Summary LLM International Dispute Resolution - Investment Treaty Arbitration II - Module 2 (State Responsibility)
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Course
LLM
Institution
Queen Mary, University Of London (QMUL)
State responsibility
- Constituent elements
- Legal effects
Attribution of wrongful conduct to states
- State organs
- Entities exercising elements of governmental authority
- Ultra vires acts of State organs/agencies
- Conduct directed/controlled by State
- Subsequent adoption/acknowledg...
The law of state responsibility may be defined as the body of international law dealing with
‘the general conditions under international law for the State to be considered responsible for
wrongful actions or omissions, and the legal consequences which flow therefrom.’1 State
responsibility is formally seen as a direct consequence of States being legal persons bearing
rights and obligations2.
Today the ILC’s Draft Articles on State Responsibility for Internationally
Wrongful Acts adopted in 2001 are the most important sources of law 3. They are a
culmination of the ILC’s efforts to codify the law on state responsibility since ILC was
established in 1947. Many international courts and tribunals have relied upon these Articles 4.
For example, in Rompetrol v Romania5, it was held that despite ILC’s works remaining as a
simple set of draft articles, the ‘degree of approval accorded to them by the UN General
Assembly and in subsequent international practice amply justifies treating the draft Articles
as guidelines for present purposes’.
ILC’s commentary notes ‘The emphasis is on the secondary rules of State
responsibility: that is to say, the general conditions under international law for the State to be
considered responsible for wrongful actions or omissions, and the legal consequences which
flow therefrom. The articles do not attempt to define the content of the international
obligations, the breach of which gives rise to responsibility. This is the function of the
primary rules, whose codification would involve restating most of substantive customary and
conventional international law.’ Thus the law of state responsibility under the ILC Draft
Articles does not deal with the following6: whether a particular primary obligation is in force
for a State or not, its content, consequences of a breach for the continued validity/binding
effect of a primary obligation, cases where States incur obligations to compensate for
injurious consequences not prohibited/expressly permitted, and the responsibility of
international organisations/other non-state entities. Whereas such law deals with the
following as ‘the province of the secondary rules of State responsibility’ 7: the role of
international law as distinct from State’s internal law concerned in characterising conduct as
unlawful, determining when conduct is to be attributed to State as international law, time
periods for breach of international obligations, when State may be responsible for another
State’s conduct incompatible with their international obligation, when wrongfulness of
conduct may be precluded, content of State responsibility (new legal relations arising from
State’s commission of internationally wrongful act, cessation of wrongful act, reparation for
injuries caused), procedural/substantive preconditions for invoking another State’s
responsibility and when such invocation right may be lost, and conditions for when State may
1
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
2
James Crawford, ‘State Responsibility’ in Max Planck Encyclopedia of Public International Law (OUP 2006).
For a detailed overview of the theoretical foundations of State responsibility, see Alain Pellet, ‘The Definition of
Responsibility in International Law’, in James Crawford and others, The Law of International Responsibility
(OUP 2010)
3
International Law Commission (2001), ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts’ (A/56/10)
4
‘Responsibility of States for internationally wrongful acts: Compilation of decisions of international courts,
tribunals and other bodies
(https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/112/80/PDF/N1611280.pdf?OpenElement)’, A/71/80,
(21 April 2016)
5
Rompetrol v Romania, ICSID Case No. ARB/06/3, Award (6 May 2013) para 189
6
International Law Commission (2001), ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries’ (A/56/10) para 4
7
International Law Commission (2001), ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries’ (A/56/10) para 3
,be entitled to respond to breach of international obligations by taking countermeasures
designed to ensure fulfilment of obligations.
Describe the constituent elements of state responsibility.
‘Sui Generis’ nature of state responsibility
International law of state responsibility does not distinguish between types or degrees of
responsibility like criminal, contractual and tortious liability according to the source of the
obligation breached, unlike municipal legal systems which do distinguish them. In Rainbow
Warrior8, the tribunal held that ‘[T]he 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 the violation of a State of any obligation, of whatever origin gives rise
to State responsibility’. Thus Articles 1 and 2 of the ILC Draft Articles simply refer to
‘internationally wrongful acts’ of States. Article 12 states that ‘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.’
