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Complete summary International Responsibility
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A summary with all the required readings and required case law for the course international responsibility.
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International Responsibility - required readingsWeek 1
Required literature
Art. 1 ARSIWA - Responsibility of a State for its internationally wrongful acts
Art. 2 ARSIWA - Elements of an internationally wrongful act of a State
Art. 3 ARSIWA - Characterization of an act of a State as internationally wrongful
Commentaries to the Articles on the Responsibility of States for Internationally Wrongful Acts -
ILC
Primary rules = define the content of the international obligations.; Codification would involve
restating most of substantive customary and conventional international law.
Secondary rules of State responsibility = 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.
Several issues of a general character:
a) The role of international law as distinct from the internal law of the State concerned in
characterizing conduct as unlawful;
b) Determining in what circumstances conduct is to be attributed to the State as a subject of
international law;
c) Specifying when and for what period there is or has been a breach of an international
obligation by a State;
d) Determining in what circumstances a State may be responsible for the conduct of another
State which is incompatible with an international obligation of the latter;
e) Defining the circumstances in which the wrongfulness of conduct under international law
may be precluded;
f) Specifying the content of State responsibility, i.e. the new legal relations that arise from the
commission by a State of an internationally wrongful act, in terms of cessation of the
wrongful act, and reparation for any injury done;
g) Determining any procedural or substantive preconditions for one State to invoke the
responsibility of another State, and the circumstances in which the right to invoke
responsibility may be lost;
h) Laying down the conditions under which a State may be entitled to respond to a breach of an
international obligation by taking countermeasures designed to ensure the fulfilment of the
obligations of the responsible State under these articles.
That every internationally wrongful act of a State entails the responsibility of that State, and thus
gives rise to new international legal relations additional to those which existed before the act took
place, has been widely recognized, both before and since art. 1 ARSIWA was first formulated by the
ILC.
- Anzilotti → described the legal consequences deriving from an internationally wrongful act
exclusively in terms of a binding bilateral relationship thereby established between the
wrongdoing State and the injured State, in which the obligation of the former State to make
reparation is set against the ‘subjective’ right of the latter State to require reparation.
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, - Kelsen → started from the idea that the legal order is a coercive order and saw the
authorization accorded to the injured State to apply a coercive sanction against the responsible
State as the primary legal consequence flowing directly from the wrongful act.
- General international law empowered the injured State to react to a wrong; the
obligation to make reparation was treated as subsidiary, a way by which the
responsible State could avoid the application of coercion.
- Third view → held that the consequences of an internationally wrongful act cannot be limited
either to reparation or to a ‘sanction’. In international law, the wrongful act may give rise to
various types of legal relations, depending on the circumstances.
ICJ Barcelona Traction: ‘’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.’’
● Obligations erga omnes = the obligations of a State to the international community as a
whole.
Art. 2 ARSIWA specifies the conditions required to establish the existence of an internationally
wrongful act of the State, i.e. the constituent elements of such an act.
1) the conduct in question must be attributable to the State under international law.
● An ‘act of the State’ must involve some action or omission by a human being or
group. ‘’States can act only by and through their agents and representatives’’.
● What is crucial is that a given event is sufficiently connected to conduct which is
attributable to the State under one or other of the rules set out in Chapter II.
2) for responsibility to attach to the act of the State, the conduct must constitute a breach of an
international legal obligation for that State at that time.
● ‘’breach of an engagement’’ / ‘’any violation by a State of any obligation’’
→ ‘’an unlawful international act be imputed to it, that is, that there exists a violation of a duty
imposed by an international juridical standard.’’
ICJ Corfu Channel:
- The ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must
have known, of the presence of the mines in its territorial waters and did nothing to warn third
States of their presence.
Art. 3 ARSIWA makes explicit a principle already implicit in art. 2, namely that the characterization
of a given act as internationally wrongful is independent of its characterization as lawful under the
internal law of the State concerned.
1) an act of a State cannot be characterized as internationally wrongful unless it constitutes a
breach of an international obligation, even if it violates a provision of the State’s own law.
2) a State cannot, by pleading that its conduct conforms to the provisions of its internal law,
escape the characterization of that conduct as wrongful by international law.
● The municipal law of a State cannot be invoked to prevent an act of that State form being
characterized as wrongful in international law.
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,State Responsibility and the Unmaking of International Law - Philip Allot
In 1975, the ILC decided on the following structure for the draft articles: part one would concern the
origin of international responsibility; part two would focus on the content, forms, and degrees of
international responsibility; and part three, if the Commission decided to include it, would discuss the
settlement of disputes and the implementation of international responsibility.
The long story of the work of the ILC on the topic of state responsibility may be judged on two levels:
1. the sociological
- It is an exceptionally vivid illustration of the bureaucratization of international
society.
