals and diplomatic law’ in Recht als Prozess und Gefüge, Festschrift für
Hans Huber (Berne, Stampfli, 1981), 547.
F Lattanzi, ‘Sanzioni internazionale’, in Enciclopedia del diritto (Milan, Giuffré, 1958), 536
H Röling, ‘Aspects of the case concerning United States diplomats and consular staff in
Tehran’ (1980) Netherlands Yearbook of International Law 125
K Sachariew, ‘State responsibility for multilateral treaty violations: Identifying the “injured
State” and its legal status’ (1988) Netherlands International Law Review 273
I Seidl-Hohenveldern, ‘The United Nations and Economic Coercion’ (1984–1985) 18 Revue
Belge de droit international 9
G White, ‘Legal Consequences of Wrongful Acts in International Economic Law’ (1985) 32
NYIL 137
Footnotes:
1 G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 25.
3 B Simma, ‘Self-contained Regimes’ (1985) Netherlands Yearbook of International Law 111, 115–
116; and see further above, B Simma & D Pulkowshi, Chapter 13.
5 Ibid, 19 (paras 38–39).
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’.
9 See arts 31 and 41, Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261.
10 L Oppenheim, International Law: A Treatise, vol. II, Disputes, War and Neutrality (7th edn, H
Lauterpacht (ed), London, Longmans, Green and Co, 1948), Vol II, p 140.
11 T Twiss, On The Rights and Duties of Nations in Time of Peace, vol I, The Law of Nations
(considered as Independent Political Communities) (Oxford, London, 1984), 39; see also P Cahier,
Le droit diplomatique contemporain (2nd edn, Geneva, Droz, 1964), 2; Ch Dominicé, ‘Reprisals
and diplomatic law’, in Recht als Prozess und Gefüge, Festschrift für Hans Huber (Berne, Stampfli,
1981), 547.
12 D Anzilotti, Corso di diritto internazionale (Padova, CEDAM, 1955), vol III, 167. See, in the same
sense, B Conforti, Diritto internazionale (3rd edn, Napoli, Scientifica, 1990), 360–361.
13 H Röling, ‘Aspects of the Case concerning United States Diplomats and Consular Staff in
Tehran’ (1980) Netherlands Yearbook of International Law 125, 147.
14 See eg F Lattanzi, ‘Sanzioni internazionali’, in Enciclopedia del diritto (Milan, Giuffré, 1958),
544–547; OY Elagab, The Legality of Non-forcible Countermeasures in International Law (Oxford,
Clarenden Press, 1988), 116ff.
15 W Riphagen, Fourth Report on State Responsibility, ILC Yearbook 1983, Vol II (1), 3.
16 Ibid, 17.
18 A de Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto internazionale
(Milan, Giuffré, 1995), 282.
19 Ibid, 283.
20 L-A Sicilianos, Les réactions décentralisées à l’illicite- Des contre-mesures à la légitime
défense (Paris, LGDJ, 1990), 351.
22 Ibid.
23 Draft art 14(b), Report of the ILC, 47th Session, ILC Yearbook 1995, Vol II(2), 66.
24 See G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 31–32,
which gives a brief account of the different doctrinal opinions concerning the illegality of particular
economic and political measures. See also G Arangio-Ruiz, Fourth Report on State Responsibility,
ILC Yearbook 1992, Vol II(1), 28–30 which examines the state practice concerning the admissibility
of economic and political countermeasures.
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
27 According to the ILC, ‘the prohibition of economic or political coercion by way of
countermeasures contained in subparagraph (b) is based on the extreme nature of the measures
as determined by the seriousness of their potential consequences in terms of endangering “the
territorial integrity or political independence” of the State concerned’, Report of the ILC, 47th
Session, ILC Yearbook 1995, Vol II(2), 70.
28 D Bowett, ‘Economic Coercion and Reprisals by States’ (1972) 13 Virginia Journal of
International Law 1, 2–3; I Seidl-Hohenveldern, ‘The United Nations and Economic Coercion’
(1984–85) 18 Revue Belge de droit international 9, 11; L Boisson de Chazournes, Les contre-
mesures dans les relations internationales économiques (Paris, Pedone, 1992), 148–156.
29 GA Res 2131(XX); see also the Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States (GA Res 2625(XXV)), which proclaims ‘[n]o State
may use or encourage the use of economic, political or any other type of measures to coerce
another State in order to obtain from it the subordination of the exercise of its sovereign rights and
to secure from it advantages of any kind’.
30 Art 20, Charter of the Organization of American States, 27 February 1967, 119 UNTS 3.
31 Principle VI, Final Act of the Conference on Security and Co-operation in Europe, signed at
Helsinki, 1 August 1975, 14 ILM 1292.
32 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of
33 G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 29.
34 See ILC Yearbook 1996, Vol I, 135.
35 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of
America), Merits, ICJ Reports 1986, p 14, 107–110.
36 L Boisson de Chazournes, ‘Economic Countermeasures in an Interdependent World’ (1995)
ASIL Proceedings 340–341.
38 Ibid, 51–52 (paras 68–69).
39 Ibid, 56 (para 85).
40 See also the Separate Opinion of Judge Bedjaoui: ‘In any case, Variant C is not a
countermeasure whose illegality can be excused. It is not proportionate, because from the outset it
deprives Hungary of the waters of the Danube, a shared resource, and of all right to involvement in
a common investment provided for by the treaty of 1977’, ibid, 134 (para 52).
41 Ibid, 56 (para 85).
42 Ibid, 56 (para 87).
43 In his separate opinion, Judge Weeramantry explained that ‘The protection of the environment
is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous
human rights such as the right to health and the right to life itself. It is scarcely necessary to
elaborate on this, as damage to the environment can impair and undermine all the human rights
spoken of in the Universal Declaration and other human rights instruments. While, therefore, all
peoples have the right to initiate development projects and enjoy their benefits, there is likewise a
duty to ensure that those projects do not significantly damage the environment’: ibid, 91–92.
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.
45 In this regard, see K Sachariew, ‘State responsibility for multilateral treaty violations: identifying
the “injured State” and its legal status’ (1988) 35 Netherlands International Law Review 273.
According to Sachariew, ‘multilateral treaties play an increasingly important role in the structure
and process of present-day international law. They have proved to be a flexible, multi-purpose
instrument for finding a common denominator to the interests of a growing number of States and co-
ordinating the international effort for dealing with global problems facing mankind. There is a
growing awareness that the traditional bilateralist approach is inadequate for the solution of
problems such as the maintenance of international peace and security, ensuring world-wide
respect for human rights, democratizing international economic relations, preserving the human
environment, etc.’
46 L Boisson de Chazournes, ‘The State of State Responsibility’ (2002) 96 ASIL Proceedings, 171–
172.
47 R Ago, Second Report on State Responsibility, ILC Yearbook 1970, Vol II, 177, 193.
48 See L-A Sicilianos, above Chapter 80.
49 Nuclear Tests (New Zealand v France), Interim Protection, ICJ Reports 1973, p 135, 139 (para
23).
50 See L Boisson de Chazournes, ‘La mise en oeuvre du droit international dans le domaine de la
protection de l’environnement: Enjeux et défis’ (1995) 99 RGDIP 37–76.
Appendix 2 Articles on Responsibility of States for
Internationally Wrongful Acts (2001)
Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett
(Assistant)


ISBN: 9780199296972
(p. 1229) Appendix 2 Articles on Responsibility of States for Internationally Wrongful

Acts (2001)
Part One The Internationally Wrongful Act of a State
Chapter I General Principles
Article l Responsibility of a State for its internationally wrongful acts

State.
Article 2 Elements of an internationally wrongful act of a State

omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.
Article 3 Characterization of an act of a State as internationally wrongful

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.
Chapter II Attribution of Conduct to a State
Article 4 Conduct of organs of a State

1 . 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.
2 . An organ includes any person or entity which has that status in accordance with the
internal law of the State.
Article 5 Conduct of persons or entities 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 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.
Article 6 Conduct of organs placed at the disposal of a State by another State

The conduct of an organ placed at the disposal of a State by another State shall be
placed.
Article 7 Excess of authority or contravention of instructions

authority or contravenes instructions.
(p. 1230) Article 8 Conduct directed or controlled by a State

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.
Article 9 Conduct carried out in the absence or default of the official

authorities
international law if the person or group of persons 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.
Article 10 Conduct of an insurrectional or other movement

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.
Article 11 Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless
be considered an act of that State under international law if and to the extent that the State
acknowledges and adopts the conduct in question as its own.
Chapter III Breach of an International Obligation
Article 12 Existence of a breach of an international obligation

conformity with what is required of it by that obligation, regardless of its origin or character.
Article 13 International obligation in force for a State

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.
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 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.
Article 15 Breach consisting of a composite act

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.
(p. 1231) Chapter IV Responsibility of a State in Connection With the Act of

Another State
Article 16 Aid or assistance in the commission of an internationally wrongful

act
act; and
Article 17 Direction and control exercised over the commission of an

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:
act; and
Article 18 Coercion of another State

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.
Article 19 Effect of this chapter

This chapter is without prejudice to the international responsibility, under other provisions
of these articles, of the State which commits the act in question, or of any other State.
Chapter V Circumstances Precluding Wrongfulness
Article 20 Consent
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.
Article 21 Self-defence
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.
Article 22 Countermeasures in respect of an internationally wrongful act

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 taken against the latter State in accordance with chapter II of part three.
Article 23 Force majeure

1 . The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the act is due to force majeure, that is the occurrence of an
irresistible force or of an unforeseen event, beyond the control of the State, making it
materially impossible in the circumstances to perform the obligation.
2 . Paragraph 1 does not apply if:
(a) The situation of force majeure is due, either alone or in combination with other factors,
to the conduct of the State invoking it; or
(b) The State has assumed the risk of that situation occurring.
(p. 1232) Article 24 Distress

1 . The wrongfulness of an act of a State not in conformity with an international obligation
of that State is precluded if the author of the act in question has no other reasonable way,
in a situation of distress, of saving the author’s life or the lives of other persons entrusted
to the author’s care.
(a) The situation of distress is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or
(b) The act in question is likely to create a comparable or greater peril.
Article 25 Necessity
1 . 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:
(a) Is the only way 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
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 26 Compliance with peremptory norms

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.
Article 27 Consequences of invoking a circumstance precluding wrongfulness

The invocation of a circumstance precluding wrongfulness in accordance with this chapter
is without prejudice to:
(a) Compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) The question of compensation for any material loss caused by the act in question.
Part Two Content of the International Responsibility of a State
Article 28 Legal consequences of an internationally wrongful act

The international responsibility of a State which is entailed by an internationally wrongful
act in accordance with the provisions of part one involves legal consequences as set out
in this part.
Article 29 Continued duty of performance

The legal consequences of an internationally wrongful act under this part do not affect the
continued duty of the responsible State to perform the obligation breached.

(a) To cease that act, if it is continuing;
(b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.
1 . The responsible State is under an obligation to make full reparation for the injury caused
by the internationally wrongful act.
wrongful act of a State.
(p. 1233) Article 32 Irrelevance of internal law

The responsible State may not rely on the provisions of its internal law as justification for
failure to comply with its obligations under this part.
Article 33 Scope of international obligations set out in this part
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.
Chapter II Reparation for Injury
Article 34 Forms of reparation

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, in accordance
with the provisions of this chapter.
Article 35 Restitution
A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.
Article 36 Compensation
1 . The State responsible for an internationally wrongful act is under an obligation to
restitution.
profits insofar as it is established.
Article 37 Satisfaction
1 . 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.
2 . Satisfaction may consist in an acknowledgement of the breach, an expression of regret,
a formal apology or another appropriate modality.
3 . Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible State.
Article 38 Interest
1 . Interest on any principal sum due under this chapter 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.
2 . Interest runs from the date when the principal sum should have been paid until the date
the obligation to pay is fulfilled.
Article 39 Contribution to the injury

In 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.
(p. 1234) Chapter III Serious Breaches of Obligations under Peremptory Norms
of General International Law

1 . 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 responsible State to fulfil the obligation.
Article 41 Particular consequences of a serious breach of an obligation under

this chapter
1 . States shall cooperate to bring to an end through lawful means any serious breach
within the meaning of article 40.
2 . 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.
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.
Part Three The Implementation of the International Responsibility of

a State
Chapter I Invocation of the Responsibility of a State
Article 42 Invocation of responsibility by an injured State

(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
Article 43 Notice of claim by an injured State

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:
(a) The conduct that the responsible State should take in order to cease the wrongful act,
if it is continuing;
(b) What form reparation should take in accordance with the provisions of part two.
Article 44 Admissibility of claims

(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
Article 45 Loss of the right to invoke responsibility

(a) The injured State has validly waived the claim;
(b) The injured State is to be considered as having, by reason of its conduct, validly
acquiesced in the lapse of the claim.
(p. 1235) Article 46 Plurality of injured States

Article 47 Plurality of responsible States

1 . Where several States are responsible for the same internationally wrongful act, the
2 . Paragraph 1:
(a) Does not permit any injured State to recover, by way of compensation, more than the
damage it has suffered;
(b) Is without prejudice to any right of recourse against the other responsible States.
Article 48 Invocation of responsibility by a State other than an injured State

1 . Any State other than an injured State is entitled to invoke the responsibility of another
(a) The obligation breached is owed to a group of States including that State, and is
(b) The obligation breached is owed to the international community as a whole.
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 non-
(b) Performance of the obligation of reparation in accordance with the preceding articles,
in the interest of the injured State or of the beneficiaries of the obligation breached.
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.
Chapter II Countermeasures
Article 49 Object and limits of countermeasures

1 . An injured State may only take countermeasures against a State which is responsible
for an internationally wrongful act in order to induce that State to comply with its obligations
under part two.
2 . Countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.
3 . Countermeasures shall, as far as possible, be taken in such a way as to permit the
resumption of performance of the obligations in question.
Article 50 Obligations not affected by countermeasures
(a) The obligation to refrain from the threat or use of force as embodied in the Charter of
the United Nations;
(b) Obligations for the protection of fundamental human rights;
(c) Obligations 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.
Article 51 Proportionality
(p. 1236) Article 52 Conditions relating to resort to countermeasures

1 . Before taking countermeasures, an injured State shall:
(a) Call upon 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 1 (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 suspended 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
4 . Paragraph 3 does not apply if the responsible State fails to implement the dispute
settlement procedures in good faith.
Article 53 Termination of countermeasures

Countermeasures shall be terminated as soon as the responsible State has complied with
its obligations under part two in relation to the internationally wrongful act.
Article 54 Measures taken by States other than an injured State

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
Part Four General Provisions
Article 55 Lex specialis

Article 56 Questions of State responsibility not regulated by these articles

The applicable rules of international law 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.
Article 57 Responsibility of an international organization

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.
Article 58 Individual responsibility

These articles are without prejudice to any question of the individual responsibility under
international law of any person acting on behalf of a State.
Article 59 Charter of the United Nations

These articles are without prejudice to the Charter of the United Nations.
Appendix 3 Articles on Diplomatic Protection (2006)
(Assistant)


ISBN: 9780199296972
(p. 1237) Appendix 3 Articles on Diplomatic Protection (2006)
Part One General Provisions
Article 1 Definition and scope

For the purposes of the present draft articles, diplomatic protection consists of the
invocation by a State, through diplomatic action or other means of peaceful settlement, of
the responsibility of another State for an injury caused by an internationally wrongful act of
that State to a natural or legal person that is a national of the former State with a view to the
implementation of such responsibility.
Article 2 Right to exercise diplomatic protection

A State has the right to exercise diplomatic protection in accordance with the present draft
articles.
Part Two Nationality
Article 3 Protection by the State of nationality

1 . The State entitled to exercise diplomatic protection is the State of nationality.
2 . Notwithstanding paragraph 1, diplomatic protection may be exercised by a State in
respect of a person that is not its national in accordance with draft article 8.
Chapter II Natural Persons
Article 4 State of nationality of a natural person

For the purposes of the 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.
Article 5 Continuous nationality of a natural person

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.
(p. 1238) Article 6 Multiple nationality and claim 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.
Article 7 Multiple nationality and claim against a State of nationality

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 presentation of the
claim.
Article 8 Stateless persons and refugees

1 . A State may exercise diplomatic protection in respect of a stateless person who, at the
date of injury and at the date of the official presentation of the claim, is lawfully and
habitually resident in that State.
2 . A State may exercise diplomatic protection in respect of a person who is recognized as
a refugee by that State, in accordance with internationally accepted standards, when that
person, at the date of injury and at the date of the official presentation of the claim, is
lawfully and habitually resident in that State.
3 . Paragraph 2 does not apply in respect of an injury caused by an internationally
wrongful act of the State of nationality of the refugee.
Chapter III Legal Persons
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.
Article 10 Continuous nationality of a corporation

1 . A State is entitled to exercise diplomatic protection in respect of a corporation that was
a national of that State, or its predecessor 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 . A State is no longer entitled to exercise diplomatic protection in respect of a corporation
that acquires the nationality of the State against which the claim is brought after the
presentation of the claim.
3 . Notwithstanding paragraph 1, 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.
Article 11 Protection of shareholders

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
(b) The corporation had, at the date of injury, the nationality of the State alleged to be
precondition for doing business there.
(p. 1239) Article 12 Direct injury to shareholders

To the extent that an internationally wrongful act of a State causes direct injury to the
rights of 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.
Article 13 Other legal persons

The principles contained in this chapter shall be applicable, as appropriate, to the
diplomatic protection of legal persons other than corporations.
Part Three Local Remedies
Article 14 Exhaustion of local remedies

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 judgement 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.
Article 15 Exceptions to the local remedies rule

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 was 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.
Part Four Miscellaneous Provisions
Article 16 Actions or procedures other than diplomatic protection

The rights of States, natural persons, legal persons or other entities to resort under
international law to actions or procedures other than diplomatic protection to secure
redress for injury suffered as a result of an internationally wrongful act, are not affected by
the present draft articles.
Article 17 Special rules of international law

The present draft articles do not apply to the extent that they are inconsistent with special
rules of international law, such as treaty provisions for the protection of investments.
Article 18 Protection of ships’ crews

The right of the State of nationality of the members of the crew of a ship to exercise
diplomatic protection is not affected by the right of the State of nationality of a ship to seek
redress on behalf of such crew members, irrespective of their nationality, when they have
been injured in connection with an injury to the vessel resulting from an internationally
wrongful act.
Article 19 Recommended practice

A State entitled to exercise diplomatic protection according to the present draft articles,
should:
(p. 1240) (a) Give due consideration to the possibility of exercising diplomatic protection,
especially when a significant injury has occurred;
(b) Take into account, wherever feasible, the views of injured persons with regard to
resort to diplomatic protection and the reparation to be sought; and
(c) Transfer to the injured person any compensation obtained for the injury from the
responsible State subject to any reasonable deductions.
Appendix 4 Articles on Responsibility of International
Organizations adopted by the International Law
Commission on first reading (2009)
(Assistant)


ISBN: 9780199296972
(p. 1241) Appendix 4 Articles on Responsibility of International Organizations

adopted by the International Law Commission on first reading (2009)
Part One Introduction
Article 1 Scope of the present draft articles

1 . The present draft articles apply to the international responsibility of an international
organization for an act that is wrongful under international law.
2 . The present draft articles also apply to the international responsibility of a State for the
internationally wrongful act of an international organization.
Article 2 Use of terms

For the purposes of the present draft articles,
(a) “International organization” means an organization established by a treaty or other
instrument governed by international law and possessing its own international legal
personality. International organizations may include as members, in addition to States,
other entities;
(b) “Rules of the organization” means, in particular, the constituent instruments,
decisions, resolutions and other acts of the organization adopted in accordance with those
instruments, and established practice of the organization;
(c) “Agent” includes officials and other persons or entities through whom the organization
acts.
Part Two The Internationally Wrongful Act of an International

Organization
Article 3 Responsibility of an international organization for its internationally

wrongful acts
Every internationally wrongful act of an international organization entails the international
responsibility of the international organization.
Article 4 Elements of an internationally wrongful act of an international

organization
There is an internationally wrongful act of an international organization when conduct
consisting of an action or omission:
(a) Is attributable to the international organization under international law; and
(b) Constitutes a breach of an international obligation of that international organization.
Chapter II Attribution of Conduct to an International Organization
Article 5 General rule on attribution of conduct to an international

organization
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 . Rules of the organization shall apply to the determination of the functions of its organs
and agents.
Article 6 Conduct of organs or agents placed at the disposal of an

international organization by a State or another international organization
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 (p. 1242) international law an act of the latter organization if the organization
exercises effective control over that conduct.
Article 7 Excess of authority or contravention of instructions

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.
Article 8 Conduct acknowledged and adopted by an international organization

as its own
Conduct which is not attributable to an international organization under the preceding draft
articles shall nevertheless be considered an act of that international organization under
international law if and to the extent that the organization acknowledges and adopts the
conduct in question as its own.
Chapter III Breach of an International Obligation
Article 9 Existence of a breach of an international obligation

1 . There is a breach of an international obligation by an international organization when
an act of that international organization is not in conformity with what is required of it by
that obligation, regardless of its origin and character.
2 . Paragraph 1 includes the breach of an international obligation that may arise under the
rules of the organization.
Article 10 International obligation in force for an international organization
An act of an international organization does not constitute a breach of an international
obligation unless the international organization is bound by the obligation in question at the
time the act occurs.
Article 11 Extension in time of the breach of an international obligation