Necessary conditions
Articles 1 and 2 of the ILC Draft Articles require two necessary conditions for
‘internationally wrongful acts’: (1) Breach of State’s international obligation; and (2)
Attribution of this act to the State. However, such conditions may not be regarded as
sufficient.
Also, they require no damages as a constituent element. But ILC explained that even
though damage is not necessary, the requirement of damage may be inherent for
demonstrating the breach of the primary obligation itself in that such as the failure to enact a
uniform law under a treaty obligation9.
Furthermore, they require no fault. ILC found that ‘Whether responsibility is
“objective” or “subjective” in this sense depends on the circumstances, including the content
of the primary obligation in question. The articles lay down no general rule in that regard.’
However, fault may be relevant for fixing the quantum of compensation due. Article 39
provides ‘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.’
Irrelevance of State’s domestic law
States cannot use their domestic laws as a shield against breach of international obligations.
Thus the States’ compliance with domestic laws has no relevance towards the law of
international responsibility. Article 3 of ILC Draft Articles provides that ‘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.’ Thus the rule contains two elements; (1) Breach of an international obligation
(not domestic law); and (2) No escape from wrongful conduct even if it conforms with
domestic law. But if international law formally refers to some internal legal standard, the
8
Rainbow Warrior (New Zealand v France), (1990) 82 ILR 500, 551
9
International Law Commission (2001), ‘Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries’ (A/56/10) 36 at para 9; Article 139, § 2, of the United Nations Convention on the Law
of the Sea.
, latter is incorporated into the international norm. Thus a breach occurs with regard to that
international norm.
Residual nature
Rules of customary international law codified in the ILC Draft Articles are of a residual
character. Thus any applicable special rules prevail over inconsistent rules in the ILC Draft
Articles. Article 55 of ILC Draft Articles provides that ‘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.’ This is relevant when a treaty creates a special regime for
state responsibility. For example, Article 139 of United Nations Convention on the Law of
the Sea requires damage as a constituent element. In Responsibilities and Obligations of
States Sponsoring Persons and Entities with Respect to Activities in the Area 10, the
International Tribunal for the Law of the Sea (ITLOS) stated that ‘according to the first
sentence of article 139, paragraph 2, of the Convention, the failure of a sponsoring State to
carry out its responsibilities entails liability only if there is damage. This provision covers
neither the situation in which the sponsoring State has failed to carry out its responsibilities
but there has been no damage, nor the situation in which there has been damage but the
sponsoring State has met its obligations. This constitutes an exception to the customary
international law rule on liability’.
Describe the legal effects of state responsibility.
There are two legal consequences of an internationally wrongful act: (1) Duty to make
reparation (including the obligation of cessation and non-repetition) (Part 2, ILC Draft
Articles); and (2) Aggrieved state’s ability to take countermeasures (Chapter 2, Part 3, ILC
Draft Articles).
Duty to make reparation
The duty to make reparation can be seen as a new obligation to the breached primary
obligation. This duty enjoys primacy in this legal scheme, in which making reparation will
preclude the State from taking countermeasures. Conversely, if they do not accept nor fully
meet the quantum of reparation demanded, the injured State may take countermeasures.
There are two sub-categories of obligations. Firstly, Article 30 of ILC Draft Articles
provides that there is the obligation of cessation of the internationally wrongful act and
offering assurances of non-repetition. Secondly, Article 31 of ILC Draft Articles provides
that there is the duty to make reparation for any damage, whether material or moral. Such
forms of reparation are provided under Articles 35-37, including restitution, compensation
and satisfaction. Lastly, Article 32 reiterates Article 3 rule in that a State may not invoke its
internal law to justify its failure to comply with international legal obligations.
Right to take countermeasures
The aggrieved state’s right to take countermeasures is a legal prerogative, which allows it to
safeguard its interest. Articles 49 to 53 of ILC Draft Articles provides that the injured state
may take countermeasures to induce the responsible state to comply with its obligations,
Responsibilities and Obligations of States Sponsoring persons and Entities with Respect to Activities in the
10
Area (2011), ITLOS/LR, vol. 150, para 178
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