● Bureaucratization = involves not only the dominance of a certain social
group but also the dominance of a certain mentality.
- Increases in population, increases in the volume of international transactions, and
increases in technological, ideological, and especially military power have called
forth a great intensification of activity on the part of specialists. Those specialists
include businessmen, bankers, and technical experts of all kinds, and especially the
professionals of international public life: the politicians, the diplomats, and the
national and international civil servants.
- The working method of the ILC → is a physical manifestation of the undevelopment
of the public life of international society, with all its incestuous intimacy, remoteness,
and technicality, its spurious detachment from the teeming reality beyond the
comforting walls of the UN buildings in Geneva and New York. ; but also a
psychological manifestation of the dominance of a particular sort of governmental
spirit which national societies have been seeking more and more to attenuate.
2. the analytical
The objection to the notion of responsibility is not an insignificant technical or analytical objection. It
is an objection to a particular intellectual structure which has the most serious substantive
consequences. Those consequences are spelled out in stark and painful detail in part one of the ILC’s
draft articles.
1. It consecrates the idea that wrongdoing is the behavior of a general category known as ‘states’
and is not the behavior of morally responsible human beings. → it therefore obscures the fact
that breaches of international law are attributable formally to the legal persons known as
states but morally to the human beings who determine the behavior of states.
2. If responsibility exists as a legal category, it must be given legal substance. General
conditions of responsibility must be created which are then applicable to all rights and duties.
The net result is that the deterrent effect of the imposition of responsibility is seriously
compromised, not only by notionalizing it (1st consequence) but also by leaving room for
argument in every conceivable case of potential responsibility (2nd consequence).
If international lawyers seek the long-term improvement of international society and the increasing
realization of justice, their aim must be to bring together the moral sense of the human being acting in
national society and the moral sense of the human being acting in international society. The values
that the law seeks to make actual are not different in the two realms; they are identical.
An ironic consequence of introducing a concept of international responsibility is that it necessitates
the possibility of attaching liability in exceptional cases to individual human beings by the addition of
another category, the so-called international crime.
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, → such criminal behavior is precisely the behavior for which collective, and not individual, liability is
more appropriate.
● The most heinous international behavior will not be discouraged by attaching liability to
individual human beings if it has the effect of removing legal and moral liability from the
whole society which makes such behavior possible and for whose benefit the behavior may
well be carried out.
○ To attach liability to individual human beings in such cases is the mirror image of
attaching ordinary liability to the notional state. Each leaves the moral force of the
law in its weakest possible state. Executing a few international criminals is not likely
to encourage moral and lawful behavior by whole societies.
The ILC would have been better advised to refuse to work on the topic of state responsibility and to
have offered instead to work on an international law of obligations.
Articles on State Responsibility and the Guiding Principles on Shared Responsibility: A TWAIL
Perspective - B.S. Chimi
● TWAIL = third-world approaches to international law
How material interests of powerful states and non-state actors translate into primary rules of
international law is a complex process that has been subject to much debate. But in the case of
secondary rules of international law the claim is that these are uninflected by interests and power.
ILC members from postcolonial nations did not fully appreciate the implications of the practical
move. What is worse, they did not oppose the subsequent move to bring back primary rules through
the back door. The failure to do so allowed the Western position on compensation for property to be
adopted by the ILC, against the views of postcolonial nations adopted in the Programme and
Declaration of Action on New International Economic Order and the Charter of Economic Rights and
Duties of States.
- What is equally troubling is that while ARSIWA benefitted corporations through rules of state
responsibility, it also adopted a view on the doctrine of ‘attribution’ that almost rules out the
possibility for making states responsible for their conduct.
- By lumping together ‘all human beings’ ‘collectivities’, and ‘corporations’, the ILC was able
to ignore the history of the symbiotic relationship between the corporation and the capitalist
state, including their role in the shaping of international law obligations.
The broad point about the work of the ILC was recognized early on by Phillip Allott when he
observed that the aim of international lawyers should be ‘the long-term improvement of international
society and the increasing realization of justice’. However, the instrumental reasoning of the ILC
helped avoid thinking about how powerful states have historically behaved vis-à-vis weak nations and
peoples.
→ the critical mistake the ILC made was that, in assessing past state practice on secondary rules of
state responsibility, it equated the imperial state with the nation-state.
- The ILC did not consider the possibility of the emergence, or progressive development, of
positive peremptory obligations, which would have called for framing secondary rules that
advanced the values of solidarity and justice. If a justice paradigm had been adopted, the ILC
might have considered the need for flexible application of secondary rules in assessing the
responsibility of weak nations for the violation of an international obligation.
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