1 . The breach of an international obligation by an act of an international organization not
having a continuing character occurs at the moment when the act is performed, even if its
effects continue.
2 . The breach of an international obligation by an act of an international organization
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 breach of an international obligation requiring an international organization 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.
Article 12 Breach consisting of a composite act

1 . The breach of an international obligation by an international organization through a
series of actions and 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.
Chapter IV Responsibility of an International Organization in connection with

the Act of a State or another International Organization
Article 13 Aid or assistance in the commission of an internationally wrongful

act
An international organization which aids or assists a State or another international
organization in the commission of an internationally wrongful act by the State or the latter
organization is internationally responsible for doing so if:
(a) That organization does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) The act would be internationally wrongful if committed by that organization.
(p. 1243) Article 14 Direction and control exercised over the commission of an
An international organization which directs and controls a State or another international
organization in the commission of an internationally wrongful act by the State or the latter
organization is internationally responsible for that act if:
(a) That organization does so with knowledge of the circumstances of the internationally
wrongful act; and
(b) The act would be internationally wrongful if committed by that organization.
Article 15 Coercion of a State or another international organization

An international organization which coerces a State or another international organization 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 or international organization; and
(b) The coercing international organization does so with knowledge of the circumstances
of the act.
Article 16 Decisions, authorizations and recommendations addressed to

member States and international organizations
1 . An international organization incurs international responsibility if it adopts a decision
binding a member State or international organization to commit an act that would be
internationally wrongful if committed by the former organization and would circumvent an
international obligation of the former organization.
2 . An international organization incurs international responsibility if:
(a) It authorizes a member State or international organization to commit an act that would
be internationally wrongful if committed by the former organization and would circumvent
an international obligation of the former organization, or recommends that a member State
or international organization commit such an act; and
(b) That State or international organization commits the act in question because of that
authorization or recommendation.
3 . Paragraphs 1 and 2 apply whether or not the act in question is internationally wrongful
for the member State or international organization to which the decision, authorization or
recommendation is directed.
Article 17 Responsibility of an international organization member of another

international organization
Without prejudice to articles 13 to 16, the international responsibility of an international
organization that is a member of another international organization also arises in relation to
an act of the latter under the conditions set out in articles 60 and 61 for States that are
members of an international organization.
Article 18 Effect of this chapter

This chapter is without prejudice to the international responsibility of the State or
international organization which commits the act in question, or of any other State or
Chapter V Circumstances Precluding Wrongfulness
Article 19 Consent
Valid consent by a State or an international organization to the commission of a given act
by another international organization precludes the wrongfulness of that act in relation to
that State or the former organization to the extent that the act remains within the limits of
that consent.
Article 20 Self-defence
The wrongfulness of an act of an international organization is precluded if and to the extent
that the act constitutes a lawful measure of self-defence under international law.
(p. 1244) Article 21 Countermeasures

1 . Subject to paragraph 2, the wrongfulness of an act of an international organization not
in conformity with an international obligation towards a State or another international
organization is precluded if and to the extent that the act constitutes a countermeasure
taken in accordance with the substantive and procedural conditions required by
international law, including those set forth in Chapter II of Part IV for countermeasures taken
against another international organization.
2 . An international organization may not take countermeasures against a responsible
member State or international organization under the conditions referred to in paragraph 1
unless:
(a) The countermeasures are not inconsistent with the rules of the organization; and
(b) No appropriate means are available for otherwise inducing compliance with the
obligations of the responsible State or international organization concerning cessation of
the breach and reparation.
Article 22 Force majeure

1 . The wrongfulness of an act of an international organization not in conformity with an
international obligation of that organization is precluded if the act is due to force majeure,
that is, the occurrence of an irresistible force or of an unforeseen event, beyond the
control of the organization, making it materially impossible in the circumstances to perform
the obligation.
(a) The situation of force majeure is due, either alone or in combination with other factors,
to the conduct of the organization invoking it; or
(b) The organization has assumed the risk of that situation occurring.
Article 23 Distress
1 . The wrongfulness of an act of an international organization not in conformity with an
international obligation of that organization is precluded if the author of the act in question
has no other reasonable way, in a situation of distress, of saving the author’s life or the
lives of other persons entrusted to the author’s care.
(a) The situation of distress is due, either alone or in combination with other factors, to the
conduct of the organization invoking it; or
(b) The act in question is likely to create a comparable or greater peril.
Article 24 Necessity
1 . Necessity may not be invoked by an international organization as a ground for
precluding the wrongfulness of an act not in conformity with an international obligation of
that organization unless the act:
(a) Is the only means for the organization to safeguard against a grave and imminent peril
an essential interest of the international community as a whole when the organization has,
in accordance with international law, the function to protect that interest; and
(b) Does not seriously impair an essential interest of the State or States towards which the
2 . In any case, necessity may not be invoked by an international organization as a ground
for precluding wrongfulness if:
(a) The international obligation in question excludes the possibility of invoking necessity;
or
(b) The organization has contributed to the situation of necessity.
Article 25 Compliance with peremptory norms

Nothing in this chapter precludes the wrongfulness of any act of an international
organization which is not in conformity with an obligation arising under a peremptory norm
of general international law.
(p. 1245) Article 26 Consequences of invoking a circumstance precluding

wrongfulness
The invocation of a circumstance precluding wrongfulness in accordance with this chapter
is without prejudice to:
(a) Compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) The question of compensation for any material loss caused by the act in question.
Part Three Content of the International Responsibility of an

International Organization
Article 27 Legal consequences of an internationally wrongful act

The international responsibility of an international organization which is entailed by an
internationally wrongful act in accordance with the provisions of Part Two involves legal
consequences as set out in this Part.
Article 28 Continued duty of performance

The legal consequences of an internationally wrongful act under this Part do not affect the
continued duty of the responsible international organization to perform the obligation
breached.

The international organization 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 so
require.
1 . The responsible international organization is under an obligation to make full reparation
for the injury caused by the internationally wrongful act.
wrongful act of an international organization.
Article 31 Irrelevance of the rules of the organization

1 . The responsible international organization may not rely on its rules as justification for
failure to comply with its obligations under this Part.
2 . Paragraph 1 is without prejudice to the applicability of the rules of an international
organization in respect of the responsibility of the organization towards its member States
and organizations.
Article 32 Scope of international obligations set out in this Part

1 . The obligations of the responsible international organization set out in this Part may be
owed to one or more other organizations, to one or more 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
an international organization, which may accrue directly to any person or entity other than
a State or an international organization.
Chapter II Reparation for Injury
Article 33 Forms of reparation

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, in accordance
with the provisions of this chapter.
(p. 1246) Article 34 Restitution

An international organization responsible for an internationally wrongful act is under an
obligation to make restitution, that is, to re-establish the situation which existed before the
wrongful act was committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.
Article 35 Compensation
1 . The international organization 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.
profits insofar as it is established.
Article 36 Satisfaction
1 . The international organization 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.
2 . Satisfaction may consist in an acknowledgement of the breach, an expression of regret,
a formal apology or another appropriate modality.
3 . Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible international organization.
Article 37 Interest
1 . Interest on any principal sum due under this chapter 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.
2 . Interest runs from the date when the principal sum should have been paid until the date
the obligation to pay is fulfilled.
Article 38 Contribution to the injury

In 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 international organization or
of any person or entity in relation to whom reparation is sought.
Article 39 Ensuring the effective performance of the obligation of reparation

The members of a responsible international organization are required to take, in
accordance with the rules of the organization, all appropriate measures in order to provide
the organization with the means for effectively fulfilling its obligations under this chapter.
Chapter III Serious Breaches of Obligations under Peremptory Norms of

General International Law

1 . This chapter applies to the international responsibility which is entailed by a serious
breach by an international organization of an obligation arising under a peremptory norm
of general international law.
the responsible international organization to fulfil the obligation.
Article 41 Particular consequences of a serious breach of an obligation under

this chapter
1 . States and international organizations shall cooperate to bring to an end through lawful
means any serious breach within the meaning of article 40.
(p. 1247) 2 . No State or international organization 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.
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.
Part Four The Implementation of the International Responsibility of

an International Organization
Chapter I Invocation of the Responsibility of an International Organization
Article 42 Invocation of responsibility by an injured State or international

organization
A State or an international organization is entitled as an injured State or an injured
international organization to invoke the responsibility of another international organization
if the obligation breached is owed to:
(a) That State or the former international organization individually;
(b) A group of States or international organizations including that State or the former
international organization, or the international community as a whole, and the breach of the
obligation:
(i) Specially affects that State or that international organization; or
(ii) Is of such a character as radically to change the position of all the other States and
international organizations to which the obligation is owed with respect to the further
performance of the obligation.
Article 43 Notice of claim by an injured State or international organization

1 . An injured State or international organization which invokes the responsibility of another
international organization shall give notice of its claim to that organization.
2 . The injured State or international organization may specify in particular:
(a) The conduct that the responsible international organization should take in order to
cease the wrongful act, if it is continuing;
(b) What form reparation should take in accordance with the provisions of Part Three.
Article 44 Admissibility of claims
1 . An injured State may not invoke the responsibility of an international organization if the
claim is not brought in accordance with any applicable rule relating to nationality of claims.
2 . When a rule requiring the exhaustion of local remedies applies to a claim, an injured
State or international organization may not invoke the responsibility of another international
organization if any available and effective remedy provided by that organization has not
been exhausted.
Article 45 Loss of the right to invoke responsibility

The responsibility of an international organization may not be invoked if:
(a) The injured State or international organization has validly waived the claim;
(b) The injured State or international organization is to be considered as having, by
reason of its conduct, validly acquiesced in the lapse of the claim.
Article 46 Plurality of injured States or international organizations

Where several States or international organizations are injured by the same internationally
wrongful act of an international organization, each injured State or international
organization may separately invoke the responsibility of the international organization for
the internationally wrongful act.
Article 47 Plurality of responsible States or international organizations

1 . Where an international organization and one or more States or other organizations are
responsible for the same internationally wrongful act, the responsibility of each State or
international organization may be invoked in relation to that act.
2 . Subsidiary responsibility, as in the case of article 61, may be invoked insofar as the
invocation of the primary responsibility has not led to reparation.
(p. 1248) 3 . Paragraphs 1 and 2:
(a) Do not permit any injured State or international organization to recover, by way of
compensation, more than the damage it has suffered;
(b) Are without prejudice to any right of recourse that the State or international
organization providing reparation may have against the other responsible States or
international organizations.
Article 48 Invocation of responsibility by a State or an international

organization other than an injured State or international organization
1 . A State or an international organization other than an injured State or international
organization is entitled to invoke the responsibility of another international organization in
accordance with paragraph 4 if the obligation breached is owed to a group of States or
international organizations, including the State or organization that invokes responsibility,
and is established for the protection of a collective interest of the group.
2 . A State other than an injured State is entitled to invoke the responsibility of an
international organization in accordance with paragraph 4 if the obligation breached is
owed to the international community as a whole.
3 . An international organization other than an injured international organization is entitled
to invoke the responsibility of another international organization in accordance with
paragraph 4 if the obligation breached is owed to the international community as a whole
and safeguarding the interest of the international community underlying the obligation
breached is included among the functions of the international organization invoking
responsibility.
4 . A State or an international organization entitled to invoke responsibility under
paragraphs 1 to 3 may claim from the responsible international organization:
(a) Cessation of the internationally wrongful act, and assurances and guarantees of non-
(b) Performance of the obligation of reparation in accordance with Part Three, in the
interest of the injured State or international organization or of the beneficiaries of the
obligation breached.
5 . The requirements for the invocation of responsibility by an injured State or international
organization under articles 43, 44, paragraph 2, and 45 apply to an invocation of
responsibility by a State or international organization entitled to do so under paragraphs 1
to 4.
Article 49 Scope of this Part

This Part is without prejudice to the entitlement that a person or entity other than a State or
an inter national organization may have to invoke the international responsibility of an
Chapter II Countermeasures
Article 50 Object and limits of countermeasures

1 . An injured State or an injured international organization may only take countermeasures
against an international organization which is responsible for an internationally wrongful
act in order to induce that organization to comply with its obligations under Part Three.
2 . Countermeasures are limited to the non-performance for the time being of international
obligations of the State or international organization taking the measures towards the
responsible international organization.
3 . Countermeasures shall, as far as possible, be taken in such a way as to permit the
resumption of performance of the obligations in question.
4 . Countermeasures shall, as far as possible, be taken in such a way as to limit their
effects on the exercise by the responsible international organization of its functions.
(p. 1249) Article 51 Countermeasures by members of an international

organization
An injured State or international organization which is a member of a responsible
international organization may not take countermeasures against that organization under
the conditions set out in the present chapter unless:
(a) The countermeasures are not inconsistent with the rules of the organization; and
(b) No appropriate means are available for otherwise inducing compliance with the
obligations of the responsible organization under Part Three.
Article 52 Obligations not affected by countermeasures

(a) The obligation to refrain from the threat or use of force as embodied in the Charter of
the United Nations;
(b) Obligations for the protection of fundamental human rights;
(c) Obligations of a humanitarian character prohibiting reprisals;
(d) Other obligations under peremptory norms of general international law.
2 . An injured State or international organization taking countermeasures is not relieved
from fulfilling its obligations:
(a) Under any dispute settlement procedure applicable between the injured State or
international organization and the responsible international organization;
(b) To respect any inviolability of agents of the responsible international organization and
of the premises, archives and documents of that organization.
Article 53 Proportionality
Article 54 Conditions relating to resort to countermeasures

1 . Before taking countermeasures, an injured State or international organization shall:
(a) Call upon the responsible international organization, in accordance with article 43, to
fulfil its obligations under Part Three;
(b) Notify the responsible international organization of any decision to take
countermeasures and offer to negotiate with that organization.
2 . Notwithstanding paragraph 1 (b), the injured State or international organization may
take such urgent countermeasures as are necessary to preserve its rights.
3 . Countermeasures may not be taken, and if already taken must be suspended 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
4 . Paragraph 3 does not apply if the responsible international organization fails to
implement the dispute settlement procedures in good faith.
Article 55 Termination of countermeasures

Countermeasures shall be terminated as soon as the responsible international organization
has complied with its obligations under Part Three in relation to the internationally wrongful
act.
Article 56 Measures taken by an entity other than an injured State or

international organization
This chapter is without prejudice to the right of any State or international organization,
entitled under article 48, paragraphs 1 to 3, to invoke the responsibility of an international
organization, to take lawful measures against the latter international organization to ensure
cessation of the breach and reparation in the interest of the injured party or of the
(p. 1250) Part Five Responsibility of a State in connection with the Act of an
International Organization
Article 57 Aid or assistance by a State in the commission of an internationally

wrongful act by an international organization
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:
act; and
Article 58 Direction and control exercised by a State over the commission of
an internationally wrongful act by an international organization
A State which directs and controls an international organization in the commission of an
internationally wrongful act by the latter is internationally responsible for that act if:
act; and
Article 59 Coercion of an international organization by a State

A State which coerces an international organization 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 that
international organization; and
(b) That State does so with knowledge of the circumstances of the act.
Article 60 Responsibility of a member State seeking to avoid compliance

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
Article 61 Responsibility of a State member of an international organization

for the internationally wrongful act of that organization
1 . Without prejudice to articles 57 to 60, a State member of an international organization is
responsible for an internationally wrongful act of that organization if:
(a) It has accepted responsibility for that act; or
(b) It has led the injured party to rely on its responsibility.
2 . The international responsibility of a State which is entailed in accordance with
paragraph 1 is presumed to be subsidiary.
Article 62 Effect of this Part

This Part is without prejudice to international responsibility, under other provisions of these
draft articles, of the international organization which commits the act in question, or of any
other international organization.
Part Six General Provisions
Article 63 Lex specialis

responsibility of an international organization, or a State for an internationally wrongful act
of an international (p. 1251) organization, are governed by special rules of international
law, including rules of the organization applicable to the relations between the international
organization and its members.
Article 64 Questions of international responsibility not regulated by these

articles
The applicable rules of international law continue to govern questions concerning the
responsibility of an international organization or a State for an internationally wrongful act
to the extent that they are not regulated by these articles.
Article 65 Individual responsibility

These articles are without prejudice to any question of the individual responsibility under
international law of any person acting on behalf of an international organization or a State.
Article 66 Charter of the United Nations

These articles are without prejudice to the Charter of the United Nations.(p. 1252)
Index
James R Crawford


ISBN: 9780199296972
(p. 1253) Index

Abass, Ademola 447
accomplice, state as an 276–7, 307–8
accountability 50, 57, 134, 343–4, 351, 353
acknowledgment as reparation 986
acquiescence 1042–5
ARSIWA 1035–6, 1044–5, 1049
conduct amounting to acquiescence 1043–4
consent 444
definition 1035
estoppel 1044–5
extinctive prescription 1047–8
national laws 1036, 1044–5
non-recognition of an unlawful situation, obligation of 678
period of inaction 1043–4
relation to other concepts 1043, 1044–5
subsequent loss of claim 1036
substance of claims 1036
time limits 1043–4
Vienna Convention on the Law of Treaties 1044–5
waiver 1043, 1044
act of State defence 717
actio popularis by states on behalf of injured persons 997–1002
administrative tribunals 1116
advisory opinions 1080–1, 1123–4
African human rights mechanisms 775–88
African Charter on Human and Peoples’ Rights 318, 776–7, 784–5, 995, 1069–70
African Charter on the Rights and Welfare of the Child 776, 777
African Commission on Human and Peoples’ Rights 776–80, 782–8, 997
African Court on Human and Peoples’ Rights 776–7, 780–2, 786, 788
African Union, Constitutive Act of 775
Charter of OAU 775
children 776, 777
civil and political rights 776
collective rights 776
diplomatic protection 1069–70
economic, cultural and social rights 776
enforcement 777
implementation of protection 782–8
individuals 318
women 776, 777
African Commission on Human and Peoples’ Rights 776–80
admissibility 783–6
adversarial procedure 786
African Charter on Human and Peoples’ Rights 778, 782, 784–5
African Court of Justice and Human Rights 788
annulment of orders 787–8
Banjul Charter 784
communications, system of 778–80, 783–8
complaints communications 778–9
creation 776–7
examination of merits of communications 786–8
execution of judgments 788
exhaustion of domestic remedies 785
individual complaints 783–6
inter-state complaints 778–9, 783
legal aid 785
negotiation communications 778
non-governmental organizations (NGOs) 784
non-state entities, communications by 779
organization 777–8
provisional measures 783
reports, examination of 778–9
special rapporteurs 778
standing 783–4
African Court on Human and Peoples’ Rights 780–2, 788
African Commission on Human and Peoples’ Rights 782, 786
African Court of Justice and Human Rights, replacement with 781
Court of Justice of African Union, merger with 780–1
creation 776, 780
individual complaints 782
non-governmental organizations (NGOs) 781, 782
organization 781–2
sources of law 782
standing 782
women 777
agents
attribution 299–300
definition 299–300
international organizations 299–300, 1073–83
space law 904–6
state immunity 720–3
aggravated damages 667–70, 672–5
aggression
armed bands and criminal groups, attribution and 333–4, 341
erga omnes obligations 958
implication of state in act of another state, attribution and 287
international crimes 422, 424, 425
maintenance of international peace and security 125
seriousness of breach 422, 424, 425
UN Charter 124
UN Compensation Commission 849
waiver 1040–1, 1042
Ago, Roberto
‘Ago revolution’ 11, 76–87, 187–8
attribution 224, 232–3
individuals 262, 264, 268, 271–3, 276, 279–80
insurrectional movements 247, 251
(p. 1254) multiple states 285, 287
state organs 238–40, 246
case law, importance of 38, 42
character of breach 421–6
character of violated obligation 415–16
characteristics of international responsibility 11–12
circumstances precluding wrongfulness 429, 431, 432–4, 440–1, 446, 457, 459–60, 472, 476,
481, 486, 488, 494
consent 440–1, 446
content of obligations 375–7
contribution 640
countermeasures 472, 476, 1213
criminal responsibility of states 212–13, 703–6, 709, 710
contractual and tortious liability, distinction between 105
delict 105, 187, 1125
distress 481, 486, 488
doctrines of state responsibility 48–9
erga omnes obligations 1023, 1025, 1026
function of international adjudication 1125
García Amador, work of 73
Hague Conference of 1930 66–7
International Court of Justice (ICJ) 1117
international crimes 406, 673, 703–6, 709, 710
jus cogens 1202
legal consequences of state responsibility 537
liability in absence of an internationally wrongful act 504
national laws 183
necessity 494
non-assistance to responsible state, obligation of 687–8
omissions 361
peoples and minorities 994, 1000
primary and secondary rules 28–9, 30–1
private codification efforts 53, 56
punitive damages 673
reparation 563, 887
sanctions 1134
satisfaction 624, 629
self-defence 457, 459–60
situation, responsibility as a 1121
traditional definition of responsibility 8–9, 194
United Nations 117–18, 124–5, 133
aggravation
cooperation, obligation of 697
countermeasures 1152–3, 1154–5, 1160
criminal responsibility 14, 212–13
damages 605
international organizations 14
non-assistance to responsible state, obligation of 687, 692–3
aid or assistance, provision of 123, 285–7, 292, 307–8, 687–93
air pollution 523
aircraft or vessels, entry into territory of 485–6
Alland, Denis 706–7, 708–9
allocation of responsibility for acts not prohibited by international law 515–19
American human rights mechanisms see Inter-American human rights mechanisms
amicus curiae 349–50
Ammoun, André 1006
amnesties 249–50, 273, 275
Annan, Kofi 327
Antarctic Treaty 24, 517, 945
Anzilotti, Dionisio
attribution 237, 239, 265, 276
criminal responsibility 48
fault 209, 433–4
national laws 174
necessary corollary of international law 4, 5
necessity 492
satisfaction 626
self-defence 459
sanctions 125
apartheid
Apartheid Convention 327, 996
countermeasures 1147–8
crimes against humanity 998–9
individuals 327
non-recognition of an unlawful situation, obligation of 680–1, 683, 685–6
peoples and minorities 994, 996, 998–1001
reparation 989
apologies and statements of regret 538, 630, 633, 634–5
applicable law 350, 840–2, 851
Arangio-Ruiz, Gaetano 144–5, 194
assurances and guarantees of non-repetition 551, 553, 555–6
codification process 76, 80–3, 88
civil liability 13
contribution 644–5
cooperation 696
countermeasures 152, 472, 1120, 1128, 1142, 1150, 1161–2, 1180–1, 1186, 1197–201, 1205,
1210
criminal liability 13, 708, 712
damages 633, 673
derogations 140
erga omnes obligations 1026, 1199–201
European Community 148
International Court of Justice 1120
jus cogens 580
legal consequences of state responsibility 541, 542
moralism 81
non-assistance to responsible state, obligation of 689
reparation 109, 578, 580
sanctions 1203
transparency of the state 720
UN Charter 117–20, 127
arbitration 1107–14 see also ICSID arbitration; Iran-US Claims Tribunal
advantages 1108
American Arbitration Association (AAA) 615
ARSIWA 82–3, 1107–14
countermeasures 82–3, 937, 1109, 1110, 1111–12, 1150
diplomatic protection 1068
effectiveness, arbitral procedure as guarantee of 1110–11
foreigners and their property, damage to 70, 72
(p. 1255) insurrectional movements, attribution and 249, 253–5
interest 615
jurisdictionalization of settlement disputes 1109–11
jus cogens 1112
mandatory arbitration 1110, 1113
national laws 179
New York Convention 1958 841
non-governmental organizations 350
optional and mandatory arbitration 1110
precedent 40, 42
reparation 1107, 1109
Stockholm Convention on Conciliation and Arbitration 1992 1101
systemization of contentious dimension of responsibility 1109
time limits 1111
armed bands and criminal groups 331–41
armed conflicts see also Geneva Conventions
attribution 233–5
civil war and internal conflicts 233–4, 331–2
Hague Conventions on Laws and Customs of War 273
human rights obligations, breaches of 988
internal and international conflicts, distinction between 233–5
nuclear energy 924
reprisals 1188–9
self-defence 462–3
war crimes 233–5, 811–12
arrest 1080
ARSIWA (ILC Draft Articles on State Responsibility)
1996 text (first reading) App 1
2001 text (second reading) App 2
acquiescence 1035–6, 1044–5, 1049
adoption 75–92
allocation of responsibility for acts not prohibited by international law 518
arbitration 82–3, 1107–14
assurances and guarantees of non-repetition 540–3
attribution 202–9, 221–35
implication of state in act of another state 281–9
individuals 257–80
(p. 1256) insurrectional movements 247–65
multiple states 281–4, 289
assurances and guarantees of non-repetition 540–3, 551–61
background 75–92
breach of international obligations 123–4, 209–18, 415–26, 957–63
cessation 545–9
character of violated obligations 415–20
circumstances precluding wrongfulness 427–37 see also circumstances recluding
wrongfulness, consent, countermeasures, distress, force majeure, necessity, self-defence
codification process 41, 69–78, 81–6, 188
compensation 539–40, 599–611
compliance with obligation breached, states with an interest in 957–63
conciliation 1104
condemnation of breaches, function of 15
consent 439–47
continuing acts 384–90
contractual and tortious responsibility, distinction between 105–6, 109–10
contribution to injury 641
cooperation, obligation of 695–700
countermeasures 86, 106–7, 110–13, 469–73, 539, 931–2, 936–9
definition of countermeasures 1127
diplomatic law 1206–8
economic and political coercion 1209–10
environment 1211–12
erga omnes obligations, breach of 1138–9, 1142–8, 1199–201
human rights 1177–88, 1204
humanitarian law 1177–82, 1194–96
intrinsic unlawfulness 1131–2
procedural conditions 1149–55, 1170
prohibition of countermeasures 1197–8, 1206
proportionality 1157–67
provisional or interim measures 1172
time factor 1169–76
use of force 1203–4
criminal responsibility 49, 84–5, 106
damage requirement 23–4, 77–8
definition of responsibility in international law 8–9
definitive adoption of Articles 83–6
diplomatic protection 83, 88–90, 151–2, 1062, 1066–7, 1206–8
distress 481–9
duration of breach 383–93
environment 812–13, 1211–12
erga omnes obligations 957–60, 1024, 1027, 1138–9, 1142–8, 1199–201
exhaustion of domestic remedies 1062, 1066–7
extension of Articles 87–92
extinctive prescription 1035–6, 1046, 1049
force majeure 475–80
foreigners and their property, damage to 69–76
form of Articles 86–7
governmental authority in absence or default of state, exercise of 271–3
governmental authority, persons or entities exercising elements of 244–6
human rights 159–62, 726–8, 988, 1177–88, 1204
ICSID arbitration 817, 818–21, 829
implementation of state responsibility 932–9
individuals 257–80, 321, 985–91
injured state, concept of 933, 941–7
injurious consequences of acts not prohibited by international law, liability for 97–8
insurrectional movements 247–65, 847
Inter-American Court of Human Rights 727–8
Inter-American human rights mechanisms 727–8, 750–1
interest 614
international crimes 22, 187–8, 405–14, 703–14
international organizations 7, 969–82
internationally wrongful act, definition of an 193–218
intertemporal law, relevance of 397–403
invocation of responsibility 187–8, 932–4, 969–82
Iran-US Claims Tribunal 847, 848
jus cogens 449–52
legal consequences of state responsibility 537–44
liability in absence of an internationally wrongful act 503–19
maintenance of international peace and security 116–20, 122, 125–37
moralism 81
multiple states, attribution of conduct to 281–4, 289
national laws 173–7, 181
necessity 491–501
negotiations 1095–6
non-recognition of an unlawful situation, obligation of 678–86
notice of claim by injured states 1029–33
omissions 355–63
peoples and minorities 994, 999–1000
plurality of injured states 949-54
‘polluter pays’ principle 882
prevention 521–5
primary rules 27–33
private codification efforts 54–5
punitive damages 672–4
reparation 109–10, 563–86, 594–5, 613–36, 887–92, 931–2 see also reparation; compensation;
restitution; satisfaction division of reparation between responsible entities 649–52, 656–7
ICSID arbitration 829
restitution 574–86
secondary rules 27–33
self-contained regimes and lex specialis 139–40, 144–5
seriousness of breach 421–6
soft law 188
soft responsibility 166, 169, 171
source of obligations 365–8
space law 903
state succession 291–2, 965–7
sub-system of state responsibility, notion of 819–20
treaties 107–13
treaty, proposal for a 86–7
UN Charter 115–38
waiver 1035–6, 1038–41, 1049
working groups 84
WTO law 155–6, 792–3, 795, 797–800
assignment 1018–20
adequacy 559
ARSIWA 540–3, 551–61
autonomous consequences 555–7
cessation 551
circumstances requiring an offer of guarantees 557–9
continuing breaches 543
countermeasures 1144
customary international law 553, 555
European Convention on Human Rights 555
form of guarantees 559–61
general guarantees 559–60
International Covenant on Civil and Political Rights 555
jus cogens 558
legal consequences of state responsibility 540–3, 551–61
legal regime 557–9
necessity of guarantees 559
obligation of responsible state 552–5
primary obligations 574
reparations 551, 555–6, 573–4, 580
reviews and reconsideration of convictions and sentences 560–1
satisfaction 556–7
specific guarantees 559–60
state practice 553
Vienna Convention on Consular Relations 541–2, 559–61
attribution 202–9, 221–35 see also individuals, attribution and; international
organizations, attribution and
aid or assistance, provision of 285–7
another state, organs placed at state’s disposal by 204–5, 229
armed conflicts, distinction between international and non-international 233–5
ARSIWA 202–9, 221–35, 247–65, 281–9
bases of attribution 228–32
behalf of state, persons and entities acting on 206–8
breach of international obligations 210–11, 216–17
coercion 285, 288–9
complicity 258–9, 275–7, 284, 285–6
(p. 1257) consent 223, 443
constituent elements of an internationally wrongful act 200–2
constitutional law 223
contractual and tortious responsibility, distinction between 106
contribution to injury 641–3
control 206–8, 226, 229–31
crimes against humanity 254
criminal responsibility, preliminary question on 233–5
customary international law 204, 222–3, 228, 249
damage requirement 9
de facto exercise of governmental authority 203–7
definition 221
dependency, situations of 287–8
diplomatic protection 229–30, 249
direction, control or on instructions of an organ of the State 229, 285, 287-8
division of reparation between responsible entities 647, 649, 652, 653–4
double attribution 222
due diligence 208, 209, 232
economic coercion 288–9
European Union 862, 767–8
exceptional responsibility 253–5
force majeure 288
Geneva Conventions, 1977 Additional Protocols to 251–2
genocide 205, 234–5
governmental authority, persons or entities exercising elements of 203–6, 229, 237, 238, 244–6
human rights obligations, breaches of 726–8
humanitarian law 228
immunity 228
implication of state in act of another state 281–2, 284–9
imputation 202, 221, 233
incitement 285, 288
indirect responsibility 288
individual criminal responsibility 233–5, 254
individuals 233–5, 727–8
insurrectional movements 229, 231–2, 247–55
Inter-American human rights mechanisms 745–7, 754
international organizations 57–8, 221–2
International Tribunal for the former Yugoslavia 206–8, 230, 254
Iran-US Claims Tribunal 249, 255, 846–7
knowledge 288
legal personality 6
legal persons 202–3
lex specialis 203
military occupation 287, 288
multiple states, attribution of conduct to 281–4
necessity, agents of 229, 230–1
non-state actors 224
normative approach 225–8
omissions and acts 208–9, 356, 360–1
organs of state 203–6, 229–32, 237–47, 249, 254–5
parallel attribution 250–1
primary rules 225
private persons or groups outside structure of state 206–8
renvoi 49
reparation, division between responsible entities of 647, 649, 652, 653–4
representation 287
satisfaction 624
secession or decolonization 250, 251–2
significance of international responsibility 224
space law 905
state sovereignty 202–3
state succession 292
subjectivity 202
subject-matter jurisdiction 225
terminology 202, 233
terrorism 228
torture 254
treaty-making power 223
ultra vires acts 203, 223, 230
UN Charter 123
unilateral acts 222–3
war 203, 233–5
war crimes 233–5
Bagge, Algot 1064
Barboza, Julio 512, 707
Basdevant, Jules 61, 1121
Bastid, Suzanne 1079
Baxter, Richard Reeve 56
Bedjaoui, Mohammed 466, 781
belligerent reprisals 1188–95
Bennouna, Mohamed 82, 88, 1052
Bentham, Jeremy 726
Best Alternative to a Negotiated Agreement (BATNA) 1088
Beurier, Jean-Pierre 879
bilateral investment treaties (BITs) 1013, 1014–17
Blüntschli, Johann Kaspar 999
Bollecker-Stern, Brigitte see Stern, Brigitte
Borchard, Edwin M 1007
Bourquin, Maurice 183
breach of international obligations 209–18 see also seriousness of breach
aggravated criminal responsibility 212–13
ARSIWA 209–18, 383–93
attribution 210–11, 216–17
compensation 213
complex act or delict of state 393–5
composite or global act of state 391–3
contents of norms 214
continuing acts 153–4, 384–90
criminal responsibility 212–14
(p. 1258) customary international law 212, 417–18, 420
domestic laws 210–11
duration of breach 214–17, 383–95
exclusion of responsibility 217–18
existence of a breach 210–14
extension in time of a breach 214–17
fault 209–10
instantaneous or completed acts 384–6
intention 210
international crimes 212–13
International Tribunal for the Former Yugoslavia 214, 215–16
jus cogens 213–14, 216, 217
mass violations by dictatorial regimes 988–9
means and result, distinction between obligations of 395
moment and duration of breach 390–1
objectivity 202, 209–10
prevent a given event, obligation to 390–1
reparation 212–14, 218
seriousness of breach 84–6, 106, 420–6
sources of international obligations 211–12
temporal character 214–17
time of commission 214–17
treaties 212
Briggs, Herbert 28
Brownlie, Ian 365, 678
Brundtland Commission 512
Buergenthal, Thomas 327, 722, 1048
business and income-producing assets, valuation of 607–8
Cançado Trindade, Antônio 399
capital, earnings and interest, relationship between 610
‘Caroline’ incident 457–9, 463, 493, 495–6
case law see precedent
causal link
compensation 567, 601–2, 605
contribution to injury 639, 641–3
environment 805
European Court of Human Rights 770
European Union 865, 868, 871–2
force majeure 478
Inter-American human rights mechanisms 751
omissions 361
reparation 566–7, 569–70
soft responsibility 167
cessation 545–9
ARSIWA 545–9
character of obligations violated 416
compliance with obligation breached, states with an interest in 960
composite acts, meaning of 547
continuing breaches 388–90, 547–8
countermeasures 1144, 1151–2, 1159–60, 1163, 1170, 1173
customary international law 546
definition 292
denial of justice 547
force majeure 548
international organizations 972–4, 978
legal regime 548–9
omissions or acts 548
pacta sunt servanda 546
peoples and minorities 1000
restitution 548–9, 590
rule of law 545–6, 548–9
secondary rule 546, 548
single acts 548
WTO law 798
character of obligations violated 415–20
characteristics of international responsibility 11–15
Charter of Fundamental Rights of the EU 774
children 776, 777
choice of law 832–9
circumstances precluding wrongfulness see also consent, countermeasures, distress,
force majeure, necessity, self-defence
ARSIWA 427–37
clean hands doctrine 432
compensation 437, 888–91
consent 428, 430–1, 435–6, 439–47
countermeasures 427–8, 430, 436, 469–73
distress 428, 481–9
economic obligations, non performance of 432
fault 433–4
force majeure and fortuitous event 428, 433, 434–6, 475–80
jus cogens 428, 431, 449–53
necessity 428, 429–31, 434, 436, 491–501
non-performance 431–2, 434–5
objectivity 433, 434
reparation 887–93
repression of insurrections, riots or mob violence 428
self-defence 427–31, 434, 435–6, 455–66
subjectivity 433, 434
treaties 431–2
use of force, humanitarian protection and 432
validity 429
without prejudice clause 428
civil and political rights 765, 776 see also International Covenant on Civil and Political
Rights
civil war and internal armed conflicts 233–4, 331–2
civilians, reprisals targeting 1189–94, 1204
classification and characterization 20–4
cleans hand doctrine 432, 640, 641
(p. 1259) Code of Crimes Against the Peace and Security of Mankind (draft) (ILC)
(1996) 321, 812
codes of conduct 350–3
codification process
ARSIWA 41, 69–78, 81–6, 188
precedent 37–44
primary and secondary rules, distinction between 27–9, 32
coercion see also use of force
ARSIWA 1209–10
division of reparation between responsible entities 653, 654
economic coercion 288–9, 1209–10
force majeure 477
implication of state in act of another state, attribution and 285, 288–9
political coercion 1209–11
reparation, division between responsible entities of 653, 654
Cohen-Jonathan, G 981
Cold War 80
collateral action 464
collective action 696–7, 936, 938, 950–4, 1137–47, 1201
collective interests 24, 959, 961, 963, 1024–7
collective security 14, 116–19, 125–38, 462–3, 974
Collier, John 1086
colonialism 250–2, 999, 1001, 1147
Combacau, Jean 77, 209, 377, 707
communitarianism 15, 49, 51, 78, 81, 198
companies see corporations
compensation 539–40, 599–611 see also reparation
adequate, effective and prompt 97, 100–3, 581, 601–2, 1014
aggravated damages 605
allocation of responsibility for acts not prohibited by international law 102–4, 518–19
ARSIWA 539–40, 599–611
assessment 582, 586, 600, 602–10
breach of international obligations 213, 961
burden of proof 602–3, 610
business and income-producing assets, valuation of 607–8
case law 539
causal link 567, 601–2, 605
circumstances precluding wrongfulness 437, 888–91
common intention 576
concept of injured state 936
conciliation 1103
corporations, injuries to 1014
countermeasures 1144, 1158
currency, convertibility of 602
customary international law 599–600, 602
damages 573, 613, 617
debt claims 606
definition 599
directness 605
discrimination 101
division of reparation between responsible entities 652, 660
double compensation 610
economic loss 846, 848
environment 103, 604
Eritrea-Ethiopia Claims Commission 602–3
European Union 873–4
ex gratia compensation 888
expenses 604, 605
expropriation or nationalisation 583, 601–2, 604, 607
fair and equitable treatment 601
foreseeability 605
full reparation principle 600–2
general principles of law 600
HNS Convention 901
ICSID arbitration 607, 817, 829, 831
incidental losses 65
Inter-American human rights mechanisms 605, 751, 757–8, 986
interest 573, 602, 613, 616–17
international crimes 603, 704
inter-state claims 604
Iran-US Claims Tribunal 607, 846, 847–8
jurisdiction 600
Law of the Sea Convention 101
liability in absence of an internationally wrongful act 504–5, 511, 512
limitation of liability 323–4
loss of earnings 603–4
lost profits, valuation of 608–9
lump sums 1095
maritime law 896, 897–8, 900–1
material damage 601
mitigation 540
moral damage 599
nuclear energy 917, 919–20, 925–6
owner/operator liability 102
personal injury claims 603, 604–5
plurality of injured states 953
policy considerations 601–2
practical doctrines, emergence of 603–4
primacy 601
primary obligation 599–601
priority 581–2, 585–6
property claims 606–10
proportionality 579
proximity 605
psychological harm 604–5
public policy implications of valuations 610
(p. 1260) reparation, division between responsible entities of 652, 660
restitution 574–82, 585–6, 590, 593, 596, 601
Rio Declaration 101
satisfaction 573, 578, 581, 631, 633–5
secondary obligations 599–600
small claims 602–3
soft law 100–1
soft responsibility 167–8
space law 911, 912
standard of proof 602–3
UN Compensation Commission 103, 602, 604, 605 607
valuation of property 103, 606–10
Victim’s Trust Fund of International Criminal Court 603
WTO law 798, 801
competition 320, 862–4, 866, 878
complex act or delict of state 393–5
complicity 258–9, 275–7, 285–6, 308, 311, 359
composite or global act of state 391–3
compromis 40, 1118–19, 1122
concessions, suspension of 157–8, 798–800
conciliation 1099–1104, 1150
condemnations 632
consent 439–47 see also circumstances precluding wrongfulness
ARSIWA 439–47
attribution 223, 443
circumstances precluding wrongfulness 428, 430–1, 435–6, 439–47
damage requirement 29–30
effects of consent 445–7
express consent 442
fault 441–3
force majeure 444
ICSID arbitration 833–4, 837, 840
jus cogens 49, 446–7
limits of consent, behaviour within 444–5
military occupation 443
presumed consent 442
primary rule 440–1, 446
prior consent 443–4
prosecutions 718–19
reparation 440
restitution 892
secondary rule 29–30
validity 441–5
Vienna Convention on the Law of Treaties 441–3, 446
volenti non fit injuria 439–40
waiver or acquiescence 444
will of state, limits of 443–5
conservatory measures 1121
consular relations see also Vienna Conventions on Diplomatic and Consular Relations
consultation 350–1, 1097
continuing acts
ARSIWA 384–90
assurances and guarantees of non-repetition 543
cessation 388–90, 547–8
European Commission of Human Rights 387–8
European Court of Human Rights 386, 388, 389
individuals, attribution and 275
instantaneous acts 388–9
Inter-American human rights mechanisms 750–1
maintenance of an illegal situation 386
precedent 43
prevention 522
refusal to perform obligation of continuing character 386
continuous nationality 89, 965, 1018–20, 1060–1
contractual obligations 105–6, 109–10, 416, 833, 838, 863, 867, 873
contractual and tortious responsibility, distinction between 105–6
contribution to injury 570, 639–45, 936
control
attribution 206–8, 226, 229–31, 268–71, 285, 287–8, 298–302, 314
division of reparation between responsible entities 654, 659–60
effective control 268–71, 229–302
global control 269
implication of state in act of another state, attribution and 285, 287–8
individuals, attribution and 268–71
International Criminal Tribunal for the former Yugoslavia 269–70
international organizations 298–302, 309–10, 314
organs of state 229
overall control 269–71
proof 270–1
reparation, division between responsible entities of 654, 659–60
United Nations 299–300
convictions and sentences, review and reconsideration of 560–1, 584–5, 592–3, 595
Conway, Gerard 153
aggravated regime of responsibility 697
ARSIWA 695–700
assurances and guarantees on non-repetition 698
cessation 22–3, 697–8
collective action 696–7
erga omnes obligations 696, 699, 700
environment 808, 809
Genocide Convention 699–700
injured states, invocation by 697–8
injurious consequences of acts not prohibited by international law, liability for 96
(p. 1261) international law, basis in 698–9
jus cogens 695–8
lawful means 697–8
NATO 700
non-assistance 696
non-recognition 696
regional organizations, cooperation with 350
self-defence 698
solidarity and neutrality 700
terrorism 700
undertakings for cooperation and consultation 350–1
United Nations 697, 698–700
corporations
active legal personality 7–8
assignment of claims 1018–20
basic rule 1006–12
bilateral investment treaties 1013, 1014–17
compensation, prompt, adequate and effective 1014
continuous nationality 1018–20
corporate seat approach to nationality 1008–10, 1057–60
customary international law 1005–7, 1012, 1060
diplomatic protection 1005–12, 1015–16, 1019, 1057–8
dividends 1012–13
dual nationality 1009
extraterritoriality 19–20
fair and equitable treatment standard 1014–15
foreign companies 1007
full protection and security standard 1014
groups of companies 1017–18
ICSID Convention 1012, 1015–16, 1019–20
ILC Articles on Diplomatic Protection (2006) 1009, 1012, 1019, 1057–60
implementation of state responsibility 939
incorporation approach to nationality 1008–9
injuries to corporations 1005–20
International Criminal Court 19
International Criminal Tribunal for Rwanda 19
International Criminal Tribunal for the former Yugoslavia 19
Iran-US Claims Tribunal 1019
limits of basic rule 1010–12
locus standi 1018, 1020
minority shareholders 1013–17
most—favoured—nation treatment 1014
multinationals 19, 327–9, 353
national states, claims by 1006–7
national treatment standard 1014
nationality
continuous 1018–20
determinination of 1006–10
diplomatic protection 1006–10, 1057–60
groups of companies 1016
shareholders 1019
passive legal personality 7–8
shareholders, rights of 850–1, 1007, 1010, 1012–16, 1019, 1057–60
subjects of international law 18–20
treaties 1005, 1018
unincorporated businesses 1010
Cosmos 954 incident 604n, 908, 911n, 912–13
Cot, Jean-Pierre 1104
Cottereau, Gilles 77
abuse 82, 86, 1149–50, 1160, 1170
admissibility 962
aggravation of dispute, principle of non 1152–3, 1154–5, 1160
American Convention on Human Rights 1184
apartheid 1147–8
arbitration 82–3, 937, 1109–12, 1150
armed conflicts 1188–92
armed reprisals and pacific reprisals 1130
ARSIWA 86, 106–7, 110–13, 469–73, 931–2, 936–9
definition of countermeasures 1127
erga omnes obligations, breach of 1138–9, 1142–8, 1199–201
human rights 1177–88, 1204
assurances or guarantees of non-repetition 1144
burden of proof 1175
cessation 1144, 1151–2, 1159–60, 1163, 1170, 1173
circumstances precluding wrongfulness 427–8, 430, 436, 469–73
civilians, reprisals targeting 1189–94, 1204
coercion 1209–11
collective countermeasures 936, 938, 953–4, 1137–47, 1201
colonial or racist regimes 1147
compensation 1144, 1158
conciliation 1150
conditions 470, 937–8, 1149–55, 1170–6
court or tribunal, proceedings pending before 1173
cultural property 1190–2
customary international law 472–3, 1161–2, 1165
civilians, reprisals targeting 1189
diplomatic or consular inviolability 1206
erga omnes 1181, 1185–6
(p. 1262) humanitarian law 1191–6
reparation 1151
treaties 1133–4, 1181, 1199
decentralization 1140, 1202
derogations 1197–1214
definition 469, 1127–35, 1140
diplomatic or consular inviolability and dispute settlement 111–12, 1206–8
diplomatic law 111–12, 150–2, 1068, 1206–8
diplomatic relations, breaking off 1208
duration of countermeasures 1173–4
economic character 1147, 1186–7, 1203–4, 1209–11
erga omnes obligations 1137–48, 1164, 1180–2, 1185–6, 1195, 1199–1201
European Convention on Human Rights 1183–4
European Union 154–6, 893, 980, 1146
exceptions 111–13
general international law 1129, 1134, 1145
Geneva Conventions 1189–93, 1199, 1204
good faith 1153, 1173
human rights obligations 160–2, 1139, 1144, 1146, 1164–5, 1177–88, 1195, 1199, 1204
humanitarian law 1177–82, 1188–96, 1199
implementation of responsibility 13, 936–9
individuals, rights of 1164–5
injured state, concept of 1138–9
institutional and individual, links between 1140–2
Inter-American human rights mechanisms 745, 1184
International Court of Justice 1120–1
international crimes 706–7, 1140, 1143, 1200
international organizations 973–5, 979–82, 1134–5
internationally wrongful act, definition of an 200
jus cogens 111, 418, 982, 1139–40, 1147, 1182, 1195–205
large number of states with power to react 1138–40
lex specialis 144, 145, 149–50
limitation in time 1173–6
moral damage 1163
national liberation movements 1147–8
necessity 496, 1152–5
negotiations 1093, 1096, 1150–1, 1153, 1171–2
non-intervention, principle of 1209–10
notification 1151–2, 1154
objects, targeting 1190–1
pacific character of countermeasures 1130
peaceful settlement of disputes requirement 1149–50, 1152–4
plurality of injured states 953–4
positive rules 1188–9
primary rule 31–2
prisoners of war 1189
procedural conditions 937–8, 1149–55, 1170
prohibition of countermeasures 1197–1214
proportionality 470, 937, 954, 1110, 1144, 1154, 1157–67, 1175, 1212
provisional or interim measures 1151, 1154, 1169, 1172–3
punitive measures 706–7, 1162–3
quantitative and qualitative injury 1160–5
reciprocity 1131, 1132–4, 1158–9
Red Cross 1191
reparation 470, 568–9, 893, 1151, 1158–60, 1170
reprisals
civilians, targeting 1189–93, 1204
definition 1130
diplomatic agents 1207–8
Geneva Conventions 1189–93
humanitarian law 1181, 1188–94
procedural conditions 1149–50
use of force 1130
use of term 1130
restitution 1158, 1204
retaliation 471–2
retorsion 1131–2, 1145, 1186–7
reversibility 470, 1174–6, 1212
sanctions 126, 472, 1128, 1134–5, 1140–2, 1146, 1186–8, 1202–4
satisfaction 1158
secondary obligations 31–2, 1157, 1160, 1188
Security Council 134–5, 1135, 1137–8, 1140–4, 1147–8, 1202–3
self-contained regimes 144, 145, 149–50, 1205–7
self-determination, breach of right to 1144
single peremptory norms and reinforced peremptory norms 1202–3
sources of controversy 1138–42
starting point, temporal requirement for 1169–72
state control 1134–5
states other than an injured state 49, 938, 1138–9, 1163–4, 1201
Subsidies and Countervailing Measures (SCM) Agreement 1166–7
suspension of countermeasures 1173
suspension of human rights obligations, prohibition of 1182–6
termination 1176
tertiary or sub-secondary rules 32
treaties 110–13, 1132–4, 1154, 1178–81, 1183–7, 1199, 1213
triggers 1129
UN Charter 123–4, 1140–2, 1146, 1149–50, 1152, 1171, 1202
unilateral character 1129
unlawfulness 1131–2
urgent countermeasures 1151, 1154–5, 1172
(p. 1263) use of force 937, 1130, 1202–4, 1209–10
Vienna Convention on the Law of Treaties 111–13, 1132–3, 1178–9
WTO law 156–8, 798–801, 1166–7
Crawford, James
Anglo-Saxon process 217
assurances and guarantees of non-repetition 551, 552–3
attribution 224, 229, 231, 238, 262–3, 265–7, 269, 271–3, 275, 280
circumstances precluding wrongfulness 427–30, 432, 435, 440–1, 456, 460, 464, 470–1, 476,
481–4, 487–8, 498
codification process 76–8, 81–6, 188
consent 430, 440–1, 445–6
content of the obligation 375
cooperation 696
countermeasures 470–1, 476, 1145–6, 1181–2, 1200–1
distress 481–4, 487–8
division of reparation between responsible entities 656–7
erga omnes obligations 959, 1023–4, 1200–1
force majeure 476
injured state, concept of 942
integral obligations, breach of 945
international organizations, invocation of responsibility by 975, 977–8, 980
jus cogens 1198
necessity 498
non-assistance to responsible state, obligation of 689, 693
pacific settlement of disputes 1121
reparation 890–2
self-contained regimes 144–6
self-defence 430, 456, 460, 464
serious breaches 106
systematic policy 39–2
crime see criminal responsibility; international crimes
crimes against humanity 249–50, 998–9
criminal responsibility
aggravated responsibility 14, 212–13
amnesties 249–50, 273, 275
arrest 1080
ARSIWA 49, 84–5, 106
attribution 233–5, 254, 258, 269–70, 277
breach of international obligations 212–14
civil liability 22, 106
crimes against humanity 249–50, 998–9
criminal groups 331–41
definition of responsibility in international law 11, 12–15
delictual responsibility 78, 106
dualism 277
extradition 943–4
genocide 18
hierarchy of norms 48–9
individuals 8, 132, 233–5, 254, 258, 269–70, 277, 321–2, 327–8
insurrectional movements, attribution and 254
International Criminal Tribunal for the former Yugoslavia 269–70
punitive damages 48–9, 669–70
Security Council 132
serious breaches 84–6, 106
terminology 85
Torture Convention 862
cultural development 995
currency, convertibility of 602
customary international law
allocation of responsibility for acts not prohibited by international law 97–104, 516, 518
armed bands and criminal groups 331, 334, 337
assurances and guarantees of non-repetition 553, 555
attribution 204, 222–3, 228
armed bands and criminal groups 331, 334, 337
insurrectional movements 249
multiple states 284
organs of state 240
breach of international obligations 212, 417–18, 420
cessation 546
character of violated obligations 417–18, 420
civilians, reprisals targeting 1189, 1191–4
corporations, injuries to 1005–7, 1012, 1060
erga omnes 1181, 1185–6
humanitarian law 1191–6
reparation 1151
treaties 1133–4, 1181, 1199
dangerous or hazardous activities 524–5
division of reparation between responsible entities 652
environment 804–5, 808
erga omnes obligations 417–18, 1181, 1185–6
exhaustion of domestic remedies 1061–2, 1065
Geneva Conventions 417
Hague Conference of 1930 61, 64–5
ICSID arbitration 823, 829, 839
Inter-American human rights mechanisms 739, 741–2, 749–51, 753, 757
jus cogens 1199
(p. 1264) lex specialis 142, 144–7, 149
multiple states, attribution of conduct to 284
national laws 173–4, 177
nationality discrimination 629
necessity 493, 495, 496, 499–500
non-recognition of an unlawful situation, obligation of 678–9, 684
omissions 357, 358–9
organs of the state, attribution and 240
precautionary principle 530–3
precedent 37, 39
reparation 573, 580, 583, 652, 1151
requirement of damage 10
Security Council sanctions 131, 133
self-contained regimes and lex specialis 142, 144–7, 149
self-defence 456–7, 459, 464
source of obligations 366
space law 911
strict liability 10
treaties 106, 1133–4, 1181, 1199
UN Charter 116, 118–19, 121–2, 137–8
WTO law 792
customs unions 795–6
Daillier, Patrick 981
damage
ARSIWA 23–4, 77–8
attribution 9
autonomous condition, as 77–8
collective interests 24
communitarianism 78
compensation 12
definition of responsibility in international law 6, 9, 11, 12, 15
environment 807
foreigners and their property, damage to 70
future damage 809
injured state, notion of 23–4, 29–30
injury and damage, difference between 569
integral or interdependent obligations 23
international community, interests of 24
invocation of responsibility 23–4
reparation 12, 569
treaties 24
WTO law 794, 796
damages see also punitive damages
aggravated damages 605
assessment 658–9
compensation 573, 613, 617
delicts 81–2
double damages 647–8, 657
Hague Conference of 1930 65, 66
liquidated and unliquidated damages, difference between 294
nominal or symbolic 633
reparation, division between responsible entities of 658–9
WTO law 158
dangerous or hazardous activities
communitarianism 15
customary international law 524–5
Hazardous and Noxious Substances Convention 519, 895–6, 898–901
ILC Articles on prevention of transboundary harm from hazardous activities, (2001) 10–11, 12,
79, 166–8, 505–6, 511, 524–5
ILC Draft Principles on Allocation of Loss 79
insurance 901
liability in absence of an internationally wrongful act 505–8, 511
limitation of liability 895–6, 898–9, 900
prevention 522, 524–5
reparation 11, 12
soft responsibility 166–7, 168
strict liability 10–11, 898–9, 900
de la Fayette, Louise 919
de Visscher, Charles 4, 187, 194, 301
debt claims 606
Decaux, Emmanuel 77–8
Decencière-Ferrandière, André 194
Declaration of Friendly Relations 331, 337
declarations
ICSID arbitration 829, 839
International Tribunal for the Law of the Sea 1118, 1122–3
jurisdiction, grants of 1118
restitution 591–2
satisfaction 629, 631–2
waiver 1038–41
definition of an internationally wrongful act 193–218
delay 1064
delict/tort
Alien Tort Claims Act (United States) 325–7, 990
contractual and tortious responsibility, distinction between 105–6
crimes and delicts, distinction between 78, 81
criminal responsibility 78, 81, 106
damages 81–2
event delict 390–1
international crimes 407–8, 413, 704–5
(p. 1265) permanent delict 384–90
quasi-delictual responsibility 106
source of obligations 368
state succession 291–4
denial of justice 547, 839, 1066–7, 1076
dependency, situations of 287–8, 292–3
derivative (vicarious) responsibility 276
developing countries 41, 161
dictatorial regimes, mass violations by 988–9
diplomatic channels see negotiations
admissibility of claims 89
arbitration 1068
ARSIWA 83, 88–90, 151–2
attribution 229–30, 249
breaking off diplomatic relations 1208
clean hands doctrine 432
circumstances precluding wrongfulness 427–8
compensation 90
continuous nationality 89, 1060–1
corporations, injuries to 1005–12, 1015–16, 1019, 1057–60
countermeasures 111–12, 150–2, 1068, 1206–8
definition 1051
direct recourse 90
discretion 1068
double or multiple nationality 89, 1053–7
due diligence 729
European Convention on Human Rights 1069, 1070
exhaustion of domestic remedies 1051–2, 1061–7
functional protection 1076–7, 1081–3
general international law, application of 150–2
human rights 729, 1068–70
ICSID arbitration 817, 822–3, 825, 827–9
ILC Articles on Diplomatic Protection (2006) 985, 1009, 1012, 1019, 1051–65, 1069
text App 3
implementation 88, 1067–8, 1076–7, 1081–3
International Covenant on Civil and Political Rights 1069
international organizations 660–1
Iran-US Claims Tribunal 844–5, 1056
jus cogens 152
Mavrommatis formula 88–9
national laws 1053
nationality of claims 89, 1006–10, 1051–61
negotiations 1068
persona non grata 150–1
pertinent link concept 89
precedent 44
prevention 523
privileges and immunities 151–2, 849, 943–4
proportionality 152
prosecutions 722
reciprocity 150–1
renunciation 88–9
reparation 150, 1068, 1069
reprisals 1207–8
rescue of nationals abroad 1068
restitution 594
Security Council sanctions 137
self-contained regimes and lex specialis 150–2
shareholders 1011–12, 1057–60
space law 910
stateless persons and refugees 89
treaties 111–12
UN Compensation Commission 849, 1058
Universal Declaration of Human Rights 1069
use of force 1068
voluntary link concept 89
working group 888
direct recourse 39
direction and control, power of 229, 285, 287–8
discrimination see also apartheid
compensation 101
injurious consequences of acts not prohibited by international law, liability for 97, 101
International Convention on the Elimination of All Forms of Racial Discrimination 986, 997
peoples and minorities 994, 996, 998–1000
race discrimination 679–81, 683–6, 986–7, 994, 996–7, 998–1000, 1147
religious discrimination 996
satisfaction 629
women 731–2, 776, 777, 986
WTO law 796–7
distress 481–9
ARSIWA 481–9
autonomy of notion 482–4
classical cases 484–6
conditions for invocation 482–3
extreme distress 482
force majeure, relation to 481–4, 488
humanitarian assistance 486–9
humanity, elementary considerations of 486–9
Law of the Sea Convention 484–6
nationals, intervention for the protection of 486–7
necessity 481, 483–5, 488, 495
organs or agents of state, links to 488
psychological element 482–3
reparation 484, 892
reservations 484–9
vessels or aircraft, entry into territory of 485–6
dividends 1012–13
doctrines of state responsibility 45–51
domestic laws see national laws
Dominicé, Christian 151, 708
(p. 1266) dual or multiple nationality 89, 844–5, 854, 1009
dualism 177, 276–7
Dubois, Louis 981
due diligence
attribution 208, 209, 232, 277–8, 310–13
content of obligations 378, 379
European Court of Human Rights 278, 729–31
fault 50
functional protection 1076
Human Rights Committee (ICCPR) 730–1
human rights obligations, breaches of 278, 728–32
Inter-American human rights mechanisms 729, 731, 747
national laws 177–8
omissions 358–60, 729, 731–2
positive obligations 729–31
prevention 523
primary rules 50
protect and fulfil, obligation to 731–2
women 731–2
due process 758–9
Dugard, John 88, 90, 661, 1052
dumping 485, 862
Dupuy, Pierre-Marie 132, 202, 435, 504, 561, 582–3, 710, 877, 879, 884, 981, 1026
Eboutou, Belinga 961
EC law see European Union legal order
Economic and Social Council (ECOSOC) 348–9, 353
economic coercion 288–9
economic obligations, non-performance of 432
economic, social or cultural rights 765, 772, 774, 776, see also International Covenant
on Economic, Social and Cultural Rights
Ehlermann, Claus Dieter 981
endorsement of conduct by state, subsequent 273–5
enforcement or execution of judgments 757–60, 770–1, 788, 841
environment 803–13 see also ‘Polluter Pays’ principle
accountability 50
air pollution 523
allocation of responsibility for acts not prohibited by international law 515–16, 519
ARSIWA 812–13, 1211–12
burden of proof 804
causal link 805
Chernobyl nuclear disaster 805
Code of Crimes Against the Peace and Security of Mankind (draft) (ILC) (1996) 812
common but differentiated responsibility 805
cooperation 808, 809
criminalization 811–13
definition of environmental harm 103
due diligence 523
dumping at sea 485
harm requirement 807
fault 50
fisheries conservation 531–2
future damage 809
general international law 809–10
identification of damage 808
impact assessments 805
individuals 324–5
inform, obligation to 805
injurious consequences of acts not prohibited by international law, liability for 96, 97, 101, 103–
4
Institut de Droit International 54, 56, 515, 519, 523
insurance 807
international crimes 424
International Criminal Court, Rome Statute of the 812
jus cogens 813
Kyoto Protocol, observance mechanism of 811
liability in absence of an internationally wrongful act 505, 507–9, 51
means, obligation of 804–5
multilateral environmental agreements (MEAs) 141
necessity 499
new forms of responsibility, appearance of 808–11
new types of damage 808–9
objectivity 10, 804–8
ozone layer 527, 809–11
precautionary principle 522, 526–32, 805-6
prevention 523, 804–6, 807–8
principles, role of new 805–6
private codification efforts 54
privatization of objective responsibility 807
proportionality 812
Ramsar Convention, Memoranda of Cooperation under 349
remediation 505, 507
reparation 804, 806–9
Rio Declaration 100, 101, 527, 529, 531, 878–81
significant harm requirement 804
solidarity 809
standard-setting 508–9
state crime against the environment, emergence of 812–13
strict liability 10
supervise, obligation to 804–5
sustainable development 805
terrorism 813
threshold of damage 803–4
traditional state responsibility 804–5
(p. 1267) transboundary harm 805, 808
treaties 324–5, 1213
UN Compensation Commission 604, 857, 858
valuation of damage 103
vigilance, obligation of 805
waiver 1040
war crimes 811–12
erga omnes obligations
aggression 958
ARSIWA 957–60, 1024, 1027, 1138–9, 1142–8, 1199–201
attribution 287
cessation 1027
collective interests 959, 1024–7
cooperation, obligation of 696, 699, 700
countermeasures 1137–48, 1164, 1180–2, 1185–6, 1195, 1199–1201
customary international law 417–18, 1181, 1185–6
definition 957–8
erga omnes partes obligations, similarities of 1023–7
grave violations 1137–48
hierarchy of norms 48
implementation of responsibility 1025–7
injured states 957–8
international crimes 410–12, 689, 1023
international organizations invocation of responsibility 976–80
non-implementation of responsibility by 1026–7
jus cogens, relationship to 416–19, 959, 960, 1025, 1199–200
protest, right to 978
satisfaction 627
Vienna Convention on the Law of Treaties 959, 1023
Eritrea-Ethiopia Claims Commission 602–3
estoppel 169, 1044–5, 1047–8
European Commission of Human Rights 387–8, 764, 767, 986
European Committee of Social Rights 772–3
European Convention on Human Rights 764–72 see also European Court of Human
Rights
breaches of rights and freedoms, notion of 765
civil and political rights 765
colonial clause 771
conciliation 1101–3
Council of Europe 763, 764
derogation 771–2
diplomatic protection 1069, 1070
due diligence 729–31
economic and social rights 774
environment 511
European Commission of Human Rights 387–8, 764, 767, 986
European Union 774
freedom of expression 769
immunity 772
individual complaints 763, 986
inhuman or degrading treatment 555, 730, 766
interest 617
liberty and security, right to 584
limitation of responsibility, devices for 771–2
jurisdiction 765–8
life, right to 730
ordre public 1184
peaceful enjoyment of possessions 617
Protocol 11 764
reparation 986–7
reservations 771
Security Council resolutions 768
territorial scope 732–4, 771
Vienna Convention on the Law of Treaties 767–8
European Court of Human Rights
admissibility 768–70
attribution 269, 278–9, 303, 307, 311–13, 314
causal link 770
chambers 764, 769–70
compensation 770
composition 764
consequences of responsibility of states 770–1
continuing acts 386, 388, 389
corporations 21
due diligence 278
duration of breach 386
European Social Charter 772
European Union 311–12, 314
execution of judgments 770–1
exhaustion of domestic remedies 767, 769
fair hearings 766, 770–1
individuals 21, 269, 278–9, 322, 764, 768–70, 986
interest rates 770
international organizations 303, 307, 311–13, 314
interpretation and application of ECHR 765, 769–71
intertemporal law, relevance of 399–400, 402
just satisfaction 770–1
margin of appreciation 987
national laws 179
omissions 278
(p. 1268) positive obligations 729–30
precautionary principle 532
Protocol 11 764
Protocol 14 773
reparation 650, 659–60, 770
reservations, review of 771
restitution 771
victim requirement 768–9
workload 773
European Social Charter
collective complaints 773
Council of Europe 763, 772
economic and social rights 765, 772
European Committee of Social Rights 772–3
revision 772
European Union legal order 861–74
administrative acts 868–9
annulment actions 869
causal link 865, 868, 871–2
civil responsibility 863–4
Commission 864
compensation 873–4
competition 320, 863–4, 866
continuing breach 153–4
contractual liability of Community 863, 867, 873
countermeasures 154–6, 893, 980, 1146
Court of First Instance 871–4
damage, conditions for 871
declarations 153–4
direct applicability 862
direct effect 862, 864–5
directives 863, 864–5
effectiveness and equivalence principles 864, 990
European Convention on Human Rights 311–12, 314, 774
European Court of Justice 179, 614, 861–2, 865–8, 873–4, 990
failure to fulfil obligations, claims for 861–2, 866
fault 870–1
financial penalties 153–4
force majeure 475
general international law 153–5, 861
human rights 136–7
indemnity principle 153, 154
individuals 153, 154, 320
invocation by 861, 989–90
responsibility of 863–4
rights conferred on 868–70
institutions, attribution to the 867
interest 614
internal state responsibility 862, 863
International Tribunal for the Law of the Sea 1124
invocation of responsibility 861, 873–4, 973–4, 989–90
legislative acts 868–70
lex generalis 147–8
lex specialis 141–2, 145, 147–8, 152–5
manifest and grave breaches 868–9
margin of appreciation 868, 869
member states
responsibility of 864–6
suspension of membership 153
national courts 862, 873
national laws 179, 861, 866, 874
non-contractual liability 863, 867–74
‘polluter pays’ principle 878, 881, 883–4
precautionary principle 528, 531
preliminary rulings 865–6, 990
primary rules 32–3, 862
reciprocity 153, 154–5
regulations 863
reparation 862, 866, 874, 893, 989–90
restitution 866
sanctions 136–7, 320, 864, 1141
satisfaction 866
secondary rules 32–3, 155, 862
Security Council sanctions 136–7
self-contained regimes and lex specialis 141–2, 145, 147–8, 152–5
state aid 866
state-to-state reparation 154
sufficiently serious breach 865, 868–9
unilateral action 154–5
wrongful acts 868–73
Evans, Gareth 488
excess of authority, acts in see ultra vires acts
excuses, justifications and exoneration see circumstances precluding wrongfulness
427–37
execution of judgments 757–60, 770–1, 788, 841
exemplary damages 667, 673
exhaustion of domestic remedies
African Commission on Human and Peoples’ Rights 789
ARSIWA 1062, 1066–7
definition of local remedies 1062
delay 1064
denial of justice 1066–7
duration of breach 395
European Court of Human Rights 767, 769
expropriation 818
futility or ineffectiveness exception 1063–4
general principle 1061–3
ICSID arbitration 818, 821, 830, 836–7
ILC Articles on Diplomatic Protection (2006) 1062–5
lack of connection with respondent state 1064–5
(p. 1269) mixed claims 1062–3
organs of the state, attribution and 240–1
preclusion from pursuing local remedies 1065
procedural rule, as 1066–7
space law 910
substantive rule, as 1066–7
time limits 1064
voluntary link 1065
waiver 1065–7
existence, right to 995
exclusive economic zone (EEZ) 897
exoneration see circumstances precluding wrongfulness
expenses 604, 605, 853, 856, 908
expropriation or nationalisation
compensation 583, 601–2, 604, 607
foreign owned property 594, 595–6
restitution 583, 594, 595–6, 848
satisfaction 629
valuation 607
extinctive prescription 1045–8 see also acquiescence, prescription, waiver
ARSIWA 1035–6, 1046, 1049
definition 1045
estoppel 1047–8
procedural fairness 1048
time limits 1035–6, 1045–8
extradition 943–4
failed states 337
fair and equitable treatment standard 601, 1014–15
fair hearings 766, 770–1
fault
consent 441–3
culpa 49–50
definition of responsibility in international law 6
due diligence 50
environment 50
individuals, attribution and 263, 264, 271
objective responsibility 50
omissions 355, 361
personal faults 263, 264
reparation 6, 110, 890–1
satisfaction 623–4, 626
service, faults in 263, 264
Fawcett, James 1066
federal states 242
Ferrari Bravo, Luigi 497
Fichte, Johann 492
financial penalties 153–4
Financial Action Task Force (FATF) 352
Fitzmaurice, Gerald 141, 159, 428, 432, 1006, 1128, 1132–3, 1179
fonctionnaire de fait, theory of 272–3
force majeure or fortuitous event 475–80
ARSIWA 475–80
causal link 478
cessation 548
characteristics 476–7
coercion 288, 477
consent 444
consequences 477–80
constitutive elements 477
content of obligations 377, 379
distress 481–4, 488
economic impossibility 479–80
European Union 475
circumstances precluding wrongfulness 428, 433, 434–6, 475–80
externality 477
human intervention 477
impossibility 108, 475, 477–80
irresistibility 477
maritime law 899
natural and physical events 477
necessity 495
temporary force majeure 108
treaties 108
unpredictability 477
force, use of see use of force
forced disappearances 755
arbitral case law 70, 72
ARSIWA 69–76
damages 65, 66
expropriation 594, 595–6
García Amador, FV, work of 69–76
Hague Conference of 1930 61–2, 64–6, 70
human rights 71, 985
ILC Articles on Diplomatic Protection (2006) 985
individuals 71, 72–3, 985
invocation of responsibility 985
League of Nations 76
nationality, protection by state of 985
private codification efforts 53–4, 55–6
reparation 69–70, 71, 73
requirement of damage 70
restitution 594, 595–6
foreseeability 605
former Yugoslavia see International Criminal Tribunal for the former Yugoslavia
forum prorogatum 1122
fragmentation of concept of international responsibility 8, 11
Francis, Laurel B 29
freedom of expression 769
Frowein, Jochen 161
Fukuryu Maru incident 512n
(p. 1270) full protection and security standard 1014
functional protection 1073–83
Gaja, Giorgio 90–1, 222, 975
game theory 1088
gangsterism 331–2
García Amador, Francisco V
codification process 41, 69–74, 75–6, 78
contribution 640
doctrines of state responsibility 47, 48
circumstances precluding wrongfulness 428, 455–6
Hague Conference of 1930 66
private codification efforts 53, 55, 58, 59
GATT 155, 792, 793, 794–7, 799, 862
General Assembly
negotiations 1092
UN Charter 119–20, 124, 138
general principles of law 104, 600, 769, 869, 1013
Geneva Conventions
armed bands and criminal groups, attribution and 334
countermeasures 1188–93, 1199, 1204
fonctionnaire de fait, theory of the 273
insurrectional movements, attribution and 251–2
international and internal conflicts, difference between 234
international organizations, attribution and 307
jus cogens 1199
non-governmental organizations (NGOs) 346–7, 352
reprisals 1189–93
genocide see also Genocide Convention
peoples and minorities 994, 995–7, 998, 999, 1001
Genocide Convention
complicity 359
entry into force 215
individuals, attribution and 257, 279
international crimes 405, 413–14, 713
omissions 359
peoples and minorities 995–6
gentlemen’s agreements 167
good faith 167, 263–4, 1093, 1153, 1173
government authority, attribution and entities exercising elements of 203–8, 229, 237–
8, 244–6
ARSIWA 244–6
case law 245–6
de facto exercise of authority 203–7
decentralization 244
examples 244
identification of entities exercising prerogatives of public power 244–5
Graefrath, B 651
Gros, André 1006
Grotius, Hugo 5, 47, 48, 49, 224, 258–60, 456–7, 492, 993
groups of companies 1017–18
guarantees see assurances and guarantees of non-repetition
Hague Conference of 1930 61–7, 70, 366, 455, 640
Hale, Clarence 583
harm requirement see damage requirement
Hart, Herbert Lionel Adolphus 28, 76
Harvard Research 1929 54, 55–6, 59, 243
hazardous activities see dangerous or hazardous activities
He, Qizhi 445
Hegel, Georg Wilhelm Friedrich 492
hierarchy of norms 48–9, 116, 137, 449, 452
Higgins, Rosalyn 327, 402, 722
Hitler, Adolf 319, 321
Holmes, Oliver Wendell 50
Huber, Max 47, 214–15, 253, 397–8, 642
Hudson, Manley O 829
human rights obligations, breaches of see also human rights treaties
apartheid 989
armed bands and criminal groups 337, 338–40
armed conflicts 988
ARSIWA 726–8, 988, 1177–88, 1204
attribution 337, 338–40, 726–8
Basic Principles and Guidelines 988
collective security 136
content of obligations 379
countermeasures 1139, 1144, 1146, 1164–5, 1177–88, 1195, 1199, 1204
due diligence 50, 728–32
government authority, exercise of 727
‘human rightsism’ 725, 735
individuals 321–3, 727–8, 985–9
international courts, resort to 1115–16
international crimes, reparation for 989
international law, human rights as branch of 725–6, 736
(p. 1271) international mechanisms 725–36
nationality, protection by state of 985
necessity 498
peace treaties 988
prison guards, private security firms as 727
reparation 986–9
result, obligations of 379
Sub-Commission for the Promotion and Protection of Human Rights 328
suspension of obligations, prohibition of 1182–6
territorial scope of protection 732–5
Torture Convention 728, 738
UN Declaration on Human Rights Defenders 347–8
waiver 1040
human rights treaties 986–9 see also African human rights mechanisms; European
Convention on Human Rights; Inter-American human rights mechanisms
ARSIWA 159–62, 1177–82, 1194–6
countermeasures 160–2, 1178–81, 1183–7
developed countries 161
developing countries 161
enforcement 158, 160–2
exclusiveness 158
general international law, application of 158–62
indemnities 986
inter-state complaints procedures 159–60
reciprocity 160–1
remedies 159–60
reparation 986–8
reporting procedures 159
women 986
humanitarian law
armed bands and criminal groups, attribution and 337, 338–40
attribution 228
code of conduct 351
customary international law 137–8, 1191–6
distress 486–9
fonctionnaire de fait, theory of the 272–3
jus cogens 417
necessity 498–9
non-governmental organizations (NGOs) 346–7
Red Cross and Red Crescent 351
reparation 652
reprisals 1181, 1188–94
self-defence 466
treaties 1129
use of force 432
humiliation 1032
ICJ see International Court of Justice (ICJ)
ICSID arbitration 815–42
Additional Facility 815
admissibility 822
applicable law 832–42
ARSIWA 817, 818-21, 829
attribution 819
causal link 831
choice of law 832–9
compensation 607, 817, 829, 831
complementary or corrective function of international law 839
connecting factors or triggers 818, 822, 832
consent 833–4, 837, 840
corporations, injuries to 1012, 1015–16, 1019–20
countermeasures 821
customary international law 823, 829, 839
declaratory judgments 829, 839
denial of justice 839
diplomatic protection 817, 822–3, 825, 827–9
enforcement and execution of domestic judgments 841
exhaustion of domestic remedies 818, 821
expropriation 818, 830, 836–7
general international law 822
ICSID Convention 816–28, 831, 990, 1012, 1015–16, 1019–20
individuals 990
injunctions 830–1, 841
interest 620
interim measures 841
International Centre for Settlement of Investment Disputes, establishment of 815
inter-state forms of reparation 829–32
lex specialis 819, 821
locus standi 828
multiple states, proceedings by 817
national laws 832, 835, 838–42
nationality rule 822–8
necessity 501
New York Convention 1958 841
non-applicability of inter-state rules for invocation of responsibility 821–8
parallel proceedings, stay for 841–2
pecuniary obligations, enforcement of 829–31
persons, jurisdiction over 821–2
primary obligations 816, 820
procedure, law applicable to 840–2
reparation 818, 820, 829–32
rules 815, 818, 840
satisfaction 829
(p. 1272) specific performance 829, 830
state immunity 841
state sovereignty 819
state/state and investor/state regimes distinguished 816–19
stay for parallel proceedings 841–2
subject matter jurisdiction 817, 837
substance of investment dispute, law applicable to 832–9
UNIDROIT Principles of International Commercial Contracts 833, 838
waiver 818
ILC see ARSIWA (ILC Draft Articles on State Responsibility); International Law
Commission (ILC)
IMF Stand-By Arrangements 168–9, 170–1
immunity see privileges and immunities; state immunity
ARSIWA 932–9
corporations 939
countermeasures 13, 936–9
diplomatic protection 88, 1067–8, 1081–3
enforcement 13
erga omnes obligations 1025–7
functional protection 1073, 1078–80
invocation of responsibility 84–5, 932–4
non-state actors 939-40
‘polluter pays’ principle 881–4
space law 909–13
implication of state in act of another state, attribution and 281–2, 284–9
impossibility 108, 475, 477–80, 495, 596–7
impunity 22–3, 652
imputation, attribution and 202, 221, 233
incitement 285, 288
indemnities
European Union 153, 154
human rights treaties 986
International Convention on the Elimination of All Forms of Racial Discrimination 986
International Covenant on Civil and Political Rights 987–8
International Covenant on Economic, Social and Cultural Rights 987
peace treaties 988
indigenous peoples 997
individuals 317–28, 985–91 see also individuals, attribution and
African Charter of Human and Peoples’ Rights 318
African Commission on Human and Peoples’ Rights 778–9, 783
African Court on Human and Peoples’ Rights 782
Apartheid Convention 327
ARSIWA 321, 985–91
Code of Crimes Against the Peace and Security of Mankind (draft) (ILC) (1996) 321
Committee on Economic, Cultural and Social Rights 322–3
criminal responsibility 8, 132, 233–5, 254, 269–70, 321–2, 327–8
environment 324–5
European Convention on Human Rights 763, 986
European Court of Human Rights 21, 322, 764, 768–70, 986
European Social Charter 763
European Union 153, 154, 320, 861–4, 868–70, 989–90
foreigners and their property, damage to 71, 72–3, 985
genocide 18
Human Rights Committee (ICCPR) 321–2
human rights violations 321–3, 727–8, 985–9
indirect responsibility 325
Inter-American human rights mechanisms 745, 755–7, 986
International Covenant on Civil and Political Rights 318–19, 322–3, 986
International Covenant on Economic, Cultural and Social Rights 318–19, 322–3
International Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) 986
international crimes 8, 321–2, 326–7
International Criminal Court 321–2, 327, 719
International Criminal Tribunal for Rwanda 321–2
International Criminal Tribunal for the Former Yugoslavia 269–70, 321–2
international tribunals 8, 321–2
jurisdiction 19
maintenance of international peace and security, 319–20
mixed regimes 990
national law 325–7, 990
nuclear energy 323–4
Nuremberg Military Tribunal 321–2
organs of state 238
primary rules 318
punishment by national courts 8
remedies 22–3
restitution 321
sanctions 136, 319–21, 325
secondary rules 318
Security Council 132, 136, 319–20
(p. 1273) soft law 327–8
specialized treaty regimes, protection in 989–90
subject of international law, as 18–20, 318–19
Torture Convention 325–6
transparency of the state 717–20
treaty regimes 323–5, 989–90
United States Alien Tort Claims Act 325–7, 990
Universal Declaration of Human Rights 318–19
WTO law 796–7
individuals, attribution and 206–8, 257–80
accomplice, state as an 276–7
active co-responsibility 258–9
activity of the state, conduct linked to the 264–75
amnesties 273, 275
Anglo-Saxon systems 276
approval-tolerance and approval-endorsement 274
ARSIWA 257–80
catalysist of state responsibility 275–80
civil responsibility 258
complicity/co-responsibility 258–9, 275–7
continuing acts 275
control 268–71
de facto organs 265–71, 274
de jure organs 265, 274
derived (vicarious) responsibility 276
dualism 276–7
effective control 268–71
endorsement of conduct by state, subsequent 273–5
European Court of Human Rights 269, 278–9
excusable error 264
fault 263, 264, 271
fonctionnaire de fait, theory of the 272–3
fragmentation of international law 267
Genocide Convention 257, 279
good faith 263–4
human rights violations 727–8
individual criminal responsibility 269–70, 277
International Criminal Tribunal for the Former Yugoslavia 269–71
material scope 275
necessity 272
negligence 258–9, 274
non-attribution, rule of 261–4
objective responsibility 261–2, 271
omissions 260, 278
overall control 269–71
own act, responsibility of state for 277–80
passive complicity 258, 259
precedents 266–7, 273
primary responsibility 276
reparation 276
reservation or safeguard clauses 279
scope of non-attribution rule 263–4
secondary rules 262
temporal scope 275
territorial sovereignty 261–2
theory of appearance 263–4
ultra vires 263, 268, 271
Vienna Convention on Diplomatic and Consular Relations 274
inhuman or degrading treatment 555, 730, 766
injunctions 543, 750, 757, 759, 830–1, 841
injured states 941–7
Antarctic Treaty 24
ARSIWA 933, 941–7
bilateral obligations, breach of 942–4, 945
compensation 585–6, 936
concept of injured states 941–7, 951
consent 29–30
damage requirement 23–4, 29–30
definition 567–8, 933–5
diplomatic immunity 943–4
extradition 943–4
general international law 943
identification of injured states 942–7
integral obligations, breach of 944–6
internationally wrongful act, definition of 195–200
Law of the Sea Convention 23–4
legal interests 942
legal position, nature of 941–2
multilateral obligations, breach of 946–7
multilateral treaties 943–4
notice of claims 1029–33
plurality of injured states 949-54
reparation 195–6, 573, 579, 581–6, 934–6
restitution 585
rights 942
state succession 965–7
treaties 943–6
Vienna Convention on Consular Relations 944
Vienna Convention on the Law of Treaties 946
allocation of loss 97–104
ARSIWA 97–8, 100–4
compensation 97, 98, 100–4
co-operation 96
development of the topic 95–7
due diligence 98
environment 96, 97, 101, 103–4
ILC Draft Principles on Allocation of Loss 97–104
International Law Commission 95–104
local remedies, exhaustion of 99–100
mitigation 97
national law 104
no-fault liability 98
non-discrimination 97, 101
(p. 1274) prevention 96
primary obligation 95–6
Rio Declaration 100, 101
risk avoidance 96
secondary obligation 95
soft law 100–1
strict liability 96, 101, 102, 104
terminology 95–6
transboundary harm 96–104
working group 96
inquiries 1100
instantaneous acts 384–6, 388–9
insurance
Bunker Convention 901
environment 807
HNS Convention 901
maritime law 895–6, 898, 900–1
nuclear energy 916, 918–19
space law 905
insurrectional movements, attribution and 229, 231–2, 247–55
amnesties for crimes against humanity 249–50
arbitration 249, 253–5
armed bands and criminal groups 331–3, 334, 336, 339
ARSIWA 247–65
case law 249–53
characterization 248–51
crimes against humanity 254
de facto organs 247, 249, 254–5
de jure organs 254
defeat of insurrectionist movements 252–5
definition 251
diplomatic practice 249
Geneva Conventions, Additional Protocols to 251–2
individual criminal responsibility 254
international personality of movement, irrelevance of 251–2
Iran-US Claims Tribunal 249, 255, 847
non-attribution of conduct 252–3
parallel attribution 250–1
secession or decolonization 250, 251–2
self-defence 463
Special Court for Sierra Leone 254
subjects of international law 19
success of the insurrectional movement 248–52
temporal indeterminacy 248
torture 254
integral obligations 626–7, 944–6, 950–1
American Convention on Human Rights 739–40, 743–59, 1069–70, 1184
American Declaration of the Rights and Duties of Man 740, 747–8, 753, 756–7
ARSIWA 727–8, 750–1
causal link 751
causes of action 755–7
Charter of the OAS 740
compensation 605, 751, 757–8, 986
conditions for state responsibility 742–8
consent 745
consequences of responsibility 757–60
content of Inter-American responsibility 748–51
continuing illegality 750–1
customary international law 739, 741–2, 749–51, 753, 757
due diligence 729, 731, 747
due process 758–9
enforcement 749–50, 757–60
establishing Inter-American responsibility 752–7
exclusive character of responsibility 752–3
forced disappearances 755
general international law 741–3, 747, 751–3, 755, 757
Geneva Conventions 1949 741
harm from relevant conduct 747–8
implementation 749–60
injunctions 750, 757, 759
Inter-American Claims Tribunal 356
Inter-American Commission of Human Rights 739–42, 747–9, 753–7
Inter-American Court of Human Rights 739–51, 754–60, 184
inter-state requests 755–6
judgments, nullifying domestic 758–9
jus cogens 753
locus standi 755
mechanisms for establishment of responsibility 753–5
national laws 744
notice of claim by injured states 348
objectivity 752–4
omissions 356, 755
Organization of American States 348, 740–1, 753, 755
positive obligations 754–5
reparation 739–40, 748–52, 755, 757–8, 987
secondary obligations 757
state responsibility 742–60
traditional solutions, relevance of 749–51
violation of obligations 743–5
interest 613–22
American Arbitration Association (AAA) 615
ARSIWA 614
calculation of sum 616–21
compensation 573, 602, 613, 616–17
compound interest 617–20, 621
damages 613, 617
(p. 1275) European Court of Human Rights 770
European Court of Justice 614
inflation 616
Law of the Sea Tribunal 614
NAFTA 615
period for which payable 617
post-award interest 613, 616–17
pre-award interest 613, 616–17
rate 614, 617–21, 770
reparation 613–22
simple interest 617–20, 621
tribunals and commissions, rules of 614–17
WIPO Rules 615
interim measures see provisional or interim measures
International Centre for the Settlement of Investment Disputes see ICSID arbitration
international community as a whole, obligations owed to see erga omnes obligations
International Court of Justice (ICJ)
advisory opinions 1124
ARSIWA 1119–20
compromis or special agreement 1119
grant of jurisdiction 1119–20
guarantees against irreparable injury 1125
international courts, resort to 1117–19, 1125
parties 1124
reciprocity 1123
reparation 1124
reservations 1123
states as parties 1124
Statute 1117–18
subject matter jurisdiction 1117–23
subjects of dispute settlement 1124
treaties granting jurisdiction to ICJ 1119–21
unilateral declarations 1122–3
United Nations 1120
international courts or tribunals, resort to 1115–26 see also particular courts (eg
International Court of Justice)
administrative tribunals 1116
consent to prosecutions 718–19
creation 718–19
economic integration 1116
function of international adjudication 1124–6
guarantees against irreparable injury 1125–6
interest 614–17
international criminal law 1115–16
international organizations, administrative law of 1116
natural persons 1116
judges, definition of 1115
models 719
political integration 1116
sanctions 719
subjects of dispute settlement 1123–4
International Covenant on Civil and Political Rights
Committee of Human Rights, views of 988
Human Rights Committee 321–2, 730–1
indemnities 987–8
individuals 318–19, 321–3, 986
miscarriages of justice 987
multinationals 328–9
reparation 986–8
territorial scope of protection 734–5
International Covenant on Economic, Social and Cultural Rights
Committee on Economic, Cultural and Social Rights 322–3
indemnities 987
sanctions 1187–8, 1204
international crimes
aggression 422, 424, 425
Alien Tort Claims Act (United States) 326–7
ARSIWA 22, 187–8, 405–14, 703–14
categories of wrongful acts 407
civil law 705–6, 714
classical conception 705
Code of Crimes Against the Peace and Security of Mankind (draft) (ILC) (1996) 321, 812
coercion 705–9
communitarianism 81
criminal responsibility 49, 405, 407–8
delicts 78, 81, 407–8, 413, 704–5
enforcement 706–7
environment 424
erga omnes obligations 410–12, 689, 1023
Genocide Convention 405, 413–14, 713
grave violations 213
historical overview 406–8
individuals 8, 321–2, 326–7
international legal order 709–14
jus cogens 81, 213, 410–11, 713
mens rea 711
(p. 1276) moralism 81
norms, violation of 709–14
Nuremberg Military Tribunal 405, 712–13
punishment 406, 704–12
punitive damages 406, 410, 669–70, 673, 708
reparation 321–2, 406, 568–9, 704, 706–9, 989
repression 706–9
sanctions 213, 413, 703–9, 711–12
Security Council 707–8, 712
seriousness of breach 409–11, 421–5
states, crimes of 212–13, 405–14, 703–14
UN Charter 116, 119–20
United Nations 116, 119–20, 411–12, 712
war crimes 812
International Criminal Court (ICC)
companies 19
environment 812
individuals 321–2, 327, 719
jurisdiction 719
Rome Statute 18–19, 132, 321–2, 719, 812
Security Council, referral and deferral powers of 132
United States 327
Victim’s Fund 603
International Criminal Tribunal for Rwanda
companies 19
creation 18, 132
individuals 321–2
prosecutions, consent to 718–19
International Criminal Tribunal for the former Yugoslavia
attribution 206–8, 230, 254, 269–71
breach of international obligations 214, 215–16
companies 19
control 269–70
creation 18, 132
Genocide Convention 215
internal and international conflicts, differences between 270
national laws 179
prosecutions, consent to 718–19
protected persons 270
reparation 321
restitution 321
international environmental law see environment
International Labour Organization (ILO) 328–9, 348
International Law Commission see also ARSIWA (ILC Draft Articles on State
Responsibility)
Diplomatic Protection, ILC Articles on (2006) 985, 1009, 1012, 1019, 1051–65, 1069
text App 3
allocation of loss, ILC Draft Principles on (2006) 79, 97–104
prevention of transboundary harm from hazardous activities, ILC Articles on (2001) 10–11, 12,
79, 166–8, 505–6, 511, 524–5
responsibility of international organizations (2009) (as adopted on first reading), ILC Draft
Articles on 7, 14, 20, 975–6, 979–80, 982,
text App 4
international legal personality see legal personality
international organizations see also international organizations, attribution and;
particular organizations
accountability 57
administrative law 1116
agents 1073–83
aggravated responsibility 14
ARSIWA 969–82
assumption of responsibility 20
assurances or guarantees of non-repetition 978
attribution 57–8
bilateral treaties 971
cessation 972–4, 978
collective self-defence 974
concurrent and secondary responsibility of members 57–8, 662–3
division of reparation between responsible entities 648, 653–6, 660–4
erga omnes obligations 976–80, 1026–7
funding 654–5
general international law, breach of 18
identification of injured subject 972
ILC Draft Articles on responsibility of international organizations (2009) (as adopted on first
reading), 7, 14, 20, 975–6, 979–80, 982
text App 4
implementation of state responsibility 939
injured organizations 970–6
injury to organization 970–2
interest of organizations in respect of breached obligations 976–82
international courts, resort to 1116, 1124
(p. 1277) International Tribunal for the Law of the Sea 1124
jus cogens 981–2
legal personality 6–7, 653, 661–3, 1074–6
member states, injury to 972
membership of group to whom obligation is owed 976
negotiations 1085, 1087–8
non-injured organizations, invocation by 976–82
pacta sunt servanda 662–3
private codification efforts 54, 56, 57–8
reparation 648, 653–6, 660–4, 972–4
resources and participation of member states 653
rights-holder, as 970–2
sanctions 1134–5
self-defence 974
space law 906, 910, 911
subjects of international law 17–18
subsidiary responsibility 57–8
treaties 18, 971–4
UN Charter 120–1
WTO law 973–4
international organizations, attribution and 221–2, 297–315
absence of organic link or control 301–4
accomplices, member state’s as 307–8
agent, definition of 299–300
aid or assistance, member states’ providing 307–8
co-author of organizations’ wrongful act 307
common to several organizations, organs which are 300
complicity 308, 311
conduct without reference to official functions 306
control 298–302, 309–10, 314
European Court of Human Rights 303, 307, 311–13, 314
excess of authority, acts in 304–6, 314
executive 314
formal organic ties 298–301
hierarchy 299
joint or parallel attribution to members or organizations 306–15
judicial organs 299, 314
ILC Draft Articles on responsibility of international organizations (2009) (as adopted on first
reading), 305, 309
legal personality 299
legislative organs 299, 314
members states 297, 306–15
NATO 301–3
official functions
conduct without reference to 306
exercise of 304–6
organ, definition of 298–304
organization itself, attribution to 297, 298–315
precedents 301–3, 310–11
reparation 302
Security Council 299, 302, 308
state practice 310–11
ultra vires 304–6
United Nations 298–306, 308
unity of organizations 299
WTO law 795–7, 801
international peace and security, maintenance of 116–22, 125–37, 319–20
International Tribunal for the Law of the Sea (ITLOS) 1117–19, 1126
compromis or special agreement 1119, 1122
European Union 1124
grants of jurisdiction 1118, 1119, 1121–2
guarantees against irreparable injury 1126
interest 614
Montego Bay Convention 1121, 1123
multilateral agreements granting jurisdiction to ITLOS 1121–2
provisional measures 1121, 1126
restitution 591
states as parties 1124
Statute 1118–19
unilateral declarations 1118, 1122–3
international tribunals see international courts or tribunals, resort to
invocation of responsibility
Alien Tort Claims Act (United States) 990
ARSIWA 932–4, 969–82
erga omnes obligations 932–4, 976–80
European Union 861, 873–4, 973–4, 989–90
foreigners and their property, damage to 985
implementation of state responsibility 84–5, 932–4
individuals 861, 989–90
injured state
concept of 932–3, 941–7
definition of 932–3
multiple states 935
states other than an injured state, by 84–5, 187–8
(p. 1278) plurality of injured states 949–54
reparation 934–5
UN Charter 116
IOPC Fund 519, 900–1
Iran-US Claims Tribunal 843–8
Algiers Declaration 843–5, 847–8
ARSIWA 847, 848
attribution 249, 255, 846–7
compensation 607, 846, 847–8
corporations, injuries to 1019
double nationality 844–5
economic loss, compensation for 846, 848
engagement and content of responsibility 846–8
expropriation 845–6, 848
fonctionnaire de fait, theory of the 273
force majeure 478, 847
governmental authority, persons or entities exercising elements of 245
insurrectional movements, attribution and 249, 255
interest 614, 617, 621
international law 843–5
limited content of claims 845–6
national laws 181
nationality of claims 1056
omissions 356, 358
private law claims 843–5
restitution 585, 591, 848
revolutionary movements, attribution of 847
specificity of claims mechanisms 844
subject matter jurisdiction 845, 846, 848
Iraq see UN Compensation Commission
Israel-Lebanon Monitoring Group 1088
Jenks, C Wilfred 504
Jessup, Philip 1006
Jiménez de Aréchaga, Eduardo 28
joint and several liability 659, 662–3, 905–6, 911–12
Jordan, Lisa 344
judgments, execution of 757–60, 770–1, 788, 841
jurisdiction see also subject matter jurisdiction
compensation 600
Inter-American Court of Human Rights 740–1, 743–4
interest 613–16
International Tribunal for the Law of the Sea 1118, 1119, 1121–2
Iran-US Claims Tribunal 843–6
nuclear energy 927
persons, jurisdiction over
territorial jurisdiction 648–9
jus cogens 449–52
actio popularis by states on behalf of injured persons 998–9
arbitration 1112
ARSIWA 449–52
breach of international obligations 213–14, 216, 217
consent 49, 446–7
content of obligations 372–4, 378
countermeasures 111, 418, 982, 1139–40, 1147, 1182, 1195–205
diplomatic law, rules of 152
environment 813
erga omnes obligations 416–19, 959, 960, 1025, 1199–200
exclusions of responsibility 217
circumstances precluding wrongfulness 428, 431, 449–53
gross or systematic failure to fulfil obligations 22
hierarchy of norms 48, 449, 452
impunity 22–3
integral obligations 1198–9
international crimes 81, 213, 410–11, 713
necessity 495, 497
non-assistance to responsible state, obligation of 691, 692, 693
non-recognition of an unlawful situation, obligation of 678–9, 683–6
ordre public 451
reparation 110, 567, 580, 594
restitution 580, 594
satisfaction 627
seriousness of breach 422, 425–6
single norms and reinforced norms 1202–3
termination of serious breaches, cooperation in 22–3
UN Charter 116, 121, 123
use of force 446–7, 1202–3
Vienna Convention on the Law of Treaties 410, 422, 449, 450, 1198
waiver 1042
justifications see circumstances precluding wrongfulness
Kearney, Richard D 279–80
Kelsen, Hans 13, 48, 125, 126, 174, 705–6
Khomeini, Ruhollah 274
Kiss, Alexandre C 879, 882
knowledge, attribution and 288
(p. 1279) Kohen, Marcelo G 499
Kolliopoulos, Alexandros 197–8
Kooijmans, Pieter H 327, 412, 683, 722
Koskenniemi, Martii 161
Kuwait see UN Compensation Commission
Kuyper, Pieter Jan 155
Kyoto Protocol 811
Lachs, Manfred 291, 1023
Lagergren, Gunnar 583, 585
Lattanzi, Flavia 721
Lauterpacht, Hersch 47, 49–50
law of international responsibility 17–20
Law of the Sea Convention see also International Tribunal for the Law of the Sea
(ITLOS)
compensation 101
distress 484–6
reparation 567
League of Nations 61, 64, 66, 75–6
legal acts, annulment of 591, 596
legal aid 785
legal consequences of state responsibility 537–44 see also reparation
apologies 538
ARSIWA 537–44
cessation 545–9
countermeasures 539
preventive injunctions 543
remedies 537–9
restitution 539–40, 589–97
treaties, suspension and termination of 537
Vienna Convention on Consular Relations 538–42
legal personality
armed bands and criminal groups 338
attribution 6, 299
individuals 7–8
international organizations 6–7, 299, 653, 661–3, 1074–6
notice of claim by injured states 354
piracy 18
satisfaction 624
United Nations 6–7, 1074–5
letters of credit 855
lex generalis 140–1, 147–62
lex specialis see self-contained regimes and lex specialis
liability in absence of an internationally wrongful act 503–19 see also injurious
consequences of acts not prohibited by international law, liability for
life, right to 730
Lillich, Richard 1070
limitation of liability
Athens Convention on Carriage of Passengers by Sea, draft protocol to 896, 899
Bunker Convention 896, 897–8, 900
Civil Liability Convention (CLC) 896–7, 900
HNS Convention 895–6, 898–9, 900
maritime law 895–501
nuclear energy 919, 924–6
oil pollution 896–7, 900
London Declaration on North Sea 527
loss of earnings, compensation for 603–4
lost profits, valuation of 608–9
Lowe, Vaughan 435–6, 1086
Lucky Dragon incident see Fukuryu Maru incident
maintenance of international peace and security 116–22, 125–37, 319–20
mandate, relationship of 283
margin of appreciation 868, 869, 879, 987
marine environment 485
maritime law 895–901 see also Law of the Sea Convention
Bunker Convention 896, 897–8, 900, 901
Civil Liability Convention (CLC) and protocols 896–7, 900
classical maritime law 900
compensation 896, 897–8, 900–1
dumping at sea 485
exclusive economic zones 897
force majeure 899
HNS Convention 895–6, 898–9, 900, 901
insurance 895–6, 898, 900–1
IOPC Fund 900–1
limitation of liability 895–901
MARPOL 898
oil pollution 896–7, 900–1
perils of the sea 900
strict liability 896–901
territorial sea 897
treaties 896–9
MARPOL 898
Martin, Antoine 169
mass claims processing 857
means, obligations of 395, 804–5
mediation 1088, 1099–1100
mens rea 711
Merrills, John G 1088
military occupation 287, 288, 443
Milosevic, Slobodan 257
minorities see peoples and minorities
miscarriages of justice 987
mitigation of damage 97, 540, 888
moral cosmopolitanism 48
moral damage 599, 625–8, 668–9, 672, 1163
moralism 81
most-favoured nation treatment 1014
multinationals 19, 327–9, 353
(p. 1280) multiple or plurality of claimants see plurality of injured states
multiple states, attribution of conduct to 281–4, 289
multiple states, proceedings by 817
municipal laws see national laws
NAFTA (North American Free Trade Association) 615
national laws 173–83 see also exhaustion of domestic remedies
adoption, transposition or implementation, rules of 175, 176–7
arbitration 179
ARSIWA 173–7, 181
case law 177–9
characterization of acts as internationally wrongful 173–83
civil and criminal responsibility, distinction between 22
dualism 177
European Court of Justice 179
European Union 861, 866, 874
excess of authority of state organs, responsibility for 175–6
extinctive prescription 1036, 1047–8
governmental authority, elements of 181–2
ICSID arbitration 832, 835, 838–42
individuals 325–7, 990
international crimes 704, 708–9
irrelevance of domestic law 176–7
judgments, revocation of 591, 596
organs of the state 175–6, 180–2
reciprocity 175, 177, 179
reparation, limiting implementation of 176–7
strict liability 104
Vienna Convention on the Law of Treaties 174, 177
waiver 1036
national liberation movements 331, 463, 1147–8
national treatment standard 1014
nationalization see expropriation or nationalisation
nationality
claims, of 1053–61
connecting factors 1053
continuous nationality 89, 965, 1018–20, 1060–1
corporations, injuries to 1006–10, 1018–20, 1057–61
diplomatic protection 89, 1051–1961
discrimination 629
dual nationality 854, 1053–7
effective or genuine link doctrine 1053–5
functional protection 1077, 1082
ILC Articles on Diplomatic Protection (2006) 1053, 1055–6, 1057–61
national laws 1053
shareholders 1019
nationals, intervention for the protection of 486–7
natural law 456
natural resources 857, 858, 995
natural rights 492
naturalism 48
‘necessary corollary of law’, state responsibility as 3, 4–6
necessity 491–501
abuse of concept 492
ARSIWA 491–501
attribution 229, 230–1, 272
cases 499–501
circumstances precluding wrongfulness 428, 429–31, 434, 436, 491–501
conditions 495
content of exception 496–9
countermeasures 496, 1152–3
customary international law 493, 495, 496, 499–500
definition 491
distress 481, 483–5, 488, 495
environment 499
essential interests 496–8
force majeure 495
governmental authority in absence or default of state, exercise of 272
grave and imminent peril 497
human rights 498
impossibility 495
jus cogens 495, 497
natural right, as 492
proportionality 493
reparation 888–90
self-defence 457–9, 462–5, 495–6
subjectivity 491
UN Charter 122
negligence 258–9, 274, 644, 906, 924
actors 1088
adjudication 1090, 1094
advantages and disadvantages 1090–1, 1097
(p. 1281) ARSIWA 1095–6
Best Alternative to a Negotiated Agreement (BATNA) 1088
character and conduct 1086–92
characteristics of negotiations 1087–90
conciliation 1099–100
consultation 1097
countermeasures 1093, 1096, 1150–1, 1153, 1171–2
definition 1086–7
dispute settlement mechanisms 1086–8, 1092–5
duration of negotiations 1171
duty to negotiate 1092–3
effects on responsibility 1096
emotions 1091
game theory 1088
General Assembly 1092
good faith 1093, 1153
international law, role of 1091–2, 1094
Israel-Lebanon Monitoring Group 1088
lapse 1096
link between responsibility and negotiations 1095–6
Manila Declaration 1092
mediation 1088
peace negotiations 1088
phases 1089–90
precedents 1090
pre-negotiations 1089
preventive negotiation 1087
reparation 1096
self-determination 1097
simultaneous use of dispute settlement mechanisms 1095
summits 1088
time limits 1171
treaties 1094, 1096–7
UN Charter 1092
waiver 1096
Worse Alternative to a Negotiated Agreement (WATNA) 1088
WTO DSU 1087
zero sum or non-zero sum 1089
Zone of Possible Agreement (ZOPA) 1088
neutrality 197–8, 700
NGOs see non-governmental organizations (NGOs)
no-fault liability 98
non-contractual liability see delict/tort
non-governmental organizations (NGOs) 343–54l
accountability 343–4, 351, 353
African Court on Human and Peoples’ Rights 781, 782
applicable law 350
arbitration 350
ARSIWA 345
attribution 301, 345
codes of conduct 350, 351–2, 353
composite legal status 345–6
consultative status 348–9
Council Committee on NGOs (UN) 348–9
Council of Europe 350
definition 344
Financial Action Task Force (FATF) Special Recommendation VIII on financing of terrorism 352
Geneva Conventions 346–7, 352
inter-governmental organizations, obligations in co-operation with 348–51
international organizations, attribution and 301
International Labour Organization 348
legitimacy 351
multinationals 328, 353
obligations under international law 346–52
Organisation of American States 348
Red Cross and Red Crescent 346–7, 351
space law 904–5
subject-object dichotomy 345–6
subjects of international law 18
treaties and other international instruments 346–8
UN Declaration on Human Rights Defenders 347–8
undertakings for cooperation and consultation 350–1
United Nations 347–8, 352
war against terrorism 352
non-injured states see states other than the injured State
non-intervention, principle of 1209–10
non-repetition see assurances and guarantees of non-repetition; cessation
armed conflicts, hostilities, war, riot or natural disasters, exoneration for 924
carriage of nuclear material 920–1
Chernobyl disaster 805, 918
compensation 323–4, 917, 919–20, 925–6
definition of nuclear damage 923
dispute settlement 927–8
European Nuclear Energy Agency (ENEA) 916, 917–21
European Nuclear Energy Tribunal 827, 1116
(p. 1282) exoneration of liability 924
geographical application 922
guarantees, limitation of liability and 925–6
harmonization 916, 918–19
individuals 323–4
insurance 916, 918–19
International Atomic Energy Authority (IAEA) 917, 918, 920
jurisdiction 927
limitation of liability 323–4, 919, 924–6
nature and canalization of liability 923–4
negligence 924
non-prohibited activities 915–16
OECD 323–4, 916
Paris/Brussels regime 1960 323–4, 516, 519, 916–27
prescription for compensation requests 926
Price Anderson amendment to the 1954 Atomic Energy Act (United States) 916
priority given to certain victims 926
space objects 920
special drawing rights (SDRs) 917, 924–5
technical application, field of 922–3
third party nuclear liability 916–28
Vienna system 323–4, 516, 917, 918–28
warships 921
Nuremberg Military Tribunal 18, 321–2, 405, 712–13, 718–19
‘objectivization’ of international responsibility 8–11, 14–15
occupation 287, 288, 443, 678–9, 681–2
Oda, Shigeru 554, 1013–14
officials of state 22, 304–6, 326, 738, 1080
oil pollution
allocation of responsibility for acts not prohibited by international law 517, 519
Bunker Convention 896, 897–8, 900, 901
Civil Liability Convention (CLC) 517, 519, 884, 896–7, 900
exclusive economic zones 897
IOPC Fund 519, 900–1
limitation of liability 896–7, 900
strict liability 896–7, 900
territorial sea 897
treaties 896–7
omissions and actions 355–63
ARSIWA 355–63
attribution 208–9, 240–1, 260, 278, 356, 360–1
causation 361
cessation 548
complicity 359
consequences of distinction 360–3
customary international law 357, 358–9
definition 356–60
due diligence 358–60, 729, 731–2
fault 355, 361
Genocide Convention 359
Hague Convention (VIII) on Laying of Automatic Submarine Contact Mines 360
individuals, attribution and 260, 278
Inter-American Claims Tribunal 356
organs of the state, attribution and 240–1
positive acts 360, 361, 362–3
primary rules 356, 362
restitution 362–3
state sovereignty 356–8
territorial scope of protection 732
treaties 357
Vienna Convention on Diplomatic and Consular Relations 358
women 731–2
wrongful omissions 357–60
Oppenheim, Lassa 1207
ordre public 116, 451, 1184
organs of the state 175–6, 180–2, 488 see also organs of the state, attribution and
organs of the state, attribution and 203–6, 237–8, 239–44
armed bands and criminal groups 332–6, 339
control, directions or instructions 229
de facto organs 239, 243, 246–7, 249, 254–5, 265–71, 274
de jure organs 229–32, 239, 254, 265, 274
definition 239
external relations 239
federal states 242
Harvard Research 1929 243
individuals 238, 265–71, 274
insurrectional movements 247, 249, 254–5
joint organs 283
judicial decisions 240
legislative organs 240
omissions 240–1
remedies, exhaustion of local 240–1
separation of powers 239
structure of state, organs that pertain to 239–41
subordinate organs 240–3
territorial communities 241–3
United States-Mexico Claims Commission 242–3
Ospina, Valencia 91
ozone layer 527, 809–11
pacta sunt servanda 18, 546
Padilla Nervo, Luis 1006
parallel proceedings, stay for 841–2
passengers by sea, carriage of 896, 899
Pauwelyn, Joost 146, 156
peace negotiations 1088
peace treaties 988
peaceful settlement of disputes 1149–50, 1152–4
pecuniary obligations, enforcement of 829–31
Pellet, Alain 197, 460, 709, 725–6, 736, 981
Pelzer, N 919
(p. 1283) actio popularis by states on behalf of injured persons 997–1002
African Charter on Human and Peoples’ Rights 995
African Commission on Human Rights 997
apartheid 994, 996, 998–1001
ARSIWA 994, 999–1000
cessation 1000
characterization of situation 1000
collective rights 994–1000
colonialism 999, 1001
contribution to situation 1000
decentralized state action 1000–2
Declaration on Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities 995
definition of minority 993
definition of peoples 993
discrimination 994, 996
erga omnes obligations 998, 1002
existence, right to 995
General Assembly resolutions 995
genocide 994, 995–7, 998, 999, 1001
Human Rights Council 996–7
indigenous people 997
individuals composing the minority 995
institutionalized state action 999–1000
International Covenant on Civil and Political Rights 994, 995
International Covenant on Economic, Social and Cultural Rights 994, 996
International Convention on the Elimination of All Forms of Racial Discrimination 997
jus cogens 998–1001
lawful measures 1000
legal capacity of injured peoples and minorities, limited 996–7
natural resources, permanent sovereignty over 995
racial discrimination 996, 998–1000
recognition of situations 1000
reparation 1000
self-determination 995, 997, 998, 999–1000, 1002
simple beneficiaries of rights, as 994–7
socio-economic and cultural development 995
UN Charter 995, 1000
peremptory norms see jus cogens
persona non grata 150–1
personal injury, compensation for 603, 604–5
persons, jurisdiction over 5, 19, 821–2, 1078–9
Phillimore, Robert 1159
piracy 18
plurality of injured states 656–7, 949-54
ARSIWA 949–54
collective obligations 950–4
compensation 953
content of claim, determining the 953
diplomatic relations 950
identification of injured states 951–2
injured state, notion of 951
invocation of responsibility 935, 949–54
linked acts 949–50
nature and scope of obligation breached 950–1
proportionality 954
reclamation 953
restitution 953
unilateralism versus solidarity in establishing responsibility 952–3
wrongful acts giving rise to plurality 949–52
plurality of responsible states 281–4, 289
political injuries 625–8
‘polluter pays’ principle 805, 877–84
allocation of responsibility for acts not prohibited by international law 518, 519
ARSIWA 882
Civil Liability Convention for Oil Pollution 884
Climate Change Convention 877
compensation 881
competition 878
definition of pollution 883–4
due diligence 882
economic principle, as 877–9, 881
enforcement 879–80
Environmental Liability Directive 878, 881, 883–4
implementation of principle 881–4
legal value of principle 879–84
Lugano Convention on Civil Liability for Damage to the Environment 883–4
margin of appreciation 879
national laws 880
OECD 877–8, 881
Rio Declaration 878, 879-81
soft law 879, 880
state aid 878
Stockholm Declaration 882
strict liability 10
treaties 878–80, 883
pollution see environment; oil pollution; ‘polluter pays’ principle
positive obligations
content of obligations 371–4, 377–9
European Court of Human Rights 729–30
negative obligations 371–4, 377–9
precautionary principle 522, 526–33
Bergen Declaration 527
burden of proof 529–30
economic dimension 529
environment 522, 526–32, 805–6
(p. 1284) European Union 528, 531
legal status 530–2
London Declaration on North Sea 527
marine environment 528
Montreal Protocol on Ozone Layer 527
nuclear tests 531
origins of concept 526–7
Ozone Layer Convention 527
primary rule 533
Rio Declaration 527, 529, 531
secondary rule 533
Stockholm Declaration 526, 527
Transboundary situations 528
treaty regimes 527–8
universal environmental instruments 527–32
WTO law 532
precedent 38–43
Anglo-Saxon systems 41
arbitration 40, 42
classic period 39, 41, 43–4
codification 37–44
compensation 539
compromis 40
conflicts 40
developing countries 41
development of law of responsibility 37–44
direct recourse 39
evolution of case law 39–40
formal references 41–3
governmental authority, persons or entities exercising elements of 245–6
hierarchy 42
individuals, attribution and 266–7, 273
insurrectional movements, attribution and 249–53
international organizations, attribution and 301–3, 310–11
interpretation 40, 43
inter-state arbitration 40
negotiations 1090
primary obligations 38, 39, 40, 52
rule of law 38
sources of law, relationship with other 37–8
Special Rapporteurs 41, 42–3
state practice 41
prescription 926, 1035–6, 1045–8 see also acquiescence, extinctive prescription, waiver
prevention 521–6
acts not prohibited by international law 522, 523–5
air pollution 523
ARSIWA 521–5
challenges and insufficiencies 525–6
content of obligations 371–2, 374
diplomatic relations 523
due diligence 523
environment 521–6, 804–6, 807–8
hazardous activities, ILC Articles on prevention of transboundary harm from (2001) 522, 524–5
injunctions 543
Institut de Droit International on Environmental Damage 523
internationally wrongful acts 521–3
liability in absence of an internationally wrongful act 505, 507, 508, 511–12
negotiations 1087
precautionary principle 522, 525–6
primary rule 521, 523–6
reparation, division between responsible entities of 647
repression, obligations of 374
secondary rule 521, 522, 523–6
Vienna Convention on Diplomatic Relations 523
primacy
compensation 581–2, 585–6, 599–601
restitution 581–6, 589–90, 595, 596–7, 601
primary rules/obligations see also secondary rules
ARSIWA 27–33
attribution 225
breach of EC law, Commission’s reasoned opinion on 32–3
cessation 546–8
codification exercise 27–9, 32
consent 440–1, 446
content of obligations 372, 377, 380
due diligence 50
individuals 276, 318
national courts 8
omissions 356, 362
precedent 38, 39, 40, 52
remedies 538
reparation 567, 573, 580, 594
restitution 585
self-defence 31, 466
treaties 107
UN Charter 116
(p. 1285) prison guards, private security firms as 727
prisoners of war, countermeasures against 1189
ARSIWA
drafts prior to 54–5
increase in private initiatives generated by codification 56
environmental damage 54
foreigners or their property, injury to 53–4, 55–6
Harvard Research 1929 54, 55–6, 59
impact of private drafts 58
increase in private initiatives generated by codification 56
Institut de Droit International 54, 55-8
international organizations 54, 56, 57–8
list 54
specific topics 53–6
private persons see individuals
privileges and immunities
attribution 228
diplomatic law, rules of 151–2, 849, 943–4
functional protection 1077–8, 1079
United Nations 849, 1078, 1079
property see also foreigners and their property, damage to
diplomatic or consular inviolability 111–12, 1206–8
valuation 103, 606–10
proportionality
ARSIWA 1157–67
assessment 1157–67
compensation 579
contribution to injury 643
countermeasures 470, 937, 954, 1110, 1144, 1154, 1157–67, 1175, 1212
diplomatic law, rules of 152
environment 812
necessity 493
reparation 567, 579
restitution 566–7, 579, 596–7, 1032
satisfaction 635
self-contained regimes and lex specialis 144–5, 150
UN Charter 122, 137
WTO law 800, 1166–7
consent to prosecution by international tribunals 718–19
decentralized prosecutions, limits on 722–3
diplomatic agents 722
foreign judges 720–3
immunity of state 720–3
individual agents of state 719–22
international tribunals, creation of 718–19
protect and fulfil, obligation to 731–2
provisional or interim measures
ARSIWA 1172
countermeasures, relationship with 1151, 1154, 1169, 1172–3
environment 805
proximity 605
psychological and emotional element 482–3, 604–5, 908, 1091
public order 116, 451, 1184
Pufendorf, Samuel von 47
punishment see also punitive damages
countermeasures 706–7, 1162–3
sanctions 14
satisfaction 623–5, 629, 630–2, 636
punitive damages 605, 667–75
aggravated damages 667–70, 672–5
ARSIWA 672–4
cases 669–72
civil law systems 668
common law systems 667–8
criminal offences against aliens 669–70
diplomatic practice 669
early cases 669–70
exemplary damages 667, 673
international crimes 406, 410, 669–70, 673, 708
international practice 669–72
jus cogens 674
lex specialis 674
modern cases 671–2
moral damage 668–9, 672
retribution 670
serious breaches 673–4
sovereign equality principle 668
state practice 669, 675
substantial damages 667, 670, 672, 674
terminology 668–9
quasi-delictual responsibility 106
Quentin-Baxter, Robert 29–30, 32, 515
race discrimination see also apartheid
International Convention on the Elimination of All Forms of Racial Discrimination 986, 997
peoples and minorities 996, 998–1000
(p. 1286) Ralston, Jackson H 1047
Rao, Pemmaraju 515, 808
Rapisardi-Mirabelli, Andrea 1131
ratione materiae jurisdiction see subject matter jurisdiction
ratione personae jurisdiction 5, 19, 821–2, 1078–9
rebel movements see insurrectional movements, attribution and
reciprocity
countermeasures 1131, 1132–4, 1158–9
diplomatic law, rules of 150–1
human rights treaties 160–1
national laws 175, 177, 179
reconceptualization of state responsibility 9–10
Red Cross, International Committee of the 346–7, 351, 1191
Red Crusader inquiry 1100
refugees 89
Reisman, W Michael 835
relational responsibility 48
remedies see also compensation; damages; ; provisional and interim measures;
reparation; restitution; satisfaction
individuals 22–3
injunctions 543, 750, 757, 759, 830–1, 841
specific performance 829, 830
Vienna Convention on Consular Relations 538–42
WTO law 156, 797–801
renvoi 49, 119
reparation 563–86 see also compensation; restitution; satisfaction
adequacy 579–80
affirmation of principle 563–5
aiding or assisting 650–4, 658
Alien Tort Claims Act (United States) 990
apartheid 989
arbitration 1107, 1109
ARSIWA 109–10, 563–86, 594–5, 613–36, 649–52, 656–7, 829, 887–92, 931–2
assurances and guarantees of nonrepetition 551, 555–6, 573–4, 580
attribution 276, 284, 302, 647, 649, 652, 653–4
beneficiaries of obligation 567
breach of international obligations 212–14, 218, 961–3
call for reparation 1151
causal link 566–7, 569–70
character of violated obligations 416, 420
coercion 653, 654
collective obligations 567–8
combinations of reparation 574, 580–1
common intention of parties 574–9
consent 440
content of obligation 565–7
contractual responsibility and quasi-delictual responsibility 109–10
contribution to injury 570, 639–40, 642, 644–5, 936
control 654, 659–60
countermeasures 470, 568–9, 893, 1151, 1158–60, 1170
customary international law 573, 580, 583, 652, 1151
damage and injury, difference between 569
damage requirement 12, 569
damages 647–8, 657–9
dangerous or hazardous activities 11, 12
definition of responsibility in international law 5–6, 11, 194
diplomatic protection 150, 1068, 1069
direction and assistance 653, 654
distress 484, 892
double damages 647–8, 657
elections 1032–3
environment 804, 806–9
erga omnes obligations 568–9, 594
European Court of Human Rights 650, 659–60, 770
European Union 154, 862, 866, 874, 893, 989–90
fault 6, 110, 890–1
force majeure 570, 892–3
foreigners and their property, damage to 69–70, 71, 73
forms of reparation
election between 935
interaction between 573–88
inter-state forms 829–32
full reparation principle 565–6, 600–2
functional protection 1073, 1076, 1081
general international law, interaction based on 579–86
hierarchy 573, 579, 581–6
ICSID arbitration 818, 820, 829–32
implementation 176–7, 934–6
impunity 652
injured state 934–6
compensation 936
definition of 195–6, 567–8
intention 574–9, 650–1
Inter-American human rights mechanisms 739–40, 748–52, 755, 757–8, 987
interest 613–22
International Covenant on Civil and Political Rights 986–8
(p. 1287) international crimes 321–2, 406, 568–9, 704, 706–9, 989
International Tribunal for the former Yugoslavia 321
international organizations 302, 648, 653–6, 660–4, 972–4
internationally wrongful act, definition of an 195–6, 198–200
inter-state forms of reparation 829–32
joint and several liability 659, 662–3
jurisdiction 663
jus cogens 110, 567, 580, 594
lex specialis 149, 594–5
liability in absence of an internationally wrongful act 505–9, 512
limitations 565–7, 596–7
mitigation 888
mixed regimes 990
NATO 654
necessity 888–90
negotiations 1096
non ultra petita rule 578
notice of claim by injured states 1030, 1032–3
nullity of treaty 110
obligation to make reparation 563–70
plurality of claimants 656–7, 953
precluding wrongfulness, circumstances 887–93
prevention 647
primary obligation 567, 573, 580, 594
procedural aspects 663–5, 1151
proportionality 567, 579
reparable damage, definition of 906–9
reparation payable, definition of 909
review and reconsideration of convictions and sentences 560–1, 584–5, 592–3, 595
sanctions 655
Security Council 134–5, 655
self-contained regimes and lex specialis 149, 594
shared wrongfulness, requirement of 651–3
space law 903, 906–13
states other than an injured state 568
state-to-state reparation 154
subsistence, deprivation of population of means of 566
territorial jurisdiction 648–9
transparency of the state 717, 719–20
treaties 109–10, 651–2
types of wrongful conduct 649–51
United Nations 660, 654
United States 990
Vienna Convention on the Law of Treaties 110, 648, 651–2
wrongfulness, circumstances precluding 887–93
WTO law 156, 157, 798
representation 287, 625
repression 371–2, 374, 428, 706–9
reprisals see also belligerent reprisals; countermeasures; retaliation
civilians, targeting 1189–93, 1204
countermeasures 1130, 1149–50, 1181, 1188–95, 1204, 1207–8
definition 1130
diplomatic agents 1207–8
Geneva Conventions 1189–93
humanitarian law 1181, 1188–95
procedural conditions 1149–50
use of force 1130
use of term 1130
rescue of nationals abroad 1068
reservations 66, 270, 484–9, 771, 1123
restitution 574–86, 589–97 see also reparation
adequacy 580–1
ARSIWA 574–86
cases 595-6
cessation 548–9, 590
choice of the injured state 593–4
combined with other reparation 574, 580–1
compensation 574–8, 582, 590, 596
adequacy 581
amount 582, 586
choice of injured state 593
common intention 576
expropriation or nationalisation 583
injured party, requests by 585–6
primacy 581–2, 585–6, 601
proportionality 579
satisfaction 578
consent 892
declaratory judgments 591–2
definition 573, 590
European Union 866
expropriation or nationalization 583, 594, 595–6, 848
foreign owned property, expropriation of 594, 595–6
ICSID arbitration 829–30, 832
impossibility 596–7
individuals 321
injured party, requests by 585
Inter-American human rights mechanisms 749–51, 759
international crimes 321–2, 594
International Tribunal for the former Yugoslavia 321
juridical restitution 829–30
jus cogens 580, 594
(p. 1288) legal acts, annulment of 591, 596
legal consequences of state responsibility 539–40, 589–97
legal restitution 590–3
limits 596–7
material restitution 590–3, 595–6, 829
national judgments, revocation of 591, 596
non-injured parties, role of 593
omissions 362–3
primacy 581–6, 589–90, 595, 596–7, 601, 829
primary rule 585
proportionality 566–7, 579, 596–7, 1032
recent requests 595–6
review and reconsideration of sentences and convictions 584–5, 592–3, 595
satisfaction 578, 581, 633
state aid 866
Vienna Convention on Consular Relations 539–40, 591–5
result, obligations of 375–81, 395
retaliation 156–7, 471–2 see also countermeasures; reprisals
retorsion 1131–2, 1145, 1186–7 see also countermeasures
retribution 670
retroactivity 399–402, 1041
Reuter, Paul 3, 29, 32, 151, 262, 266, 276, 375, 378, 563, 641, 1128, 1208
review and reconsideration of convictions and sentences 560–1, 584–5, 592–3, 595
revolutionary movements see insurrectional movements, attribution and
Rigaux, François 711
Rio Declaration 100, 101, 527, 529, 531, 878–81
Riphagen, Willem
assurances and guarantees of non-repetition 551, 555–6
codification process 76, 80
cooperation 695
corporations 1006
countermeasures 1120, 1161, 1180
injured state, definition of 922–3
non-assistance to responsible state, obligation of 687–8, 691
primary rule 29
reprisals 1207–8
self-contained regimes 144–5, 151–2, 1205
Rivier, Alphonse 1131
Rolin, Henri 1100
Root, Elihu 1097
Rosenne, Shabtai 431
Roth, A 55–6
rule of law 38, 545–6, 548–9, 1103
Russian Sea Fur Seals Incident 493
Rwanda see International Criminal Tribunal for Rwanda
safeguard clauses 117–22, 279, 801
Sahnoun, Mohamed 488
Salmon, Jean 435–6, 499, 642, 1115
sanctions see also Security Council sanctions
armed bands and criminal groups, attribution and 339–40
circumventing sanctions 123
collective security 126–37
competition 864
countermeasures 126, 472, 1128, 1134–5, 1140–2, 1146, 1186–8, 1203–4
definition 125–6, 1134
economic sanctions 130
European Union 320, 864, 1141
individuals 319–21, 325
international courts or tribunals, resort to 719
International Covenant on Economic, Social and Cultural Rights 1187–8, 1203–4
international crimes 213, 413, 703–9, 711–12
international law, respect for rules of 13–14
international responsibility as a sanction 13
listing of persons 319–20
maintenance of international peace and security 125–37
non-recognition of an unlawful situation, obligation of 680
punitive sanctions 14
solidarity and neutrality 700
targeted or smart sanctions 130
UN Charter 123, 125–37
use of force 126, 1202–4
WTO law 156–7, 708
Santulli, Carlo 177
satisfaction 623–36 see also reparation
adequacy 580–1
apologies and statements of regret 630, 633, 634–5
attribution 624
bilateral obligations 626–7
classic conception 625
combined with other reparation 574, 580–1
compensation 573, 578, 581, 631, 633–5
condemnations 632
consequences of internationally wrongful acts, links with other 633–4
constructive satisfaction 633
damages
nominal or symbolic 633
punitive 633, 635
declaratory judgments 629, 631–2
definition 623
diplomatic practice 625, 634–5
discriminatory practice 629
disputes 634–6
(p. 1289) established forms of satisfaction 630–3
European Union 866
examples 573
expropriation and nationalization 629
fault 623–4, 626
forms of satisfaction 629–34
funds directed to humanitarian goals, creation of 633
humiliating responsibility state 1032
indirect injury to the state 628–9
injury, definition of 625–9
interdependent obligations 626
jurisdictional practice 634–5
jus cogens 627
legal injury, concept of 626, 628
limits 635–6
modern conception 626–7
moral and political injuries 625–8
outmoded forms of satisfaction 633
positivist conception 626
proportionality 635
punishment 623–5, 629, 630–2, 636
punitive damages 633, 673
representative theory 625
responsible persons, punishment of 630–1
restitution 578, 581, 633
state sovereignty, injury to 625, 630
treaties 627
UN Charter 627
Scelle, George 174, 183, 719
Schwebel, Stephen M 30, 1013–14
Scott, James Brown 1097
sea, law of the see Law of the Sea Convention; maritime law
secession 250, 251–2, 292
secondary rules/obligations
cessation 546, 548
consent 29–30
European Union 155, 862
national laws 177
precedent 40
prevention 521, 522, 523–6
self-contained regimes and lex specialis 142, 143–5
UN Charter 116, 117, 123
security
collective security 14, 116–19, 125–38, 462–3, 974
maintenance of international peace and security 116–22, 125–37, 319–20
Security Council see also Security Council sanctions
accountability 134
armed bands and criminal groups, attribution and 338, 339–40
character of violated obligations 419
collective security 127–37
countermeasures 134–5, 1135, 1137–8, 1140–4, 1147–8, 1202–3
form of sanctions 133
individual criminal responsibility 132
International Criminal Court, referral and deferral powers and 132
international organizations 133, 299, 302, 308
judicial review, limits of 134
jus cogens 137
legislative resolutions, legitimacy of 134
Libya, state-sponsored terrorism and 134
limits to competence 134–7
negotiations 1092
non-state entities 129–30
proportionality 137
resolutions 679–86, 689, 849–51, 853–6
terrorism 129
UN Charter 116, 119–21, 123–4, 127–35, 138
UN Compensation Commission 134, 849–51, 853–6
use of force 31, 131
Security Council sanctions 127–37
abuse, safeguards against 135
countermeasures 1135, 1140–2, 1202–3
listing of persons 319–20
smart or targeted 136
vertical 133, 135–6
(p. 1290) Seidl-Hohenveldern, Ignaz 167
ARSIWA 139–40, 144–5
case studies 140–1, 150–62
countermeasures 144, 145, 149–50, 1205–7
customary international law 142, 144–7, 149
definition of self-contained regimes 142–5
European Union 141–2, 145, 147–8, 152–5
fragmented legal order 147–8
gap-filling 146
individuals, protection of 989–90
lex generalis 140–11, 147–62
multilateral environmental agreements (MEAs) 141
precedents 142–3
problem of specialty of norms 141–2
proportionality 144–5, 150
secondary rules 142, 143–5
terminology 143–4
treaties 24, 140, 145–6
UN Charter 117, 121
unified legal order, lex specialis in a 146–7
unilateral action 149
Vienna Convention on Diplomatic Relations 142
WTO law 141, 143, 145, 148, 155–8, 791–3, 797, 801, 1167
abuse 462
admissibility, conditions of 461–5
armed attacks, definition of 462–3
ARSIWA 31, 455–66
character of victim 464–5
collateral damage 464
collective self-defence 462–3, 974
double character 459–61
circumstances precluding wrongfulness 427–31, 434, 435–6, 455–66
Hague Conference of 1930 455
insurrectionist groups 463
jus cogens 31, 465–6
lawfulness of measures 465–6
legal framework, implementation of 461–6
national liberation movements 463
natural law 456
necessity 457–9, 462–5, 495–6
normative sources 456–9
objectivity 459–60
primary rule, as 31, 466
secondary rule, as 29–31
Security Council 31, 462–4
subjectivity 457–9
terrorist groups 464
UN Charter 455–65
use of force 31, 457–8, 461
self-determination
negotiations 1097
non-recognition of an unlawful situation, obligation of 682, 686
peoples and minorities 995, 997, 998, 999–1000, 1002
sentences, review and reconsideration of convictions and 560–1, 584–5, 592–3, 595
separation of powers 239
serious breaches
aggression 422, 424, 425
ambiguity of requirement 423–5
ARSIWA 421–6
character of violated obligations 420
cooperation in termination of breaches, obligation of 22–3
criminal responsibility 84–6, 106
impunity 22–3
international crimes 409–11, 422–5
jus cogens 22–3, 422, 425–6
remedies 22–3
self-determination 423–4
use or threat of force 422–3
Shahabuddeen, Mohammed 657
shareholders
bilateral investment treaties 1013, 1014–15
corporations, injuries to 1007, 1010, 1011–19
dividends 1012–13
nationality 1019, 1057–60
UN Compensation Commission 850–1
Sicilianos, Linos—Alexander 1000, 1208
Simma, Bruno 446–7, 960, 1184–5, 1205
small claims 602–3
Smith, Ian 679
socio-economic and cultural development 995
soft law
ARSIWA 188
definition 168–9
estoppel 169
form 168
gentlemen’s agreements 167
good faith 169
individuals 327–8
(p. 1291) injurious consequences of acts not prohibited by international law, liability for 100–1
‘polluter pays’ principle 879, 880
soft responsibility 165, 167–9, 170–1
ARSIWA 166, 169, 171
causal responsibility 167
declarations 170
environment 811
fault 167
hazardous activities, ILC Articles on prevention of transboundary harm from (2001) 166–7, 168
international responsibility 170–1
liability versus responsibility 165–7
objective responsibility 166
ozone layer, Montreal Protocol on 811
soft law 165, 167–9, 170–1
terminology 165–6
Sohn, Louis B 56
solidarity 197–8, 700, 809, 953
Sørensen, Max 481
source of obligations 365–9, 372–3
sovereign equality clause 668
sovereign immunity see state immunity
space law 903–13
agent, definition of responsible 904–6
allocation of responsibility for acts not prohibited by international law 516
apportionment of compensation 911
ARSIWA 903
attribution 905
Claims Commission 911–12
collisions 911
compensable damage, definition and extent of 907–8
expenses 908
implementation of responsibility 909–13
insurance 905
International Convention for Damage Caused by Space Objects 1972 904, 906–13, 920
international organizations 906, 910, 911
joint and several liability 905–6, 911–12
launching, definition of 907
launching state, concept of 904–6, 911
negligence 906
nuclear energy 920
objects, definition of space 906–7
Outer Space Treaty 1967 903–4, 906, 909
performing reparation, modalities for 911
principles of responsibility 904–9
psychological damage 908
UN Committee on Peaceful Uses of Outer Space 903
Special Court for Sierra Leone 254
special drawing rights (SDRs) 917, 924–5
special laws see lex specialis
Special Tribunal for Lebanon 132
specific performance 829, 830
Spinedi, Marina 77, 707
Stalin, Josef 321
state aid 866, 878
state immunity
enforcement of judgments 841
European Tribunal, proposal for 1116
functional immunity 720–2
individuals 720–3
justifications for denial 720–2
national courts 21
‘necessary corollary of law’, state responsibility as 4
state organs see organs of the state
states other than the injured State
reparation 568
state practice
international organizations, attribution and 310–11
precedent 41
punitive damages 669, 675
state sovereignty
attribution 202–3
definition of responsibility in international law 3, 4–5, 6
direct recourse 39
individuals 319
lex specialis 140
‘necessary corollary of law’, state responsibility as 4–5
omissions 356–8
precedent 39
prosecutions 718
aid and assistance to predecessor state 292
ARSIWA 291–2, 965–7
attribution 292
cession 292
compensation 966
continuity of nationality 965
damages, distinction between liquidated and unliquidated 294
dependent territories, former 292–3
earlier practice and doctrine 292–6
(p. 1292) fault 294
injured states, rights of 965–7
national laws 295
non-transmissibility theory 293–4
predecessor state ceases to exist, where the 966
reparation 295
secession 292
secondary obligations 291–2, 295–6
state practice 292
tort 291–4
unification 292
stateless persons and refugees 89
Stern, Brigitte 359, 641, 642–643
strict liability
Athens Convention on Carriage of Passengers by Sea, draft protocol to 896, 899
Bunker Convention 896, 897–9, 900
Civil Liability Convention (CLC) 896–7, 900
dangerous or hazardous activities 10–11
environment 10
HNS Convention 898–9, 900
injurious consequences of acts not prohibited by international law, liability for 96, 101, 102, 104
national laws 104
treaties 10, 896–9
Strupp, Karl 55
subject matter jurisdiction
attribution 225
compromis or special agreement 1118–19, 1122
grants of jurisdiction 1118–23
International Court of Justice 1117–18, 1119–23
International Tribunal for the Law of the Sea 1117, 1118–19, 1121–3
statutory jurisdiction 1117–18
unilateral declarations 1118, 1122–3
subjects of dispute settlement 1123–4
subjects of international law 17–20, 200–2
submarine contact mines 360
subsidiarity 21
Subsidies and Countervailing Measures (SCM) Agreement 1166–7
succession of states see state succession
summits, negotiations at 1088
supervise, obligation of 804–5
sustainable development 805
system, state responsibility as a 78
systematic policy 391–2
Tams, Christian 633
Tanaka, Kotaro 1006
temporal character of breaches 214–17, 275
tempus regit actum 397, 398, 400
territorial jurisdiction
intertemporal law, relevance of 397, 398
nuclear energy 922
territorial acquisitions and occupation 287, 288, 443, 678–9, 681–2
territorial sea 897
terrorism
armed bands and criminal groups, attribution and 331–2, 340–1
attribution 228
environment 813
Financial Action Task Force (FATF) Special Recommendation VIII on financing of terrorism 352
self-defence 464
Special Tribunal for Lebanon 132
state-sponsored terrorism 129
war against terrorism 352
time limits
arbitration 1111
negotiations 1171
prescription 926, 1035–6, 1045–8
nuclear energy 926
temporal character of breaches 214–17, 275
Tokyo Military Tribunal 18, 718
Tomuschat, Christian 161
tort see delict/tort
torture 254, 325–6, 738, 862
trafficking 332
treaties 105–13 see also particular treaties; Vienna Convention on the Law of Treaties
ARSIWA 107–13
attribution 223
bilateral treaties 24
breach of international obligations 212
conciliation 1101
consequences of breach 107–8
contractual and tortious responsibility, distinction between 106
corporations, injuries to 1005, 1018
(p. 1293) countermeasures 110–13, 1132–4, 1154, 1178–81, 1183–7, 1213
environment 1213
human rights 1178–81, 1183–7
suspension 1178–80, 1183, 1185
customary international law 106, 1133–4, 1181, 1199
environment 324–5, 1213
force majeure 108
human rights treaties 159–62, 986–9, 1178–87
impossibility 108
lex specialis 24, 140, 145–6
liability in absence of an internationally wrongful act 510, 511–12
negotiations 1094, 1096–7
nuclear liability 323–4, 516, 519, 916–27
nullity 110
oil pollution 896–7
omissions 357
pacta sunt servanda 18
peace treaties 988
‘polluter pays’ principle 878–80, 883
primary and secondary obligations, distinction between 107
satisfaction 627
self-contained regimes and lex specialis 24, 145–6
source of obligations 365, 366–8
space law 903–4, 906–13
strict liability 10, 896–9
suspension of obligations 22, 108, 112–13, 537, 946, 1178–80, 1183, 1185
termination of treaties 22, 108, 112, 537
typology of state responsibility 21–2
validity 398–9
waiver 1037
wrongfulness 107–8
WTO law 156
tribunals see international courts or tribunals, resort to; particular courts and
tribunals
Triepel, Heinrich 174
Tsuruoka, Senjin 28
Tunkin, Grigory I 30–1
typology of state responsibility 21–3
ultra vires acts
attribution 203, 223, 230
individuals 263, 268, 271
individuals, attribution and 263, 268, 271
organs of state 175–6
UN Charter 115–38
aggression 124
aid or assistance given to another state in breach of Charter 123
ARSIWA 115–38
attribution 123
breaches of Charter obligations 122–4, 138
collective security 116–19, 126–38
countermeasures 123, 124, 1140–2, 1146, 1149–50, 1152, 1171, 1202
customary international law 116, 118–19, 121–2, 137–8
General Assembly 119–20, 124, 138
hierarchy of norms 116, 137
jus cogens 116, 121, 123
lex specialis 117, 121
maintenance of international peace and security 116–20, 122, 125–37, 1149–50
necessity 122
negotiations 1092
ordre public 116
primary rules 116
proportionality 122, 137
renvoi 119
safeguard clause 117–22
sanctions 123, 125–37
satisfaction 627
secondary rules 116, 117, 123
Security Council 116, 119–21, 123–4, 127–35, 138
use of force 1202
UN Compensation Commission 602, 604–7, 849–60
aggression 849
applicable law 851
armed forces of Allied Coalition 854, 855
claimants 853–5
classification of claims 853–7
Commissioners 850–1, 853
competence ratione materiae 855–7
corporations and other legal entities 854
date of losses 855
direct losses 855–8
dual nationality, Iraqis with 854
environment 604, 857, 858
expenses of proceedings 853
Governing Council 850–8
(p. 1294) government claims 854, 855
indirect losses 855–8
individual claims 853–4
interest 615, 857
international organizations, claims by 854
Iraqi nationals, claims by 854
letters of credit 855
mass claims processing 857
military expenses, inadmissibility of 856
natural resources, damage to 857, 858
oral hearings 852–3
origin and legal basis 849–50
Panels 850–3, 855–8
procedure 851–2
Provisional Rules 851–3
recommendations 850–1
reimbursement of payments made or relief provided 857
reparation 660
reports 852
Secretariat 851, 852
Security Council 132, 134, 849–51, 853–6
shareholders of companies 855
structure 850–1
time limits 857–8
trade embargo, losses attributable to 856
UN Charter 850
verification process 851
UNIDROIT Principles of International Commercial Contracts 833, 838
unilateral acts
attribution 222–3
self-contained regimes and lex specialis 149
waiver 1037
WTO law 157, 798–9
unincorporated businesses 1010
United Nations (UN) see also General Assembly; Security Council; UN Charter; UN
Compensation Commission
control 299–300
cooperation, obligation of 697, 698–700
functional protection 1074–5, 1078–81
international crimes 411–12, 712
international organizations, attribution and 298–306, 308
legal personality 6–7, 1074–5
multinationals 328
non-assistance to responsible state, obligation of 690–1, 692
privileges and immunities 1078, 1079
reparation, division between responsible entities of 654
Sub-Commission for the Promotion and Protection of Human Rights 328
United States see also Iran-US Claims Tribunal
Alien Tort Claims Act 325–7, 990
nuclear energy, Price Anderson amendment and 916
reparation 990
United States-Mexico Claims Commission 242–3
unity of concept of international responsibility 11–12
Universal Declaration of Human Rights 318–19, 328–9, 1069
use of force see also armed conflicts
ARSIWA 1203–4
authorization 131
collective security 131
consent 446–7
countermeasures 937, 1130, 1202–4, 1209–10
circumstances precluding wrongfulness 432
humanitarian protection 432
jus cogens 1202–3
multiple states, attribution of conduct to 281–2
normative sources 457–8
reprisals 1130
sanctions 126
Security Council 31, 131
self-defence 457–8, 461
UN Charter 1202
Ushakov, Nikolai 30, 279–80, 440
Vallat, Francis 29
valuation of property 103, 606–10
van den Wyngaert, Christine 723
van Tuijl, Peter 344
Vattel, Emmerich de 5, 49, 140, 259–60, 273, 626, 1052, 1060
Verhoeven, Joe 981, 993
Verosta, Stephen 29
vessels or aircraft, entry into territory of 485–6
vicarious responsibility 276 see also derivative responsibility
victims
Victim’s Trust Fund of International Criminal Court 603
Vienna Convention on the Law of Treaties
consent 441–3, 446
erga omnes obligations 959, 1023
jus cogens 410, 422, 449, 450, 1198
national laws 174, 177
non-assistance to responsible state, obligation of 691, 693
(p. 1295) peoples and minorities 998
reparation 110, 648, 651–2
self-defence 466
UN Charter 120
waiver 1038–9, 1041
wrongfulness 107–8
WTO law 792
Vienna Conventions on Diplomatic and Consular Relations
assurances and guarantees of nonrepetition 541–2, 559–61
omissions 358
prevention 523
remedies 538–42
restitution 539–40, 591–5
vigilance, obligation of 805
Virally, Michel 161
volenti non fit injuria 439–40, 1036
waiver 1036–42 see also acquiescence, extinctive prescription, prescription
acquiescence 1043, 1044
aggression 1040–1, 1042
ARSIWA 1035–6, 1038–41, 1049
clauses 1037
competent authorities, by the 1038–9
consent 444
declarations 1038–41
definition 1036–7
disposability 1039–41
environment 1040
examples 1037
form 1038
human rights 1040
identification of bearers of right 1039
implied waiver 1038, 1043, 1044
invalidity, absence of grounds for 1041
jus cogens 1042
limitations 1041–2
multilateral or community obligations 1039–40
national laws 1036
negotiations 1096
requirements 1037–42
retroactivity 1041
treaties 1037
unilateral act of state 1037
Vienna Convention on the Law of Treaties 1038–9, 1041
volenti non fit injuria 1036
war see armed conflicts; war crimes
war crimes 233–5, 811–12
Weeramantry, Christopher 806
Weil, Patrick 167, 826
Weiler, Joseph HH 155
Whiteman, Marjorie 618
whole, obligations owed to international community as a see erga omnes obligations
Williams, Bernard 45
Winiarski, Bohdan 355
WIPO Rules 615
without prejudice clause 428
women 731–2, 776, 777, 986
World Trade Organization see WTO law
Worse Alternative to a Negotiated Agreement (WATNA) 1088
wrongfulness
characterization of acts as internationally wrongful 173–83
circumstances precluding wrongfulness, notion of 427–37, 892–3
definition of an internationally wrongful act 193–218
legal basis for obligation 888–92
reparation 887–93
shared wrongfulness 651–3
types of wrongful conduct 649–51
WTO law 791–801
ARSIWA 155–6, 792–3, 795, 797–800
attribution to WTO members 795–7, 801
burden of proof 794–6
cessation 798
concessions, suspension of 157–8, 798–800
customs unions 795–6
damage or injury requirement 794, 798
damages 158
discrimination 796–7
Dispute Settlement Understanding 155–6, 158, 349–50, 791–2, 794–801, 1087, 1166–7
GATT 155, 792, 793, 794–7, 799
general international law, application of 156–8, 791–3, 800
individuals, involvement of 796–7
interpretation 796
intransgressibility concept 157
legal interest condition 794
lex specialis 141, 143, 145, 148, 155–8, 791–3, 797, 801, 1167
Marrakesh Agreement 155, 791, 1166
negotiations 1087
non-violation complaints 793–4
nullification or impairment of benefit 794, 801
proportionality 800, 1166–7
remedies 156, 797–801
reparation 156, 157, 798
retaliation 156–7
Safeguards Agreement 801
(p. 1296) sanctions 156–7, 798
self-contained regimes 141, 143, 145, 148, 155–8, 791–3, 797, 801, 1167
situation complaints 793–4
Subsidies and Countervailing Measures (SCM) Agreement 800, 1166–7
treaties 156
unilateral action 157, 798–9
violation complaints 793–4
withdrawal of contested measures 798
Xue, Hanqin 961
Young, Iris Marion 353
Zemanek, Karl 165–6
zero sum or non-zero sum negotiations 1089
Zone of Possible Agreement (ZOPA) 1088

Preface: James R Crawford

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Preface

From: The Law of International Responsibility

Content type: Book Content Product: Oxford Scholarly Authorities on

From: The Law of International Responsibility

Content type: Book Content Product: Oxford Scholarly Authorities on

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

PART II INTERNATIONAL RESPONSIBILITY—DEVELOPMENT AND RELATION WITH OTHER

Section 1 Development of the Law of International Responsibility

PART III THE SOURCES OF INTERNATIONAL RESPONSIBILITY

16 Overview of Part One of the Articles on State Responsibility 187

PART IV THE CONTENT OF INTERNATIONAL RESPONSIBILITY

37 Overview of Part Two of the Articles on State Responsibility 537

PART V THE IMPLEMENTATION OF INTERNATIONAL RESPONSIBILITY

61 Overview of Part Three of the Articles on State Responsibility 931

Appendices: The ILC Texts

Appendix 1 Draft articles on State Responsibility provisionally adopted by the

From: The Law of International Responsibility

Content type: Book Content Product: Oxford Scholarly Authorities on

Myriam Benlolo Carabot

Affef Ben Mansour

Laurence Boisson De Chazournes

Jean -Paul Costa

(p. xix) Christian Dominicé

Vera Gowlland -Debbas

Rosario Huesa Vinaixa

(p. xx) Claus Kress

Sir Elihu Lauterpacht

Anna -Karin Lindblom

Anaïs Moutier -Lopet

(p. xxi) Jean Salmon

Linos -Alexander Sicilianos

Jean -Marc Sorel

Jean -Marc Thouvenin

Muriel Ubéda -Saillard

Anne -Laure Vaurs Chaumette

From: The Law of International Responsibility

Content type: Book Content Product: Oxford Scholarly Authorities on

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

Acar v Turkey (App No 24940/94), ECHR, Judgment, 18 December 2001 1103n

ADM see Archer Daniels Midland Company

Aerial Incident (Israel v Bulgaria), ICJ Reports 1959, p 127 1065

Affaire relative a l’acquisition de la nationalité polonaise (Germany v Poland), 24 July 1924, 1

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

Airey v Ireland (App No 6289/73), ECHR, Series A, No 32 (1979), 14 357n

Aksoy v Turkey (App No 21987/93), ECHR Reports 1996-IV 772n

Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities (Case 5/71)

Al-Jedda see R (Al-Jedda)

(p. xxiv) Alliance, (1903–1905) 9 RIAA 140 485

Amco Asia Corporation and others v Indonesia (ICSID Case No ARB/81/1):

American Security and Trust Company (1958) 26 ILR 322 823n

Amnesty International v Zambia, African Commission on Human and Peoples’ Rights,

An v Cyprus (App No 18270/91), E Com HR, Decision on Admissibility, 8 October 1991; 13

Assanidze v Georgia (App No 71503/01), ECHR Reports 2004-II [GC] 584–5